Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07ZF0012, John Conley, Judge.
William J. Capriola, 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 William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Manuel Gonzales Melgoza appeals from a judgment after the jury convicted him of first degree murder and found true he personally discharged a firearm causing death. Melgoza complains the trial court erroneously failed to instruct the jury it could consider whether his mental disorder prevented him from acting with malice aforethought. The Attorney General concedes the error but asserts it was harmless. Although Melgoza forfeited appellate review of this issue, we conclude he was not prejudiced by the error.
FACTS
One early November morning, high school students Ostin Benn and Joseph Saucedo were walking to school when they decided to sit down on the corner and eat a snack. They saw a white Ford Focus followed by a black Cadillac. A man, later identified as Israel Quiros Flores, got out of the Ford and walked towards the Cadillac. A man, later identified as Melgoza, got out of the Cadillac with a rifle and walked towards Flores. Melgoza pointed the rifle at Flores’s stomach, and Flores raised his hands and took a step back. Melgoza and Flores exchanged words, but neither Benn nor Saucedo heard what they said. Melgoza fired the rifle and shot Flores in the shoulder. Flores wrapped his arms around his stomach, spun around, and fell face down on the ground, pointing away from Melgoza. Melgoza walked to Flores and shot him in the back of the head from six inches away. Melgoza got back in his car and drove away.
A newspaper delivery man who happened upon the scene heard Flores sigh and saw him raise his arm; Flores had a cellular telephone in his hand. The man called 911. A.22 caliber shell casing was recovered at the scene, which was just five minutes from Flores’s home.
The following month, officers arrested Melgoza at this house. Officers recovered a Browning.22 caliber rifle and.22 caliber long rifle ammunition. A forensic scientist determined the shell casing found at the scene and the shell casing recovered from Flores’s shoulder were fired from Melgoza’s rifle.
An indictment charged Melgoza with murder (Pen. Code, § 187, subd. (a)), and alleged he personally discharged a firearm causing death (§ 12022.53, subd. (d)).
All further statutory references are to the Penal Code.
The prosecutor offered evidence in the form of cellular telephone records that Melgoza was near Flores’s home the morning of the shooting. A forensic scientist testified Flores died from the gunshot wound to his head and the gunshot wound to his shoulder was “not significant.”
The prosecutor offered evidence Melgoza and Flores worked together on a landscape crew. There was evidence Melgoza was initially the crew foreman, but after their supervisor observed them not getting along, the supervisor eventually demoted Melgoza and replaced him with Flores. Melgoza quit approximately two months before the shooting.
Melgoza offered evidence concerning Benn’s statements to an officer. Benn told the officer the white car was always ahead of the black car. He also told the officer that when Flores got out of his car, he asked Melgoza what he wanted.
Melgoza offered the testimony of a forensic and clinical psychologist, Francisco Gomez, who spent considerable time with Melgoza. Gomez testified Melgoza’s IQ is 81, and he had “borderline” intelligence. Gomez diagnosed him with “schizotypal personality disorder.” Gomez explained this disorder affects how a person perceives the world and affects their social relationships; sufferers typically do not want to be around people. He described the symptoms as high anxiety, depression, paranoia, and strange thoughts. Gomez discovered no evidence Melgoza was violent. Based on a hypothetical question portrayed most favorably to Melgoza’s defense, Gomez opined Melgoza thought “he was under imminent threat and reacting to an imminent threat after being boxed in.”
Melgoza testified on his own behalf. Melgoza stated he had problems with Flores at work. He said Flores told him that he had friends and Melgoza was going to have an accident. He also claimed Flores blew dirt in his face with a leaf blower and laughed. Melgoza said that sometime after he quit his job, he was driving when a car pulled alongside his car and the occupants told him to pull over. Melgoza said he evaded the men, who he believed were Flores’s henchmen, but he began carrying a rifle in his car for protection. With respect to the shooting, Melgoza stated he was driving when Flores pulled alongside him and formed the shape of a gun with his hand. Melgoza let Flores drive ahead of him when the light turned green. When Melgoza turned, Flores made a U-turn, and eventually passed Melgoza and cut him off. Melgoza said Flores got out of his car and ran towards him as he reached into his waistband. Melgoza got out of his car and pulled out the rifle from behind the car seat. Melgoza claimed he thought Flores was reaching for a gun, so he fired the rifle and Flores fell to the ground. Melgoza said he thought Flores was still reaching for a gun, so he shot him again. On cross-examination, Melgoza conceded he knew where Flores lived.
Melgoza’s ex-girlfriend testified he was not a violent man. She never observed him display any of the symptoms Gomez described as being common to schizotypal personality disorder.
When discussing the jury instructions, and specifically
CALCRIM No. 3428, the trial court asked whether counsel agreed Melgoza suffered from a “disorder” and not a “disease or defect.” They agreed it was a “disorder.” The court stated, “The specific intents would be intent to kill, premeditation and deliberation. Am I missing anything?” The court inquired whether defense counsel intended “to tie in the mental impairment to the unreasonable self-defense....” Defense counsel responded, “Correct.” The court stated CALCRIM No. 3428 “doesn’t really talk about that. Though you can argue that.” Defense counsel replied that was what he intended to do “[b]ecause it goes to his personal belief and how his personal belief thought process goes.” A little later, out of the jury’s presence, the court told counsel it had given them a modified version of CALCRIM No. 3428 that included “the premeditation and deliberation and intent to kill language.” The court asked counsel whether they had any comments on the modified version of CALCRIM No. 3428. After the prosecutor replied he did not, defense counsel responded, “No, your honor.”
The jury convicted Melgoza of first degree murder and found true he personally discharged a firearm causing death. The trial court sentenced Melgoza to 50 years to life in prison.
DISCUSSION
I. CALCRIM No. 3428
Melgoza argues the modified version of CALCRIM No. 3428 was erroneous because it did not instruct the jury it could consider his mental disorder on the issue of whether he acted with malice aforethought. The Attorney General concedes the error but argues it was harmless. Before we address the merits of Melgoza’s claims, we must first discuss whether he forfeited appellate review of the issue by failing to object to the modified instruction or request the omitted language.
“Defendant did not request the clarifying language he now contends was crucial and may not now ‘complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete.’ [Citations.] Defendant’s failure to either object to the proposed instruction or request that the omitted language be given to the jury forfeits his claim on appeal. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 113.)
Here, Melgoza concedes defense counsel did not object to the modified version of CALCRIM No. 3428 or request the language he now complains was omitted. He asserts the issue is preserved because the modified version of CALCRIM No. 3428 is legally incorrect. We disagree. Melgoza’s complaint is not the instruction was legally erroneous. His complaint is the instruction was too general or incomplete. Thus, Melgoza forfeited appellate review of this issue. However, because he claims his defense counsel provided ineffective assistance of counsel, we will address his claim. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].)
The trial court instructed the jury with a modified version of CALCRIM No. 3428, “Mental Impairment: Defense to Specific Intent or Mental State, ” which stated: “You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically premeditation, deliberation and an intent to kill. If the People have not met this burden, you must find the defendant not guilty of first degree murder (if premeditation and deliberation are not proven beyond a reasonable doubt) and not guilty of murder and voluntary manslaughter (if intent to kill is not proven beyond a reasonable doubt).” (Italics added.)
“Murder is the unlawful killing of a human being... with malice aforethought.” (§§ 187, subd. (a), 188.) First degree murder occurs when, among other things, the murder is “willful, deliberate, and premeditated[.]” (§ 189.) Murders that are not first degree are second degree. (§ 189.) Second degree murder includes the following: (1) unpremeditated murder with express malice; (2) implied malice murder; and (3) second degree felony murder. (People v. Swain (1996) 12 Cal.4th 593, 601-602.)
“Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. (§ 192....) Malice is presumptively absent when a defendant kills ‘upon a sudden quarrel or heat of passion’ (§ 192, subd. (a)), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [Citation.] Similarly, when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of ‘imperfect self-defense’ applies to reduce the killing from murder to voluntary manslaughter. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 664.)
Section 28 states in relevant part: “Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (Italics added.)
Although the defense of diminished capacity voluntary manslaughter has been abolished, a defendant is permitted to defend on the ground that by reason of a mental disorder, a defendant did not harbor malice aforethought and did not have the requisite intent for murder. Thus, evidence a defendant suffered from a mental disorder may persuade a jury the defendant did not act with malice aforethought and result in the jury concluding the defendant acted in imperfect self-defense. Therefore, here, the trial court erred in not including “malice aforethought” in the modified version of CALCRIM No. 3428 because the jury could have concluded Melgoza acted with an actual but unreasonable belief he was in imminent danger and needed to defend himself. We must now determine whether Melgoza was prejudiced by that error.
First, we must determine what is the appropriate harmless error standard of review. Melgoza states the error was prejudicial under either the more stringent test articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman), or the less onerous test articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). The Attorney General asserts the proper standard of review is Watson. As we explain below, we conclude the appropriate standard of review is Chapman.
Imperfect self-defense requires a showing the defendant actually believed he was in imminent danger of suffering great bodily injury or being killed and he actually believed he must immediately use deadly force to defend against the danger, but one of these beliefs was unreasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) When the trial court failed to instruct the jury it could consider Melgoza’s mental disorder on the issue of whether he acted with malice aforethought, i.e., express or implied malice, the court prevented the jury from considering whether Melgoza killed with an actual but unreasonable belief he needed to defend himself from imminent peril. This instructional error severely compromised Melgoza’s right to present his claim of imperfect self-defense. This is not the situation where “the court excluded some evidence as to one element of the defense.” (Id. at p. 1089.) The key component of imperfect self-defense is whether the defendant acted unreasonably, and when the jury was not instructed it could consider Melgoza’s mental disorder on that issue, the jury was prevented from considering the strongest evidence on the entire claim. Thus, we determine whether Melgoza was prejudiced under the standard articulated in
Chapman, supra, 386 U.S. 18.
Based on the entire record before us, we conclude the error was harmless beyond a reasonable doubt. The evidence at trial established that when Melgoza was demoted, Flores replaced him and Melgoza eventually quit his job. Although there was evidence Melgoza armed himself in response to Flores’s previous threats, the evidence established it was Melgoza who waited for Flores near his home and pursued him that morning. The evidence demonstrated that when Flores got out of his car, Flores asked Melgoza what he wanted. When Melgoza pointed a rifle at Flores, he put his hands up and stepped back. Flores’s conduct can in no way be interpreted as an aggressive act. Although Flores had a cellular telephone in his hand, there was no evidence he was armed. Melgoza shot Flores in the shoulder and Flores grabbed his stomach, bent over, turned around, fell to his knees, and landed face down on the ground pointing away from Melgoza. Melgoza then walked towards Flores and from six inches away, shot Flores in the back of the head, which was the shot that killed him.
It is true Melgoza claimed he thought Flores was armed and reached for a gun. But then why walk towards him when he was laying face down with his head pointing away from Melgoza? Melgoza’s claim he actually believed he was in imminent danger of suffering great bodily injury or being killed and he actually believed he must immediately use deadly force to defend against the danger was not only unreasonable, it was simply unbelievable. Based on the entire record, we conclude beyond a reasonable doubt that had the trial court instructed the jury it could consider Melgoza’s mental disorder on the issue of whether he acted with malice aforethought, the result would be the same.
Thus, Melgoza was not prejudiced by the error. Because we have concluded Melgoza was not prejudiced by the error, we also conclude his federal due process rights were not violate; the prosecutor was not relieved of his burden of proof.
II. Abstract of Judgment
The Attorney General contends the abstract of judgment should be corrected to reflect the trial court sentenced Melgoza to a consecutive term of 25 years to life on the firearm enhancement instead of 25 years, in addition to the 25 years to life sentence on the murder charge. We agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187 [reviewing court may correct an error in the abstract of judgment on its own motion or upon the request of the parties].) The abstract of judgment should reflect a term of 25 years to life for the firearm enhancement, on page 1, No. 2 “Enhancements.” The total prison sentence is 50 years to life.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is ordered to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations
WE CONCUR: FYBEL, J.IKOLA, J.