Opinion
B227968
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH C. HALL, Defendant and Appellant.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA109731)
APPEAL from a judgment of the Superior Court of Los Angeles County, Pat Connolly, Judge. Affirmed.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph C. Hall appeals from the judgment entered following his conviction by a jury of second degree murder (Pen. Code, § 187, subd. (a)), with a true finding he had personally discharged a firearm proximately causing the death of Giovanni Russo (Pen. Code, § 12022.53, subd. (d)). Hall contends the trial court erred by refusing to instruct the jury on accident as a complete defense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Trial
a. The People's evidence
Just before midnight on November 29, 2009 Penny Garcia drove her son, Eric Garcia, and Hall to Russo's house to buy marijuana. Hall was then 18 years old and had been Eric's friend since childhood. Penny testified Eric and Hall had been drinking and she did not believe they should be driving.
While Penny was waiting in the car near Russo's house, she heard a gunshot. She drove toward the house, and Eric and Hall jumped into the car. Eric said someone had tried to rob them and shot at them. Penny did not see anyone chasing them, but drove away at Eric's insistence. Hall, who was shaking uncontrollably and apologizing, said, "This is all on me."
Once the three arrived at the Garcia home, Eric and Hall went to Eric's room. The two young men were gone by the time Penny awoke the next morning. Penny testified Hall was a "good kid" and "always . . . very respectful," but Eric had been in trouble before. Eric, who had been shot in a drive-by incident, had three guns, which he kept in his room.
Kyle Ellison testified he and Russo were at Russo's house on November 29, 2009 when Russo received a telephone call. While Russo was on the phone, Ellison went to the bathroom. When he returned, he saw the door to the house was open and Russo was gone; so Ellison played a video game. Ellison heard a loud "clap." About five minutes later he heard Russo call to him, saying he had been shot. Ellison found Russo lying on the ground a few houses away. Russo told Ellison "Joe had shot him." Ellison testified he did not see any drugs or money around Russo when he found him. He also testified he knew Hall was a friend of Russo's and did not think there were any problems between them.
Los Angeles Police Sergeant Rodolfo Fuentez was the first officer to arrive at the scene. Russo, who was lying on the ground with Ellison kneeling by his side, told Fuentez, "Joe shot me." Russo later died from a gunshot wound to the chest. No guns, drugs or cash were found at the crime scene, but a .380 caliber shell casing and Russo's cell phone were recovered. There was a series of text messages between Russo and Hall on the cell phone indicating that Penny was going to take Eric and Hall to Russo's house and that Russo was going to do something for Hall. Hall's contact information and photograph were also stored in the cell phone.
On December 4, 2009 Hall and Eric were arrested at a hotel and taken to the police station. Hall was advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]). After waiving those rights Hall was interviewed by Los Angeles Police Detective Thomas Eiman. Eiman testified Hall initially denied going to Russo's house the night he was killed. Later, however, Hall said he and two other people went to Russo's house to purchase marijuana. While they were walking back to their car, they saw some bald, male Hispanics drive by and then heard gunshots. They did not think it was significant, so they got into the car and drove away.
Detective Eiman also testified he spoke to Russo's brother, Giancarlo, the day after the shooting. Giancarlo said Russo had supplied Hall with marijuana on several occasions. Giancarlo also said Hall and Russo appeared to be good friends, and he was not aware of any dispute between them.
On January 19, 2010 Hall's aunt, Debbie Sadol, who lived next door to Hall, found a gun inside a bag in her laundry room to which Hall had access. As soon as she realized what it was, she put it back in the bag and called the police. Detective Eiman and the officers who were dispatched to her home found two additional firearms and bullets; one of the firearms was a .380 semiautomatic pistol. All the guns were loaded.
William Moore, a criminalist with the Los Angeles Police Department, testified the bullet recovered during Russo's autopsy was fired from the .380 pistol found in Sadol's laundry room. Moore determined the weight required to actuate the .380 pistol's striker was between 11 1/2 to 11 3/4 pounds of pressure, which Moore described as a "heavy trigger pull." In comparison, the pistol used by law enforcement personnel requires between five and one-half to eight pounds of pressure. Additionally, to fire the .380 pistol, the chamber must be loaded with a "fresh cartridge"; and the slide pulled completely back.
Moore also testified the trajectory of the bullet that killed Russo was at a downward angle, consistent with Russo either sitting or kneeling in front of the shooter or perhaps bending at the waist. The absence of any gunpowder soot on Russo indicated the gun was at least two to three feet away from Russo when it was fired.
b. The defense's evidence
Testifying on his own behalf, Hall abandoned the story about the bald, Hispanic men firing a gun as he was leaving Russo's, instead contending the gun had accidentally discharged when he was trying to trade it for marijuana. Hall testified he and Russo had gone to high school together and were friends. Hall had purchased marijuana from Russo "quite frequently" and agreed with the characterization of himself as a "pretty heavy consumer."
Hall explained he went to Eric's house after work on the evening of November 29, 2009. Hall had about six or seven shots of tequila and was feeling "pretty drunk." Eric, who owned three handguns and a shotgun, said he wanted to get rid of one of his guns and might want to get marijuana for it. Hall offered to help and called a few people. Russo was the first one to answer the telephone. Hall proposed Russo take the gun in exchange for an ounce of marijuana; and, if Russo could not sell it, Hall and Eric would give him money. Russo agreed, and the three planned to meet at Russo's house.
Russo and Hall exchanged a series of text messages to coordinate the logistics. Before leaving for Russo's house, Eric gave Hall a .380 caliber gun, which Hall put in his pocket. Hall did not check the gun and did not know if it was loaded or if the safety was on. Penny drove Hall and Eric to Russo's house because they were too drunk to drive.
Once at Russo's the three men began to chat. When Russo showed Eric the marijuana, Hall took the gun out of his pocket so Russo could see it. The gun accidentally fired; Russo grabbed his chest and fell to the ground. Hall ran without taking the marijuana. He testified he does not know why the gun discharged and had no intention to kill Russo. Hall hid the guns in his aunt's laundry room because he was scared and did not know what else to do. Hall said he intended to turn himself in, but was waiting for his father to come from out of town and for Penny to retain an attorney.
c. The jury instructions
The jury was instructed on first degree murder, second degree murder and involuntary manslaughter (CALCRIM Nos. 500 [homicide: general principles]; 520 [murder with malice aforethought]; 521 [murder: degrees]; and 580 [involuntary manslaughter: lesser included offense]). During the discussion of jury instructions, defense counsel requested the jury be instructed with CALCRIM No. 510, excusable homicide by accident. The trial court expressed skepticism the instruction was warranted, asking "What would be the basis for this? And I'm asking[] because I don't see a basis for accidental at this point." Addressing the elements of the defense, the court said, "The defendant was doing a lawful act in a lawful way. Clearly, that is not the case. So the first element is not met. The defendant was acting with usual and ordinary caution. Let's just even set that aside; and three, the defendant was acting without any unlawful intent. I'm willing to listen, but I don't believe that by way of what the testimony has been by Mr. Hall himself, that this would be applicable." Defense counsel did not address the court's concerns, stating only, "I'll just ask for it officially . . . and submit it."
CALCRIM No. 510 states in part, "The defendant is not guilty of murder if he killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if 1) the defendant was doing a lawful act in a lawful way; 2) the defendant was acting with usual and ordinary caution; and 3) the defendant was acting without any unlawful intent."
2. The Verdict and Sentence
The jury found Hall guilty of second degree murder and found true the special allegations he had used a firearm in committing the offense. The trial court sentenced Hall to an indeterminate state prison term of 40 years to life, consisting of 15 years to life for murder, plus a consecutive term of 25 years to life for the firearm enhancement.
DISCUSSION
In a criminal case the trial court must instruct on the general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Young (2005) 34 Cal.4th 1149, 1200.) This obligation includes the duty to give instructions on any affirmative defense for which the record contains substantial evidence. (People v. Salas (2006) 37 Cal.4th 967, 982; People v. Michaels (2002) 28 Cal.4th 486, 529; see People v. Watson (2000) 22 Cal.4th 220, 222 ["trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense"]; In re Christian S. (1994) 7 Cal.4th 768, 783 ["'[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense'"].)"Evidence is 'substantial' only if a reasonable jury could find it persuasive." (Young, at p. 1200.) The trial court need not give instructions based solely on conjecture and speculation, but may not assess the credibility of the evidence in making the determination whether an instruction should be given. (Ibid.)
We review de novo a claim the trial court failed to give a required instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
In the case at bar, even though Hall testified the gun discharged accidentally, an instruction on accident pursuant to CALCRIM No. 510 was not warranted: The defense of accident, entirely excusing a homicide, requires the defendant, acting with "usual and ordinary caution," be engaged in a lawful act, performed in a lawful manner, when the homicide occurred. (See Pen. Code, § 195; cf. People v. Villanueva (2008) 169 Cal.App.4th 41, 54 ["[w]hen a murder defendant relies on the theory that the homicide was committed by accident while the defendant was lawfully acting in self-defense without any unlawful intent, the jury should be instructed on excusable homicide"].) Hall conceded he was carrying a loaded firearm when he went to Russo's home (although he claimed he did not know it was loaded) and testified he was attempting to buy marijuana when the gun discharged, killing Russo. Neither act is lawful. (See Pen. Code, § 12031, subd. (a)(1); Health & Saf. Code, § 11357.) Additionally, nothing in Hall's testimony suggests he used caution or care in handling a firearm while "pretty drunk." Thus, even if the jury had believed Hall did not intend to shoot Russo or the gun accidentally discharged, the accident defense was precluded by Hall's own testimony. Rather, Hall at the very least was guilty of involuntary manslaughter, which, as the jury was instructed, is an unlawful killing committed without an intent to kill or a conscious disregard for the risk to human life.
Hall's reliance on People v. Gonzales (1999) 74 Cal.App.4th 382, disapproved in part by People v. Anderson (2011) 51 Cal.4th 989, 998, footnote 3, is misplaced. To be sure, the Gonzales court noted, "When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of the fact. [Citation.] . . . The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime." (Gonzales, at p. 390.) In that case, however, the defendant was charged with willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)); and the accident defense was predicated on Penal Code section 26, which sets forth accident as a defense to crimes generally. Unlike Penal Code section 195, which is specifically applicable to the accident defense in the context of homicide, Penal Code section 26 does not include the requirement the defendant be engaged in a lawful act and using ordinary care and caution when the accident occurs.
Penal Code section 26 provides in part, "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Five—Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence."
Moreover, even if the court erred in failing to instruct on the defense of accident, any error was harmless because it is not reasonably probable Hall would have received a more favorable result had the instruction been given. (See People v. McKinnon (2011) 52 Cal.4th 610, 679 ["[i]n determining whether the failure to instruct requires reversal, '[w]e apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given'"].) As discussed, the jury was instructed on first degree murder, second degree murder and involuntary manslaughter. In finding Hall guilty of second degree murder rather than involuntary manslaughter, the jury necessarily found Hall either intended to kill Russo or knew his conduct was dangerous but did not care if someone was hurt or killed. (See People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092.) Either finding reflects a rejection of Hall's theory the gun accidentally discharged as he was pulling it out of his pocket. (See People v. Kobrin (1995) 11 Cal.4th 416, 428, fn. 8 [failure to give instruction is harmless error if factual question posed by omitted instruction is necessarily resolved adversely to defendant under other, properly given instructions].)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J. We concur:
ZELON, J.
JACKSON, J.