Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF011601. Paul E. Zellerbach, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Carlos Guerrero (defendant) argues that his trial counsel was ineffective when he did not request a jury instruction that defendant believes might have resulted in a more favorable outcome for him. We will affirm.
FACTS AND PROCEDURAL HISTORY
Defendant lived across the street from Michael Williams (Williams or the victim) and his family. The family included the victim’s wife Carol, their four children, and a 20-year-old niece, Amanda Malinowski (Amanda).
On January 16, 2005, Amanda’s ex-boyfriend Osvaldo Coronel (Coronel), along with two unnamed women and defendant, drove up to the gate of the victim’s home, honking the horn as they arrived. Defendant, Coronel, and one of the women got out of the car. The women screamed at Amanda and at the victim’s 15-year-old daughter, calling them “fucking bitches.” Along with the women, defendant was cursing and using profanity directed at Amanda. Williams came out and asked the visitors to leave. Carol also asked them, “politely,” to leave. They did not leave.
Also called “Ozzie.”
After about 20 minutes, Williams kicked the gate, picked up a plastic shovel, and confronted Coronel and the others, including defendant. As the victim approached defendant, the victim held the plastic shovel in front of him at a 45-degree angle, with the head of the shovel pointed down near his feet and the “butt” of the handle just behind his head.
At that point, defendant said something about Williams being a “punk,” pulled out a small black handgun, and pointed it at him. As soon as he saw the gun, Williams turned around and ran to take cover behind his car. As Williams ran, defendant fired three or four shots.
Investigating sheriff’s deputies found ricochet marks on a car parked in the driveway and a bullet hole in a bedroom window of the house. The bullet appeared to have hit the wall about a foot above the victim’s baby’s crib. After the shooting, defendant, Coronel, and the women got into their car and left.
Sometime after January 2005, defendant learned from a girlfriend that there was a warrant for his arrest. Thereupon, he “took off,” leaving California for Nevada or Arizona.
On April 26, 2007, the Riverside County District Attorney filed an amended information charging defendant with four felonies: attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a), count 1); assault with a firearm (§ 245, subd. (a)(2), count 2); discharge of a firearm at an inhabited dwelling (§ 246, count 3); and being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 4). The information further alleged that as to count 1, defendant personally and intentionally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)); and that as to counts 2 and 3, he personally used a firearm (§§ 12022.5, subd. (a), 667, 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code unless otherwise indicated.
Jury trial began on September 6, 2007. After the evidentiary phase closed, court and counsel held extensive discussions about what jury instructions should be given. During these discussions, defense counsel repeatedly indicated his awareness of the strategic use of jury instructions. Thereafter, the court instructed the jury with CALCRIM No. 601 regarding the definition of attempted murder and the jury’s separate duty to decide if an attempted murder was done “willfully and with deliberation and premeditation.” Defense counsel requested, and the court gave over the prosecutor’s objection, CALCRIM Nos. 603 and 604. CALCRIM No. 603 relates to the reduction of attempted murder to voluntary manslaughter, but requires that the provocation be one that would cause an average person of average disposition to react rashly. CALCRIM No. 604 explains that a defendant’s fear of being killed or of suffering great bodily harm may also reduce attempted murder to voluntary manslaughter. Defense counsel did not request, and the court did not give, CALJIC No. 8.73 or CALCRIM No. 522, relating the effect of provocation on premeditation and the reduction of first degree murder to second degree murder.
In closing, defense counsel vigorously argued the issues of premeditation and provocation, insisting that defendant pulled the gun and shot only in response to the victim’s use of the shovel. Because of the shovel, counsel repeated, the jury could only convict defendant of voluntary manslaughter. “Had the shovel not been there, the gun wouldn’t have come out... it didn’t come out until the shovel came out.” “But when the guy pulled out the shovel... that’s when everything escalated, then your verdict is guilty of attempted voluntary manslaughter.”
On September 20, 2007, the jury found defendant guilty of counts 1, 3, and 4 and their related allegations, and not guilty of count 2. The jury also, separately and specifically, found that the attempted murder was willful, deliberate, and premeditated.
The court sentenced defendant to life in prison for the attempted premeditated murder conviction, plus a consecutive 20 years for the gun-use allegation. On all other counts and allegations, the court sentenced defendant to concurrent terms.
DISCUSSION
Defendant now contends that defense counsel was ineffective because he did not request a pinpoint instruction to inform the jury that it could consider provocation on the issue of premeditation as well as on reduction of attempted murder to voluntary manslaughter.
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, a defendant must show both that his counsel’s performance was deficient and that the deficiencies prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
A conviction will be reversed only if there could be no conceivable reasons for counsel’s acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Tactical errors are generally not reversible and defense counsel’s tactical decisions should be evaluated in the context of available facts, not in the “‘“harsh light of hindsight.”’” (People v. Hinton (2006) 37 Cal.4th 839, 876; see also People v. Bolin (1998)18 Cal.4th 297, 333.) The decision of what jury instructions to request is inherently tactical. (People v. Padilla (2002) 98 Cal.App.4th 127, 136.) However, “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra,at p. 697; see also People v. Kipp (2001) 26 Cal.4th 1100, 1122-1123.) Prejudice is shown when there is a reasonable probability that the defendant would have obtained a more favorable outcome absent counsel’s alleged deficiency. (Strickland, supra,at p. 697.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Stanley (2006) 39 Cal.4th 913, 965.)
Defendant has met neither of the requirements of Strickland. There is no evidence that his counsel’s performance was deficient, nor can defendant demonstrate that any alleged deficiencies caused him prejudice.
As the People note, counsel may well have had good tactical reasons for not requesting additional instruction, which would have been both redundant and futile. Premeditation in relationship to attempted murder was covered by CALCRIM No. 601. Provocation by the victim, sufficient to negate attempted murder (of any kind) was covered by CALCRIM No. 603. A fear that one is in danger of being killed or suffering great bodily harm—arguably the result of a specific kind of provocation—was covered by CALCRIM 604. As we have noted, defense counsel argued these points extensively, repeatedly blaming the victim for wielding the shovel.
Unfortunately for defendant, as we can see in the “harsh light of hindsight,” the jury did not buy counsel’s arguments. The evidence of premeditation was just too great: defendant arrived at the victim’s home in a car with the horn honking to attract attention; he cursed and shouted at the victim, his close neighbor, and the victim’s family members, refusing to leave despite their repeated requests; he came to the home with a gun concealed in his pocket; and finally, because he began shooting after he pulled the gun out, defendant had to have loaded it before he arrived. As to the effect of provocation, there was no evidence that a person of average disposition—including defendant himself—would have been so impassioned by someone wielding a plastic shovel that he would have pulled out a gun and shot him. Finally, with the victim in full flight, there was no evidence that defendant feared for his own life when he began to shoot.
In addition, counsel may not have wanted to focus the jury’s attention on an intermediate possibility when he believed the evidence most strongly supported his preferred alternate verdict of voluntary manslaughter.
The instruction defendant now believes he should have had, in addition to 601, 603, and 604, is CALJIC No. 8.73: “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.” This instruction is one that must be requested, not one which a court is required to give on its own motion. (People v. Rogers (2006) 39 Cal.4th 826, 878-879.)
In the alternative, defendant would also accept CALCRIM No. 522, an instruction similar to CALJIC No. 8.73, modified to cover attempted murder. CALCRIM No. 522 reads, in pertinent part: “Provocation may reduce 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.]”
Defendant insists that, by virtue of its decision that there was sufficient evidence of provocation to entitle defendant to an instruction on attempted voluntary manslaughter, the court “would necessarily have also been required to give a modification of CALJIC No. 8.73... had counsel requested it.” In essence, defendant argues that the court would not have been able to refuse such a request, whether or not it believed the instruction was necessary or supported by the evidence. This is not the law.
Even assuming, for the sake of argument, that the instruction should have been requested and given, there was no evidence that defendant suffered prejudice from the omission. As we have discussed, the evidence of premeditation was so strong that there is virtually no likelihood that defendant would have obtained a better outcome if the jury had been told it could consider provocation on this issue as well as on the reduction of first degree murder to voluntary manslaughter.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.