Opinion
D073606
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL ESTRADA et al., Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant James Michael Estrada. Joanna Lynn Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Elias Guevara. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1502339) APPEAL from judgments of the Superior Court of San Bernardino County, Michael A. Smith, Judge. Affirmed as modified. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant James Michael Estrada. Joanna Lynn Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Elias Guevara. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
In the middle of the night, a group of at least three assailants charged into Joey F.'s home and stabbed him repeatedly in the back. Based on that incident, a jury convicted defendants Elias Guevara and James Michael Estrada of first degree burglary with a person present. (Pen. Code, §§ 459, 667.5, subd. (c)(21).) The jury also convicted Estrada of Joey's attempted murder. (§§ 664, 187, subd. (a).)
We refer to the victim in this case by first name and last initial and thereafter by first name only in accord with California Rules of Court, rule 8.90(b)(4).
Further statutory references are to the Penal Code.
The two defendants raise distinct sets of issues on appeal. Guevara first contends that his section 1118.1 motion for judgment of acquittal should have been granted because the prosecution's case in chief failed to establish his role in the burglary. His argument, however, misapprehends our standard of review for such a motion. It is not enough that the circumstances might reasonably be reconciled with a contrary finding. Rather, we must be convinced that the ultimate conviction is unsupported by substantial evidence. We are not so persuaded here.
Guevara next argues a requested claim-of-right instruction was warranted on this record. But since his burglary conviction was not predicated on any offense to which a claim-of-right instruction would be relevant, we see no error.
Estrada too raises an instructional claim, albeit of a different genre. He asserts the trial court was required to instruct sua sponte on attempted voluntary manslaughter based on the heat of passion; he relies on testimony establishing that Joey grabbed a knife after the attackers rushed in and hit him over the head with a pipe. A claim of provocation, however, cannot stem from activity for which the defendant is culpably responsible, like Estrada was here. Even assuming that precept did not prove fatal to his argument, the instruction finds inadequate evidentiary support on this record. Moreover, we conclude insufficient prejudice inures from that ostensible error.
Estrada's final contention on appeal is that his burglary conviction should be stayed pursuant to section 654. The People properly concede the merit of this argument, and so we modify Estrada's judgment accordingly. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Issac Higuera gifted a set of tire rims to Joey's girlfriend. Joey, who lived with his girlfriend and his two kids, wasn't so concerned about the gift—until he was looking through his girlfriend's social media account and found messages from Higuera "trying to be something more than friends with her." So from his girlfriend's account, Joey sent Higuera a profane message telling him not to "hit[ ] up [his] girl." He told Higuera, "If you want your . . . rims come get them. Best believe it's going down . . . . "
About two weeks later, Higuera decided to do just that—retrieve his tire rims. Late at night, he picked up his friends, Estrada and Guevara, and the three drove to Joey's house. Higuera's companions had never met Joey before.
Around midnight, Joey awoke to sounds of rummaging and glass shattering in his garage. Home alone and still groggy, Joey rose and went to his front door, shirtless and shoeless. He cracked open the gated metal door to peer outside. In the darkness, he could see a man in a white t-shirt—later identified as Estrada—standing about five feet from the door, inside of the yard's gate. Joey had no idea who the man (i.e., Estrada) was.
Estrada demanded the rims' return. To Joey, Estrada sounded "like he wanted to pick a fight with [him], like he seemed very angry, like [the rims] belonged to him." Joey told him to leave, but Estrada persisted that he was " 'not leaving empty-handed.' " Feeling threatened, Joey started to close the front door. But a quirk in the door required him to open it all the way in order to shut it properly. As Joey tried to open and close the door, Estrada rushed forward and grabbed the doorknob.
At the same time, someone—most likely Estrada—hit Joey over the head with a pipe. Within moments, at least three assailants were inside the house. Higuera was the second one inside. The third attacker, later established to be Guevara, wore glasses.
See footnote 11, post.
As will be discussed, Guevara challenges the sufficiency of the evidence establishing that he was the third attacker. We review the evidence—at least with respect to this particular issue raised by Guevara—in light most favorable to the verdict and so refer to him by name as the third assailant. (See People v. Watkins (2012) 55 Cal.4th 999, 1019 (Watkins).)
Joey ran to the kitchen and grabbed a knife. He heard someone remark, " 'He got the knife.' " But before Joey could take any jabs, the attackers wrested it from his hands. Joey threw himself back towards the living room in an attempt to get away, but the attack continued. At some point, Joey managed to punch Guevara in the face, breaking his glasses. Otherwise, however, he "just took [a] beating." Eventually, he dropped to his knees and curled up in a fetal position.
The melee continued until one of the attackers yelled, " 'That's it[!]' " and all three ran out of the house. Joey called 911 and sat on his porch until help arrived. He did not realize he had been stabbed until the police told him so. There were multiple stab wounds to his back, but none on the front of his body. One of the stab wounds pierced Joey's lung, such that the lung was protruding from his side. He also had a blunt force injury to his forehead, a cut on his left ear, and more cuts on his arms.
In the meantime, the trio fled from the scene in Higuera's car with Guevara as the driver. He drove with the headlights turned off. At one point, Guevara crashed into a telephone pole before continuing on. They did not make it much further, however. A bystander pointed a responding officer their way, yelling " 'That's them[!] That's them[!]' "
The officer pulled the car over and performed a felony traffic stop. Higuera, Estrada, and Guevara exited the vehicle, all with cuts and bloodstains on their bodies, clothes, and hands. More specifically, Higuera had a stab wound in his left bicep; Estrada's white shirt was stained with blood and his thumb was injured; and Guevara had a cut above his eye and blood on his forearm. There was a pair of broken eyeglasses on the driver's seat floorboard and a red metal pipe on the backseat floorboard. The red paint on the pipe was consistent with flecks found on a newly broken window to Joey's garage.
Outside Joey's house police found another pipe and faucet head, apparently broken off a water line just to the side of the front door. Another pair of glasses was discovered inside. Also inside the home were three knives: the kitchen knife Joey initially grabbed, a folding knife with the blade extended, and a "small-bladed knife." Only the kitchen knife was significantly bloodied, both on the handle and blade. There was no discernible blood on either of the other two knives. Still, extensive bloodstains permeated the home.
Joey later identified Higuera and Estrada as two of the attackers in separate photographic lineups. He could not positively identify Guevara as the third assailant in another photo lineup.
Based on the encounter, Higuera, Estrada, and Guevara were each charged with attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a), counts 1, 5, and 6) and first degree burglary with a person present (§§ 459, 667.5, subd. (c)(21), counts 2, 3, and 4). It was further alleged that each count involved personal use of a deadly and dangerous weapon (a knife) and infliction of great bodily injury. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).)
Because of certain evidentiary issues irrelevant to this appeal, the case was tried to two juries—one for Higuera and another for both Estrada and Guevara. Guevara was the only defendant to affirmatively present evidence. Both his mother and father testified that the broken glasses found in the car were Guevara's. Guevara said the same thing.
On the stand, Guevara also recounted the sequence of events that night. He testified he got off work early since he wasn't feeling well. Higuera and Estrada then picked him up to go get the rims. Guevara claimed he never entered Joey's house. Rather, he explained, once they parked, Estrada and Higuera got out of the vehicle. Guevara waited in the car for about 10 minutes before getting out and nearing—but not crossing—the gate to the front yard. As he approached, he saw Higuera and Guevara walking back empty-handed and "scared." All three then got back into the car. Guevara left the headlights off because "it just happened so quick." He ran into the telephone pole because he thought he saw someone coming toward the car. The crash, he explained, was how his forehead got cut, and the blood on his forearm was from wiping off that wound.
The jury ultimately exonerated Guevara of attempted murder (§§ 664, 187, subd. (a), count 6), but found him guilty of first degree burglary with a person present (§§ 459, 667.5, subd. (c)(21), count 3). As to that conviction, however, it rejected the related allegations of personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)). The same jury convicted Estrada on both counts and found true all related allegations. (§§ 664, 187, subd. (a), count 5; §§ 459, 667.5, subd. (c)(21), count 4; see also §§ 12022, subd. (b)(1), 12022.7, subd. (a).)
Higuera's separate jury convicted him of first degree burglary with a person present (§§ 459, 667.5, subd. (c)(21), count 2) and found true the related allegations (§§ 12022, subd. (b)(1), 12022.7, subd. (a)), but was unable to reach a verdict as to attempted murder (§§ 664, 187, count 1). After the court declared a mistrial on that count, Higuera pled guilty to assault with a deadly weapon in lieu of retrial. (§ 245, subd. (a)(1).)
DISCUSSION
Both Guevara and Estrada appeal. We turn first to Guevara's appeal, which asserts error as to two issues: the denial of his section 1118.1 motion for judgment of acquittal and the trial court's refusal to provide a claim-of-right instruction. Neither contention persuades us to reverse his conviction. We next consider Estrada's dual claims on appeal, one of which similarly relates to a purported instructional error, and the other of which relates to a sentencing issue. We find no basis for reversal as to the former, but accept the People's concession that the latter amounted to error. We modify Estrada's judgment accordingly, but otherwise affirm.
Higuera was initially a party to this appeal as well, but his appeal was subsequently dismissed.
1. Guevara's Appeal
a. Motion for Judgment of Acquittal
Following the close of the prosecution's case in chief, Guevara moved for a judgment of acquittal pursuant to section 1118.1. He claims the court erred in denying his motion.
"In considering whether the trial court erred in failing to grant the motion for judgment of acquittal under section 1118.1 . . . , we ask whether 'there is substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged.' [Citation.] When, as here, the motion under section 1118.1 was made 'at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point' in the trial [citation]—in other words, based on the prosecution's case alone, and without considering the evidence subsequently adduced during the presentation of the defense case or evidence produced by the prosecution on rebuttal." (Watkins, supra, 55 Cal.4th at p. 1019, fns. omitted.) We view the evidence in the light most favorable to the prosecution, which is of course at this stage, indistinguishable from viewing the evidence in the light most favorable to the ensuing conviction. (Id. at pp. 1019-1020.)
"[T]he substantive crime of burglary is defined by its elements as: (1) entry into a structure, (2) with the intent to commit theft or any felony." (People v. Anderson (2009) 47 Cal.4th 92, 101, citing § 459.) Guevara contends that the prosecution's case-in-chief failed to establish his entry into the house. In his view, "[a]ll the prosecution had was that [he] was in the car afterwards." He also emphasizes the fact that Joey failed to positively identify him as one of the attackers either in a photographic lineup or in court.
The People unsurprisingly stress different facts. They highlight testimony establishing that at least three individuals attacked Joey; three knives were discovered at the scene; and all three defendants were found together, fleeing. They also focus on the evidence tying the three defendants, and particularly Guevara, to the crime scene: Joey's home featured extensive bloodstains; all three defendants had bloodstains on their hands, bodies, and clothes when found. Joey said he was hit with a pipe; a pipe was found in the car. Joey identified Estrada and Higuera as attackers and said the third wore glasses; Guevara wore glasses, unlike Estrada and Higuera.
Guevara's argument rests on a misunderstanding of our standard of review for this motion. He contends that we do not view the evidence in the light most favorable to the judgment because there was not yet a judgment at the time the motion was made. But we do. (Watkins, supra, 55 Cal.4th at p. 1019.) It makes no difference that the People's case rested largely on circumstantial evidence. (Id. at p. 1020.) Our role in this context is well established: " ' " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' " [Citation.]' [Citations.]" (Ibid.) Here, the circumstances reasonably justify the trier of fact's findings.
Indeed, what Guevara deems "pure guess work" is upon a closer look, not actually so. He views it too speculative to infer there were at least three attackers based on the number of knives and metal pipes at the scene. But Joey also consistently testified that there were at least three attackers. While immediately following the incident he told law enforcement there were more assailants, that does not gainsay the conclusion there were at minimum three.
Similarly, Guevara sees as patently exculpatory the fact that two pairs of glasses were found (one at Joey's home and the other in the car), reasoning that only the pair in the car could be attributed to him and thus some other glasses-wearer was inside the home. He denounces the explanation given by the trial court when hearing the motion—"[Guevara] could have had another pair of glasses in the car"—as too speculative. We can only say we view that inference differently. At the very least, it is "no more inherently speculative" than the contrary inference Guevara would have us draw. (People v. Rodriguez (1999) 20 Cal.4th 1, 11-12 (Rodriguez) [concluding appellate court deviated from the "well-established methodology" of substantial evidence review by "rejecting contrary (but, in [the high court's] view, equally logical) inferences the jury might have drawn"].)
Guevara further contends that he could not have been the glasses-wearing attacker in light of Joey's testimony that he broke those spectacles with "a direct shot straight to the nose," such that "[t]he center of the glasses broke in the middle." According to Guevara, this means he was not the attacker because (1) his glasses weren't broken that way, and (2) his face did not feature a corresponding wound. Yet this ignores Guevara's facial wound and the dearth of evidence in the prosecution's case-in-chief affirmatively establishing that the cut on his forehead was from the car crash. Again, when faced with these competing "but, in our view, equally logical" inferences, we defer to the conclusion reached by the jury. (Rodriguez, supra, 20 Cal.4th at p. 12.)
In a related vein, Guevara characterizes the results from the photographic lineup with more certainty than the relevant testimony evinces. He reads the record as providing that "[Joey] told police Guevara was not the third guy who attacked him in the house," but instead "identified someone else in the photographic lineup as one of his assailants." The officer's testimony regarding the lineup, however, was not so emphatic. When asked whether Joey "[w]as . . . decisively able to pick out any of these people [in the photo lineup featuring Guevara] as being one of the individuals who attacked him," the officer responded, "No." Rather, Joey first said the attacker was not in that lineup, then said he thought he saw Guevara, and finally when prompted further, said another individual's glasses looked familiar. Thereafter, he gave a somewhat nebulous " 'Um-um. Uh-huh,' " to the officer's query whether it was thus not Guevara who attacked. This certainly does not amount to unassailable evidence negating Guevara's status as the third attacker. In any event, the lack of positive identification is not dispositive. (See, e.g., People v. Sullivan (2007) 151 Cal.App.4th 524, 563-564 [substantial evidence supported robbery conviction "[d]espite the failure of the victim to positively identify defendant at trial or in a pretrial photo lineup"].)
In sum, we conclude that the evidence adduced during the prosecution's case-in-chief "reasonably justif[ies] the trier of fact's findings." (Watkins, supra, 55 Cal.4th at p. 1019, italics omitted.) While we might be inclined to opine that the circumstances here could also reasonably be reconciled with a contrary finding, that does not warrant a reversal of the judgment. (Id. at p. 1020.) Accordingly, we find no error in the denial of Guevara's section 1118.1 motion.
Because we conclude Guevara's entry into the home finds sufficient support in the evidence, we do not consider the People's alternative theory that the evidence also supports his burglary conviction on an aiding and abetting theory.
b. Claim-of-Right Instruction
During trial, Guevara joined Higuera's request for a claim-of-right instruction. (CALCRIM No. 1863.) Guevara asserts the request was erroneously denied.
Estrada joined the request as well, but raises no error in its denial on appeal.
"The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery"—i.e., the felonious intent to steal. (People v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga).) Because the claim-of-right defense "serve[s] only to negate the mental state element of the charged offense, the trial court's obligation to instruct on the defense 'extended no further than to provide [the jury] an appropriate pinpoint instruction upon request by the defense.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 873-874.)
So-called pinpoint instructions " 'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see also People v. Sears (1970) 2 Cal.3d 180, 190 (Sears).) " 'Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense . . . if the theory proffered by the defendant is supported by substantial evidence' [citation], the instruction is a correct statement of law [citation], and the proposed instruction does not simply highlight specific evidence the defendant wishes the jury to consider [citation]." (People v. Jo (2017) 15 Cal.App.5th 1128, 1174.) "The trial court may properly refuse an instruction highlighting a defense theory if it is 'duplicative or potentially confusing.' " (Ibid.; see also People v. Moon (2005) 37 Cal.4th 1, 30.) The parties agree that we review this issue de novo.
In asserting that "[a]llegations of instructional error are reviewed de novo," the People cite to People v. Posey (2004) 32 Cal.4th 193. That case provides the longstanding precept that "[t]he independent or de novo standard of review is applicable in assessing whether instructions correctly state the law[.]" (Id. at p. 218.) It is also well-established that we independently review a trial court's failure to instruct on a lesser-included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733 (Waidla).) Yet still, we query whether it is correct to broadly pronounce that all instructional errors—including the denial of a requested pinpoint instruction on grounds other than legal inaccuracy—are subject to our de novo review. (See People v. Mora and Rangel (2018) 5 Cal.5th 442, 497 [holding "that the trial court did not abuse its discretion by denying the requested [pinpoint] instruction as duplicative" (italics added)].) Nonetheless, we proceed to review the issue de novo in light of the parties' agreement.
Guevara reasons that the claim-of-right instruction was necessary to explain the ostensible lawfulness of the defendants' intent to retrieve Higuera's rims from Joey's house. But as the People point out, this argument suffers a fatal flaw: A claim of right was irrelevant to the mental state required for the offense of burglary as it was charged to the jury in this case. With respect to burglary, the jury was instructed that the People had to prove beyond reasonable doubt that "[t]he defendant entered a building" and "[w]hen the defendant entered the building, he intended to commit either attempted murder or assault by means of force likely to produce great bodily injury." (Italics added.) The court further instructed, "The People allege that the defendant intended to commit either attempted murder and assault by means of force likely to produce great bodily injury at the time the defendant entered the building. You . . . may not find the defendant guilty of burglary unless you all agree that a defendant intended to commit one of those crimes at the time of the entry." (Italics added.) Under these instructions, Guevara's burglary conviction was not—and could not be—predicated on an offense requiring the "felonious intent to steal," to which a claim-of-right instruction is relevant. (Tufunga, supra, 21 Cal.4th at p. 945.)
People v. Williams (2009) 176 Cal.App.4th 1521 "conclude[d] that a good faith belief by a defendant, tried as an accomplice, that he was assisting his coprincipal retake the principal's property negates the 'felonious intent' element of both larceny and robbery, and that a claim-of-right defense must be given where substantial evidence supports such a belief." (Id. at pp. 1528-1529, italics added; see also People v. Covarrubias, supra, 1 Cal.5th at pp. 872-874.) The fact that the rims ostensibly belonged to Higuera, therefore, is not fatal to Guevara's claim.
Citing Sears, supra, 2 Cal.3d 180, Guevara nevertheless contends "[a] defendant is entitled on request to an instruction relating particular facts to any legal issue, even where the jurors have already been properly instructed on the elements of the crime." (Bolding omitted, italics added; see Sears, at p. 190 ["A defendant is entitled to an instruction relating particular facts to any legal issue"].) And so, he reasons, even though the "felonious intent to steal" was not put in issue by the elements of the offense (Tufunga, supra, 21 Cal.4th at p. 945), the instruction should have been given as going "to the issue of whether the evidence showed beyond a reasonable doubt that this stated (lawful) intent ever changed to an unlawful one to violently assault [Joey]."
We think Guevara overreads Sears's reference to "any legal issue." (Sears, supra, 2 Cal.3d at p. 190, italics added.) The proffered instruction still must go to a relevant legal issue. (People v. Yeoman (2003) 31 Cal.4th 93, 152 ["But Sears does not require argumentative instructions that merely highlight specific evidence without further illuminating the relevant legal standards" (italics added)].) Indeed, in addition to its "duty to instruct on general principles of law relevant to the issues raised by the evidence," the trial court shoulders a "correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' " (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is error to give " 'an "abstract instruction," that is, "one that is correct in law but irrelevant." ' " (People v. Cross (2008) 45 Cal.4th 58, 67; accord, People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247 [error to instruct on the natural and probable consequences theory of aiding and abetting liability where "[t]he prosecution . . . did not rely on [that] . . . doctrine, nor was there any evidence . . . that the perpetrator committed another crime that was a natural and probable consequence of the intended offense"].)
To put it plainly, in the context of the other instructions here, a claim-of-right charge would have been irrelevant and confusing. As such, the request was properly refused.
2. Estrada's Appeal
a. Duty to Instruct on Heat of Passion
Estrada contends that the trial court erred in failing to instruct sua sponte on heat of passion attempted voluntary manslaughter. (CALCRIM No. 603.)
A trial court must instruct on a lesser included offense, whether requested or not, if there is substantial evidence indicating the defendant committed that offense rather than the greater one. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162 (Breverman).) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162.) We independently review the trial court's failure to instruct on a lesser included offense. (Waidla, supra, 22 Cal.4th at p. 733.)
Attempted voluntary manslaughter based on a sudden quarrel or the heat of passion is a lesser included offense of attempted murder. (People v. Beltran (2013) 56 Cal.4th 935, 942.) Heat of passion is not element of voluntary manslaughter, but rather a " 'theor[y] of partial exculpation' that reduce[s] murder to manslaughter by negating the element of malice." (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).)
The theory has both a subjective and objective component. (Moye, supra, 47 Cal.4th at p. 549.) The subjective aspect requires that the accused actually act under the heat of passion. (Id. at p. 550.) To satisfy the objective component, the accused's heat of passion must stem from sufficient provocation—i.e., provocation that "would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Ibid.) And it " 'must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' " (Id. at pp. 549-550.)
According to Estrada, the evidence that Joey grabbed a knife triggered the trial court's duty to instruct on heat of passion. (CALCRIM No. 603.) To the contrary, however, "[t]he claim of provocation cannot be based on events for which the defendant is culpably responsible." (People v. Oropeza (2007) 151 Cal.App.4th 73, 83 (Oropeza); accord, People v. Johnston (2003) 113 Cal.App.4th 1299, 1313.) Here, Estrada showed up to Joey's home in the middle of the night, behaved aggressively, and in Joey's words, sounded like he "wanted to pick a fight." Joey only resorted to the knife after Estrada forcibly entered his home and, with at least two other individuals, attacked him. One of the assailants—which was most likely Estrada—even hit him over the head with a pipe before he retrieved the knife. In short, that aggressive behavior, forcible entry, and outright attack rendered Estrada "culpably responsible" (Oropeza, supra, 151 Cal.App.4th at p. 83) for Joey's resort to the knife—which he did not even use before the attackers wrested it from his grip. Guevara's statement "I think I recall them [i.e., Estrada and Higuera] saying that [Joey] tried to attack them" is too equivocal to convince us otherwise. (See Moye, supra, 47 Cal.4th at p. 553 [" 'the existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense, but such instructions are required whenever [the] evidence . . . is "substantial enough to merit consideration" by the jury' "].)
When asked at trial who hit him over the head with the pipe, Joey testified, "I think it was the white T-shirt [i.e., Estrada]. I can't really remember." Because in considering a trial court's failure to instruct on a lesser included offense, "we view the evidence in the light most favorable to the defendant," we note only that the assailant was likely Estrada. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 (Millbrook).) We acknowledge that the evidence might weakly support the conclusion that another confederate struck the first blow; but even assuming that is so, our conclusion remains the same.
Even assuming Estrada was not culpably responsible for Joey's act of grabbing the knife, the record contains insufficient evidence to support a heat of passion instruction, particularly as to the subjective aspect. At best, Estrada can point to Guevara's testimony describing him as "scared" following the accident. While Joey testified that Estrada "seemed very angry," that anger preceded Estrada's entry to the home and so cannot be traced to Joey's inefficacious attempt to arm himself.
Finally, even if we were to find an error in the failure to sua sponte instruct on the heat of passion, we would deem it harmless. As in Moye, "[h]ere, the jury considered virtually all of the defense evidence bearing on defendant's state of mind and the question whether he harbored malice when it entertained his claim of unreasonable or imperfect self-defense. Having rejected that claim, the jury likewise rejected the factual basis for a finding of provocation legally necessary to support a heat of passion/voluntary manslaughter defense." (Moye, supra, 47 Cal.4th at p. 541.)
The parties dispute the applicable standard for assessing any potential prejudice here. Estrada contends that the purported failure to instruct on heat of passion infected his attempted murder conviction by reducing the prosecution's burden to prove malice and so amounts to federal constitutional error governed by Chapman v. California (1967) 286 U.S. 18 (Chapman). The People contend that this is but a state law error as to the failure to instruct on a lesser included offense and thus governed by People v. Watson (1956) 46 Cal.2d 818 (Watson). (See Breverman, supra, 19 Cal.4th at p. 178.) Suffice it to say, the law in this area is unsettled. (See People v. Franklin (2018) 21 Cal.App.5th 881, 890; People v. Peau (2015) 236 Cal.App.4th 823, 830; People v. Millbrook, supra, 222 Cal.App.4th at pp. 1143-1146; People v. Thomas (2013) 218 Cal.App.4th 630, 643-644.) We need not decide which standard applies because we conclude the ostensible error would be harmless under either.
We recognize that Moye, supra, 47 Cal.4th 537 applied the prejudice standard from Watson, supra, 46 Cal.2d 818. Although we employ the more stringent Chapman, supra, 286 U.S. 18 standard of review (see footnote 12), we think Moye's logic applies with equal force here.
In all, there was no error in failing to instruct on a heat of passion theory. And even if there had been error, any such error would have been harmless.
b. Section 654
The trial court sentenced Estrada to a five-year term for attempted murder (§§ 664, 187, subd. (a), count 5) and a concurrent four-year term for first degree burglary (§ 459, count 4). He contends that his burglary conviction should be stayed pursuant to section 654 since the same act formed the basis for his attempted murder conviction. "Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294 (Hester).) The People properly concede the merit of Estrada's contention (see People v. Price (1991) 1 Cal.4th 324, 492; see also Hester, at p. 294) and that this contention was not waived by his failure to object in the trial court (Hester, at p. 295). Accordingly, we order Estrada's burglary conviction stayed. (§ 654.)
We note that although the trial court did not stay the burglary count, it did stay the attendant great bodily injury enhancement pursuant to section 654, reasoning that it was "the same great bodily injury that the Court imposed the three-year term in the attempted murder."
DISPOSITION
Estrada's judgment is modified to stay the term imposed for first degree burglary (§ 459, count 4) pursuant to section 654. Accordingly, the trial court is directed to prepare an amended abstract of judgment reflecting the modified judgment and forward a certified copy of the same to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.