Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F-5907293-5 Gregory T. Fain, Judge.
Law Office of A. M. Weisman, A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Johnny Lugo Ibarra stands convicted, following a jury trial, of second degree murder (Pen. Code, § 187, subd. (a); count 1), three counts of assault with a deadly weapon on a peace officer, involving the personal use of a deadly weapon (§§ 245, subd. (c), 12022, subd. (b)(1); counts 2-4), possession for sale of more than one kilogram of methamphetamine (Health & Saf. Code, §§ 11370.4, subd. (b), 11378; count 5), and transportation, not for personal use, of more than one kilogram of methamphetamine (§ 1210, subd. (a), Health & Saf. Code, §§ 11370.4, subd. (b), 11379, subd. (a); count 6). He admitted having served a prior prison term for a violent felony (§ 667.5, subd. (a)) and having suffered a prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Sentenced to prison for a total unstayed determinate term of 15 years, plus a consecutive indeterminate term of 30 years to life, he now appeals, raising various claims of instructional and sentencing error. For the reasons that follow, we will affirm.
All statutory references are to the Penal Code unless otherwise stated.
The victims were Officers Garza, Jauregui, and Williams, respectively. An allegation appended to count 2, that appellant personally inflicted great bodily injury on Garza (§ 12022.7, subd. (a)), was found not true.
FACTS
I
Prosecution Evidence
On the afternoon of September 20, 2005, a confidential informant introduced Fresno Police Detective Cervantes to appellant, who arrived for the meeting alone, in a blue PT Cruiser. Cervantes and appellant negotiated a deal whereby Cervantes would purchase three pounds of crystal methamphetamine from appellant for $7,800 per pound. Appellant and Cervantes agreed to meet up later, although the location was not decided at this point.
The police department’s narcotics team decided to conduct the transaction in the McDonald’s parking lot at Jensen and 99. The fact it is a public area affords the undercover officers some protection, while the physical layout is such that suspects can be placed away from civilians and, should officers have to use their weapons, their line of fire will be toward an embankment and away from nearby businesses. Additionally, officers were hoping to catch appellant when he had just picked up the narcotics, which he had said were coming from Indio through Selma, so that he would have the maximum amount of drugs on hand.
Once the team was in position, between 6:00 and 6:30 p.m., Cervantes advised appellant of where he wanted to conduct their transaction. During the course of several telephone calls between appellant and the confidential informant, who would pass his phone to Cervantes, the presence of a female voice alerted Cervantes to the fact there was a female involved somehow. This was perhaps 40 minutes before appellant and the female arrived in the McDonald’s parking lot. Later, the confidential informant received a telephone call and advised Cervantes that appellant and the girl were en route. Cervantes informed the case agent, Detective Garza, by cell phone that appellant was coming with a female, and he also said it over the wire he was wearing so that whoever was monitoring the wire (on this occasion, Detective Robles) would also hear that information.
Cervantes’s vehicle was parked in the west portion of the parking lot, in the second stall from the Days Inn Motel that shared the lot with McDonald’s, facing westbound. It did not move from that location during ensuing events. The confidential informant’s vehicle was parked in the stall immediately south. When appellant arrived, he parked just north of Cervantes’s vehicle, on its passenger side. By this time, it was getting close to 7:30 or 8:00 p.m., and it was dark out and raining heavily. There was ambient light from street lights in the parking lot, including one single-headed lamp just north of appellant’s vehicle, another south of Cervantes’s vehicle, and a four-headed lamp, with the lamps pointing in all directions, behind the vehicles and toward the middle of the lot. According to Sergeant Williams, there was sufficient light to see.
As per his preference when conducting a narcotics transaction, Cervantes was unarmed. He got into the driver’s side back seat of appellant’s car and left the door slightly ajar. He greeted appellant and the female, later identified as 17-year-old Katrina Campos. After some small talk, he asked whether appellant had brought the methamphetamine. Appellant manipulated the steering column so he could reach underneath that area, then handed Cervantes a Tupperware-type container encased in plastic wrap and with a dryer sheet of fabric softener to eliminate the smell of the crystal methamphetamine. After unwrapping and opening the container, Cervantes found what appeared to be a pound of crystal methamphetamine. When he asked appellant whether he had brought all three pounds, appellant replied that he had. Cervantes closed the container, set it down in the center console area, said he would be getting the money, exited the vehicle, and gave the prearranged arrest signal. At no time did he see any weapons, nor did appellant or Campos do anything threatening.
As Cervantes returned to the driver’s side of his vehicle, the assisting officers – Sergeant Flores, Detective Lowry, Officer Jauregui, Detective Garza, Sergeant Williams, Detective Robles, and Detective Cardinale – converged on the location in their vehicles. Flores positioned his vehicle at an angle toward the PT Cruiser’s rear driver’s side, approximately two feet behind that vehicle; Cardinale parked to the right and behind the PT Cruiser so that the center of his truck’s bumper was three to four feet behind the right rear corner of that vehicle; Williams parked his car in the hole between Flores’s and Cardinale’s trucks, perhaps 20 to 25 feet from the rear of the PT Cruiser; and Lowry and Jauregui, who were together in Lowry’s vehicle, positioned themselves behind Flores’s pickup. As the intent was to block in appellant’s car, only small spaces remained between the vehicles, and Lowry estimated a couple of feet separated the PT Cruiser from the nearest undercover vehicle.
As the detectives exited their vehicles to make the arrest, a number of them began loudly shouting that they were police and that appellant was to show them his hands. In addition, the officers were wearing their tactical vests, which had a four- to five-inch white or yellow Fresno Police Department star, along with (except in the case of Officer Jauregui) a patch bearing the word “Police” on the front, and the word “Police” in large letters on the back. Memories varied as to whether the headlights on some or all of the undercover vehicles were on. There were also differing assessments of the extent of visibility, as it was dark and raining and the PT Cruiser’s rear windows were tinted. Nevertheless, the officers’ consensus was that there was sufficient lighting to illuminate the scene and, to a certain extent, the interior of the PT Cruiser.
For instance, Cardinale testified that, when he exited his vehicle, he could see appellant. He did not see anybody else inside the car even when he was firing, despite the fact the windshield was not tinted.
The officers approached appellant’s vehicle from different directions. Lowry, who moved to the rear driver’s side of the PT Cruiser, was carrying an H&K MP5 machine gun with a flashlight mounted on it. Garza, who approached from the rear passenger side, had a .40-caliber Beretta pointed in appellant’s direction. Williams exited his vehicle carrying a less-than-lethal beanbag shotgun. Flores was positioned so that he was leaning over the front hood of Cervantes’s vehicle, with his handgun pointed at appellant.
As Lowry approached, he saw appellant looking to the right and left and his hand moving toward what appeared to be the gear shift. The two made eye contact when Lowry was at the rear of the vehicle. Appellant appeared to be trying to see who was coming up on either side. As Cardinale approached, he saw appellant turn and look over his right shoulder. The two men made eye contact, and appellant said something. Garza also saw appellant look in his direction. Appellant made eye contact with Robles, then yelled, “‘Fuck, it’s the cops.’” Cervantes, who was still sitting in the vehicle parked next to the PT Cruiser, had a fairly clear view of appellant. He saw appellant look over both shoulders a couple of times, then appellant turned back forward and mouthed, “‘Fuck, police.’”
Almost simultaneously, appellant started the vehicle and put it in reverse. His engine was revving loudly and his wheels started to spin, as the car was unable to gain traction right away. The car then traveled in reverse at a high rate of speed. At the time the PT Cruiser began moving, Cardinale was on the passenger side of the vehicle, making his way to the front of the car. Williams was about 10 feet from the back of the vehicle. Garza was approximately five feet behind it and toward the passenger side. Jauregui was approximately 12 feet directly behind the car.
The car immediately sideswiped the front of Flores’s truck, ricocheted off, and began moving directly at Williams and Garza. Williams attempted to get back to and over his vehicle, but did not think he would make it because appellant was coming so fast. As he jumped for his vehicle, however, he heard a burst of gunfire. Given the car’s rate of speed, Garza did not believe getting out of the way was an option; there was no doubt in his mind that he was going to get hit. His mind told him to shoot two rounds at the driver and jump on the back of the bumper of the car. Garza recalled jumping on the bumper; with him there, the PT Cruiser hit the driver’s side of Williams’s car with enough force to crumple the rear wheel of that car, then moved forward a little. Garza’s feet then slipped to the ground and he was able to jump over the hood of Williams’s vehicle and get out of the way. His legs were hurting so that he could barely walk. In addition, there was a gash on his left arm for which he received eight stitches. Although Garza did not know how he received that injury, he later found broken, tinted glass in his pockets. Garza did not recall firing any shots, but a subsequent check of his weapon revealed he had fired two rounds.
Seeing the PT Cruiser moving backward extremely fast and believing Garza’s life was in danger because appellant was going to run over him or crush him between the PT Cruiser and Williams’s car, Cardinale also opened fire. He was carrying a .40-caliber Beretta pistol and was positioned in front of the PT Cruiser, which was fishtailing. He fired five times at an angle into the windshield, at appellant.
When the car accelerated back toward him and started to make a swerving or turning motion with its front end, Jauregui fired his weapon, because the car kept coming back at him. Although he could not say how close he was at the time, it seemed like the vehicle was right on top of him, and it was accelerating “pretty fast.” He could not see appellant or Campos. He fired once into the back window at the driver, then dove out of the way. He heard other shots that seemed to be fired simultaneously. Although he believed he heard gunfire before he shot, it was possible he fired first. The PT Cruiser was still moving at the time. He was unaware that Garza also fired into the back window.
All told, the PT Cruiser moved perhaps one and a half car lengths from its original location in the parking stall to where it finally came to rest. Appellant, who was slumped over toward the center console area, had been shot behind the left ear, with the bullet exiting out his nose, and in the shoulder. Campos, whose presence had previously been unknown to several of the officers, was seated in an upright position, holding a cell phone. She died from a bullet wound to the head. Five bullet strike marks were found on the outside of the PT Cruiser’s windshield, while one came from the back of the vehicle and struck the inside of the windshield.
Appellant subsequently was determined to be unarmed. A search of the PT Cruiser revealed three Tupperware-like containers, each of which contained approximately a pound of methamphetamine. In Cervantes’s training and experience, a user will have no more than half a gram to a gram of crystal methamphetamine in his or her possession at a given time.
II
Defense Evidence
Appellant, who suffered a federal conviction in 1998 for armed bank robbery, testified that the confidential informant had been trying to do business with him over a period of three months as of September 20, 2005. By that time, appellant was fairly confident he was dealing with drug dealers from Mexico.
Katrina Campos, appellant’s fiancée, accompanied him that night, although he tried to convince her not to. When appellant parked in the allotted stall, Cervantes opened the car door and got in without appellant having seen him approach. After appellant showed Cervantes the container of methamphetamine he had in a compartment under the dashboard, Cervantes got out of the car, saying he was going to get the money, but did not shut the door all the way. Appellant moved his seat back so he could shut the door, as rain was coming in, and then he reached down to the floorboard to get another pound of methamphetamine. As he was doing that, Campos was turning down the radio. She then loudly said, “Oh my God.’” She looked at appellant and then over her left shoulder, and appellant became concerned because he heard yelling. He could not make out any words. Appellant thought the yelling, which sounded muffled, was coming from his left side, the side of his good ear. He looked in his rearview mirror and saw a dark shadow block his car and someone coming who appeared to have a large rifle. Appellant then saw a truck.
According to appellant’s mother, a bout with scarlet fever when appellant was seven years old left him with hearing loss in his right ear.
Appellant looked in his mirror very quickly, then something to the right drew his attention. He heard tire sounds and saw another car block him off. There was a small gap between the cars, and he could see two figures. He looked over both shoulders, trying to assess what was going on. At the same time, knowing he might have to get out of there, he put the car in reverse. He thought he could hear someone on the passenger side of his car, but the door post blocked his view. All he could think of was the person on his left with the large gun. Appellant imagined the man shooting him in the head.
Appellant had the car in reverse, but with his foot on the brake. Then he heard a “bap’” or “‘poof’” on the back window, like someone hit it with a bat. The sound caused him to turn around and look briefly at the window, but it also caused him to hit the gas while he still had his foot on the brake. Although he had only seen the person on his left side, he believed there were several people around the car. At no time did he suspect the individuals were police. Appellant was shot after the car started moving; he had turned the steering wheel to aim for the gap on the passenger side, and initially believe the car had rolled over. Later, at the hospital, he asked Detective Cardenas who had shot him, and Cardenas responded that it had been the Fresno Police Department.
Appellant had had this car for about a month. Although it had an automatic transmission, he was used to driving with a manual transmission.
During this incident, appellant felt his life was in danger. If he had heard the officers identify themselves and issue commands, he would have complied with their directives. If there had been only one officer, however, he was not sure whether he would have obeyed.
The gap to the car’s right was appellant’s planned safe route, even though he knew he might hit the other vehicle. No matter what, even if he had to run over someone, he was going to head for the gap, if the people were trying to kill him. That is what he assumed was going to happen; despite being in a public place with cars around and people screaming at him, he believed he was being robbed at gunpoint. After he determined he was boxed in and heard the “poof,” he made the decision to get the car out of there.
DISCUSSION
I
Instructional Error
Appellant was found guilty of second degree, implied-malice murder with respect to Campos’s death. His liability for the killing was predicated upon the provocative act doctrine. Succinctly stated, this doctrine, which derives from principles articulated in People v. Washington (1965) 62 Cal.2d 777, 781-782 and People v. Gilbert (1965) 63 Cal.2d 690, 703-705, judgment vacated on other grounds sub nom. Gilbert v. California (1967) 388 U.S. 263, holds that “[d]erivative liability for homicide attaches … when the defendant’s intentional provocative act proximately causes the death of a victim through the action of a third party.” (People v. Gardner (1995) 37 Cal.App.4th 473, 475.) Liability results because the nature of a provocative act – an act “that is deliberately performed by the defendant or his accomplice with conscious disregard for human life and that has natural consequences dangerous to human life” (People v. Lima (2004) 118 Cal.App.4th 259, 265) – is such that malice is implied from the intentional doing thereof (id. at pp. 265-266; People v. White (1995) 35 Cal.App.4th 758, 768). The killing is attributable not merely to the commission of a felony, “but to the intentional act of the perpetrator committed with conscious disregard for life.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 581.) Because the killing is a response to the situation created by the perpetrator’s intentional act, it is not deemed to be an independent intervening cause that relieves the perpetrator of liability. (Ibid.)
Jurors were instructed that if they found the crime of murder was committed, they were required to find it to be murder of the second degree.
Here, the prosecution’s theory was that appellant’s moving of the car constituted the intentional provocative act. Appellant does not challenge the sufficiency of the evidence to support application of the provocative act doctrine, or the trial court’s instructional definition of the applicable legal principles. Rather, he points out that, as in all cases in which a defendant’s unlawful conduct “proximately causes an intermediary to kill through a dependent intervening act, the defendant’s liability for the homicide will be fixed in accordance with his criminal mens rea. If the defendant proximately causes a homicide through the acts of an intermediary and does so with malice and premeditation, his crime will be murder in the first degree .… If the defendant proximately causes a homicide through the acts of an intermediary and does so without malice, his crime will be manslaughter.…” (People v. Cervantes (2001) 26 Cal.4th 860, 872-873, fn. 15, italics added.) Relying on these principles, together with the notion that transferred intent is applicable so that “the doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently result in the injury of an innocent bystander” (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024; accord, People v. Curtis (1994) 30 Cal.App.4th 1337, 1357), appellant contends that, given the state of the evidence in his case, the trial court had a sua sponte duty to instruct on voluntary manslaughter, based on imperfect self-defense, as a lesser included offense of murder, and on the defense of so-called perfect self-defense. The trial court’s failure to do so, he says, requires reversal of his murder conviction.
Jurors were told: “A homicide committed during the commission of a crime by a person who is not a perpetrator of that crime in response to an intentional provocative act by a perpetrator of the crime other than the deceased is considered in law to be an unlawful killing by the surviving perpetrator of the crime. [¶] An ‘intentional provocative act’ is defined as follows: [¶] One, the act was intentionally committed; [¶] Two, the natural consequences of the act were dangerous to human life because there is a high probability the act will provoke a deadly response; and [¶] Three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for a human life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, the crime of Health and Safety Code Section 11378, possession for sale of methamphetamine, was committed; [¶] Two, during the commission of that crime, the defendant also committed an intentional provocative act; [¶] Three, a peace officer in response to a provocative act killed another person; [¶] Four, the defendant’s commission of the intentional provocative act was a cause of death of Katrina Marie Campos.”
Respondent points to defense counsel’s opposition to the giving of lesser included offense instructions with regard to the charges of assault with a deadly weapon on a peace officer, defense counsel’s contention being that if such instructions were given, he would then have to request self-defense instructions and argue what amounted, in his view, to inconsistent theories. Respondent suggests the defense’s position in this regard, coupled with the extensive off-the-record discussions of appropriate instructions for the provocative act murder charge, make it likely defense counsel was similarly opposed to lesser included offense instructions with respect to the murder charge; hence, the trial court felt no sua sponte duty to give such instructions.
“‘The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 866.) This obligation “has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) Thus, “a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (Id. at p. 162.) By contrast, a trial court’s duty to instruct, sua sponte, on particular defenses “is more limited, arising ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 195.)
“Substantial evidence” in this regard is “evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Flannel (1979) 25 Cal.3d 668, 684-685 & fn. 12.) In determining whether substantial evidence exists, the trial court is not to evaluate the credibility of witnesses, as this is a task for the jury. (People v. Breverman, supra, 19 Cal.4th at p. 162; see People v. Melton (1988) 44 Cal.3d 713, 746.) “The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 646.)
On appeal, “we employ a de novo standard of review and independently determine” whether an instruction on a lesser included offense should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) We assume the same standard of review is appropriate for determining whether the trial court should have instructed on a particular defense; “[w]hether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that … is … predominantly legal. As such, it should be examined without deference.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)
“Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citations.]” (People v. Randle (2005) 35 Cal.4th 987, 994.) In such a case, the actor is completely exonerated. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Perfect self-defense is a true defense (see People v. Barton, supra, 12 Cal.4th at p. 200; People v. Hill (2005) 131 Cal.App.4th 1089, 1101); hence, the trial court here had a sua sponte duty to instruct on it only if appellant appeared to be relying on it or substantial evidence supported it and it was not inconsistent with appellant’s theory of the case.
By contrast, imperfect or unreasonable self-defense is not a true defense, but is instead “a shorthand description of one form of voluntary manslaughter” (People v. Barton, supra, 12 Cal.4th at p. 200), comprising an unlawful killing in which the defendant, while harboring either an intent to kill or a conscious disregard for life, kills in an actual but unreasonable belief in the need to act in self-defense (§ 192, subd. (a); People v. Stitely (2005) 35 Cal.4th 514, 551; People v. Blakeley (2000) 23 Cal.4th 82, 87-89, 91; see In re Christian S. (1994) 7 Cal.4th 768, 771). Voluntary manslaughter is a lesser included offense of murder. (People v. Lewis, supra, 25 Cal.4th at p. 645.) Accordingly, “when a defendant is charged with murder the trial court’s duty to instruct sua sponte … on unreasonable [i.e., imperfect] self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.” (People v. Barton, supra, 12 Cal.4th at p. 201.)
While we recognize that appellant is not the factual killer in the sense that he did not fire the fatal shot, he is the killer in the sense that he is the person to whom the firing of the fatal shot is legally attributed under the provocative act doctrine.
Recognizing that his testimony and theory of defense were not that he was acting to defend himself per se, but instead that he was trying to escape from people he believed were armed robbers, appellant says jurors nonetheless could have acquitted him of murder by finding he was trying to “escape in self-defense” when the fatal shooting occurred. With regard to imperfect self-defense, appellant says the record contains evidence that could support a finding he mistakenly believed the police officers were armed robbers and actually but mistakenly believed he needed to try to back out to save Campos and himself. With regard to perfect self-defense, appellant says the evidence could have supported a finding that he was acting on an actual and reasonable belief in the need to resort to deadly force in self-defense when he backed up the car.
The latter theory appears to us to be inconsistent with appellant’s theory of defense at trial, i.e., that he was simply trying to escape and aimed his car for the gap between the other vehicles. Nevertheless, assuming the evidence would have supported a jury finding of perfect or imperfect self-defense and that the trial court should have instructed on self-defense and/or on voluntary manslaughter as a lesser included offense of murder, we conclude any error was harmless.
The California Supreme Court has determined that, in noncapital cases, error in failing to instruct, sua sponte, on all lesser included offenses and theories thereof that are supported by the evidence, is subject to harmless-error review under the standard of People v. Watson (1956) 46 Cal.2d 818, 836: Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error. (People v. Rogers, supra, 39 Cal.4th at pp. 867-868; People v. Breverman, supra, 19 Cal.4th at p. 178.) It has yet to determine the test of prejudice applicable to the failure to instruct on a defense (People v. Salas (2006) 37 Cal.4th 967, 984), but has assumed the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 is appropriate (People v. Demetrulias (2006) 39 Cal.4th 1, 23; People v. Salas, supra, 37 Cal.4th at p. 984; see Mathews v. United States (1988) 485 U.S. 58, 63 [defendant is entitled to instruction as to any recognized defense for which there exists evidence sufficient for reasonable jury to find in his or her favor]).
Even where the federal constitutional standard of Chapman is implicated, “[e]rror in failing to instruct the jury … is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.]” (People v. Lewis, supra, 25 Cal.4th at p. 646.) Here, jurors were instructed on mistake of fact. They were told that an act committed in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. With respect to implied-malice murder, which requires a specific intent or mental state (see People v. Cortez (1998) 18 Cal.4th 1223, 1229; People v. Whitfield (1994) 7 Cal.4th 437, 450), they were told: “[A] person is not guilty of a crime if he commits an act … under an actual belief in the existence of certain facts and circumstances which, if true, would make the act … lawful.” Defense counsel argued to the jury that under the mistake-of-fact instruction, “If [appellant] made a mistake of fact and thought these were thugs and not police officers, he is not guilty of assaulting police officers.” The prosecutor went farther and told the jury that “if you can believe that story, then he wouldn’t be guilty of either the provocative act, homicide, or assault on a police [sic], none the [sic] those, because he made a mistake. He thought he was being robbed. Again, he was the victim.”
Imperfect self-defense is itself a species of mistake of fact. (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1453.)
“The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the appellant must actually believe in the need to defend himself against imminent peril to life or great bodily injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262, italics added; accord, People v. Randle, supra, 35 Cal.4th at p. 994.) Because the jury was instructed on mistake of fact, which both counsel specifically tied to appellant’s belief, jurors were apprised of a theory that would have led it to acquit appellant of, or at least mitigate the verdict on, count 1, had it believed appellant’s testimony that he did not realize his supposed assailants were police, but instead thought they were robbers. We have no doubt, especially in light of the prosecutor’s argument, that had jurors believed appellant on this point, they would not have convicted him of murder. Under the circumstances, the jury’s guilty verdict on second degree murder necessarily establishes that it was convinced appellant was not telling the truth about his belief.
As jurors rejected the notion appellant actually but mistakenly believed the people approaching his car were robbers, there remained no basis for a finding of perfect or imperfect self-defense. There was no suggestion appellant harbored a belief he needed to defend himself from people he realized were police; in any event, by finding that the officers were acting in the performance of their duties for purposes of the assault counts, jurors also necessarily rejected the notion the officers were using excessive force such that appellant had a right to defend himself against them. (See People v. Olguin (1981) 119 Cal.App.3d 39, 46-47; People v. Perez (1970) 12 Cal.App.3d 232, 235-236.)
Jurors were instructed that, to convict appellant of assault with a deadly weapon on a peace officer as charged in counts 2, 3, and 4, they had to find, inter alia, that, at the time of the assault, the officer was engaged in the performance of his duties; an officer was engaged in the performance of his duties if he was making or attempting to make a lawful arrest using reasonable force; and that if the officer used unreasonable or excessive force, the person being arrested had no duty to refrain from using reasonable force to defend himself.
In light of the foregoing, “‘the jury necessarily resolved, although in a different setting, the same factual question[s] that would have been presented by the missing instruction[s]’ [citation], in a manner adverse to defendant. We conclude, therefore, that [any] instructional error was harmless under any standard of prejudice.” (People v. Wright (2006) 40 Cal.4th 81, 99, fn. omitted.) It necessarily follows that defense counsel was not ineffective for failing to request instructions on perfect or imperfect self-defense. (See Strickland v. Washington (1984) 466 U.S. 668, 691, 694.)
Appellant further contends jurors should have been told the provocative act theory of murder could not properly apply if the third party used lethal force solely to prevent an escape, rather than in response to a provocative act. Since this principle exonerates, the argument runs, it therefore constitutes a defense, and either the trial court had a sua sponte duty to give an appropriate instruction delineating it for the jury, or defense counsel was ineffective for failing to request such an instruction.
It is axiomatic that in order to convict a defendant of provocative act murder, “[t]he prosecution must establish that the defendant committed a provocative act. [Citation.] In cases in which the underlying crime does not involve an intent to kill – [such as possession for sale of methamphetamine, the crime on which appellant’s jury was instructed as the underlying felony] – the mere participation in the underlying criminal offense is not sufficient to invoke the doctrine of provocative act murder. The provocative act must be something beyond that necessary to commit the underlying crime. [Citations.]” (People v. Briscoe, supra, 92 Cal.App.4th at pp. 582-583, fn. omitted.) Moreover, the act “must be one which in all probability will provoke a third party to retaliate in a life-threatening manner. [Citations.]” (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59.) The mere act of fleeing from the police, without more, does not satisfy this requirement and so will not serve to establish the provocative act element of murder (ibid.), and the jury must, in an appropriate case, be given the opportunity to determine whether the killing was in response to a shooting initiated by the defendant or solely to prevent an escape (People v. Gilbert, supra, 63 Cal.2d at p. 704; People v. Gallegos (1997) 54 Cal.App.4th 453, 458; see Pizano v. Superior Court (1978) 21 Cal.3d 128, 139).
We need not decide whether these principles are theories of defense on which a trial court has a sua sponte duty to instruct, or whether instructions thereon would be more akin to pinpoint or clarifying instructions which the defense must request. (See, e.g., People v. Garvin (2003) 110 Cal.App.4th 484, 488-489; People v. Ryan (1999) 76 Cal.App.4th 1304, 1318.) Either way, there must be some evidence to support the instruction. There was not. The prosecution’s evidence all showed that the officers fired in response to danger to themselves or their fellow officers. At most, appellant’s testimony showed he heard a “poof” – inferentially, the first shot – after he put the car in reverse, but while his foot was still on the brake. Appellant’s testimony suggests nothing about the officers’ motivations or mental states, but simply invites speculation. “Speculation is not a basis for giving of instructions.” (People v. Day (1981) 117 Cal.App.3d 932, 936; accord, People v. Brown (2003) 31 Cal.4th 518, 566.) That appellant’s conduct may have been motivated by a desire to get away, and that officers may have realized this, does not constitute evidence they fired solely to prevent his escape.
Having found no instructional error, we reject appellant’s related claim of cumulative prejudice.
II
Sentencing Error
Appellant contends that imposition of consecutive terms on counts 2 and 6, both of which were ordered to run consecutively to the indeterminate term imposed on count 1, violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. As he recognizes, the California Supreme Court recently reaffirmed its rejection of this argument. (People v. Black (2007) 41 Cal.4th 799, 820-823; see People v. Black (2005) 35 Cal.4th 1238, 1263-1264, abrogated on other grounds by Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].) We are bound by its decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Wiseman, J.
Luis Chavez was in his room at the Days Inn when he heard approximately three seconds of yelling and then, after one or two seconds, what sounded like five to eight firecrackers. He was unable to tell from the yelling that the people involved were police, although he later saw they were wearing dark shirts with yellow lettering on the back.
To the extent respondent is claiming any error was invited, we reject the argument. “[T]he doctrine of invited error will operate to preclude a defendant from gaining reversal on appeal because of … an error made by the trial court at the defendant’s behest. [Citations.] ‘For the doctrine to apply, “it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it must also be clear that counsel acted for tactical reasons and not out of ignorance or mistake.”’ [Citation.]” (People v. Duncan (1991) 53 Cal.3d 955, 969.) “Recent California Supreme Court cases have eased the ‘expressly’ requirement and have found ‘invited error’ where tactical objection was inferable from the record. [Citations.]” (People v. DeLeon (1992) 10 Cal.App.4th 815, 824.) Although respondent’s view of what occurred may be accurate, we find it too speculative to support a finding of invited error in light of the fact the record here contains absolutely no discussion of lesser included offenses or defenses with respect to the murder charge. (See People v. Wilson (1992) 3 Cal.4th 926, 936 [finding it inappropriate, in context of ineffective assistance of counsel claim, for appellate court to speculate as to existence of tactical basis for defense counsel’s course of conduct when record on appeal does not illuminate basis for attorney’s challenged acts or omissions].)