Opinion
E065468
02-05-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HAGE, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA1101520) OPINION APPEAL from the Superior Court of San Bernardino County. Stanford E. Reichert, Judge. Affirmed in part; reversed in part with directions. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant shot and killed a thief who was stealing scrap metal from his property. Defendant appeals from judgment entered following a jury conviction for first degree murder (Pen. Code, § 187, subd. (a) ; count 1). The jury also found true three firearm allegations (§ 12022.53). Defendant pled guilty to counts 2 through 4 for possession of a firearm by a felon (§ 12021, subd. (a)(1)); possession of ammunition (§ 30305, subd. (a)(1)); and failure to register each residence (§ 290.010). The trial court struck one of the firearm allegations and two prior strike allegations. The court sentenced defendant to 50 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code. --------
Defendant contends there was insufficient evidence of the first degree murder theories of lying in wait and of premeditation and deliberation. Defendant also contends the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter based on heat of passion. In addition, defendant asserts in supplemental briefing that this court should remand this matter for resentencing on his firearm enhancement (§ 12022.53) under recently enacted Senate Bill No. 620, which amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h). The parties agree in their supplemental briefs that the recent amendment applies in this case retroactively, because the amendment took effect before judgment became final in this case.
We accordingly order this matter remanded to the trial court solely for the purpose of permitting the trial court to exercise its discretion as to whether to strike defendant's firearm enhancement. In all other regards, we affirm the judgment.
II
FACTS
Defendant inherited two adjoining properties (the Hemlock properties) from his father. The two properties were located at 9985 and 9995 Hemlock Avenue in Fontana. Defendant's father had lived in the home at 9985 Hemlock. Hemlock Avenue runs north-south. The 9985 Hemlock property is directly north of the 9995 Hemlock property.
The house on the south property, located at 9995 Hemlock Avenue, appeared abandoned and dilapidated, with broken windows, tall weeds in front, and lots of scrap metal and junk in the front yard. The 9995 Hemlock property was used for storage of junk defendant's father had accumulated from swap meets, including metal pipe, scrap metal, and yard tools. The house appeared uninhabitable and the yard looked like a junkyard.
The house on the north property, 9985 Hemlock, appeared to be occupied and in much better condition. There was not as much junk on the 9985 Hemlock property. There was no fence separating the two parcels. A row of hedges and a shed separated the two lots. There was a white camper to the left of the shed, and a pathway behind the shed and camper. Each house had a driveway on the south side of each parcel. A fence ran along the front of the two properties. South of the 9995 Hemlock property, separated by a fence, was a truck yard. There was an adult bookstore south of the truck yard, on the corner of Hemlock and Valley Boulevard (Valley).
Defendant checked on the Hemlock property two or three times a week but rarely spent the night there. The property had been broken into many times, with scrap metal and tools stolen from the yard. The police were called numerous times, and nails were glued to the top of the fence.
Jerry Ruiz and Yvette Gallardo rented a house from defendant at 9962 Hemlock. Their rental was across the street from the 9995 Hemlock property. While defendant was collecting the rent from Gallardo in 2009, Gallardo suggested defendant get a dog to keep intruders from stealing from defendant's Hemlock property. Defendant responded, "If I ever catch someone, I'll shoot 'em." In 2011, Ruiz saw defendant on the property a couple of times, usually on Saturdays and Sundays. On a couple of occasions, Ruiz saw people stealing scrap metal and wire from the Hemlock property at nighttime. Gallardo had also seen people jumping the fence and taking things from defendant's Hemlock property.
Before Ruiz left for work at 9:30 p.m., on August 24, 2011, the night of the shooting, Ruiz called defendant and told him he had seen two men on defendant's property that night. During two previous conversations, Ruiz had told defendant people were jumping over the fence and taking all kinds of things. This made defendant angry.
James Shiflet, who was married to defendant's cousin, lived three doors down the street from defendant's Hemlock property. Shiflet noticed defendant arrive on his motorcycle at the Hemlock property about twice a week. Defendant had told Shiflet there was a gun on the property. Defendant's father had kept a small caliber firearm on the property. Within six months before the shooting incident, Shiflet suggested to defendant that defendant get some dogs because of the thefts in the neighborhood. Defendant indicated he did not need dogs because he had a gun. Shiflet and defendant's neighbors had noticed two people repeatedly breaking into the Hemlock property and stealing wire and scrap metal.
A. The Shooting
Between 1:00 and 2:00 a.m. on August 25, 2011, Bruce Harcrow and Theodore Goede drove to defendant's 9995 Hemlock property, intending to steal metal pipes and a sawzall (a battery operated saw). Goede parked his white Ford Bronco on Hemlock. Harcrow did not realize someone was actually staying at the house on the 9985 Hemlock property. Goede and Harcrow did not go over to that house. Harcrow and Goede stayed in front of 9995 Hemlock. The night of the shooting, there was no vehicle parked in front of or in the driveway of the 9995 property. Goede threw his duffle bag containing tools over the chain link fence, onto the driveway of the 9995 Hemlock property. The bag made a loud metallic noise when it landed on the driveway, but there did not appear to be any sign of activity from anyone on the Hemlock property in response to the noise. The property was very dark.
After three sheriff's cars drove by, Harcrow got nervous and told Goede it was not the right time for the theft. Goede and Harcrow left in the Bronco and returned about half an hour later. Goede parked about 200 feet south of defendant's property. Goede climbed over the fence, intending to retrieve his bag of tools and take a sawzall and metal pipes (scrap metal) from defendant's 9995 Hemlock property. Harcrow waited outside the fence. Neither Goede nor Harcrow had a weapon.
The moment Goede walked behind the shed out of Harcrow's sight, Harcrow saw a bright blue flash and heard a popping sound. Harcrow did not hear anyone speak. Goede stumbled backwards, turned, ran towards the fence, and climbed over it. He did not have anything in his hands. While on top of the fence, Harcrow heard additional shots and saw sparks from a gun. Harcrow ran south towards Valley. As he ran, he heard gunshots and heard Goede say, "Okay, okay, okay," and more gunshots. Harcrow ran inside the adult bookstore on Valley and told the clerk to call 911. Harcrow then ran to an open field on Valley and hid, while calling 911.
Gabrial Ortiz testified that between 2:30 and 2:45 a.m. that night, he was hanging out with his brother, Joel Ortiz, and some friends in front of his home about a quarter of a mile north of defendant's Hemlock property. They heard a couple of gunshots and then saw two people running on Hemlock. One of the two men was bobbing and weaving as he ran. Then there was a second volley of shots. One of the two men appeared repeatedly to get up and fall down. Joel also testified it looked like one of the men was chasing the other, shooting at him. Joel saw someone fall, and then repeatedly get up and fall, until he could no longer see the person.
Gabrial's friend, Andy Buenrostro, drove in his car to the shooting scene to see if anyone was hurt. Andy saw an older man with gray hair and a beard holding a revolver by the adult bookstore. Andy returned to Gabrial's home, reported what he saw, and warned the others not to go down the street. He then left.
After 5 or 10 minutes, Gabrial and his guests drove to the shooting scene. They did not see anyone with a gun. They found Goede lying in the street on Hemlock, in the gutter near the adult bookstore. He appeared to be dead, with bullet holes in his torso. Gabrial and Joel did not notice any weapons around him. Ortiz called 911. About a minute later, law enforcement arrived.
At around 2:45 p.m., officers Hunt and Goines arrived at the crime scene. They found Goede lying in the street, in the gutter on Hemlock. He appeared to be dead, with gunshot wounds to his chest. No weapons or shell casings were found near his body. Sheriff's Sergeant Landen testified that a revolver does not expel shell casings. The casings remain in the revolver. Landen further testified that at around 3:15 a.m., he responded to a dispatch call reporting that there was a dead body on Hemlock. The body was on the curb, about 100 feet from 9995 Hemlock, and 500 feet from the adult bookstore.
A forensic pathologist determined that Goede had two gunshot wounds. One gunshot entered his chest and passed through his heart and lung. The other entered his upper back. The pathologist testified that Goede could have continued moving for up to 20 to 30 seconds after the two wounds. Goede was under the influence of methamphetamine when he was shot. The pathologist testified that a person shot in the heart could run 10 feet and scale a six-foot fence before becoming incapacitated. A bullet from a .22-caliber round manufactured by Rohm was recovered from defendant's body.
Sergeant Niles testified that during an investigation of the shooting incident, he executed a search warrant at 9985 Hemlock and found 282 rounds of .22-caliber ammunition in the house, with boxes of ammunition open. There was .22-caliber ammunition in a box on a table next to the head of the bed and a motorcycle jacket at the base of the bed.
During the morning of August 25, 2011, after the shooting incident, Harcrow approached Sheriff's Detective Myler, near defendant's Hemlock property, and told him that Goede called him at 9:30 p.m. the night before and said he wanted to steal some metal from an abandoned house. During the early morning hours of August 25, 2011, Harcrow and Goede went to defendant's property to steal some items. During a second interview, Harcrow told Myler that Goede placed a duffle bag containing tools in the back of his Bronco. They drove to defendant's Hemlock property and Goede threw his duffel bag over the fence after unsuccessfully attempting to open the gate. When the bag landed on the ground it made a loud metallic noise. Harcrow and Goede then left to visit a friend. After discovering the friend was not home, they drove back to the adult book store, parked the Bronco, and walked back to defendant's Hemlock property.
B. Defendant's Two Interviews
Landen interviewed defendant on August 25, 2011, at 9985 Hemlock. Defendant stated that people had repeatedly entered his Hemlock property and had stolen whatever they wanted. Defendant believed that someone broke into his trailer on the property on August 25, 2011, and the "son-of-a bitch" left the canvas bag on defendant's property. The duffle bag contained empty smaller bags. Defendant said people "keep cutting the [gate] chains" and "help themselves to whatever my dad had here." Defendant glued nails to the fence to keep people from jumping the fence. On one occasion at night, he confronted someone behind his camper and threatened to break the person's knee caps with a stick. Defendant had also told someone he would bash the person on the head if he caught him on his property. Defendant acknowledged his father and stepmother might have had guns on the property, but defendant denied carrying a gun.
Defendant further stated that on August 24, 2011, he arrived at the property at about 10:45 p.m. and parked his motorcycle in front of the 9985 property. At 11:30 p.m., defendant took Flexeril, a muscle relaxant, for his back. The medication "knocked [him] out." He did not wake up until the next morning, after the police arrived. He did not learn there was a shooting or hear anything about it until then. Defendant found a large canvas bag just inside his gate at 9985 Hemlock. Defendant moved the bag to outside the gate.
Landen told defendant that witnesses had said the victim was shot on defendant's property, and all of the officers had left by daylight. Therefore defendant would not have seen them that morning, as he claimed. Defendant denied having a gun, denied shooting the victim, and denied being awake during the shooting. Defendant admitted he had removed from the canvas bag, smaller bags containing tools. Defendant also admitted he was "pissed off" from people coming on his property and taking things.
Landen interviewed defendant again on September 9, 2011, at the sheriff's station. Landen told defendant he was under arrest and read him his Miranda rights. Defendant became emotional and began crying. Landen asked why defendant was crying. Defendant said it was because he killed someone. Defendant then told him a different story from that which he had told Landen previously. Defendant said he went outside to feed the cats around 11:00 p.m. and stepped on a revolver lying on the driveway of the 9995 Hemlock property. Defendant did not know where it came from. He put it in his pocket, went inside, took Flexeril, and went to sleep. Defendant woke up a few hours later, used the restroom, and then went outside because it was hot. Defendant heard a noise and someone shined a flashlight in his face. Fearing for his safety, he took the gun out of his pocket and fired it to protect himself. Defendant apologized for lying during his first interview. He said he lied because he had a felony conviction and because someone had died.
After his second interview, defendant accompanied Landen and other officers to the 9995 Hemlock property and showed them where he had placed the gun. The officers recovered the gun from a cat box, where defendant had said he placed it. The gun contained four discharged bullet casings and two live rounds. There was no documentation revealing to whom the gun was registered.
C. Defendant's Trial Testimony
Defendant's trial testimony was consistent with his second interview. Defendant further testified to the following. He lived in Yucaipa but occasionally visited the Hemlock property. Thieves were entering the Hemlock property and stealing items. Defendant reported the thefts to the police but the stealing continued. Ruiz and his wife kept defendant informed of intruders on his property. Ruiz had called him numerous times to tell him people were on his property. Defendant glued nails to the top of the fence, placed barbed wire on his fence, and placed locks on the front gates. There was an ADT security sign and a "Beware of Dog" sign, but no dog. Defendant denied telling Shiflet he did not need a dog because he had a gun.
When defendant arrived at the Hemlock property at about 10:45 p.m., on August 24, 2011, he walked around the property and did not notice anything was amiss. He stepped on a loaded revolver in the driveway of the 9995 property and put it in his back pocket. He had never seen the gun before. After walking around the property, defendant took Flexeril for his back pain and went to sleep at the 9985 Hemlock property. After waking up to go to the bathroom, he went outside to cool off. He heard what sounded like someone hitting the gate in front of 9995 Hemlock. It was dark and he did not have a flashlight. Defendant walked in the dark down the walkway toward the 9995 property. Suddenly, someone shined a light in his eyes and said, "you son of a bitch." He did not hear anyone say, "okay, okay, man."
Because defendant feared for his life, he fired the gun two or three times towards the light. He could not see anyone because he was seeing spots from the flashlight. He heard the fence shaking and assumed he had scared off the intruder. Defendant threw the gun in a nearby cat box, went inside the 9985 Hemlock residence, locked the door, and went to sleep.
Defendant did not plan on shooting anyone beforehand. He forgot the gun was in his pocket until he panicked when Goede shined a light in his face and called him a "son of a bitch." Defendant did not know if Goede had a weapon and feared Goede might kill him.
After the shooting, defendant did not call the police because he feared adverse repercussions from unlawfully possessing a gun with a 1989 felony conviction, and feared he might have killed someone. He first realized he might have shot someone the next morning when he went outside and saw police activity and crime scene tape. Defendant was trained in the use of firearms in the navy. Defendant owned several firearms.
D. Stipulated Facts
The parties stipulated to the following facts. Defendant was present at 9995 Hemlock, beginning at 10:30 p.m. on August 24, 2011, through the entirety of August 25, 2011. During that time, defendant possessed 282 rounds of .22-caliber ammunition and a Rohm .22-caliber revolver. The revolver could hold six rounds of ammunition. Defendant was convicted of a felony offense in 1989, which disqualified him from ownership or possession of a firearm. During Goede's autopsy, a .22-caliber bullet was found in his body. The bullet could have been fired from a revolver manufactured by Rohm. Goede owned the white Ford Bronco parked in front of 10025 Hemlock. Inside the vehicle was a baggie containing .11 grams of methamphetamine and a small glass pipe commonly used to smoke methamphetamine.
III
SUFFICIENCY OF EVIDENCE OF FIRST DEGREE MURDER
Defendant contends there was insufficient evidence to convict him of first degree murder based on the theories of premeditation and deliberation or lying in wait. Defendant argued at trial that he killed Goede in self-defense and therefore was not guilty of first degree murder.
A. Applicable Law
In determining the sufficiency of the evidence supporting a conviction, this court "must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If the circumstances reasonably justify the trier of fact's findings, this court's view that the circumstances might also reasonably support a contrary finding, does not warrant reversal of the judgment. (Id. at p. 1054.)
B. Premeditation and Deliberation
Defendant challenges the sufficiency of evidence of first degree murder. Section 189 provides in relevant part: "All murder which is perpetrated by means of . . . lying in wait, . . . or by any other kind of willful, deliberate, and premeditated killing, . . . is murder of the first degree." (§ 189.) The statute further provides that "'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.) "The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citations.]" (Ibid.)
A conviction for deliberate and premeditated first degree murder requires more than a showing of intent to kill. (People v. Solomon (2010) 49 Cal.4th 792, 812.) The court in People v. Anderson (1968) 70 Cal.2d 15, identified three types of evidence indicative of premeditation and deliberation: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27.) "Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation." (People v. Perez (1992) 2 Cal.4th 1117, 1125; in accord, Solomon, at p. 812.)
Here, a rational trier of fact could conclude from the evidence that, before shooting Goede, defendant made a cold and calculated decision to shoot him. Defendant does not dispute that he had a motive to kill Goede. But defendant argues that evidence of motive was nevertheless weak because, although defendant had said he would shoot intruders, he never expressed a desire to kill them. Nevertheless, there was strong evidence of motive to kill. There was overwhelming evidence defendant was outraged by people continually encroaching onto his Hemlock property and stealing from him. Defendant had told neighbors that if he caught intruders on his property, he would shoot them. He also threatened to break an intruder's knee caps with a stick, and had said he would bash another in the head if he caught him on his property. This evidence shows that defendant was highly motivated to inflict great bodily harm or death upon anyone he caught intruding on his property, stealing.
Defendant further argues there was no evidence of any planning activity. Defendant maintains that the evidence merely shows that he awoke during the night and went outside because it was hot inside. When he heard the fence rattling and went to investigate, he was confronted by the victim and shot him out of fear. But these facts are based on defendant's own self-serving testimony. There was other substantial evidence supporting a reasonable finding that defendant planned to shoot any thief he caught on his property. Such evidence included Ruiz and Shiflet's testimony that they had told defendant numerous times that they had seen two individuals repeatedly entering defendant's property and stealing wire and scrap metal. Ruiz testified that, before leaving for work at 9:30 p.m. on the night of the shooting, he called defendant and told him he had just seen people on defendant's Hemlock property. Defendant arrived at the property at about 10:30 p.m. and spent the night at the 9985 property, even though he did not normally do so.
The shooting occurred during the early morning hours at around 2:30 a.m. Harcrow testified that, when Goede initially approached the Hemlock property at 9:00 p.m., and noisily dropped his duffle bag inside the fence, there was no sign of any activity from anyone on the property. When Goede and Harcrow returned half an hour later, it was dark and quiet. Goede concluded it was a good time to steal from the property. Harcrow, who was watching from outside the fence, testified that the 9995 Hemlock residence appeared to be abandoned.
The evidence supported a reasonable inference that defendant had planned to hide behind the shed or camper in the dark, waiting for the thieves to return, and then shoot them when they came onto his property to steal. Although defendant was spending the night at the 9985 Hemlock residence, he was on the adjacent 9995 Hemlock property, in the middle of the night, in the dark, with a loaded gun, behind the shed, when he shot Goede. Harcrow testified: "I thought it was a booby trap of some sort because it happened so quick as soon as he went left between the shed and the house." There was no evidence Goede or Harcrow were carrying weapons or that Goede assaulted or threatened to assault defendant. As the two men fled from defendant, Harcrow heard Goede say, "Okay, okay, okay," suggesting that Goede was trying to convince defendant that he was leaving and to stop shooting. Defendant nevertheless continued shooting at the men.
Goede's injuries also supported a finding of deliberation or planning. Goede suffered gunshot wounds to his heart and lung. The trier of fact could reasonably conclude that these wounds reflected careful thought and cool reflection, not startled, fearful, uncontrolled firing at an unanticipated, threatening aggressor.
Defendant argues that the forensic evidence does not show planning because the evidence does establish Goede's location when he was shot. There was evidence defendant's shots did not hit Goede at close range. Defendant asserts the evidence is consistent with a finding that defendant's shots hit Goede while he was climbing back over the fence, fleeing from defendant. The forensic pathologist testified that Goede's two bullet wounds in the torso were from an intermediate range shooting. They were not close range wounds (up to a foot away), because there was no gun powder residue on Goede's clothing or skin. But there was evidence that defendant immediately fired at Goede the instant he went behind the shed, indicating defendant ambushed Goede as defendant walked around the corner of the shed, out of Harcrow's sight. Defendant may have missed Goede when defendant first fired at him behind the shed but the evidence nevertheless supports a reasonable inference defendant planned to shoot and kill intruders, such as Goede.
Evidence of the manner in which defendant shot Goede also supports the jury's finding of premeditated and deliberate murder. Defendant spent the night of the shooting at the 9985 Hemlock property, which he had rarely done in the past. He arrived around 10:30 p.m., after Ruiz had called him around 9:30 p.m., and told him two men were on the Hemlock property. In addition, defendant was up in the middle of the night, out behind the shed on the 9995 Hemlock property, in the dark. Defendant was carrying a loaded revolver, and fired at Goede the instant Goede walked behind the shed, out of sight from the street. Defendant continued firing at Goede as Goede fled and climbed back over the fence. At some point, defendant fired two intermediate range shots in Goede's chest, striking his heart and a lung. This evidence of the manner in which defendant shot Goede is more than sufficient to support a finding that defendant carried out a preconceived plan to ambush Goede as Goede went behind the shed to steal items off defendant's property.
C. Lying in Wait
The same evidence discussed above also demonstrates that defendant committed Goede's murder by means of lying in wait.
Murder which is perpetrated by lying in wait is first degree murder. (§ 189.) "Lying-in-wait murder consists of three elements: '"'(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .'"'" (People v. Russell (2010) 50 Cal.4th 1228, 1244.) The precise period of time is not dispositive. A few minutes can suffice. (Ibid.)
Unlike premeditation, lying in wait is not actually a mental state. It requires concealment of purpose, a substantial period of watching and waiting, and a surprise attack. Thus, except to the extent that the perpetrator must have an illegal purpose, it consists of conduct. "The statute assumes that if the means of the murder are by lying in wait, those means adequately establish the murder as the equivalent of a premeditated murder without any additional evidence of the [perpetrator]'s mental state." (People v. Hyde (1985) 166 Cal.App.3d 463, 475.) In addition, lying in wait does have an effect on the subsequent harm. The perpetrator's concealment of purpose, watching and waiting, and surprise attack all make it more likely that the attack, when it comes, will succeed.
"[M]any lying in wait cases are of the classic ambush type situation, where a killer conceals himself in a yard or subsidiary building and fires from that position of concealment." (People v. Ward (1972) 27 Cal.App.3d 218, 231.) The instant case is such a case. There is substantial evidence defendant was concealed behind a shed and fired upon Goede as he went behind the shed. There was thus evidence of concealment of purpose, a sufficient period of watching and waiting, and a surprise attack. There was also substantial evidence that defendant planned to shoot any intruder by silently hiding out in the dark, behind the shed on the 9995 Hemlock property. A reasonable inference could be made that defendant heard the loud noise from the duffle bag full of tools dropping on the ground, saw the bag on his property, grabbed his revolver, and, while Goede and Harcrow were gone for 30 minutes, hid in the dark, behind the shed, waiting to ambush the men upon their return. Defendant had a loaded revolver ready to fire at Goede as he walked behind the shed, unaware of defendant's presence. As Harcrow testified, it seemed as if there was an ambush or "booby trap of some sort because it happened so quick."
"It suffices if the defendant's purpose and intent are concealed by his actions or conduct, and the concealment of purpose puts the defendant in a position of advantage, from which the fact finder may infer that lying in wait was part of the defendant's plan to take the victim by surprise." (People v. Ceja (1993) 4 Cal.4th 1134, 1140.) Here, Goede and Harcrow were unaware defendant was present on the 9995 Hemlock property and thus taken by surprise when defendant began shooting at them. No doubt, had they known of defendant's presence, Goede would not have climbed over the fence and ventured behind the shed.
We therefore reject defendant's sufficiency of evidence challenge and conclude there was substantial evidence supporting defendant's first degree murder conviction based on either the theory of premeditation and deliberation or lying in wait.
IV
INSTRUCTION ON VOLUNTARY MANSLAUGHTER
Defendant contends the trial court erred by failing to instruct the jury sua sponte on voluntary manslaughter based on heat of passion. We disagree. Such an instruction was not supported by substantial evidence.
In criminal cases, even in the absence of a request, the trial court is required to instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Enraca (2012) 53 Cal.4th 735, 759.) Substantial evidence is required for instruction on a lesser included offense, such as voluntary murder based on heat of passion. (Ibid.) As stated in People v. Breverman (1998) 19 Cal.4th 142, "the sua sponte duty to instruct on a lesser included offense arises if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense. [Citation.] This standard requires instructions on a lesser included offense whenever '"a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser, but not the greater, offense was committed. [Citation.] In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Id. at p. 177; in accord, People v. Moye (2009) 47 Cal.4th 537, 556.)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A murder "may be reduced to voluntary manslaughter if the victim engaged in provocative conduct that would cause an ordinary person with an average disposition to act rashly or without due deliberation and reflection." (People v. Booker (2011) 51 Cal.4th 141, 183, fn. 23; People v. Enraca (2012) 53 Cal.4th 735, 759.)
"Heat of passion has both objective and subjective components. Objectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Enraca, supra, 53 Cal.4th at p. 759.) "Subjectively, 'the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation. [Citation.] "Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.'"'" (Ibid.)
Here, the trial court instructed the jury on perfect and imperfect self-defense. Neither party requested instruction on heat of passion, and the court was not required to give the instruction sua sponte, because there was insufficient evidence to support it. The evidence demonstrated, to the contrary, that defendant either acted in self-defense or committed first degree murder based on premeditation and deliberation or lying in wait. Defendant testified he shot Goede because he feared for his life when Goede suddenly appeared, shining a flashlight in defendant's face and calling defendant a "son of a bitch." Defendant panicked and could not run away because of a bad back. This testimony, along with other evidence presented at trial, supported an instruction on self-defense and imperfect self-defense, but did not support a heat of passion instruction.
Defendant argues that evidence of defendant's frustration and fury caused by thieves repeatedly intruding onto his property and stealing from him was sufficient to support a heat of passion instruction, along with evidence of Goede's presence on defendant's property. But we disagree with the premise that a reasonable person under such circumstances would act rashly and shoot an intruder, such as Goede, because of obscured judgment. Furthermore, there was no evidence defendant acted rashly, without due deliberation or reflection. Defendant's own self-serving testimony was to the contrary. Defendant testified he acted out of fear, in self-defense, not out of passion or rage.
Furthermore, even if a heat of passion instruction should have been given sua sponte, there was no prejudice, because any such error was harmless under Watson. It is not reasonably probable a result more favorable to defendant would have been reached had the jury been so instructed. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Breverman, supra, 19 Cal.4th at p. 178.) Contrary to defendant's assertion, this was not a close case. There was strong evidence that defendant had a motive to shoot Goede, because defendant caught Goede on his property in the middle of the night. In addition, defendant's neighbor called defendant earlier in the evening to alert defendant to the likely presence of thieves on defendant's property that night. Shortly thereafter defendant went to the Hemlock property. Around 2:00 a.m., Goede's bag of tools made a loud noise when Goede's dropped it on the ground, alerting defendant to Goede's presence. There was also evidence that when Goede and Harcrow returned to the property 30 minutes later, defendant was hiding behind the shed in the dark, silently waiting with a loaded revolver, ready to shoot Goede the moment he walked behind the shed. Defendant fired two bullets into Goede's chest, and continued firing at Goede and Harcrow as he chased them down the street.
The first degree verdict reflects the jury's rejection of defendant's testimony that he acted out of surprise and fear, in self-defense. It is not reasonably probable that, had the jury been given a heat of passion instruction, that the jury would have found defendant committed voluntary manslaughter in the heat of passion, rather than first degree murder. Therefore, even if the trial court erred in not giving a heat of passion instruction, which was a theory defendant did not even assert at trial, any such error was harmless.
V
FIREARM ENHANCEMENT
During sentencing, the trial court imposed a consecutive term of 25 years to life for defendant personally and intentionally discharging a firearm, resulting in death, under section 12022.53, subdivision (d). On October 11, 2017, the Governor signed Senate Bill No. 620, amending sections 12022.5, subdivision (c) and 12022.53, subdivision (h). This amendment provides the trial court with new discretion under section 1385 to strike, in the interest of justice, a firearm enhancement at the time of sentencing. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The amendment became effective January 1, 2018.
After this court issued its decision in this case on November 1, 2017, defendant filed a petition for rehearing, asserting that, in light of the legislature amending section 12022.53, subdivision (h), defendant's case must be remanded to the trial court to permit the trial court to exercise its discretion as to whether to strike his firearm enhancement. We granted defendant's petition for rehearing, vacated our opinion filed on November 1, 2017, and permitted the parties to file supplemental briefing on the issue of whether amended section 12022.53, subdivision (h), applies retroactively to defendant's case.
In their supplemental briefs, the parties agree, as does this court, that section 12022.53, subdivision (h), applies retroactively to this case, because the judgment was not final when the amendment to section 12022.53 became effective. We agree with the parties that this matter should therefore be remanded for the sole purpose of allowing the trial court to exercise its discretion as to whether to strike defendant's section 12022.53 firearm enhancement.
VI
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is reversed and this matter is remanded to the trial court for resentencing solely as to defendant's section 12022.53 firearm enhancement, for the purpose of allowing the trial court to exercise its discretion under recently amended section 12022.53, subdivision (h). We express no opinion as to how the trial court should exercise its discretion on remand.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.