Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF224734. Patrick J. O’Hara, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Armenio Huerra of attempted willful, deliberate, and premeditated murder and the trial court sentenced him to a term of life in prison with the possibility of parole. The charges were the result of an assault with a kitchen knife after the victim asked Huerra to leave a birthday party because Huerra’s drunken behavior was offending other guests at the party.
Huerra contends his conviction must be reversed because there was insufficient evidence that he intended to kill the victim or that he acted with deliberation and premeditation. He also argues the trial court erred in instructing the jury because (1) it improperly limited the consideration of his state of intoxication, and (2) it failed to instruct the jury that voluntary manslaughter based on actions committed during a heat of passion was a lesser included offense to the charged crime of attempted murder. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Prosecution case
The victim, Pedro Ruiz Huerta, testified that he was attending a birthday party for his three-year-old nephew on the day of assault. Huerra arrived at the party shortly after Huerta. Huerra and Huerta shared a rented room in a house; Huerta thought the two were friends.
Huerra arrived at the party very drunk. At the party he drank more beer and was misbehaving. He had a difficult time walking because of his intoxication. Eventually, some of the parents asked Huerta to tell Huerra to leave. Huerta asked Huerra to leave the party because he was acting inappropriately. Huerra said he would be back and walked to his vehicle.
Approximately 10 minutes later, Huerta was holding a beer and talking with his sister when Huerra approached and hit him. Huerra had a knife in his hand. Huerta had seen the knife in Huerra’s van the previous day. Huerra swung at Huerta two times, stabbing him once in the abdomen and once in the right arm. The right arm injury occurred when Huerta used his arm to block the second stab attempt, which was aimed at his chest. Huerra then ran from the scene.
Huerta received three stitches on his arm and two on his abdomen as a result of the injuries inflicted by Huerra. Huerta denied trying to strike Huerra. Huerta also denied making any rude comments to Huerra.
Octaviano Alejandro, Jr., a security guard at a nearby bar, testified that Huerra came by the bar later that night. He had blood on his shirt and Alejandro would not allow him to enter until after he cleaned up. Huerra left and returned a short while later with a washed face and clean shirt. Alejandro spotted a steak knife in Huerra’s waist band and told Huerra he could not bring the knife into the bar. Huerra gave Alejandro the knife and entered the bar. When asked about the knife, Huerra told Alejandro that “they” would not mess with him anymore. Alejandro spotted some blood on the knife and threw it away. About 15 minutes later, Huerra got into an argument with another customer and Alejandro forced Huerra to leave. Alejandro eventually retrieved the knife and gave it to a police officer.
After Huerra was forced to leave the bar, he called for emergency assistance to regain entrance into the bar. Deputy Sheriff Francisco Perez responded to Huerra’s call. Huerra obviously had been drinking, but was able to communicate. Huerra had red, watery eyes, smelled of alcohol, and had poor balance. Perez noticed that Huerra was dressed similarly to the assailant from three hours earlier, so he detained him.
Deputy Sheriff Todd Bruce responded to the scene of the assault, arriving at 9:20 p.m. He was later dispatched to the bar where Huerra had been detained, arriving at 12:15 a.m. Bruce described the knife recovered from Huerra as a paring knife with a blade of approximately three inches.
Huerra was transported to the local sheriff’s substation where he was interviewed. The interview began at approximately 1:00 a.m. At that time, Huerra was intoxicated, but able to walk normally. He had red, watery eyes and smelled of alcohol. He was able to communicate, appeared to understand the questions posed to him, and responded in an appropriate manner. The interview was not recorded because the sheriff’s substation did not have any recording equipment.
Perez interpreted for Bruce while Bruce interviewed Huerra. Perez testified that Huerra appeared coherent during the interview and gave appropriate responses to the questions asked.
Huerra explained that the ladies at the party gave him a lot of attention when he arrived. This attention apparently made Huerta jealous. Huerta made disparaging remarks about Huerra, claiming Huerra had no money and was nothing. This made Huerra angry, so he confronted Huerta and asked Huerta if he had a problem with him. Huerta said that he did have a problem with him, so Huerra challenged Huerta to a fight. Huerta agreed to fight. Huerra asked Huerta if he wanted to be killed, and Huerta responded affirmatively. Huerra said he went to his van to get the knife so he could kill Huerta. After retrieving the knife, Huerra returned to the party and confronted Huerta. Huerra asked Huerta if he had a problem with him. When Huerta responded affirmatively, Huerra asked Huerta if he wanted to be killed. Huerta then lunged at Huerra. Huerra responded by stabbing Huerta.
Huerra told Perez that he retrieved the knife because he wanted to kill Huerta by stabbing him in the heart. Huerra stated he stabbed Huerta twice and then the two rolled on the ground. Huerra ran from the scene when he saw several people approaching him. Huerra stated he felt bad for what he had done, but at the time he wanted to kill Huerta.
Defense case
Jennifer Kearney testified that blood was drawn from Huerra at 3:25 a.m. and was tested. His blood-alcohol content from the sample was 0.18 percent. Based on that information, and assuming Huerra stopped all alcohol intake at 9:30 p.m., Kearney concluded that Huerra’s blood-alcohol content at 10:00 p.m. would have been in the range of 0.26 to 0.28 percent.
The charges, verdict, and sentencing
Huerra was charged with attempted murder (Pen. Code, §§ 187, subd. (a), 664) and assault with a deadly weapon (§ 245, subd. (a)(1)). The information also alleged as enhancements that Huerra personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), and personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1).
All further statutory references are to the Penal Code unless otherwise stated.
The jury convicted Huerra of attempted murder and assault with a deadly weapon. It also found true the allegation that Huerra used a deadly weapon when committing the crimes. It found, however, that Huerra did not inflict great bodily injury on Huerta.
The trial court sentenced Huerra to life in prison with the possibility of parole, plus one year for the deadly weapon enhancement.
DISCUSSION
I. Sufficiency of the Evidence
Huerra challenges the sufficiency of the evidence in two respects. First, he argues there was insufficient evidence that he intended to kill Huerta. Second, he argues there was insufficient evidence that the assault was committed willfully and with premeditation and deliberation.
Standard of review
Challenges to a judgment based on insufficient evidence are reviewed under well-established rules. We review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict, i.e., 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. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury reasonably could have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (Maury, at p. 403.) A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).)
The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. (Maury, supra, 30 Cal.4th at p. 396.) We “must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” (Ibid.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion that the circumstances also might be reconciled reasonably with a contrary finding is not grounds for reversing the judgment. (Id. at p. 1054.)
Intent to kill
Huerra claims there was insufficient evidence that he intended to kill Huerta. To sustain a conviction for attempted murder, the prosecution was required to prove beyond a reasonable doubt that Huerra intended to kill Huerta, and that he committed a direct but ineffectual act toward accomplishing that goal. (People v. Stone (2009) 46 Cal.4th 131, 136.) “The jury may infer a defendant’s specific intent to commit a crime from all of the facts and circumstances shown by the evidence. (See People v. Bloom (1989) 48 Cal.3d 1194, 1208 [‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’].)” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The circumstantial evidence suggesting Huerra intended to kill Huerta was strong. After being asked to leave the party, Huerra retrieved a knife from his vehicle. He returned to the party and stabbed Huerta in the abdomen. He then attempted to stab Huerta in the chest, but was prevented from doing so when Huerta blocked the attempt with his arm. These acts logically lead to the inference that Huerra intended to kill Huerta.
Huerra argues that these acts do not suggest an intent to kill because he stabbed at Huerta only two times. He suggests that if he had intended to kill Huerta, he would have stabbed him repeatedly. This argument, however, simply asks us to draw a different inference from these facts than that which supports the judgment. The standard of review, however, requires that we draw every logical inference that the jury may have drawn from the evidence. This evidence amply supports the logical inference that Huerra intended to kill Huerta.
Not only was the jury provided with strong circumstantial evidence to support the inference that Huerra intended to kill Huerta, there was direct evidence of Huerra’s intent. In his statements to the police, Huerra stated several times that he intended to kill Huerta when he returned to the party with the knife.
Huerra asks us to ignore his statements for two reasons, neither of which are persuasive. First, Huerra argues his statements were unreliable because he was intoxicated when he was interviewed. This argument is not supported by logic or the record. While it is undisputed that Huerra was intoxicated when he was interviewed, both officers testified that Huerra appeared coherent and responded appropriately to the questions asked of him. Simply because he was intoxicated does not mean that he would be unable to tell the truth. Significantly, the only testimony in the record on the issue of the effect of intoxication on an individual suggested that intoxication lowered an individual’s inhibitions.
Huerra’s expert witness, Kearney, testified that intoxication generally will lower a person’s inhibitions, exaggerate emotions, and may cause a person to do things he or she normally would not do.
Thus, intoxication may have lowered Huerra’s inhibitions and may have led him to overreact when Huerta asked him to leave the party. These lowered inhibitions, however, also may have led Huerra to provide truthful and incriminating statements to the police that he may not have made if he had not been intoxicated. Nothing in the record suggests that simply because Huerra was intoxicated, his statements were untruthful or unreliable.
Second, Huerra asks us to ignore his statements because they were not recorded. The jury was instructed that incriminating statements made by Huerra that were not recorded or written should be viewed with caution. (CALCRIM No. 358.) Presumably, the jury followed this instruction. (People v. Stitely (2005) 35 Cal.4th 514, 559.) We review the record, however, in the light most favorable to the judgment. Under this standard, we must presume the jury viewed Huerra’s statements with caution, but nonetheless found them to be credible. The combination of circumstantial evidence and direct evidence provided overwhelming evidence that Huerra intended to kill Huerta.
Willful, deliberate, and premeditated murder
The information alleged that the assault was committed willfully, deliberately, and with premeditation, thus making the crime attempted murder in the first degree. The jury found this allegation true. Huerra argues this finding was not supported by substantial evidence.
When reviewing a finding that a defendant’s actions were done willfully, deliberately, and with premeditation, we apply well-established standards. “In People v. Anderson [(1968) 70 Cal.2d 15, 26-27], we identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, as later explained in People v. Pride (1992) 3 Cal.4th 195, 247: ‘Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]’ Thus, while premeditation and deliberation must result from ‘“careful thought and weighing of considerations”’ [citation], we continue to apply the principle that ‘[t]he 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.]’ [Citation.]” (Bolin, supra, 18 Cal.4th at pp. 331-332.)
Huerra argues that none of the Anderson factors was present in this case. His argument, however, ignores the standard of review. We repeat, we review the evidence in the light most favorable to the judgment, drawing all inferences the jury reasonably could have drawn from the evidence.
Applying the correct standard of review, it is clear that the finding was supported by substantial evidence. While true that Huerra did not plan for days how he would assault Huerta, there was ample evidence that he planned the assault. Huerta testified that he asked Huerra to leave the party because Huerra was acting inappropriately. Huerra left and returned about 10 minutes later. Without warning, Huerra stabbed Huerta twice, and then ran from the scene.
Huerra’s statement to the police was more incriminating. He told officers that he became upset with Huerta because Huerta was denigrating him and told him to leave the party. Huerra challenged Huerta to a fight and even asked Huerta if he wanted to die. Huerra then left the party, went to his van, obtained the knife (which he remembered was in the van), and approached Huerta. Huerta lunged at Huerra, and Huerra stabbed him.
The jury also heard the testimony of Alejandro, the security guard. Alejandro testified that when questioned about the knife, Huerra said that “they” would not mess with him anymore. Huerra also told officers that he wanted to kill Huerta.
From this testimony, the jury logically could have concluded that Huerra became angry when Huerta asked him to leave the party. Huerra decided to attack Huerta and went to his van to obtain a weapon. He knew he had a knife in the van and he retrieved it with the express intent of killing Huerta. Huerra then returned to the party and carried out his plan to kill Huerta. This evidence was more than adequate to establish planning and premeditation by Huerra.
Huerra also claims there was no evidence of motive. We disagree. Huerra stated several times during his interview with police officers that he was from Guatemala and that men from Guatemala knew how to kill. Alejandro also testified to Huerra’s statement that Huerta would know not to mess with Huerra anymore. The jury logically could have inferred from this evidence that Huerra’s pride was offended when Huerta made disparaging remarks to him and asked him to leave the party and that he, Huerra, had to defend his honor as a matter of national pride.
II. Jury Instruction on Intoxication
Huerra undisputedly was intoxicated at the time of the assault and when he was interviewed by officers. Accordingly, the trial court instructed the jury with CALCRIM No. 625 as follows:
“You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or that the defendant acted with deliberation and premeditation.
“A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance, knowing that it could produce an intoxicating effect or willingly assuming the risk of the effect.
“You may not consider evidence of voluntary intoxication for any other purpose.”
Huerra contends the trial court erroneously limited the consideration of his voluntary intoxication to the mental state required for attempted murder. He argues the jury should have been allowed to consider his intoxication when evaluating the reliability of the statements he gave to officers.
Huerra’s argument can be summarized as follows. His intoxication was relevant to the statements he made during the interview with officers because it could have impacted the credibility and trustworthiness of the statements. Since all relevant evidence is admissible (Evid. Code, § 350), the jury should have been allowed to consider the evidence for that purpose. The instruction limiting the use of his intoxication, however, precluded the jury from considering his intoxication when evaluating his statements to the officers.
There are several flaws in Huerra’s argument. First, both officers testified that Huerra was coherent and responded appropriately to the questions posed.
Second, there is nothing in the record to suggest that simply because Huerra was intoxicated he was unable to tell the truth. The only witness to testify on the subject said the intoxication reduces inhibitions, a characteristic that in this case made it more likely that Huerra would have been truthful than deceitful.
Third, the only case on point cited by Huerra does not support his position. Huerra cites to pages 1136 and 1137 of People v. Mendoza (1998) 18 Cal.4th 1114. These pages are part of the concurring opinion of Justice Mosk and are not part of the majority opinion. Justice Mosk did cite four cases, but those cases each stand for a different proposition than that advanced by Huerra.
In People v. Barnett (1976) 54 Cal.App.3d 1046 and People v. Haydon (1912) 18 Cal.App. 543, the issue was the intoxication of a witness during trial. Barnett held that the trial court erred in refusing the defendant’s requested instruction that informed the jury it could consider a witness’s intoxication at the time of trial when assessing the testimony. (Barnett, at p. 1052.) Haydon addressed the propriety of questions propounded to a witness about whether he was intoxicated while testifying.
In People v. Singh (1937) 19 Cal.App.2d 128 and People v. Salladay (1913) 22 Cal.App. 552, the issue addressed was the intoxication of the witness at the time of the events to which he was testifying. Singh held that the trial court erred in precluding questions about whether a witness was intoxicated at the time of the events because such testimony is relevant to the credibility of the witness. (Singh, at p. 129.) In Salladay the issue was whether the trial court improperly sustained objections to questions about whether a witness was intoxicated at the time of the event in question. The court acknowledged that intoxication of a witness is relevant because intoxication can interfere with a person’s “power of perception, the accuracy of his deductions and the integrity of his memory.” (Salladay, at p. 555.) These cases do not suggest that the truthfulness of a witness is suspect simply because he was intoxicated at the time of the event.
Fourth, Huerra did not object to the instruction as given, thus resulting in a forfeiture of the argument.
Finally, even if there is merit to the argument, Huerra cannot establish that the error was prejudicial. His statements to police, while incriminating, also provided the only exculpatory evidence offered in his defense. Huerra told officers that he stabbed at Huerta after Huerta lunged at him. Huerra also told officers that Huerta agreed to fight and provoked him.
Moreover, Huerra’s statements generally were consistent with that of Huerta, indicating that Huerra’s memory of the events was not influenced by his intoxication. Huerra admitted arriving at the party intoxicated, being asked to leave by Huerta, going to his vehicle to retrieve the knife, and then returning to confront Huerta. Huerra’s statement is incriminating because he admitted to the officers he intended to kill Huerta. It is incongruous to suggest that Huerra would correctly recall the sequence of events but lie about his intent.
Also, there was no evidence that Huerra’s actions were motivated by anything other than an alcohol-fueled need to seek revenge for his wounded pride. According to Huerra, Huerta spoke to him in an offensive manner, and Huerra needed, as a Guatemalan, to take action for the slight. It also was undisputed that Huerra left the party and returned at least 10 minutes later with a knife and assaulted Huerta.
These facts can lead to only one logical conclusion: Huerra decided he had to prove his manhood by seriously harming Huerta. The decision to return with a knife established that merely inflicting physical harm was insufficient in Huerra’s mind. If physical harm was his only intent, then he merely could have fought him. Obtaining the knife suggests that Huerra wanted to cause deadly harm. These facts and inferences strongly suggest an intent to kill after deliberation and premeditation.
Finally, the jury was well aware of Huerra’s intoxication, as virtually every witness testified that Huerra was intoxicated. The jury’s verdict establishes that it concluded Huerra’s intoxication did not preclude him from forming the mental states of deliberation, premeditation, and intent to kill. It is unlikely that the jury would have rejected Huerra’s admissions when he was less intoxicated at the time he spoke with the officers, especially since both officers testified to his coherence at the time of the interview. Under any standard of review, the failure to instruct the jury that it could consider Huerra’s intoxication when evaluating his statements to the officers did not cause Huerra any prejudice.
III. Voluntary Manslaughter as a Lesser Included Offense
In addition to instructing the jury on attempted murder, the trial court instructed the jury on attempted voluntary manslaughter based on Huerra acting in imperfect self-defense. Huerra argues the trial court erred because it also should have instructed the jury that he would be guilty of attempted voluntary manslaughter if he acted in the heat of passion.
Standard of review
“‘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 jury’s understanding of the case.’ [Citation.]” (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).)
The general principles of law include instructions on lesser included offenses if there is a question about whether the evidence is sufficient to permit the jury to find all the elements of the charged offense. (Breverman, supra, 19 Cal.4th at pp. 154-155.) There is no obligation to instruct the jury on theories that do not have substantial evidentiary support. (Id. at p. 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]” (Ibid.) Evidence is substantial if it would permit the jury to conclude the lesser offense was committed, but the greater offense was not. (Ibid.)
Analysis
We begin with the question of whether there was sufficient evidence to require the trial court to instruct the jury on heat of passion voluntary manslaughter. “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192[, subd.] (a)), and is thus voluntary manslaughter (ibid.), if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition … to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citations.] ‘“[N]o specific type of provocation [is] required.…”’ [Citations]. Moreover, the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citations] other than revenge [citation]. ‘However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter.…’ [Citation.]” (Breverman, supra, 19 Cal.4th at p. 163.)
Huerra asserts that he was angry and upset when Huerta made fun of him and then asked him to leave the party. He argues that these factors were sufficient to require a heat of passion instruction. We disagree. While we accept, for the purposes of argument, that these factors caused Huerra to become upset, this was not the type of provocation that would be sufficient to cause an ordinary person of average disposition to act rashly. Moreover, if these factors did cause Huerra to act impulsively, his actions would have been motivated by revenge for his injured pride, which is not a sufficient ground to support the heat of passion theory.
Also, Huerra’s argument is not supported by the facts. Huerra did not lash out at Huerta when Huerta denigrated him and asked him to leave the party. Instead, Huerra left the party for at least 10 minutes to obtain a weapon. Huerra told officers that during this time he formed the intent to kill Huerta. These facts demonstrate that Huerta was not acting under a heat of passion. The voluntary manslaughter instruction based on actions committed while acting under a heat of passion was not supported by the evidence.
Even if we were to assume that the trial court should have instructed the jury on this theory, we would not reverse the judgment because Huerra cannot demonstrate any prejudice.
“In a noncapital case, the error in failing to instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818 which requires reversal of the conviction for the greater offense ‘if, “after an examination of the entire cause, including the evidence” [citation], it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred.’ [Citation.] Probability under Watson ‘does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1335.)
We conclude there is no possibility that Huerra would have obtained a better result had the jury been instructed on the heat of passion theory of voluntary manslaughter. First, trial counsel did not argue that Huerra acted under a heat of passion, but instead argued that the crime committed was assault with a deadly weapon and not attempted murder.
Second, the jury not only found Huerra guilty of attempted murder but also found true the special circumstance that his actions were willful, deliberate, and premeditated. This finding precludes any possibility that the jury would have found Huerra was acting under a heat of passion because the two mental states are diametrically opposed. Also, the jury had two lesser options to convict Huerra -- attempted murder without premeditation and deliberation and voluntary manslaughter based on imperfect self-defense. The jury rejected both of these theories. Logic compels the conclusion that the jury also would have rejected voluntary manslaughter based on actions committed during a heat of passion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., DETJEN, J.