Opinion
C078282
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PAUL LEONARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F03631)
Using his truck, defendant Joseph Paul Leonard struck and killed a man on a bicycle and attempted to kill another man a short time after the three fought at a nearby restaurant. He appeals his convictions of first degree murder and attempted premeditated murder, alleging the following errors: (1) the trial court abused its discretion when it reopened argument in response to a jury question on the issue of intent and the jury's impasse; (2) the court erred by not instructing on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter based on imperfect defense of another; (3) defense counsel rendered ineffective assistance by not requesting an instruction on provocation as negating premeditation and deliberation; and (4) insufficient evidence supports the jury's finding the murder and attempted murder were premeditated.
We affirm.
FACTS
Prosecution's case-in-chief
1. The killing
On the morning of June 6, 2013, defendant and Samantha Silva arrived at McDonald's in defendant's truck for coffee. After a while, Silva walked outside of the restaurant and noticed two men. One had on a backpack; the other had a bicycle. The men offered her food to eat and asked if she was hungry. She said she was not and continued to the truck.
People's exhibit 1 is video footage of the events recorded by a McDonald's security camera. The parties stipulated the time stamp in the video was incorrectly set one hour ahead.
The two men, Toussaint Harrison and Justin Oliphant, were giving away food they had taken from a motel to homeless people at the McDonald's parking lot. Harrison was on a bike. They asked Silva for money and cigarettes, and offered her some food. She declined their requests and offers.
When defendant returned to the truck, Silva, who is mentally disabled, told defendant that Oliphant and Harrison were bothering her. This angered defendant, and he told them to leave Silva alone. The three men argued and cursed at each other with racial epithets and insults.
Defendant walked back to his truck and retrieved a long chain. He swung it at Oliphant and Harrison. The three men fought, as defendant tried to hit the other two with the chain. One of the men punched defendant. Oliphant pulled out a pocket knife but it fell on the ground. Harrison threw something sharp at defendant, possibly a broken bottle or a pocket knife, and it cut his cheek. During the fight, defendant called the two men various racial slurs and derogatory epithets. The altercation lasted about one minute, after which defendant walked back to his truck and Oliphant and Harrison walked toward the McDonald's entrance.
On cross-examination, Oliphant said defendant retrieved the chain after they hit him in the face and he backed his truck up to the restaurant. Silva's testimony on this point was also inconsistent. On direct examination, she said defendant retrieved the chain before he was hit in the face by a knife, and on cross-examination she said he retrieved the chain after he was hit.
Defendant backed his truck to the McDonald's entrance where Oliphant and Harrison were standing. He got out of the truck and chased the two men around the parking lot while swinging the chain. After a minute or so, he walked back to the McDonald's entrance and stomped on Harrison's bike. He briefly picked it up, but he dropped it when Oliphant ran toward his truck and threatened to smash the windows. Harrison grabbed his bike, and he and Oliphant walked away and out of the parking lot. Defendant, still holding the chain, went inside McDonald's and gave an employee a pocket knife. He returned to his truck and left the parking lot.
After they left McDonald's, Oliphant and Harrison went through a parking lot towards an IHOP restaurant. Oliphant walked and Harrison rode his bike. Defendant drove his truck into the parking lot and sped towards them. Oliphant heard a loud "revving" engine and saw defendant's truck about 20 feet away coming toward them at a high rate of speed. The truck came at Oliphant. He dove out of the way and landed on the parking lot. The truck hit a sign for a car wash.
Defendant reversed the truck, turned around, and headed towards Harrison. Oliphant yelled at Harrison to move. Defendant hit Harrison full-force with the front of the truck. Harrison flew into the air and into the truck's windshield, rolled off the truck, and landed on the ground. After striking Harrison, defendant stopped, reversed the truck, turned around, and started chasing Oliphant. He tried to hit him two additional times, but Oliphant dodged and jumped out of the way to avoid being hit. Oliphant fled the scene on foot.
Frank Folger, an employee at Clutch Mart, heard a squealing sound of tires and a thud. Another Clutch Mart employee, Dan Gandy, also heard the noise. He went outside and saw Harrison lying on the ground, bleeding. He yelled at Folger to call 911. Folger called as he walked outside holding a cordless phone. A Black male who identified himself as a relative of the injured man picked up Harrison's bicycle and left.
After Oliphant escaped, defendant turned his truck around and drove back towards Harrison, who was still lying on the ground. Seeing this, Gandy ran and placed himself between the motionless Harrison and defendant's truck. Defendant kept driving towards Gandy, but when he got within 10 feet of Gandy, he swerved away and stopped. He got out of his truck, approached Harrison, and kicked him in the head and torso numerous times with his steel-toed boots. He yelled racial and derogatory slurs while he kicked Harrison.
Folger walked up and yelled at defendant to stay away from Harrison. Gandy ran into his store and retrieved a large pry bar. He came back holding the bar and told defendant to get away from Harrison. When defendant backed away, Gandy took the keys out of the truck's ignition and told defendant to sit on the tailgate until police arrived. Defendant told Gandy when this was all done, he knew where Gandy worked and they would settle it.
Harrison died from blunt force injuries to the head. He also suffered blunt force injuries to his torso, a dislocated and fractured right clavicle, five broken lumbar vertebrae, and blunt force injuries to his arms and legs. His injuries were consistent with being struck by a motor vehicle. The pathologist believed more of Harrison's injuries were caused by being hit by the truck than by being kicked or stomped. Harrison's blood tested positive for amphetamine and methamphetamine, but negative for alcohol and other illicit substances.
2. Defendant's arrest
Deputies detained defendant at the scene. Asked how the altercation continued so far away from McDonald's, defendant said the altercation just continued that way. He also said, "If that fucker dies, oh well, he tried to kill me."
Defendant said a number of things over the next two hours while he was detained and recorded in a patrol car. He said, "I was fearin' for my life. You see what they did to me, man." He continued, "[T]hey chased me, then . . . I beat 'em off me, and then next thing I know, you know, I'm over here—we're over here. I don't know. It just happened so fast. . . . Maybe I'm wrong. I'm—I'm wrong for, you know, my actions. I doubt if I'm gonna squeak outta this very easily, sir. I mean, it was pretty bad. If those punks wanted bad they got bad."
Defendant said, "I became the aggressor I realize this you know. But they were aggressive but then they started running 'cause I started getting crazy." "Just because we got Obama for a president these people think they are real special. And I am not prejudice." (Sic.)
He also said, "I don't think I am going to walk on this one. Honestly. You and I both know if they did that to you—you have all the right to do whatever you want to do. That don't make me an exception. I realize this. But I am not going to take it from these [people] or anybody. You know I am a law abiding citizen turning over a new leaf and look what happens. I really feel bad about that. I really do. I don't think none of it was right."
Defendant's blood contained no presence of alcohol or illicit substances.
3. Crime scene investigation
Law enforcement personnel observed defendant's truck had a crack in the grill, a dent in the hood, and the windshield was shattered. They found hair fibers in the windshield. They also found a white bucket in the truck bed that contained a rusted metal chain.
A backpack located at the scene contained a smoking pipe and multiple pieces of broken glass.
A vehicle collision expert testified that, based on photos and witness interviews, 21-foot tire friction marks found at the scene were caused by acceleration, not braking.
A criminalist determined paint transfer found on the car wash sign at the scene was similar to paint from the fender of defendant's truck. He also concluded paint transfer found on the truck's bumper was similar to paint from the car wash sign.
Defense
Jon Lee, the manager of the car wash in the parking lot where the killing occurred, arrived at work around 9:00 a.m. the day of the killing. He did not notice any new damage to the car wash sign. The sign "was always kind of damaged."
Defendant testified on his own behalf. He said when he first walked up to Oliphant and Harrison in the McDonald's parking lot, he thought they were hungry, so he offered them some change. One said no, but the other said, "Give me your money." After defendant walked back to the truck, one of them said, "Fuck you, you white bitch ho." Defendant walked back to them and told them they had no right to talk to Silva like that. He said they were scaring her and he asked them to leave her alone. They said in an aggressive manner, "What are you gonna do, man? Do you want to die? You don't know who you're fucking with. We'll kill you."
Defendant backed off and told Silva to call 911. He did not have a cell phone, but neither did she. He walked toward the McDonald's entrance to report the men, and he told Oliphant and Harrison what he was doing. They immediately started coming at him. Defendant swung at them to back off. Oliphant swung at him with a knife. Harrison threw something and hit defendant's face, cutting his left cheek. Oliphant threw his knife, and it hit defendant in the stomach and bounced off. Defendant picked up the knife and put it in his pocket.
Defendant backed off, but he wondered what they would do to the next person. So he got into his truck and backed up to the McDonald's entrance to report them. Defendant got out of the truck, and Oliphant yelled at him. Defendant grabbed a chain from the bed of his truck to protect himself. He wrapped the chain around his hand and walked toward the restaurant entrance.
Oliphant threatened to break the windows in defendant's truck. Defendant proceeded toward the two, swinging the metal chain to protect his truck. The two backed up, but came at him again once he turned around to go. Defendant grabbed Harrison's bicycle to keep them there as long as possible, hoping that somebody would help or the police would arrive.
Defendant heard someone say, "Get the girl." Oliphant ran toward the truck, defendant ran toward Oliphant, and Harrison ran toward defendant to get his bike. Harrison retrieved the bike, and then defendant heard someone say, "Pop him with the gun," and then, "Yeah, man." As soon as he heard this, defendant went into McDonald's. He gave the knife to an employee and said, "These people assaulted me. Here's the evidence. Please call 911. I need help." Then he said he was "going to stop them," and he left the restaurant.
He observed Oliphant and Harrison had left, so he got in his truck. His intent at that point was to go home. He was upset and mad. He drove out of the McDonald's parking lot. As he drove down the street, however, he saw the two men "fleeing" in a driveway entrance to a parking lot. They were headed away from him. He thought, "[T]hey started it. They attacked me. They assaulted me. They threatened the girl. And they had a gun. They needed to be stopped." By "stopped," he meant, "Apprehended for the police."
He pulled into the driveway to stop them. He accelerated to catch up to them. Harrison was farther away, and it looked to defendant that Harrison would leave and go onto a sidewalk. Defendant intended to pull his truck in front of the area where Harrison was going. He approached Oliphant and veered to the left away from him. Harrison was going left, so defendant went to the right. He was trying to stop them from leaving. He was not trying to hit them.
But then Harrison turned right in front of defendant, and defendant hit him. He did not accelerate because he "was already rolling." Defendant put on the brakes as soon as Harrison turned into him. Next, he accelerated backwards and followed Oliphant to block him from leaving, but Oliphant escaped.
Defendant parked the truck and got out to see if Harrison was okay. By then, Gandy was there, but he suddenly left. Defendant saw Harrison laying on the ground and a pistol lying under him. He rolled Harrison over with his foot and kicked the gun away toward Harrison's backpack.
A minute or two later, a man approached Harrison and picked up the gun that was lying there. He went through Harrison's backpack, then got on the bike. The man said Harrison was his "cuz." He rode a few circles around defendant, threatened him, and then rode away.
Gandy waved a pry bar at defendant and Folgers came out, and the two stared at him. He put down his tailgate and sat on it.
On cross-examination, defendant admitted he never told law enforcement there was a threat of a gun being used against him. His statement to that effect in trial was the first time he mentioned one of the men had a gun. He later stated he told a deputy at the scene something to the effect they had a gun, but both he and the deputy were talking and he did not believe the deputy heard him.
Also on cross-examination, defendant disputed Gandy's and Folger's testimony that they stood between his truck and Harrison to stop him from hitting Harrison again, and that he kicked Harrison and called him a racial slur.
Rebuttal
Detective John Kauo detailed the inconsistencies between defendant's testimony and the statement defendant gave to Detective Kauo the day of the crime. Detective Kauo said defendant in his earlier statement did not mention he offered the men money, that the men threatened to damage his truck, that one of them said, "Get the girl," that one of them said, "Pop him with a gun," or even anything about a gun. Defendant did not claim he accidentally hit Harrison. Rather, he stated he was not going to let the men get away with what they did to him. Defendant told Detective Kauo he ended up at Clutch Mart because "they started runnin' and [he] wasn't gonna let them get away from what they did and the way they were acting."
Deputy Gene Goff testified defendant told him at the scene he asked Oliphant and Harrison at McDonald's to leave Silva alone because she already had a boyfriend. Defendant said an argument ensued, and the men pulled out knives and tried to slash him. Defendant did not tell Deputy Goff he offered the men change. He did not acknowledge he punched the men or swung a chain at them. He said nothing about a gun near the victim, that one of the men threatened to pop him with a gun or get Silva, or that he used his foot to roll over Harrison in order to kick the gun out from under his body. Defendant also did not say he accidentally hit Harrison with his truck. He told Deputy Goff, "If that fucker dies, oh well, he tried to kill me."
JUDGMENT AND SENTENCE
A jury found defendant guilty of first degree murder and attempted premeditated murder. (Pen. Code, §§ 187, subd. (a), 664.) It also found true four enhancements: two alleging defendant personally used a deadly weapon (a motor vehicle) (§ 12022, subd. (b)(1)), and two alleging he committed the crimes in violation of the victims' constitutional rights due to their status and perceived ethnicity (§ 422.75, subd. (a)).
Undesignated references to sections are to the Penal Code.
The court imposed a prison term of 25 years to life on the murder count, plus a consecutive seven years to life on the attempted murder count; plus consecutive determinate terms of one year on each of the two deadly weapon enhancements and three years on each of the two hate crime enhancements.
DISCUSSION
I
Reopening Argument to Answer Jury Questions
The trial court reopened argument to respond to jury questions regarding intent and, ultimately, the jury's impasse. Defendant contends the trial court abused its discretion by reopening argument. He claims the court neglected its duty under section 1138 to answer the jury's questions and clarify the law, and it improperly provided the prosecution with an unwarranted extra opportunity to persuade the jury to convict defendant. He asserts the error denied him due process and a fair trial, and the error was structural.
We disagree with defendant's contentions. The court did not violate section 1138 or deny defendant due process.
A. Background information
About an hour and a half into deliberation, the jury asked the court to define the word "impulsive." The court instructed the jurors to give the word "its common meaning."
At the end of the day, the jury asked, "Can the intent of an action change during the process of the crime? Do we use the lesser intent or choose what seems to be the most excessive/strongest intent?" After it submitted the question, the jury was excused for the day.
The next morning, the court indicated it was considering reopening argument to permit counsel to address the jury's question. The prosecutor was amenable, but defense counsel was not. Defense counsel asked the court just to direct the jury to the different instructions it had already received on intent, circumstantial evidence, and deliberation and premeditation. "[I]t's all defined," he said. The prosecutor argued the jury had already looked at the instructions. Based on the jury asking the court to define "impulsive," she believed the jury was focused on CALCRIM No. 520, which included the term "impulsive." She asked to reargue to address the jury's question.
The prosecutor likely was referring to CALCRIM No. 521, which states: "A decision to kill made rashly, impulsively, or without consideration is not deliberate and premeditated."
The court decided to reopen argument. But before the court could bring the jury in, the jury sent a note announcing it was at an impasse. The note read: "We cannot all agree this is first degree murder. Instructions say to inform you. Please advise." The court decided to reopen argument on the intent question but not to respond to the impasse. Both counsel accepted that approach. Both then addressed the jury on the issue of intent and whether the evidence showed the killing was premeditated or committed in the heat of passion.
Later that day, the jury found defendant guilty of first degree murder and attempted premeditated murder.
B. Analysis
Defendant contends the trial court abused its discretion by declining to answer the jury's question and by reopening argument for the parties to address it. He asserts the court, by taking this action, did not fulfill its responsibility to ensure the jury was adequately instructed on the issues raised by the jury's question. He also claims the law does not contemplate reopening argument as an appropriate method for addressing a jury's question about the governing law.
Defense counsel at trial did not claim the jury was not adequately instructed. Instead, he argued the jury was adequately instructed, noting the answers to the jury's questions were "all defined" in the instructions. Indeed, before us, defendant does not suggest how the jury was not adequately instructed. Because defendant did not raise this ground for objection at the trial court, he forfeits it here.
Defendant, however, contends the court did not have discretion to reopen argument as a way to address the question. He asserts the court may reopen argument only when a jury reports it has reached an impasse, as allowed under rule 2.1036 of the California Rules of Court. We do not view the court's authority so narrowly. But even if we did, we would still find no prejudicial error.
Section 1138 requires a court to respond to jury questions on points of law. When a jury asks a question after retiring for deliberation, "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985.) But "[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Section 1138 provides in pertinent part: "After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel . . . ."
The court's discretion under section 1138 must be interpreted in light of the court's general discretion to determine how best to structure a trial. A court has broad discretion to depart from the normal order of trial prescribed by section 1093, including the timing of argument, if necessary to further the case to a verdict. (People v. Young (2007) 156 Cal.App.4th 1165, 1171.) "Section 1093 delineates the order that trial procedures shall follow, including the direction that the prosecutor and defense counsel may argue the case to the court and jury upon the close of evidence. (§ 1093, subd. (e).) Section 1094 grants the trial court broad discretion to depart from the order specified in section 1093." (People v. Young, supra, 156 Cal.App.4th at p. 1171, fn. omitted.)
The trial court's duty to move a case to verdict is found in section 1140. That statute prohibits a court from discharging a jury after the case has been submitted until it has reached a verdict except upon the consent of both parties or it appears to the court there is no reasonable probability the jury can agree.
Section 1094 reads: "When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in Section 1093 may be departed from."
In exercising its discretion to assist juries to reach a verdict, the court must ensure it does not violate a defendant's right to a fair trial by coercing a particular verdict. "The desirability of a verdict in each trial does not provide the trial court with unlimited power to achieve this result. A defendant's right to receive a fair trial is a basic requirement of the Fourteenth Amendment's right to due process. (Skilling v. United States (2010) 561 U.S. 358, 378 , citing In re Murchison (1955) 349 U.S. 133, 136 .) The trial court must exercise its discretion to determine whether there is a reasonable probability the jury will reach a verdict without coercion of the jury and 'to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." [Citation.]' (People v. Miller (1990) 50 Cal.3d 954, 994.) In other words, the trial court must act carefully to ensure whatever result is reached is a direct result of the deliberative process and is not influenced by the trial court." (People v. Salazar (2014) 227 Cal.App.4th 1078, 1086.)
Here, the trial court decided to reopen argument after the jury expressed confusion on the issue of intent and whether defendant killed with premeditation and deliberation or impulsively and rashly. The court did not abuse its discretion in doing so. The court reasonably determined simply referring the jury to the instructions it already gave would not likely provide the jurors with the information they needed to reach a verdict. Moreover, recognizing the jury was struggling over the core issue in the trial, the court reasonably concluded it could protect defendant's rights best by allowing both sides to argue the issue one more time instead of it expounding on the instructions and risk coercing any type of verdict. Nothing in section 1138 prohibited the trial court from taking this action.
Certainly the trial court took no action that could be seen as coercive in violation of defendant's due process rights. It made no remarks showing any kind of preference for a particular verdict. It did not urge the jurors to reach an agreement. It gave no supplemental or clarifying instructions, and it did not question the jurors for their views. It provided each side the opportunity to argue the issue at hand.
Defendant claims rule 2.1036 of the California Rules of Court authorized the court to reopen argument only after the jury actually declared an impasse. The Judicial Council promulgated rule 2.1036, relying on section 1093 and 1094's grant of discretionary authority. "This rule expressly states that after a jury reports it has reached an impasse in deliberations, if the trial judge determines further action may assist the jury in reaching a verdict, the trial judge may 'permit attorneys to make additional closing arguments.' ([Cal. Rules of Court, r]ule 2.1036(b)(3).)" (People v. Young, supra, 156 Cal.App.4th at p. 1171, fn. 7.)
Although the "obvious intent of [Cal. Rules of Court, rule 2.1036] is to assist the jury in achieving a verdict, if possible, after it has reached an impasse" (People v. Salazar, supra, 227 Cal.App.4th at p. 1089), we do not read this rule so narrowly as to restrict a trial court's inherent authority to control the proceedings before it in a manner it reasonably determines furthers the parties' best interests and ensures the defendant a fair trial. In any event, the trial court's decision to reopen argument before the jury declared an impasse was harmless error, if it was error at all—a point we do not concede—because no argument occurred until after the jury actually declared an impasse.
We find no error by the trial court's reopening of argument.
II
Refusal to Instruct on Imperfect Defense of Another
Defendant contends the trial court erred by not instructing on voluntary manslaughter and attempted voluntary manslaughter under a theory of imperfect defense of another. He testified that when he saw Oliphant and Harrison in the parking lot, he felt they were dangerous. He said, "They attacked me. They assaulted me. They threatened the girl. And they had a gun. They needed to be stopped . . . [and] [a]pprehended for the police." So he pursued them in the parking lot. He claims this was sufficient evidence to require instructing on imperfect defense of another as he believed the public was in danger of harm from Oliphant and Harrison. We disagree.
"In criminal cases, even absent a request, a trial court must instruct on the general principles of law relevant to the issues the evidence raises. (People v. Breverman (1998) 19 Cal.4th 142, 154.) ' "That 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.]" ' (Ibid.) '[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.]' (Id. at p. 162.)" (People v. Taylor (2010) 48 Cal.4th 574, 623, original italics.) We review independently whether the trial court improperly failed to instruct on a lesser included offense. (People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant acted in imperfect defense of another. A defendant acts in imperfect defense of another if he "kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury." (People v. Randle (2005) 35 Cal.4th 987, 990, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
The doctrine of imperfect defense of another is narrow because the fear must be of imminent danger. "Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. ' "[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." . . . [¶] This definition of imminence reflects the great value our society places on human life.' [Citation.] Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense." (In re Christian S. (1994) 7 Cal.4th 768, 783, original italics.)
There is no evidence defendant acted in an actual but unreasonable belief to protect another person from imminent danger. Defendant could not have believed the victims posed an imminent threat to others because when he saw them in the parking lot, they were walking away from the scene of the assaults and had their backs to him, and there is no evidence they were threatening anyone with harm. Defendant could not have believed he was saving someone from imminent harm when there was no one there to be saved.
Defendant claims his testimony that he pursued the men because they had a gun and needed to be stopped and apprehended by the police before they hurt someone was sufficient evidence to require an instruction on imperfect defense of another. He argues the events at McDonald's support an implication he stopped the men because they posed an "imminent peril to the public." There is no evidence showing the men posed an imminent peril to the public after they left McDonald's. Defendant said they possessed a firearm, but there is no evidence they brandished it at any time or that they threatened anyone with it. According to his testimony, defendant never saw a gun until after he hit Harrison and Oliphant escaped.
Moreover, defendant's own testimony establishes he did not kill Harrison with the intent to protect another from imminent harm. Defendant testified he did not intend to kill Harrison. He was trying to keep the men from leaving the parking lot, but Harrison turned in front of his truck and he could not stop. If, as he testified, the killing was an accident and he did not intend to kill Harrison, then he did not actually believe he had to use deadly force immediately to defend another person, and there was no basis for instructing on imperfect defense of another.
The same reasoning supports the trial court's determination not to instruct on attempted voluntary manslaughter under a theory of imperfect defense of another. Defendant testified he did not intend to kill Oliphant. Without an intent to kill, defendant could not have believed he had to attempt to kill Oliphant to protect another from imminent harm.
Even assuming defendant actually believed the men might harm someone in the future, that belief gets him nowhere. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be, to justify killing someone in imperfect defense of another. An imminent peril is one that must be addressed instantly. (In re Christian S., supra, 7 Cal.4th at p. 783.) Because there was no evidence anyone was in imminent peril of death or great bodily injury from the men, the trial court correctly did not instruct on imperfect defense of another.
III
Counsel's Failure to Request Pinpoint Instruction
Defendant contends his trial counsel rendered constitutionally ineffective assistance by not requesting a pinpoint instruction that evidence of provocation could reduce first degree murder to second degree murder and attempted premeditated murder to attempted unpremeditated murder. We disagree.
The instruction defendant claims he should have received would have been based on CALCRIM No. 522. That instruction states: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"
To establish relief from ineffective assistance of counsel, defendant must show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings. (Strickland v. Washington (1984) 466 U.S. 668, 688,694 [80 L.Ed.2d 674, 694, 698].) Defendant has not satisfied either prong of this test.
"[T]he ' "existence of provocation which is not 'adequate' to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation" '—an inquiry relevant to determining whether the offense is premeditated murder in the first degree, or unpremeditated murder in the second degree." (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
The test for determining whether provocation can negate deliberation and premeditation is a subjective test. "The issue is whether the provocation precluded the defendant from deliberating. [Citation.] This requires a determination of the defendant's subjective state. The court in People v. Wickersham (1982) 32 Cal.3d 307 [overruled on another ground in People v. Barton (1995) 12 Cal.4th 186, 201], impliedly referred to a subjective test: '[W]here the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory. The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.' (Wickersham, supra, at p. 329.)" (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.)
Defendant has not established his trial counsel performed deficiently by not requesting a pinpoint instruction on provocation. There was insufficient evidence on which to base such an instruction. The evidence would not justify a jury to determine defendant both formed the intent to kill as a direct response to the incident at McDonald's and acted on that intent immediately. Defendant testified that when the incident was over, the victims walked away. He went into the restaurant to give the employees the knife and to ask them to call police. He then got into his truck. He testified his intent after the incident ended was to go home, not to kill the men. It was not until after he left McDonald's and drove onto the street to go home and he saw the men again that he decided he would drive his truck at them. There is no evidence defendant formed the intent to kill and acted on that intent immediately after the incident at McDonald's or that provocation affected him in any way.
Even if counsel should have requested an instruction on provocation, his failure to do so was not prejudicial. To establish prejudice, the second prong of the Strickland test, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466. U.S. at p. 694.)
There is no reasonable probability defendant would have obtained a more favorable result had counsel requested a pinpoint instruction on provocation. The jury was sufficiently instructed on state of mind, second degree murder, and provocation as an element of voluntary manslaughter such that any error in not instructing on provocation as negating premeditation and deliberation was cured.
"[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677.) "There is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
Such is the case here. First, the court instructed the jury that if it determined defendant committed murder, it was murder of the second degree unless the prosecution proved it was murder of the first degree. (CALCRIM No. 520.) To prove first degree murder, the prosecution had to establish defendant acted willfully, deliberately, and with premeditation. (CALCRIM No. 521.) The court detailed those elements as follows: "The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (CALCRIM No. 521, italics omitted & added.) The court gave similar instructions for attempted murder. (CALCRIM No. 601.)
By these instructions, the court informed the jury that if the evidence established defendant committed murder rashly, impulsively, or without careful consideration, the jury was required to find the defendant guilty of second degree murder. (CALCRIM No. 521.) As a result, a reasonable juror would understand the jury could not convict defendant of first degree murder if defendant acted out of provocation, as opposed to acting deliberately and with premeditation. But these are not the only instructions the court gave that informed the jury provocation could reduce murder to second degree.
The jury was also instructed upon the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter based on heat of passion. These instructions defined provocation to the jury, and the instruction on attempted voluntary manslaughter required the jury to find defendant subjectively was provoked—the same finding required had the court instructed separately on provocation. To convict for attempted voluntary manslaughter, the jury had to find defendant intended to kill, he attempted the killing because he was provoked, the provocation would have caused a person of average disposition to act rashly and without due deliberation, and the attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment. (CALCRIM No. 603; see also CALCRIM No. 570.)
Those instructions also explained that "[h]eat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as [the court] defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment. [¶] If enough time passed between the provocation and the attempted killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis." (CALCRIM No. 603; see also CALCRIM No. 570.)
Moreover, defense counsel strenuously argued to the jury defendant was provoked and acted rashly and impulsively because he had just been attacked. In his second argument to the jury, counsel contended defendant did not kill deliberately and intentionally.
The instructions and counsel's argument sufficiently informed the jury about provocation. They instructed the jury that if it found defendant killed out of provocation instead of deliberation and premeditation, it had to convict defendant of second degree murder or, if the provocation was sufficient, voluntary manslaughter. A pinpoint instruction on provocation would thus have been duplicative. Moreover, deliberating under these instructions, the jury rejected defendant's arguments of provocation. A pinpoint instruction thus would not have resulted in a different verdict. Accordingly, we cannot conclude defendant's trial counsel rendered ineffective assistance by not asking for the pinpoint instruction.
IV
Sufficiency of Evidence of Premeditation and Deliberation
Defendant contends insufficient evidence supports his conviction of first degree premeditated murder and attempted premeditated murder. We disagree.
Our Supreme Court explained the standard for reviewing the sufficiency of the evidence supporting a conviction of premeditated murder. It said, "In assessing the sufficiency of the evidence supporting a jury's finding of premeditated and deliberate murder, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] When the circumstances reasonably justify the jury's findings, a reviewing court's opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment. [Citations.]
" ' "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.]" [Citation.] " 'Premeditation and deliberation can occur in a brief interval. "The test is not time, but reflection. 'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' " ' [Citation.]" [Citations.]
"In People v. Anderson (1968) 70 Cal.2d 15 [(Anderson)], we identified three types of evidence—evidence of planning activity, preexisting motive, and manner of killing—that assist in reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. [Citation.] We have made clear, however, that ' "Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation." [Citations.]' [Citation.] Using Anderson as a guide, we turn to the instant record." (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)
Sufficient evidence of planning, motive, and manner supports the jury's findings of premeditation and deliberation. First, defendant planned to kill Oliphant and Harrison. Upon seeing them in the parking lot, defendant quickly changed his plan from going home to going after them. According to his testimony, he deliberated on the matter in his mind. He thought: "[T]hey started it. They attacked me. They assaulted me. They threatened the girl. And they had a gun. They needed to be stopped." At this point, defendant turned off the road and into the parking lot, accelerated, and drove straight at the victims. After he missed Oliphant, he drove straight at Harrison and hit him. He then reversed his truck and chased after Oliphant. This evidence shows defendant planned his attack. It shows defendant "was engaged in activity directed toward, and explicable as intended to result in, the killing." (Anderson, supra, 70 Cal.2d at p. 26.)
Second, defendant had a motive to kill Oliphant and Harrison. In a public place, the two men bothered defendant's friend, called him and her slurs and epithets, punched him, and hit him with a knife and another sharp object, cutting his face. Defendant told officers he believed the victims tried to kill him and he was not going to let them get away with it. These are sufficient facts "about the defendant's prior relationship and/or conduct with the victim[s] from which the jury could reasonable infer a 'motive' to kill the victim[s]." (Anderson, supra, 70 Cal.2d at p 27, italics omitted.)
Third, defendant's manner in killing Harrison and attempting to kill Oliphant shows sufficient premeditation and deliberation to sustain the verdicts. Upon seeing the men in the parking lot, he pulled into the lot, accelerated, and aimed his truck at them. Oliphant jumped out of the way, so he aimed his truck at Harrison. He hit him while accelerating. Evidence indicated defendant did not stop until after he hit Harrison. Harrison suffered severe and ultimately fatal injuries, but defendant did not get out of the truck to help him or call for aid. Instead, he reversed the truck, turned around, and aimed it at Oliphant. He chased Oliphant around the parking lot intending to hit him with the truck. After Oliphant escaped, defendant aimed his truck at Harrison again, and he would have hit him a second time had Gandy not intervened by standing in his way. When defendant got out of his truck, he still did not help Harrison or call for aid. Instead, he kicked him in the head and torso several times with his steel-toed boots while yelling racial epithets at him. The jury could reason from these facts "the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way." (Anderson, supra, 70 Cal.2d at p. 27, italics omitted.)
All of these facts provide sufficient evidence supporting the jury's verdicts that defendant killed Harrison and attempted to kill Oliphant with deliberation and premeditation.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: ROBIE, Acting P. J. MAURO, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------