Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. J. Michael Beecher, Judge. (Retired judge of the Orange S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. RIF116224
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of attempted first degree murder (Pen. Code, §§ 664/187, subd. (a)). The jury also found true that defendant had personally discharged a firearm causing great bodily injury or death within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8). Defendant was sentenced to an indeterminate term of life with the possibility of parole for the attempted murder plus a determinate term of 25 years for the personal use of a firearm allegation. Defendant’s sole contention on appeal is that the trial court erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on a heat-of-passion theory. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On November 28, 2003, Todd Guillory was walking home from a liquor store when a black truck drove by. Three people were in the truck. Defendant was seated in the middle passenger seat; his brother, Ricardo, was driving. An unnamed “acquaintance” was in the other passenger seat.
As the truck drove by, Guillory observed someone in the truck “thr[o]w their hands up,” so Guillory “threw [his] hands up” in response. The truck pulled into a McDonald’s parking lot. Defendant exited the truck, raised his hands, and approached Guillory. Guillory thought defendant was his cousin and walked over to him in a nonthreatening manner. When he realized defendant was not his cousin, Guillory stated, “I thought I knew you.” Defendant responded, “You thought you knew me, eh?,” then attempted to punch Guillory. Guillory was able to duck or deflect the punch. Defendant stepped back and stated, “You’re dead” or “You’re shot, mother fucker.” Defendant pulled a gun from his waistband and shot Guillory in the abdomen, back, and leg as Guillory attempted to run away.
After hearing gunshots, Ricardo, who was on probation, ran back to his truck and quickly backed out of his parking space. Defendant and the acquaintance jumped back into the truck. Ricardo drove from the scene and, at a stop sign, told the acquaintance to get out of his truck. Ricardo continued driving while arguing with defendant and asking what had happened. Defendant told Ricardo, “He reached in his pants.” Ricardo drove to Chino, exited the freeway, and told defendant to get out of his truck.
Riverside County Sheriff’s Detective Steven Welsh interviewed several witnesses following the shooting. A witness told the detective that when defendant and Guillory approached each other, it appeared as though they knew one another. Another witness testified he thought defendant and Guillory were friends by the way they approached each other, until defendant hit Guillory. The witnesses then heard gun shots and saw the shooter – defendant -- flee. Other witnesses provided a description of the shooter and the license plate number of the black truck. At the scene, officers located four expended shell casings from a .45-caliber weapon.
Detective Welsh also interviewed Guillory twice. Guillory stated that he had observed the truck pass him and the center passenger raise his hand. He believed the center passenger was his cousin so he “motioned” toward the McDonald’s parking lot. The events then transpired as set forth, ante.Guillory told the detective that the punch defendant threw knocked Guillory’s headphones off his head. When defendant pulled out a gun, Guillory turned to run but was hit first in the leg and then in the back. Guillory also told the detective that he had not made any hostile moves towards defendant. No weapons were found on Guillory.
Guillory provided physical descriptions of defendant and the black truck. On November 29, 2003, and again a few days later, Guillory identified defendant from a photographic lineup as the person who had shot him.
Following further investigation, officers located the black truck and spoke with defendant’s brother Ricardo, who stated defendant was the center passenger in the truck. Ricardo informed Detective Welsh that defendant exited the truck and began walking toward Guillory while he (Ricardo) parked the truck. Ricardo then heard gun shots, got back into his truck, and began to drive off. Defendant got into the truck and said, “Go, go, go.” Ricardo also told the detective that defendant had stated Guillory had reached for his waist.
II
DISCUSSION
Defendant contends the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on a heat of passion theory. We disagree.
The California Supreme Court has explained that “‘“[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.” [Citation.] 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.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
“A court must ‘instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.’” (People v. Coddington (2000) 23 Cal.4th 529, 591, italics added, quoting Breverman, supra, 19 Cal.4th at p. 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Breverman, at p. 162.)
In a noncapital case such as this one, “error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818]. A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
Defendant correctly argues voluntary manslaughter is a lesser, necessarily included offense of intentional murder. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) The intent to unlawfully kill constitutes malice. (§ 188.) But a defendant who intentionally and unlawfully kills lacks malice when he acts in a “sudden quarrel or heat of passion.” (§ 192, subd. (a); see People v. Barton (1995) 12 Cal.4th 186, 199; Breverman, supra, 19 Cal.4th at pp. 153-154.) “A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter.” (Barton, at p. 199; see § 192, subd. (a).) “These mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter ‘by negating the element of malice that otherwise inheres in such a homicide [citation].’ [Citation.] Provocation has this effect because of the words of section 192 itself, which specify that an unlawful killing that lacks malice because committed ‘upon a sudden quarrel or heat of passion’ is voluntary manslaughter.’” (People v. Rios (2000) 23 Cal.4th 450, 461.) Because the element of malice is absent, “‘[intentional] voluntary manslaughter . . . is considered a lesser necessarily included offense of intentional murder.’ [Citations.]” (Ibid., fn. omitted.)
As stated previously, the sua sponte duty to instruct on lesser necessarily included offenses arises only where such an offense finds “substantial support in the evidence.” (Breverman, supra, 19 Cal.4th at p. 162.) In other words, a court “is not obligated to instruct on theories that have no such evidentiary support.” (Ibid.)
The sudden-quarrel or heat-of-passion theory of voluntary manslaughter includes both a subjective and an objective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Defendant thus must show not only that he was actually in the heat of passion but that a reasonable person would also be provoked by the circumstances giving rise to the heat of passion. (Id. at pp. 1252-1253.) To warrant an instruction on attempted voluntary manslaughter required evidence that defendant’s reason “was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citations.] ‘“[N]o specific type of provocation [is] required . . . .”’ [Citation.] Moreover, the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citation] other than revenge [citation].” (Breverman, supra, 19 Cal.4th at p. 163.)
Defendant here cannot meet either the subjective or objective element required by the theory of sudden quarrel or heat of passion. There was no evidence presented suggesting that defendant believed Guillory, whom defendant did not know and who was merely walking home from a store when defendant drove by, was any sort of threat. Moreover, there was no evidence that would have caused a reasonable person to form the intent to kill upon a sudden quarrel or heat of passion under the circumstances of this case. No reasonable person would have become provoked by Guillory, who merely waved to defendant and then approached defendant in a nonaggressive manner and stated he thought he knew defendant. Witnesses to the incident saw no aggressive behavior by Guillory and in fact believed that the two were friends or at least acquaintances by the way they approached one another. Hence, even if defendant could show that he was provoked by Guillory’s hand gesture, he cannot demonstrate substantial evidence that a reasonable person would also feel provoked by Guillory’s seemingly innocent actions. Accordingly, we conclude the court did not err or violate defendant’s constitutional rights in failing to sua sponte instruct the jury on the heat-of-passion theory of voluntary manslaughter.
Even if we were we to conclude that the court erred in failing to instruct on the heat of passion theory, we are persuaded any such error would be deemed harmless under the test announced in People v. Watson, supra, 46 Cal.2d at page 836, because defendant has not shown, and cannot show, that absent such error it is reasonably probable he would have obtained a more favorable outcome. As stated above, solid, credible evidence established that Guillory suffered several gun shot wounds caused by defendant shooting at him four times as Guillory attempted to run away following the innocent, nonhostile encounter. In addition, the jury in this case deliberated a total of two and a half hours before finding defendant guilty of attempted premeditated murder. The evidence shows that defendant acted with malice and fully supports the jury’s verdict.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., HOLLENHORST, J.