Opinion
B195348
2-28-2008
THE PEOPLE, Plaintiff and Respondent, v. GREGORY LEON, Defendant and Appellant.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Gregory Leon was convicted by a jury of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)), with findings that he inflicted great bodily injury as to both counts (§ 12022.7, subd. (a)) and used a deadly and dangerous weapon in the commission of the attempted murder (§ 12022, subd. (b)(1)). The jury also found that he had suffered a prior conviction within the meaning of section 667, subdivision (a)(1), section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d). He was sentenced to 27 years in prison. He appeals, contending that the court erred by: 1) failing to give an instruction on the lesser included offense of attempted voluntary manslaughter (CALCRIM No. 603); 2) failing to give the unanimity instruction (CALCRIM No. 3500); and 3) sentencing him to the upper term on the attempted murder charge. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the afternoon of July 1, 2006, Julia Talavera was waiting at a bus stop on San Fernando Road in Los Angeles. Appellant, whom Talavera did not know, drove up and offered her a ride home. Talavera got into the car and gave him directions to her house. Appellant drove by her house without stopping. Talavera told appellant to either take her home or back to the bus stop. Appellant eventually stopped the car, got out, came around to the passenger side, and began to hit her on the head and face. Talavera managed to close the passenger door. However, appellant was able to return to the drivers seat and drive away. When Talavera tried to pull on the emergency brake, appellant reached under the seat, pulled out a tire iron, and repeatedly struck her with it on the head and face. Appellant stopped the car, got out, took something out of the trunk, and told Talavera, "Well, I can kill you if I wanted to." He said she could keep the car because it was stolen, and ran away. The entire incident lasted about 15 minutes.
On cross-examination, Talavera admitted that she had prior convictions for solicitation for the purpose of prostitution and was on probation for car theft. She denied soliciting appellant.
Yvette Rodriguez was driving near the intersection of Lankershim and Canter and saw a man in a parked dark-colored Nissan, hitting a woman over the head with a tire iron. She called 911.
Eduardo Ruiz saw a man standing next to the passenger side of a car parked near Lankershim and Tuxford. The man was hitting a woman inside the car with a tire iron. Ruiz called the police. After Ruiz executed a U-turn, he saw the vehicle drive away. Ruiz decided to follow the car. The car stopped again, the man got out of the car, took something out of the trunk, got back in the car, and drove for a short time. The vehicle stopped a final time and the man exited the drivers side. He ran away from the vehicle, leaving the woman inside. Ruiz went to the woman, who was bleeding and screaming for help.
An ambulance and police car arrived shortly thereafter and took Talavera to the hospital. She was bleeding profusely and had extensive facial swelling, contusions, a fractured nose, and a wound on her head that required stitches. Appellant turned himself in shortly thereafter.
Elvira Mendoza was a friend of appellants. On June 29, 2006, she gave him the black Nissan that was involved in the crime. He was supposed to paint the car. When the car was returned to her, the crowbar that had been in the trunk was missing and there was blood all over the car.
Police Officer Alejandro Valencia responded to the scene. Talavera told him that appellant had ordered her out of the car before hitting her. The defense introduced medical records showing that Talavera had a blood alcohol level of .12 when she was admitted to the hospital. Appellant did not testify.
DISCUSSION
I. Instruction on Lesser Included Offense
The defense requested an instruction on self-defense or imperfect self-defense which the court denied, stating, "Counsel, there is no substantial evidence that I can point to in the record . . . that your client was in fear of an imminent injury, or appears to be reasonable or even unreasonable; that the only evidence I have before me is that the victim in this case hit your client to protect herself while she was in the midst of getting beaten. You said the evidence was beyond dispute that she refused to get out of the car. I dont see that. She did say at one time he was pulling her. And for that reason . . . instructions related to self-defense will not be given. Evidence relating to imperfect self-defense as to count 1 with a lesser but necessarily included offense of attempted voluntary manslaughter based on imperfect self-defense or even heat of passion will not be given."
On appeal, appellant contends the "evidence showed that the physical confrontation between appellant and Ms. Talavera occurred in the course of a heated argument which took place when drunken Ms. Talavera refused to get out of the car appellant was driving." He argues there was support for the theory that the attack arose out of a sudden quarrel or heat of passion, reducing the crime of attempted murder to the lesser included offense of attempted voluntary manslaughter. Thus, he urges, the court erred when it failed to give an instruction on the lesser charge.
The trial court is obligated to give an instruction on a lesser included offense "when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged." (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) The trial court may refuse to instruct on a lesser included offense when there is no substantial evidence to support the theory that the defendant committed that offense. Substantial evidence is evidence that a reasonable jury could find persuasive. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or b[y] conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] `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." [Citation.]" (People v. Lee (1999) 20 Cal.4th 47, 59.) "Adequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]" (Id. at p. 60.)
"In previous cases, the murder of a family member [citation], a sudden and violent quarrel [citation], and infidelity of a wife [citation] or paramour [citation] have been held to constitute legally adequate provocation for voluntary manslaughter. On the other hand, neither simple trespass nor simple assault constitute[s] provocation sufficient to reduce the killing to manslaughter. [Citation.]" (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705, disapproved on another point in People v. Cook (2001) 91 Cal.App.4th 910, 920.)
The evidence established that Talavera had a blood alcohol level of .12 when she was taken to the hospital after the incident. She recalled that prior to the attack, appellant ordered her to get out of the car. She said that they argued and that appellant became enraged before hitting her. However, she could not remember what they argued about. She speculated that she might have angered him because she had a "smart mouth."
The above is not substantial evidence that appellant committed the crime of attempted voluntary manslaughter. A vague reference to an argument does not constitute the type of provocation that would cause the ordinary person to act without due deliberation and reflection. Indeed, appellant does not explain how or why he was provoked to act in the manner that he did. Moreover, even if we were to assume that Talavera made a remark and appellant became angry, this hardly provides evidence that the ordinary person of average disposition would have responded by beating her about the head and face with a tire iron. We conclude the trial court had no duty to instruct on the lesser offense.
II. The Unanimity Instruction
Appellant argues the evidence established that the attacks took place at different times and locations. He contends that there is no way to determine if the jury unanimously agreed that a particular attack constituted the attempted murder. He asserts, as a result, that he was denied due process.
CALCRIM No. 3500 provides in pertinent part that: "The defendant is charged with _________, <insert description of alleged offense[s]> [in Count[s] ___] [sometime during the period of ________ to ________]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this[/these] offense[s]. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]." (Judicial Council of California Criminal Jury Instructions (2007-2008 ed.) CALCRIM No. 3500.)
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . [¶] The requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A unanimity instruction is required when the evidence tends to show the commission of separate acts that might constitute the one criminal offense that is alleged. However, there are exceptions to this rule. "`"The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. . . . The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. . . ." (People v. Avina (1993) 14 Cal.App.4th 1303, 1309.)" (People v. Napoles (2002) 104 Cal.App.4th 108, 115.)
In the continuous course of conduct exception, "there is no need for a unanimity instruction as to individual acts within the course of conduct, because the jury need only agree on whether the defendant committed acts the net effect of which constitutes the statutory offense. [Citation.]" (People v. Zavala (2005) 130 Cal.App.4th 758, 769.)
Here, Talavera described several acts during the 15-minute period when appellant hit her with the tire iron. However, the acts were substantially identical in nature and were in such close proximity in time and place to one another that there was no reasonable basis for the jury to distinguish one beating from another. As there was no danger that the jury would divide the ongoing attack into discrete crimes, there was no error in failing to give the unanimity instruction. (People v. Russo, supra, 25 Cal.4th at p. 1135.)
III. Sentencing
The court sentenced appellant to the upper term on the attempted murder charge, stating, "In determining the proper sentence related to the term, as the People indicated I am bound by California Rules of Court, rule 4.421, also rule 4.423. There are circumstances in aggravation and circumstance[s] in mitigation. I do not accept all the criteria the People have argued for in that there is a great bodily injury allegation that has been sustained which is part of the sentence and it cannot be a factor in aggravation. I do, however, find the following factors in aggravation based upon defendants record. That his prior performance on probation or parole was unsatisfactory. That he has served numerous or has numerous prior felony convictions other than that which has been found true under Penal Code section 667, subdivision (a), subdivision (l), and 667, subdivision[s] (b) through (i), and 1170.12, subdivisions (a) through (d). Im not considering the one there has been a true finding on because that would be an enhancement. Im only considering those that were not pled or proved for purposes of the sections I have enumerated. Based upon that I do find no circumstances in mitigation, the court will select the high term."
Appellant contends that the court relied on factual determinations which were not made by the jury when it imposed the upper term, and therefore violated his federal constitutional right to a jury trial under People v. Cunningham (2007) 549 U.S. ___, 127 S.Ct. 856, and Blakely v. Washington (2004) 542 U.S. 296. The courts statements indicate that it relied on appellants numerous prior felony convictions and his unsatisfactory performance on probation or parole when it selected the term imposed for the attempted murder charge. Appellants prior convictions made him eligible for the upper term sentence, and the trial courts reliance on that aggravating factor when it imposed that sentence did not violate appellants right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 818-820.)
DISPOSITION
The judgment is affirmed.
We concur:
WILLHITE, Acting P. J.
MANELLA, J. --------------- Notes: All further statutory references are to the Penal Code.