Opinion
A129450
11-28-2011
THE PEOPLE, Plaintiff and Respondent, v. DESHAUN PARISH MALONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Solano County Super. Ct. No. FC261283
A jury convicted defendant and appellant Deshaun Parish Malone of first degree murder based on a theory of felony murder. On appeal, defendant contends the trial court erred in failing to instruct the jury on second degree murder and voluntary manslaughter as lesser included offenses. We conclude the trial court erred in failing to instruct the jury on voluntary manslaughter and reverse.
PROCEDURAL BACKGROUND
In June 2009, the District Attorney of Solano County filed an information charging defendant with the murder of Kendrick Lewis, in violation of Penal Code section 187, subdivision (a). The information alleged that defendant personally used and intentionally discharged a firearm causing great bodily injury and death to the victim. (§ 12022.53, subd. (d).)
All undesignated section references are to the Penal Code.
The information also alleged firearm enhancements under section 12022.53, subdivisions (b) and (c) and section 12022.5, subdivision (a)(1). On the first day of trial, the trial court and counsel agreed that the section 12022.53, subdivision (d) enhancement, which provides for an additional consecutive 25-year term for personal use of a firearm in a murder, encompassed the other alleged firearm enhancements and, thus, would be the only enhancement presented to the jury.
A jury found defendant guilty of first degree murder and found true the personal firearm use allegation. The trial court sentenced defendant to prison for an indeterminate term of 50 years to life. This appeal followed.
FACTUAL BACKGROUND
On November 2, 2008, the 17-year-old victim, Lewis, was spending time with his girlfriend, Karlee Swafford, at his parents' house in Vallejo. A little before 5:00 p.m., Lewis received a phone call. Around 5:00 p.m., Lewis and Swafford left his parents' house in his car. They planned to meet someone in Fairfield in order for Lewis to sell Ecstasy, and then go to a friend's house in Suisun. On the way, they picked up two friends, Willie ("Tony") Muir and Trung Nguyen. Lewis was driving, Swafford was in the front passenger seat, Muir was sitting behind Swafford, and Nguyen was sitting behind Lewis.
Lewis spoke to someone on his cell phone who directed him to Mockingbird Lane, a residential street in Fairfield. They arrived at approximately 5:45 p.m. Lewis pulled over to the curb, but left the car running. After Lewis pulled over, defendant and another man, Jamal Kelly, approached on foot. Lewis rolled down his window and Kelly discussed the Ecstasy transaction with Lewis.
Defendant stood near the rear driver's side window. He was wearing a black hooded sweatshirt and his hands were in his pockets. Because the windows in the back were tinted, Nguyen rolled down his window to get a better look at defendant. Nguyen asked defendant where his hands were, and defendant told him not to worry about it. Defendant told Kelly to tell Lewis to tell Nguyen to "be cool."
Lewis showed Kelly one kind of Ecstasy pills, but Kelly indicated he wanted a different kind. Muir reached under the front passenger seat and handed Lewis a black pouch containing a second type of Ecstasy. Once Lewis had both kinds of Ecstasy, Kelly turned to defendant and asked, "So you got the money?" Defendant then pulled out a gun and held it inside the car's passenger compartment through the open rear driver's side window. According to Swafford, defendant said, "Don't move the car or I'll shoot you." According to Muir, defendant said, "Give me everything. I'm going to shoot you," and "Don't drive away." According to Nguyen, defendant said, "I want everything. Give me everything," and "Don't drive off or I'm going to shoot you."
Lewis looked back, saw the gun, and slowly began to drive away. Defendant shot Lewis once in the upper back. The car crashed into a light pole. Defendant and Kelly ran the other way. Swafford got out of the car, opened Lewis's door, and held him. Nguyen, who was sitting near the car crying, called 911. Muir ran and hid behind cars parked down the street, then returned and flagged down the police.
Officer Steven Trojanowski of the Fairfield Police Department was dispatched to Mockingbird Lane. When he arrived, he saw Muir and Nguyen frantically trying to flag him down. Swafford was standing outside the driver's door, yelling for help. Paramedics arrived and removed Lewis from the vehicle. A subsequent autopsy revealed that a bullet entered Lewis's upper left back, causing injury to his lung, resulting in death by exsanguination.
A neighbor testified he was checking the oil in his truck in front of his house on Mockingbird Lane when Lewis was shot. He saw two people outside a car parked on the street. Subsequently, he heard a gunshot and the two people he saw outside the car ran by him laughing.
Fairfield Police Detective Brett Morris was assigned as the primary detective in the investigation of the shooting. Approximately one month into his investigation, Detective Morris brought defendant to the Fairfield Police Department for an interview. Defendant admitted being in Fairfield at the time of the shooting. He claimed he was helping a friend, who lived on Grande Circle, move. Grande Circle is an area close to where the shooting occurred.
Initially, defendant denied any involvement in and provided no information about the shooting. About halfway through the four-hour interview, defendant claimed he was with friends on Grande Circle when he saw two guys, AK and Michael, one of whom said they had just "put a nigga in a bag." They also said they had "jack[ed]" someone for pills.
Defendant eventually admitted he was present at the shooting, but denied he was the shooter. He then admitted he was the shooter. He claimed he and his "partner" had gone to Mockingbird Lane to purchase Ecstasy. His partner stood at the driver's door, and he stood at the back passenger door. He told one of the passengers in back, who was wearing a hockey mask, to take it off. Defendant saw this passenger reach into a backpack and start pulling out what he thought was a gun. He got scared and decided to shoot the passenger in the arm. But as defendant pulled the trigger, the car moved, pushing his hand up, and he accidently shot Lewis. Defendant told a similar story in an apology letter to the Lewis family, which Detective Morris asked defendant to write.
According to Swafford, Muir, and Nguyen, no one in the car had a gun or backpack; there was a white hockey mask in the car, but no one was wearing it. They initially told the police they were at the scene to buy drugs, not to sell Ecstasy, in order to protect Lewis if he survived the shooting.
Defendant's Testimony
Defendant testified he was living with his grandmother in San Francisco in 2008, but he stayed in Fairfield the night before the shooting. On November 2, he was smoking marijuana with friends on Grande Circle, and they decided to get some Ecstasy. Defendant collected money from his friends and, sometime after 5:00 p.m., he and Kelly went to Mockingbird Lane to buy the drugs.
Defendant had a handgun on his hip. When they approached Lewis's car, Kelly was standing at the driver's side front door and defendant was standing at the driver's side rear door. Defendant saw Muir, who was wearing a white hockey mask, digging between his legs in a backpack. Defendant heard Lewis ask, "Where the money at?" At that moment, Muir reached into the bag, and defendant saw what appeared to be the hammer and handle of a gun. Defendant pulled out his gun, stuck it in the window, pointed it at Muir, and said, "Don't move." Muir kept moving, and Lewis tried to drive off. The window hit defendant's arm below his elbow, causing the gun to be pointed at Lewis. The gun went off.
Defendant and Kelly ran away; they were not laughing. Defendant felt "mad" because he had just shot "somebody that was trying to rob us when we were just trying to have a good time." He and Kelly did not intend to rob Lewis; when defendant pulled the trigger he was intending to shoot Muir in the arm because he was afraid for his life. He lied to the police because he was scared and did not want to get himself or Kelly in trouble.
DISCUSSION
Defendant contends his testimony "constituted substantial evidence that he committed the lesser crimes of voluntary manslaughter or second degree murder" and "the trial court erred in failing to instruct on these offenses sua sponte."
In a pretrial discussion on jury instructions, the trial court asked the prosecutor, "Were you going to prosecute this under just felony murder or—," and the prosecutor responded, "Yes." Defense counsel submitted a written list of requested instructions, including ones for voluntary and involuntary manslaughter, but not for second degree murder. After the close of evidence, the court and counsel finalized the jury instructions. At the end of the discussion, the court asked, "Any other instructions requested from either side? Any lessers?" Both parties responded in the negative. Appellant did not press the court to instruct on voluntary or involuntary manslaughter despite his earlier request. In closing argument, the prosecutor urged the jury to convict defendant on a theory of felony murder based on defendant's attempted robbery of Lewis. Defense counsel argued there was no attempted robbery and the shooting was "reasonable and in self-defense."
The People do not argue defendant's claim is barred on appeal under the doctrine of invited error.
The jury was instructed pursuant to CALCRIM No. 540A, which provides in relevant part: "The defendant is charged with murder, under a theory of felony murder. [¶] To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed or attempted to commit robbery; [¶] 2. The defendant intended to commit robbery; [¶] AND [¶] 3. While committing or attempting to commit robbery, the defendant did an act that caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] To decide whether the defendant committed or attempted to commit robbery, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder."
The jury was also instructed with CALCRIM No. 1600, defining robbery; CALCRIM No. 460, on attempted robbery; and CALCRIM No. 505, explaining the law of self-defense. The court did not instruct on murder with malice aforethought and did not instruct on second degree murder, voluntary manslaughter, or involuntary manslaughter.
On appeal, defendant contends the trial court was required to instruct the jury on second degree murder and voluntary manslaughter sua sponte, because those were lesser included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 160 (Breverman) ["regardless of the tactics or objections of the parties, or the relative strength of the evidence on alternate offenses or theories," the trial court must "sua sponte instruct[] on any and all lesser included offenses, or theories thereof, which are supported by the evidence"].)
I. The Information Was Not Amended
The People first argue the trial court was not required to instruct on the lesser included offenses because the information was "informally amended" pretrial to allege only felony murder. "It has been held consistently that the scope of the sua sponte duty to instruct is determined by the charge contained 'in the accusatory pleading itself.' [Citations.] This is so because the role of the accusatory pleading is to provide notice to the defendant of the charges that he or she can anticipate being proved at trial. 'When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the elements of any lesser necessarily included offense. Hence, the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information.' [Citation.]" (People v. Anderson (2006) 141 Cal.App.4th 430, 445 (Anderson).)
The People reason that the information was informally amended to reflect the felony murder theory because the prosecutor indicated during pretrial discussions that she was prosecuting the case under that theory. However, subsequently and just before jury selection and the People's opening statement, the trial court confirmed the language of the information it "propose[d] reading" to the jury. The information alleged that defendant committed murder with malice aforethought in violation of section 187, subdivision (a), and was not limited to the felony murder theory. The People did not seek to amend the information to narrow the scope of the charge. Notably, the information was amended to omit two firearm enhancements. (See fn. 2, ante.) In light of the fact that the court expressly confirmed the language of the information immediately before trial, we reject the People's argument that the information was informally amended.
Because we reject the People's argument that the information was amended, we need not and do not decide whether second degree murder and voluntary manslaughter are lesser included offenses of felony murder. (See People v. Taylor (2010) 48 Cal.4th 574, 623.)
II. Substantial Evidence Supported an Instruction on Voluntary Manslaughter
The People do not dispute that second degree murder and voluntary manslaughter are lesser included offenses to the charged offense, first degree murder. (See Anderson, supra, 141 Cal.App.4th at pp. 444-445.) Nevertheless, the People argue the trial court was not obligated to sua sponte instruct the jury on those offenses because there was no substantial evidence that appellant committed second degree murder or voluntary manslaughter. (See id. at p. 446.)
Second degree murder "is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151.) Section 188 provides: "[M]alice may be [either] express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." On the other hand, "When the defendant killed in the actual but unreasonable belief that he or she was in imminent danger of death or great bodily injury, this is termed 'imperfect self-defense,' and the killing is reduced from murder to voluntary manslaughter. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis).)
In arguing the trial court was not required to instruct on the lesser offenses, the People rely on People v. Mendoza (2000) 23 Cal.4th 896, 908-909, which explained: "Where the evidence points indisputably to a killing committed in the perpetration of one of the felonies section 189 lists, the only guilty verdict a jury may return is first degree murder. [Citations.] Under these circumstances, a trial court 'is justified in withdrawing' the question of degree 'from the jury' and instructing it that the defendant is either not guilty, or is guilty of first degree murder. [Citation.] The trial court also need not instruct the jury on offenses other than first degree felony murder or on the differences between the degrees of murder. [Citations.]" (See also People v. Rupp (1953) 41 Cal.2d 371, 382.)
However, the evidence in the present case did not "indisputably" point to a killing committed in the perpetration of a robbery. Defendant testified that he was not attempting to rob Lewis and that he drew his firearm in self-defense. Although contrary to Muir and Nguyen's testimony that defendant demanded "everything," defendant's testimony provided substantial evidence that the killing occurred in self-defense, rather than in the course of an attempted robbery. (Lewis, supra, 25 Cal.4th at p. 645; see also People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) Although the jury obviously rejected defendant's self-defense claim, based on that testimony a reasonable jury could have found defendant guilty of voluntary manslaughter under the theory that defendant actually but unreasonably believed he was in imminent danger of being shot by Muir. (Lewis, at p. 645; see also People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262; Anderson, supra, 141 Cal.App.4th at p. 447.)
Because we conclude the court erred in failing to provide an instruction on voluntary manslaughter, we need not decide whether the court also erred in failing to instruct on second degree murder.
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III. The Failure to Instruct on Voluntary Manslaughter Was Not Harmless
In Breverman, supra, 19 Cal.4th at page 165, the California Supreme Court held that a trial court's failure to instruct on lesser included offenses in a noncapital case is "an error of California law alone, and is thus subject only to state standards of reversibility." Reversal is not warranted "unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Ibid.) "Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Id. at p. 177.)
The People argue this is a case in which the evidence supporting the felony murder verdict was very strong and the evidence supporting a different outcome was comparatively very weak. The parties agree the critical issue is the strength of the evidence that defendant intended to rob Lewis. This is because "[t]he only mental state required for felony murder is that necessary for commission of the underlying felony. [Citation.]" (People v. Balderas (1985) 41 Cal.3d 144, 197; accord, People v. Anderson (1991) 233 Cal.App.3d 1646, 1666; see also People v. Seaton (2001) 26 Cal.4th 598, 665.) Thus, if defendant intended to rob Lewis, he committed felony murder rather than second degree murder or voluntary manslaughter.
The evidence that defendant intended to rob Lewis is essentially Muir and Nguyen's testimony that defendant brandished his gun and made an express demand for "everything" once Lewis was holding both kinds of Ecstasy. On the other hand, according to Swafford, defendant said, "Don't move the car or I'll shoot you," which did not include an express demand for property. Moreover, the three eyewitnesses were impeached by the fact that they all initially lied to the police—they said they had gone to Mockingbird Lane to buy drugs, rather than in order for Lewis to sell Ecstasy. At trial, they explained they told that to the police in order to protect Lewis in case he survived, but the jury could nevertheless have concluded the lies undermined their credibility. The jury also may have believed the eyewitnesses were motivated at trial by hostility toward defendant or a desire to conceal threatening conduct by Muir.
On the other hand, defendant's trial testimony was not inherently incredible, though, like the prosecution eyewitnesses, he lied to the police. His testimony was consistent with the ultimate version of events he told the police, and the jury may have believed he initially lied to the police because he was afraid to admit he shot and killed the victim. Moreover, defendant's testimony that Muir was wearing a hockey mask was corroborated by the discovery by the police of such a mask near the car after the shooting.
In short, the evidence as to why this drug deal went so terribly wrong was closely balanced. Notably, even if the jurors believed defendant did not intend to rob Lewis, they may have been reluctant to acquit him entirely because they may have believed he acted unreasonably in brandishing and firing his gun. The jury should not have been presented with this all or nothing choice. Because it is reasonably likely the jury would have found defendant acted in imperfect self-defense when he fired his gun, we conclude the trial court's failure to instruct the jury on voluntary manslaughter was not harmless.
DISPOSITION
The judgment is reversed and the case is remanded for further proceedings consistent with this decision.
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SIMONS, J.
We concur.
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JONES, P.J.
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NEEDHAM, J.