Opinion
F051886
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GARCIA, JR., Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
Michael Garcia, Jr., shot and killed his half brother, Henry Hernandez. Garcia was charged with first degree murder. (Pen. Code, §§ 187, 189.) He argued he acted in self-defense. The jury found Garcia guilty of voluntary manslaughter.
All further statutory references are to the Penal Code unless otherwise stated.
Garcia argues the trial court erred when it instructed the jury with CALJIC No. 5.55 (intentionally created necessity). We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Garcia with first degree murder and the associated enhancement for the use of a firearm during the commission of the crime. Garcia admitted that he shot and killed Hernandez. The only issue was Garcias mental state at the time of the shooting, i.e., whether he acted with malice aforethought or acted in self-defense.
The victim, Hernandez, was described by various witnesses as a drug addicted, gang banging bully. Garcia claimed he and Hernandez fought frequently, with Hernandez always the victor because Hernandez was older and larger than Garcia. Garcia claimed that Hernandez began abusing him when he was very young, and the abuse continued until Hernandez died.
This background formed the basis for Garcias defense. He testified he spent the day of the shooting drinking beer with friends. Hernandez was present during parts of the day. Garcia owned a handgun that the group "played with" at various times that day. When not playing, Garcia kept the handgun with him.
Hernandez smoked crystal methamphetamine with some friends during the evening. After he returned, Hernandez argued with his ex-wife on the phone. Hernandez was upset when he returned to the gathering.
Present at the time of the shooting were Garcia, Hernandez, Carlos Garcia, and Thomas Rivera. The three surviving members of the group testified fairly consistently. Hernandez ran out of beer, so he asked Garcia for some of his beer. Garcia refused, but told Hernandez he would give him some money so Hernandez could go to the store and buy his own beer. An argument ensued, with Hernandez calling Garcia names and asserting that Garcia was too much of a coward to shoot anyone with his gun. Hernandez also apparently threatened to take the gun and shoot Garcia. Carlos and Garcia testified that just prior to the shooting, Hernandez began to stand up from the couch. Garcia fired at Hernandez from approximately six feet away. He did not stop firing until he had emptied the handgun of all 15 rounds.
We refer to Carlos Garcia by his first name, not out of disrespect, but to avoid any confusion with appellant.
Garcia and Carlos fled to Carloss house to hide the gun. The police arrested Garcia without incident at Carloss house. Garcia eventually told officers the location of the gun.
Garcia argued he had acted in self-defense, or, if not in self-defense, then because he was provoked by Hernandez. The People argued that Garcia was seeking revenge against his half brother for the years of abuse he had suffered. The jury returned a verdict of voluntary manslaughter. Garcia was sentenced to a midterm sentence of six years for the voluntary manslaughter conviction (§§ 192, subd. (a), 193, subd. (a)), enhanced by an aggravated term of 10 years for personal use of a firearm resulting in the death of Hernandez (§ 12022.5, subd. (a)).
DISCUSSION
Garcia raises only one issue. He argues the trial court erred in instructing the jury with CALJIC No. 5.55. This instruction informs the jury, in essence, that a defendant cannot instigate a conflict intending to assert he had to resort to self-defense. Garcia claims there was insufficient evidence to permit the trial court to give the instruction, and that he was prejudiced by the instruction so that reversal is required. He is wrong on both issues.
This instruction as read to the jury stated, "the right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."
"`"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. [Citations.] 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 jurys understanding of the case." [Citation.] [Citation.]" ( People v. Middleton (1997) 52 Cal.App.4th 19, 30, disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3); see also People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) The prosecution argued there was sufficient evidence to suggest that Garcia instigated the confrontation that led to the shooting. This evidence was provided by Carlos, although indirectly.
Carlos denied that Garcia instigated a confrontation with Hernandez on the day of the shooting. When Carlos was interviewed by detectives shortly after the shooting, however, his description of the events differed. Detective Carlos Leal, Jr., testified that Carlos informed him that early that evening Garcia and Hernandez had gotten into a confrontation. Garcia, Hernandez, and Carlos were standing outside the residence when an individual approached them on a bicycle and spoke with Hernandez. After this individual left, Garcia became upset because a few years prior the individual had been involved in an incident that resulted in Hernandez being shot. Garcia told Hernandez he should have sought revenge when the bicyclist approached. Garcia made these statements in a more colorful manner, using various expletives and intimating that Hernandez was stupid or a coward.
The above described event occurred approximately three to four hours before the shooting. The prosecutor relied on these events to argue that Garcia may have been attempting to provoke a confrontation with Hernandez. While this evidence was not overwhelming, it was substantial enough to support the inference that Garcia was attempting to instigate a confrontation with Hernandez. This evidence also supported an inference that Garcia was taunting Hernandez when he "played" with the gun that evening. This course of conduct could have been viewed by the trier of fact as an attempt to instigate the confrontation that eventually occurred. Therefore, the trial court did not err in instructing the jury with CALJIC No. 5.55.
Even if we assume arguendo that the jury should not have been instructed with CALJIC No. 5.55, the error was harmless. While it is erroneous to give an instruction that is correct in the law, but which has no application to the facts of the case, "such an error is usually harmless, having little or no effect `other than to add to the bulk of the charge." (People v. Rollo (1977) 20 Cal.3d 109, 122-123; see also People v. Crandell (1988) 46 Cal.3d 833, 872-873, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Here, if the jury concluded that Garcia did not instigate the confrontation, it undoubtedly would have ignored the instruction. Logic dictates such a result, and the jury was so instructed. Undoubtedly, the total charge rendered any error that may have occurred harmless under any standard of review.
The jury was instructed as follows: "Ladies and gentlemen, the purpose of the courts instructions is to provide you with the applicable law so you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given that I am expressing an opinion as to the facts."
DISPOSITION
The judgment is affirmed.