Opinion
A168661
12-19-2024
THE PEOPLE, Plaintiff and Respondent, v. DINO BLACKBEAR LINCOLN, Defendant and Appellant.
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 21CR02023-A
RICHMAN, J.
On September 15, 2021, defendant Dino Blackbear Lincoln left the Buckhorn Bar in Mendocino County with his cousin Corina Carrio and walked about a block down the street. Lincoln told Carrio to "Watch this," and fired several shots. Kenneth Whipple, who was across the street, was killed. Lincoln was later arrested after he was pursued by police, ran a stop sign, and crashed into the car of Claudia Solis. Lincoln was convicted by a jury of Whipple's second-degree murder, misdemeanor assault on Solis, and reckless evasion, and sentenced to 76 years to life. Lincoln argues that: (1) the trial court erred in refusing his requested instruction on involuntary manslaughter as a lesser-included offense on the murder count; (2) Carrio's testimony that she heard an unknown person say, "I seen what you did . . . Dino" immediately after the shooting was hearsay that should have been excluded; (3) substantial evidence does not support his conviction for misdemeanor assault; and (4) under changes to Penal Code section 1385 effected by Senate Bill No. 81, the firearm enhancement and the tripling of his mandatory minimum sentence by operation of the three strikes law should have been dismissed. We conclude that the trial court erred in failing to instruct the jury on involuntary manslaughter as a lesser-included offense on the murder count, and that Lincoln's assault conviction is supported by substantial evidence, and we therefore reverse in part.
Given these conclusions, we do not reach Lincoln's second or fourth argument.
BACKGROUND
Around 11:34 p.m. on September 15, 2021-the night before Mexican Independence Day-Lincoln and his cousin Corina Carrio were drinking at the Buckhorn Bar near the intersection of Highway 162 and Greely Street in Mendocino County. There was a great deal of traffic outside the bar that evening, with cars driving by waiving Mexican flags. Lincoln and Carrio walked about a block south down Highway 162 and turned the corner heading west at Greely Street. In surveillance video later obtained from the Buckhorn Bar, several parked cars with their headlights on can be seen in a dirt area on the southeast corner of the intersection, about 100 feet away from where Lincoln and Carrio were standing. Lincoln then said to Carrio, "Watch this," and Carrio saw and heard him fire three shots. Kenneth Whipple, who was standing near his Toyota Tacoma across the street, was struck in the left side of the neck by a single bullet and killed. Five spent shell casings were later located at the scene.
Lincoln and Carrio fled the scene in Carrio's Ford Escape. Carrio took the gun from Lincoln and placed it into the envelope for the vehicle owner's manual. Lincoln later lost control of the car and crashed into a Chevy Suburban on the side of the road, and Lincoln and Carrio abandoned the vehicle and continued through a field on foot. They eventually separated, and Carrio, who was injured, fell asleep in a field and woke up at 4:00 a.m. Later that day, Carrio called her friend Selena Garika, who came and picked her up. Carrio buried the gun underneath a plant in Garika's yard.
About a week later, a Sig Sauer P225 9-millimeter handgun was found in a Ford Escape owner's manual bag buried under a plant in Garika's backyard. Dale Cloutier, a senior criminalist with the California Department of Justice, later determined that the recovered handgun had fired the five casings that were located at the scene. Investigators later found a large capacity magazine at Lincoln's residence loaded with several rounds of the same brand and caliber as those found at the scene.
At 5:29 p.m. on September 17, Officer Brandon McGregor of the Mendocino Sheriff Coast Patrol recognized Lincoln driving a grey Isuzu Rodeo in Fort Bragg. Officer McGregor activated his emergency lights and Lincoln "started to take off at a high rate of speed," which Officer McGregor estimated was around 70 miles per hour, through an area where the speed limit was 25 miles per hour. Lincoln ran one stop sign, continued eastbound, and ran a second stop sign just as a red sedan driven by Claudia Medina Solis entered the intersection travelling north. Lincoln appeared to swerve right "to avoid [the red sedan] and still clipped the back of it, and then hit the curb and continued eastbound." Lincoln's Rodeo then "wrecked into a . . . pretty deep" ditch and he "was unable to get out." Lincoln jumped through the passenger side window and fled on foot. He was arrested the next day after being found in a sleeping bag in a side yard on Hanson Road.
On September 16, the Mendocino County District Attorney filed a criminal complaint charging Lincoln with the murder of Kenneth Whipple (Pen. Code, § 187, subd. (a)) (count 1) with an enhancement for intentionally and personally discharging a firearm causing death (§ 12022.53, subd. (d)).In addition to Whipple's murder, the operative information charged Lincoln with the September 17, 2021 assault of Claudia Medina Solis with a deadly weapon-to wit, a vehicle (§ 245, subd. (a)(1)) (count 2); and reckless evasion (Veh. Code, § 2800.2, subd. (a)). The information also alleged that Lincoln had a 2019 conviction for criminal threats (§ 422) and a 2008 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of sections 667 and 1170.12, and alleged various aggravating circumstances under California Rules of Court, rule 4.421.
Further undesignated statutory references are to the Penal Code.
The original complaint also charged Carrio with accessory after the fact (§ 32). Carrio later pleaded guilty to that charge and testified for the prosecution in exchange for a grant of probation.
Trial took place by jury over approximately six court days in May of 2023.
As noted, Carrio testified that after she and Lincoln left the bar and walked to the corner of Highway 162 and Greely Street, she saw a gun in Lincoln's hand, he said, "Watch this," and she saw and heard Lincoln fire three shots. Lincoln fired the first shot "at an angle," with his hand "significantly" above the level of his shoulder in the "10:00 o'clock position" on the hands of a clock, and he fired the second two shots "pointed straight up" in the 12:00 o'clock position.
Carrio also testified that after she heard the gunshots, she heard someone across the street say," 'That's fucked up. I seen what you did. I know who you are.' And then they stated his name, 'Dino.'" Defense counsel objected and asked that "that information not be for the truth because of hearsay." The court took the objection under submission, to be discussed later outside the presence of the jury. The court ultimately ruled, outside the presence of the jury, that the statement was admissible for the limited purpose of showing the effect it had on Lincoln and Carrio and their subsequent conduct. The jury was ultimately instructed that "[d]uring the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose, and for no other," although this instruction was never specifically connected to Carrio's testimony regarding the statement.
Later, during closing argument, the prosecutor told the jury: "And she says right after-and she was clear that it was after- someone across the street says-and I'm going from my memory here- something to the effect of, 'What, the fuck, Dino? I've seen what you did.' "Now, the judge talked to you about what's called a limiting instruction, which tells you purposes for which you can use certain pieces of evidence. "And, here, you should use this piece of evidence to explain what Ms. Carrio and what the defendant did after the statement was made. "They got in the car, and they got out of there. And the defendant remained on the run. "So the effect on the defendant was he knows that somebody saw what he did, and knew it was him."
Greg Stutchman, the chief forensic analyst and owner of Stutchman Forensic Lab in Napa, testified regarding surveillance video from the Buckhorn Bar that captured the incident, which was entered into evidence and shown to the jury. According to Stutchman, the video showed three muzzle flashes from the location of a man dressed all in black, whom Carrio had previously identified as Lincoln. Stutchman testified the firearm that generated each of the three muzzle flashes was aimed across the street, from a gun "extended laterally away from" Lincoln's body, and that there "was nothing consistent with" Lincoln shooting directly over his head. When asked to explain the discrepancy between the three muzzle flashes captured on the video and the five separate casings found at the scene, Stutchman testified that because muzzle flashes are "instantaneous," they could have failed to be recorded on the video because of its relatively low frame rate of 16 frames per second.
Dr. Bennet Omalu, a forensic pathologist, performed an autopsy on Whipple's body on September 22. Dr. Omalu opined that Whipple died of a single gunshot wound to his neck and trunk. He recovered a bullet from the soft tissues of the right back below the tip of the right wing bone. The pathway of the bullet inside the body was "markedly inclined," such that it was unlikely Whipple was standing erect when shot and likely he was cowering down. Dr. Omalu was able to "rule out a bullet flying in the air and then tumbling down to the earth" as the source of the fatal shot, based on the nature of the entrance wound, the trajectory of the bullet inside the body, and the fact that "when [a bullet] is falling [to] the ground . . . it doesn't have th[e] kinetic energy to travel through the elasticity of the skin without stopping."
The prosecution also introduced evidence that shortly after midnight on September 16, Lawrence Frease-Lincoln's former cellmate in the Mendocino County Jail-sent Lincoln two messages on Facebook Messenger: "Wtf bro wat happen" and "U ok bro I can come to the house if you need brother." At 3:04 p.m. the next afternoon, Lincoln responded: "Killed Ken doc," "I'm over here with my cousin Jerome," and "Trying to figure out how to get out bro."
Claudia Solis testified for the prosecution that after stopping at a stop sign at the intersection of Chestnut Street and Harrison Street on September 17, she entered the intersection, and then observed a grey vehicle "coming very fast," and then "accelerated, because I felt that the vehicle that was coming really fast was going to broadside me on my whole left side." After the collision, Solis had pain in her knee and sciatic nerve.
Lincoln did not testify. In closing argument, defense counsel argued that the surveillance video showed that at the time of the three muzzle flashes it captured, Whipple was standing upright and Carrio was facing away from Lincoln, and therefore could not have seen those shots. Based on Dr. Omalu's testimony that Whipple was bent over when he was shot, Carrio's testimony that the shots she did see were fired while Lincoln's arm was in the 10:00 and 12:00 position, and Whipple and Lincoln's positions at the time of the shooting, defense counsel argued that none of the five shots fired by Lincoln could have been the fatal one.
The jury found Lincoln guilty of second-degree murder on count 1, found true the firearm enhancement allegation, found Lincoln guilty of the lesser-included offense of misdemeanor assault on count 2, and guilty of reckless evasion on count 3. The trial court found the prior strike allegations true.
The trial court sentenced Lincoln to 15-years-to-life on count 1, tripled to 45-years-to-life by operation of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), plus a consecutive 25-years-to-life term for the firearm enhancement (§ 12022.53, subd. (d)), a six-month concurrent term on count 2, plus a three-year aggravated term on count 3, doubled to six years by operation of the three strikes law, for a total indeterminate term of 70 years-to-life and a determinate term of six years. The additional five-year terms for the two strike priors (§ 667, subd. (a)) were stayed.
Lincoln filed a notice of appeal.
DISCUSSION
The Trial Court Erred In Refusing the Defense's Request to Instruct the Jury on Involuntary Manslaughter
Additional Background
Defense counsel requested that the jury be instructed with CALCRIM No. 580 on involuntary manslaughter as a lesser-included offense on count 1, which form instruction provides:
"When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.
"The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.
"The defendant committed involuntary manslaughter if:
"1. The defendant committed (a crime/ [or] a lawful act in an unlawful manner); [¶] 2. The defendant committed the (crime/ [or] act) with criminal negligence; [¶] AND [¶] 3. The defendant's acts caused the death of another person."
"[The People allege that the defendant committed the following crime[s]: <insert misdemeanor[s]/infraction[s])/noninherently dangerous (felony/felonies)/inherently dangerous assaultive (felony/felonies)>.
"Instruction[s] tell[s] you what the People must prove in order to prove that the defendant committed <insert misdemeanor[s] /infraction[s])/ noninherently dangerous (felony/felonies)/inherently dangerous assaultive (felony/felonies)> .] [¶] . . . [¶]"
"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:
"1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk.
"In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act." (CALCRIM No. 580.)
While finalizing the jury instructions with counsel, the trial court stated that it had been unable to "complete the [CALCRIM No. 580] instruction because I don't have a criminal act not amounting to a felony, or a lawful act committed in a negligent or dangerous way to include in that instruction." In response, defense counsel suggested that the predicate crime required by CALCRIM No. 580 could be supplied by negligent discharge of a firearm (§ 246.3), "[d]ischarge of a firearm within city limits," or discharging a firearm on the property of another (§ 602, subd. (1)(4).) The trial court noted that negligent discharge of a firearm is a felony, and thus section 246.3 would not "supply the element of criminal conduct not amounting to a felony," and the prosecutor argued that discharge of a firearm within city limits would not apply because Covelo is not an incorporated city. Later on, the trial court indicated it had considered section 602 as supplying the required predicate criminal act, but did not find any "evidence that Mr. Blackbear [Lincoln] was on someone else's property and committed a trespass by discharging a firearm," and would therefore decline to give the involuntary manslaughter instruction over the defense's objection.
Applicable Law
Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-156 (Breverman), disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 255-260; People v. Shockley (2013) 58 Cal.4th 400, 403.)
"In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Breverman, supra, 19 Cal.4th at p. 177.) Thus, "courts should not evaluate the credibility of witnesses, a task for the jury" (id. at p. 162), and "uncertainty about whether the evidence is sufficient to warrant instructions should be resolved in favor of the accused (People v. Tufunga (1999) 21 Cal.4th 935, 944). Even evidence that is unconvincing or subject to justifiable suspicion may constitute substantial evidence and may trigger the lesser-included-offense requirement. (People v. Turner (1990) 50 Cal.3d 668, 690.)" (People v. Vasquez (2018) 30 Cal.App.5th 786, 792 (Vasquez).)
We review de novo a trial court's failure to instruct on a lesser included offense (People v. Waidla (2000) 22 Cal.4th 690, 733), and in doing so we view the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 (Millbrook).)
Murder is the unlawful killing of a human being with malice aforethought, which can be express or implied. (§§ 187, subd. (a), 188, subd. (a); People v. Bryant (2013) 56 Cal.4th 959, 964 (Bryant).) Express malice is the intent to unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn. 7.) Implied malice has"' "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.'" '" (Bryant, supra, 56 Cal.4th at p. 965.)
Involuntary manslaughter is a lesser included offense of murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197; People v. Abilez (2007) 41 Cal.4th 472, 515.) Involuntary manslaughter is an unlawful killing of a human without malice. (§ 192, subd. (b).)
"Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. (Walker v. Superior Court [(1988)] 47 Cal.3d [112,] 136-137 (Walker); People v. Watson [(1981)] 30 Cal.3d [290,] 296-297.) Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved. (People v. Watson, supra, 30 Cal.3d at pp. 296-297.) In contrast, involuntary manslaughter merely requires a showing that a reasonable person would have been aware of the risk. (Ibid.) Thus, even if the defendant had a subjective, good faith belief that his or her actions posed no risk, involuntary manslaughter culpability based on criminal negligence is warranted if the defendant's belief was objectively unreasonable. (Walker, supra, 47 Cal.3d at pp. 136-137; see People v. Rippberger [(1991)] 231 Cal.App.3d [1667,] 1682; People v. Evers (1992) 10 Cal.App.4th 588, 596.)" (People v. Butler (2010) 187 Cal.App.4th 998, 1008-1009, fn. omitted; see CALCRIM No. 580 ["The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk"].)
Involuntary manslaughter requires the absence of malice aforethought and the presence of criminal negligence. (People v. Ochoa (1998) 19 Cal.4th 353, 423; see People v. Skiff (2021) 59 Cal.App.5th 571, 579 ["The mental state required . . . is criminal negligence"].) "A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk." (CALCRIM No. 580.)
By statute, commission of involuntary manslaughter requires: (1) "an unlawful act, not amounting to a felony"; or (2) "a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) However, case law has interpreted section 192 broadly to encompass an unintentional killing in the course of a noninherently dangerous felony committed without due caution or circumspection (People v. Burroughs (1984) 35 Cal.3d 824, 829, 835, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89) and in the course of an inherently dangerous assaultive felony (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34 (Brothers)). (See CALCRIM No. 580 [Judicial Council of Cal., Crim. Jury Instns. (2024) Bench Notes to CALCRIM No. 580, p. 333 ["The court has a sua sponte duty to instruct on involuntary manslaughter based on the commission of an inherently dangerous assaultive felony and to instruct on the elements of the predicate offense(s)"], citing Brothers, supra, 236 Cal.App.4th at pp. 33-34 &Bryant, supra, 56 Cal.4th at p. 964.)
Analysis
As the above discussion makes clear, the trial court was mistaken that negligent discharge of a firearm could not serve as the predicate offense for an involuntary manslaughter instruction simply because it was a felony. (See CALCRIM No. 580; Bryant, supra, 56 Cal.4th at p. 974 (Conc. opn. of Kennard, J.) ["the phrase 'not amounting to felony' in section 192's subdivision (b) . . . is not an element of involuntary manslaughter"]; People v. Chun (2009) 45 Cal.4th 1172, 1200 (Chun) [violation of section 246.3 is an assaultive felony because it "involves a threat of immediate violent injury"].) The Attorney General does not squarely address this issue. Instead, he concedes that an involuntary manslaughter instruction based on section 246.3 "would have been required had there been evidence supporting a theory that [Lincoln] had acted willfully but without conscious disregard of the risk to human life," but argues that such a theory was not supported by the evidence in this case because Lincoln said" 'Watch this' . . . immediately before firing five shots," "fled immediately upon being confronted with his actions, hid the weapon, fled again upon discovery by police," "attempted to concoct a false story to cover up his actions," "admitted the killing to others," and argued at trial that "the victim was shot by someone else!" We disagree.
Viewing the evidence in the light most favorable to Lincoln, the statement, "Watch this" establishes nothing more than that he fired his gun intentionally, which he does not dispute on appeal and as the jury so found. Lincoln's subsequent actions do not establish that he acted with conscious disregard for human life as opposed to criminal negligence at the time of the shooting. (See, e.g., Millbrook, supra, 222 Cal.App.4th at p. 1148 ["the Attorney General fails to cite any authority, and we are aware of none, supporting the proposition that defendants tend to flee only when they have committed certain crimes but not others"].) The jury was instructed, pursuant to CALCRIM Nos. 371 and 372, that a defendant's flight after the crime or attempts to fabricate evidence "may show that he was aware of his guilt," but" '[a] reasonable juror would understand "consciousness of guilt" to mean "consciousness of some wrongdoing" rather than "consciousness of having committed the specific offense charged" '" and instructions regarding consciousness of guilt" 'do not address the defendant's mental state at the time of the offense.'" (People v. Bolin (1998) 18 Cal.4th 297, 327.)
Moreover, the trial court was obligated to instruct the jury on involuntary manslaughter if supported by the evidence even it was inconsistent with Lincoln's theory of the case at trial. (See People v. Barton (1995) 12 Cal.4th 186, 195 [" 'When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant' "], quoting People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7; Breverman, supra, 19 Cal.4th at p. 154 ["The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given"].)
The elements of grossly negligent discharge of a firearm (§ 246.3, subd. (a)) are: "(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person." (People v. Ramirez (2009) 45 Cal.4th 980, 985-986; see CALCRIM No. 970.) Substantial evidence plainly supports the conclusion that Lincoln committed this offense, and the Attorney General does not argue otherwise. But did substantial evidence permit the jury to conclude that Lincoln committed involuntary manslaughter by violating section 246.3 with criminal negligence, i.e., that he "act[ed] in a reckless way that creates a high risk of death or great bodily injury" and that "[a] reasonable person would have known that acting in that way would create such a risk," without concluding that he subjectively appreciated the risk involved in his conduct such that he would be guilty of murder? We conclude that it did.
Although Lincoln's statement, "Watch this" would support the conclusion that he acted in conscious disregard of human life, that was not the only inference to be drawn from the statement. Viewing the evidence in the light most favorable to Lincoln, the jury could have inferred, for example, that Lincoln meant only to show off his gun to Carrio. Indeed, there is no evidence that Lincoln saw Whipple-who was standing some 100 feet away, at night-or anyone else before he fired. Nor was there any evidence that Lincoln had any particular motive to kill, injure, or frighten him. It was the eve of Mexican Independence Day, and Antoinette Smith, who worked at the Buckhorn, testified that there was heavy traffic outside the bar that night, with cars driving by waiving Mexican flags. And Carrio-the only eyewitness to the shooting-testified that saw and heard Lincoln fire three shots, the first of which was fired "at an angle," with Lincoln's hand "significantly" above the level of his shoulder in the "10:00 o'clock position" on the hands of a clock, and the second two of which were fired was with Lincoln's hand "pointed straight up" in the 12:00 o'clock position. (See People v. Clem (2000) 78 Cal.App.4th 346, 350 ["Section 246.3 was enacted to deter 'the dangerous practice of discharging firearms into the air during festive occasions' "].) All of this was substantial evidence from which the jury could have concluded that Lincoln fired intentionally into the air without aiming at anyone and without any subjective appreciation of the risk posed by his conduct, and thus acted only with criminal negligence and not a conscious disregard for life. (See In re Ferrell (2023) 14 Cal.5th 593, 607-608 [where it was "not clear [defendant] was ever aiming at a specific target and may have only believed . . . that he was shooting skyward" jury could have found a violation of section 246.3 and found true a firearm enhancement allegation under section 12022.53, subdivision (d) "without also finding implied malice"].)
The Error Was Not Harmless
In a noncapital case, the erroneous failure to instruct on a lesser-included offense is typically an error of state law, reviewed for prejudice under the reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Schuller, supra, 15 Cal.5th at p. 260; People v. Rogers, supra, 39 Cal.4th at pp. 867-868.) Thus, we must reverse if there is a reasonable probability that the defendant would have obtained a more favorable outcome if the instruction had been given. (Breverman, supra, 19 Cal.4th at p. 178; People v. Soojian (2010) 190 Cal.App.4th 491, 520-521 [a hung jury is a more favorable result than a guilty verdict].)" 'A "reasonable probability" "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." [Citation.] It "does not mean 'more likely than not,' but merely 'probability sufficient to undermine confidence in the outcome.'" '" (People v. Rodriguez (2021) 68 Cal.App.5th 301, 324.)
We note that "[w]hen the defense requests the instruction, the refusal to instruct on a lesser included offense may also violate the federal constitution's requirement that the courts afford every criminal defendant' "a meaningful opportunity to present a complete defense." '" (Vasquez, supra, 30 Cal.App.5th at pp. 792-793; see People v. Schuller, supra, 15 Cal.5th at p. 260 [holding that error in lack of instruction on imperfect self-defense is federal constitutional error but noting that "does not otherwise modify the general rule that the failure to instruct on other forms of lesser included offenses in noncapital cases is an error of state law"]; People v. Rogers (2006) 39 Cal.4th 826, 872 [discussing federal authorities concluding that trial court's failure to give a requested instruction embodying the defense's theory of the case "violate[s] the defendant's due process right to present a complete defense"].) As noted, the defense did request the instruction at issue here, but the defense theory of the case-as explained in both opening and closing statements by defense counsel-was that it was physically impossible for Lincoln to have shot Whipple. We need not resolve this issue, because we conclude that the error was prejudicial even under the less stringent test of Watson, supra, 46 Cal.2d 818.
The rationale for requiring courts to instruct on lesser-included offenses is to avoid forcing the jury into an" 'unwarranted all-or-nothing choice'" that "could lead to an unwarranted conviction." (People v. Hughes (2002) 27 Cal.4th 287, 365, citing Keeble v. United States (1973) 412 U.S. 205, 212-213 ["[A] defendant is entitled to a lesser offense instruction . . . precisely because . . . [w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction"]; accord, People v. Majors (1998) 18 Cal.4th 385, 410 ["One of the primary reasons for requiring instructions on lesser included offenses is . . . to eliminate' "the risk that the jury will convict . . . simply to avoid setting the defendant free"' "].)
Under the instructions given in this case, the jury was forced to choose between convicting Lincoln of second-degree murder and acquitting him entirely. As we shall explain, there is a reasonable probability that the jury chose second-degree murder to avoid the more implausible alternative that Lincoln was not guilty of any crime with respect to Whipple's death. Put another way, we hold there is a reasonable probability that at least one juror would have voted to convict Lincoln of involuntary manslaughter if given the chance. (See Vasquez, supra, 30 Cal.App.5th at p. 798.)
The Attorney General argues briefly that any error in failing to instruct on involuntary manslaughter was harmless, as follows: "Evidence that [Lincoln] intentionally fired into the crowded headlights in front of him was overwhelming. This was not just a random act or a negligent discharge, [Lincoln] prefaced the shooting with 'Watch this.' .... [T]here was simply no evidence that [Lincoln] was wildly firing into the air. Both the surveillance video and the pathologist's testimony showed that after [Lincoln] said 'Watch this,' he fired a bullet that directly hit Whipple in the neck. It may not have been an act calculated to kill, but it was certainly, and reasonably probably, an act of at least implied malice."
The evidence that Lincoln intentionally fired the shot that killed Whipple was indeed ample, and the jury so found when it found true the firearm enhancement allegation under section 12022.53, subdivision (d), requiring that the defendant "personally and intentionally discharges a firearm and proximately causes . . . death." And as the prosecutor argued in closing, a reasonable person would plainly have been aware of the risk to human life involved in firing five times "across an intersection of a busy street where there's three motor vehicles with their lights on." But implied malice murder "requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved." (People v. Butler, supra, 187 Cal.App.4th at p. 1008 (emphasis added).) And "[s]ection 12022.53, subdivision (d), requires only an intent to discharge a firearm, not subjective awareness of a risk or disregard for life. [Citations.] Thus, a finding under this section is no proxy for the mental component of implied malice murder." (In re Ferrell, supra, 14 Cal.5th at p. 604.)
As to Lincoln's subjective appreciation of the risk involved in his conduct, there was no evidence other than his statement, "Watch this" immediately before the shooting. As discussed, while this statement showed that Lincoln's actions were intentional, it was also consistent with the conclusion that he never aimed at anyone in particular, was firing his gun into the air, and did not subjectively appreciate the risk involved in his conduct.
In addition, the likelihood of prejudice may have been enhanced by the trial court's failure to limit the jury's consideration of Carrio's testimony regarding the hearsay statement," 'That's fucked up. I seen what you did. I know who you are . . . Dino.'" The statement at least suggests that the speaker witnessed the shooting and concluded that Lincoln shot Whipple intentionally. The prosecution discussed the statement in closing, arguing that its "effect on the defendant was he knows that somebody saw what he did, and knew it was him," effectively reiterating the statement's suggestion that the unknown witness had concluded the shooting was intentional. The prosecutor told the jury that they "should use this piece of evidence to explain what Ms. Carrio and what the defendant did after the statement was made," but this may not have prevented the jury from considering the statement as evidence of Lincoln's guilt. (See People v. Harris (2008) 43 Cal.4th 1269, 1320 ["the arguments of counsel are no substitute for instructions from the court"]; Taylor v. Kentucky (1978) 436 U.S. 478, 488-489 [same].)
In short, the evidence of Lincoln's subjective mental state-on which the distinction between second-degree murder and involuntary manslaughter depends-was extremely limited and ambiguous. But under the instructions given in this case, the jury was forced to choose between convicting Lincoln of second-degree murder and acquitting him entirely. There is a reasonable probability that at least one juror would have voted in favor of an involuntary manslaughter conviction if given the chance, but chose second-degree murder to avoid the more implausible alternative that Lincoln-who the jury found intentionally fired the fatal shot-was not guilty of any crime. Accordingly, Lincoln's murder conviction cannot stand. (See Vasquez, supra, 30 Cal.App.5th at p. 798; Millbrook, supra, 222 Cal.App.4th at p. 1148.)
The Evidence Was Sufficient to Support Lincoln's Assault Conviction
Lincoln contends that there was insufficient evidence to support his conviction for misdemeanor assault (§ 240), in particular that "the facts did not support an inference that [he] continued into the intersection knowing that his actions would directly and probably cause the application of force to another person," relying on evidence that he "swerved to avoid Solis . . . in an attempt to avoid collision."
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73, 104.) . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Valdez, supra, 32 Cal.4th at p. 104.) A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The offense has been described as" 'unlawful conduct immediately antecedent to battery.'" (People v. Williams (2001) 26 Cal.4th 779, 786 (Williams).) Under Williams, the test for assault is whether a reasonable person, viewing the facts known to defendant, would find that the act in question would directly, naturally, and probably result in physical force being applied to another, i.e., a battery. (Id. at pp. 787-788 & fn 3.)
Construed in the light most favorable to the judgment, the evidence was that Lincoln was driving approximately 70 miles per hour in an area where the speed limit was 25 miles per hour. He ran one stop sign and approached a second at this high rate of speed. As Solis entered the intersection, in an area she described as "flat" and under weather conditions that were "good" and "clear," she saw Lincoln approaching from her left "very fast," and worried that he "was going to broadside me on my whole left side," from which the jury could infer that she was directly in Lincoln's line of sight and that he saw her vehicle before the collision. Despite this, Lincoln never slowed down, but instead ran a second stop sign and sped into the intersection, crashing into Solis's vehicle. Based on this evidence, the jury could find that an objectively reasonable person with knowledge of these facts would appreciate that an injurious collision, i.e., a battery, would directly and probably result from Lincoln's actions.
The evidence that Lincoln swerved to avoid Solis, even if credited by the jury, does not alter this analysis. "Assault does not require an intent to cause an application of physical force or substantial certainty that force will be applied." (People v. Bipialaka (2019) 34 Cal.App.5th 455, 459; see People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186-1187; Williams, supra, 26 Cal.4th at p. 788, fn. 3 ["[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery"].) Substantial evidence supports Lincoln's conviction for misdemeanor assault.
Modification of the Judgment Is the Proper Disposition
Substantial evidence support's Lincoln's conviction for second-degree murder, and he does not argue otherwise. Thus, the prosecution may retry him on this charge if they elect to do so. But if they do not, we order that the judgment be modified to reflect a conviction of involuntary manslaughter. We are" 'not restricted to the remedies of affirming or reversing [the] judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.'" (People v. Edwards (1985) 39 Cal.3d 107, 118; Millbrook, supra, 222 Cal.App.4th at p. 1152; see § 1260.)
In addition, involuntary manslaughter does not support a firearm enhancement under section 12022.53. Section 12022.53 applies only to certain designated felonies, including the charged offense of murder, but not including the lesser included offense of involuntary manslaughter. (§ 12022.53, subd. (a).)
Accordingly, the prosecution will have the option of retrying Lincoln for murder or accepting a modification of the judgment to reflect a conviction for involuntary manslaughter and to strike the enhancement allegation under section 12022.53, subdivision (d). If the judgment is so modified, the trial court shall resentence Lincoln accordingly.
DISPOSITION
Lincoln's conviction for misdemeanor assault is affirmed, and his conviction for second-degree murder is reversed. The prosecution shall have 60 days from issuance of the remittitur to determine whether to retry Lincoln for murder. If the prosecution fails to refile murder charges within 60 days of issuance of the remittitur, the judgment shall be modified to reflect Lincoln's conviction for involuntary manslaughter instead of second-degree murder and to strike the enhancement allegation under section 12022.53, subdivision (d), and the trial court shall resentence Lincoln accordingly.
We concur. STEWART, P. J. MILLER, J.