Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR239057
Bruiniers, J.
Aaron Depree Meyers was convicted of first degree murder in the drive-by shooting of Edward Earl Hayden II. At trial Meyers denied firing the fatal shots and denied even having a gun at the time of the shooting. He argues that the trial court nevertheless erred in failing to instruct the jury on a lesser offense of voluntary manslaughter based on theories of heat of passion and imperfect self-defense. We conclude the trial court properly refused the instructions and affirm.
I. Background
Meyers was charged by information with murdering Hayden on January 9, 2007. (Pen. Code, § 187, subd. (a).) It was alleged that Meyers was armed with, personally used, and intentionally discharged a handgun, causing Hayden’s great bodily injury or death. (§§ 12022, subd. (a)(1); 12022.5, subd. (a); 12022.53, subds. (b), (c), (d).)
All statutory references are to the Penal Code unless otherwise indicated.
The Prosecution Case
On December 27, 2006, Meyers went to the hospital with a gunshot wound to the leg and told police he had been shot by someone who claimed to be interested in buying his car. Meyers told police that a person who identified himself as “Tyrone” responded to Meyers’s Craigslist ad for the vehicle, and they arranged to meet at a 7-Eleven convenience store on East Tabor Avenue in Fairfield. After Meyers picked up Tyrone and drove him around, Tyrone said he was interested but needed to get money to buy the car from his mother’s house on Grande Circle. They drove to 1941 Grande Circle in Fairfield and Tyrone went in the building, returned, pulled out a handgun, and shot Meyers as he pulled away, hitting Meyers in the leg. Meyers told police Tyrone was six foot two inches tall, weighed about 160 pounds, had short dreadlocks with the tips dyed blond, and was wearing a black sweatshirt with a hood and red writing on the front. Meyers also gave police Tyrone’s phone number.
About two weeks later, on January 9, 2007, Hayden was shot and killed in front of 1940 Grande Circle, directly across the street from 1941 Grande Circle. Hayden was an African-American male with short close-cropped hair and no dreadlocks who was wearing a black coat with white stripes on the arms and a hood pulled over his head. At about 9:30 p.m., Carly Vargas Garcia was in her apartment at 1940 Grande Circle when she heard three or four gunshots followed by the sound of a car “peel[ing] off.” She looked outside and saw a man lying on the ground and did not see anyone else in the area. Garcia’s husband also did not see anyone around the victim and he had not noticed people outside before the gunshots were fired. When the first police officer arrived in response to Garcia’s 911 call, a white male was standing near Hayden’s body and a group of 12 to 15 people were gathered about 10 feet away. Another officer arriving shortly thereafter saw a number of people in the area and could still smell the odor of burning tires.
Grande Circle forms a loop south of East Tabor Avenue and the western end of the loop becomes Cormorant Drive north of East Tabor Avenue. At about 9:30 p.m. on January 9, 2007, Fairfield Police Officer Justin Gutierrez and his partner Brian Pereira were conducting an enforcement stop for a bicycle violation on Cormorant Drive north of East Tabor Avenue. They heard tires screeching or a car engine revving, and they saw a white Buick speed northbound on Cormorant at 50 to 60 miles per hour in a 25-mile-per-hour zone and go through a stop sign. Three men were in the car, a driver, a front passenger, and a left rear passenger, later identified as Meyers. Gutierrez and Pereira pursued the Buick in their patrol car until the Buick crashed into a tree on a residential lawn and all three occupants ran from the car. The driver and front passenger ran toward the residence where the vehicle had crashed. Meyers ran toward the officers and was holding a gun. Gutierrez pursued Meyers on foot and eventually saw him throw the gun over a fence. Gutierrez then apprehended Meyers using a taser. He later located the gun Meyers had thrown over the fence, a.38 caliber Smith & Wesson revolver that contained three expended shells and three live rounds. The front passenger of the Buick, Andre Brown, was apprehended near the crashed vehicle and a.22 caliber revolver containing nine unexpended rounds was found in the same area. The driver of the Buick was not apprehended.
Pereira stayed with Meyers while Gutierrez searched for Meyers’s gun. Meyers talked continuously and repeatedly said he had been shot in the leg. When Pereira said he could not see a leg wound, Meyers said, “You don’t understand. They shot me in the leg last week. I had to shoot them back.”
Hayden died of a gunshot wound to the chest. A crime lab analysis of the markings on a bullet recovered from Hayden’s body showed it was fired from a.38 caliber weapon, and the weapon that fired the bullet was from a limited group of manufacturers that included Smith & Wesson. The number of lands and grooves, the spacing between the lands and grooves, and the directional twist on the bullet were consistent with the gun, but the bullet was too damaged to be conclusively matched with the weapon. The bullet could not have been fired by the.22 caliber revolver that was recovered near Brown.
Tuyen Nguyen was a friend of Meyers. Nguyen and Meyers had previously traded cars and she agreed to loan Meyers her Buick in early January 2007. She said Meyers borrowed her car because he did not have music in his car, but she had music in hers. Nguyen asked Meyers to return her car by 8:00 p.m. When he had not returned by 8:00 p.m., she called him and he said he was on his way. When he still had not arrived by 8:30 p.m., she called again but he did not respond.
About a week and a half to two weeks before the January 9 incident, Meyers told Nguyen he had been shot in the leg when someone tried to “jack” his car. Fairfield Police Officer Rebecca Belk testified that Nguyen had told her in an interview on January 15, 2007, that Meyers always had a gun on him. At trial Nguyen denied making this statement, saying that she often saw Meyers pat his waistband or pat his pocket where a gun would be, but that she never saw a gun on him or in his car. Meyers did not say he had been shot because he was a “snitch, ” and never spoke to her about any problems he was having related to an Alameda County murder case.
The Defense Case
Meyers testified in his own defense. He denied firing a gun on the evening of January 9, and said he was unaware that anybody had been shot.
Meyers described the incident in which he had been shot on December 27, 2006. He said that he had gone to Fairfield to meet a person at a local 7-Eleven store who said he was interested in buying Meyers’s car. That person (Tyrone) got out of Meyers’s car, telling him that he was going to get the money to buy the car, went inside a building, and came out shooting at Meyers and his brother who was with him. Meyers was hit in the leg. The shooting occurred on Grande Circle.
Meyers did not call the police to report the incident, but he provided information about the incident when he was contacted by police at the hospital. Meyers gave police a false description of the shooter’s complexion, height and hair style and he told his brother to do the same because he did not want to “snitch on anybody.” He told the jury he had suffered several acts of retaliation for having testified in a preliminary hearing in an Alameda County murder case in 2006, including being pistol-whipped; shot at while stopped at a stop light; shot at while driving down the freeway; challenged by a group outside a hotel as the group smashed his car windshield and kicked in his car door; and threatened by phone. When asked if he thought that he was being shot at on December 27, 2006 “because of Alameda County, ” Meyers replied, “Yes.” Meyers refused to provide any additional information about the shooting to the police and the police never followed up with him on the incident. He denied that the person who shot him was Hayden.
Meyers said that he borrowed the white Buick from Nguyen on January 9, 2007, because her car, unlike his, had a loud stereo system and was not distinctively painted or noisy, which would attract attention. Meyers was trying not to be noticed. He went to Oakland and met a friend, Allen Hicks. Meyers and Hicks drove to Fairfield at about 8:00 or 9:00 p.m. to “hang out” with Meyers’s girlfriend at her house on Quail Drive north of East Tabor Avenue.
His own car was painted in “loud colors”—“two different types of purples”—with “rims on it” and was “distinctive.”
When he arrived in Fairfield, Meyers went to the 7-Eleven on East Tabor Avenue to pick up Brown, who was also going to hang out with them. This was the same 7 Eleven store where he had arranged to meet Tyrone on December 27, 2006. After picking up Brown, Meyers drove toward the house of his girlfriend, Tashelle Etheridge, on Quail Drive in Fairfield. He went back to the area where he had been shot about a week earlier because “I was just trying to live a normal life, and go see my girl, go see my girlfriend.” Meyers drove down Tabor toward Cormorant Street. He saw “some guys” standing on the corner at Grande Circle. He noticed someone pointing at him and saying, “There go that nigger right there.” The group started moving toward the car. He thought that the person who had previously shot him “had to be” in the group. He then “blew past the red light” and made a right hand turn “[b]ecause I didn’t want to get shot again” and “I was just trying to get out of Dodge.” The right turn brought him onto the other end of Grande Circle. As he approached the area of 1941 Grande Circle, Meyers saw a group of men on the left (driver’s) side of the street and an individual on the right (passenger’s side). The group was moving toward his car, which was moving at about 15 miles per hour. Meyers said that he “thought about dying” because he realized that he was back in the area where he had been shot. The individual on the passenger side of the car was wearing a black hoodie and was “talking loud with the passengers that was inside of my car” and “[i]t was just a lot of cursing going on.” Meyers’s attention was focused on his side of the car, where he saw one individual moving toward the car with a “chrome shiny object” in his hand. The person appeared to be saying something to him, but he could not hear anything because his window was rolled up. He thought that the people in the crowd “had to be friends” of the person who had shot him “[b]ecause they are all in the same neighborhood.” He next heard gunshots, one coming from the front passenger seat of his car where Allen Hicks was seated, and one from outside the car. He did not see any shots fired because he was looking toward his own side of the car. He sped away.
Meyers ended up back at the intersection of Tabor and Grande Circle/Cormorant where he had seen the first crowd and he saw that they were dispersing. Meyers drove through a light at the intersection and continued on Cormorant. Brown and Hicks were urging Meyers to drive faster, so he told them to drive and Hicks agreed. They stopped the car and quickly rotated positions, with Meyers getting in the back seat, Brown moving to the front, and Hicks taking the wheel. Hicks placed a firearm in the backseat of the car. Hicks continued driving down Cormorant and they passed police officers. Hicks was driving about 35 or 40 miles per hour and he probably drove through a stop sign. When the officers activated their sirens, Hicks turned into a dead end street, where the car hit a small tree and they all got out and ran. Meyers picked up the gun in the backseat and took it with him, even though he “had a clue” that it had been fired back on Grande Circle, because he thought the gun could be connected to him if it was left in the car and he wanted to get rid of it. He threw it away before he was apprehended by the police. After he was detained, Meyers said that he “rambled on” and told the police officer that he had been shot in the leg and “these people were trying to kill” him. Meyers denied that he said that he had to shoot back or anything like that. He did not know at the time if anyone had been shot. When interviewed by another officer that night, Meyers said he was the driver and the gun was thrown in his lap. He did not say who fired the gun, even though he knew, because he did not want to be a snitch, which “means you are actually living in fear the rest of your life of people trying to kill you.”
Brown also testified for the defense. He told the jury he had known Meyers for about three or four years at the time of the January 2007 incident and they were friends. Meyers was not a violent person and Brown had never known him to carry a gun. Before the January 2007 incident, Meyers had told Brown he was shot while getting carjacked. Brown did not know that Meyers had testified in a case in Alameda County.
Brown was originally charged as a codefendant in this case. It appears that Brown entered a felony plea of guilty to being a felon in possession of a firearm (§ 12021) based on the discovery of the.22 caliber revolver near where he was arrested, although he denied knowledge of the gun in his trial testimony. He was also impeached with a prior felony conviction for residential burglary.
On January 9, 2007, at about 9:00 p.m., Meyers arranged to meet Brown at the 7 Eleven in Fairfield, where Brown was selling marijuana. When Meyers arrived, Hicks (“Little Jay”) was in the front passenger seat and Brown got in the right rear passenger seat. Meyers pulled out of the 7-Eleven onto East Tabor Avenue and then made two right turns before the person was shot. Brown did not remember seeing a group of people at the corner of Tabor and Cormorant/Grande Circle, and he did not remember Meyers’s driving through a red light from the left-turn lane at that intersection. He was not paying attention because he was rolling a marijuana cigar on his lap. At the site of the shooting, “we had stopped, and... [Hicks] was having some words” with someone on the sidewalk, who was arguing and cursing back, “but I didn’t really think it was like really serious stuff.” However, “it got out of hand real fast.” The person on the sidewalk “clutched something, ... [l]ike he went into his coat.” Brown ducked and heard two gunshots “like simultaneously, and a couple more after that.” Although he did not see who shot out of the passenger window, he never saw Meyers raise his hand toward the passenger window. When Meyers pulled away, the car’s tires did not screech but the car’s brakes made noise.
Hicks “kind of got hysterical”—he was loud and on edge—and Meyers had a shocked look on his face. Hicks told Meyers to pull over and let Brown drive, but Brown did not want to drive. Hicks slid over to the driver’s seat, Meyers got in the back, Brown got in the front passenger seat, and Hicks drove away. They were pursued by police even though Hicks was not speeding and did not drive through any stop signs. They came to a stop when the car crashed into a tree, and Brown got out and ran. He did not have a gun with him that night and he never saw the two guns that were recovered by the police. Brown pleaded guilty to being a felon in possession of the.22 caliber revolver because he had been charged with murder and the district attorney offered to drop that charge if he pled guilty to the gun possession charge, for which he would receive “two years, with half.” Brown lied during his first two meetings with the district attorney, but he was honest during the third. In that third meeting, he said he heard four gunshots but did not see who shot out of the car. Meyers did not ask Brown to meet him so they could go shoot someone or take revenge, and neither Meyers nor Hicks mentioned Grande Circle when they first met that night.
Sadie Akins, a resident of 1940 Grande Circle, testified that when she arrived home after work on January 9, 2007, she saw a group of five or six people, mostly men, standing outside past the mailbox and laughing and talking loudly, which was not unusual in the neighborhood. She entered her house and about 20 to 30 minutes later heard three or four gunshots. She then she saw a victim on the ground about 10 or 15 feet away from the group of people outside her apartment.
Sheri Frechette, a latent fingerprint analyst, was called as a witness for the defense. She testified that she found one usable latent impression on the.38 revolver, which did not match the prints of Hayden, Meyers or Brown. Other law enforcement witnesses called by the defense testified that bullet fragments were found at the crime scene on January 10, 2007, near a light pole that was dented as if by a bullet two to three feet off the ground, and that samples taken from Meyers’s hands were not tested for gunshot residue.
Jury Instructions and Closing Arguments
The jury was instructed on first and second degree murder. (CALCRIM Nos. 500, 520, 521, 522.) The court explained that “provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.” The court denied Meyers’s request for instructions on voluntary manslaughter under both heat of passion and imperfect self-defense theories (CALCRIM Nos. 570, 571).
In closing arguments, the prosecutor urged the jury to return a first degree murder verdict, arguing that Meyers went to Fairfield with a plan to kill Tyrone and shot Hayden after mistaking him for Tyrone. The defense urged the jury to acquit Meyers, arguing he did not shoot Hayden. In the alternative, the defense argued that if they found Meyers was the shooter they should only convict him of second degree murder because he acted in the heat of passion and fear. “Mr. Meyers testified about what he had gone through in Alameda County. Ten days before this crime he was shot for no apparent reason.... [¶] He believed... that what happened to him here in Fairfield ten days before was related to what had been occurring to him in Alameda. He believed in his mind that people were trying to kill him. [¶] On January 9th when he came to Fairfield he knew he would go by Grande Circle in order to go to his girlfriend’s house on Quail and he took a huge step to avoid being recognized. He borrowed a plain white car. And he did so, so... he would not be noticed. [¶]... [¶] When he got to the corner of Tabor and Grande Circle things changed.... [¶]... [¶] Ladies and gentlemen, this is what is called heat of passion.... Any decision that Mr. Meyers made at this point was influenced by his fear, and his fear and belief that he was going to die. And this is why first degree murder does not apply, because whatever he did, if he did anything at all, he did it out of heat of passion with no premeditation and no deliberation....”
Jury Deliberations, Verdict and Sentence
On the fifth day of deliberations, the jury reached a verdict finding Meyers guilty of first degree murder and finding true the allegation that he personally and intentionally discharged a firearm in the commission of the crime. The trial court sentenced Meyers to 25 years to life imprisonment for the murder conviction and 25 years to life imprisonment for the firearm enhancement for a total sentence of 50 years to life in prison.
The other allegations were dismissed on the People’s motion after the close of evidence.
II. Discussion
The sole issue Meyers raises on appeal is whether the trial court erred in refusing to instruct the jury on voluntary manslaughter. We conclude there was no error and affirm.
A. Background
In support of his request for voluntary manslaughter instructions, Meyers argued, “If [the jury] disbelieved Mr. Meyers that he is not the shooter, and believe that he did indeed shoot Mr. Hayden, they could also believe that he did so in a state of fear. [¶]... [The jury] could still believe that he did see this group of men, and that he did see this individual on the sidewalk, and that he did at that moment, given his history with Alameda County, ... feel fear at the sight of the group; that he did in fact believe he was going to die, and that his reaction, which would have been the shooting, was a reaction based on heat of passion and fear.”
The court denied the instruction, noting “there has to be some evidence to support that. [¶]... [H]ere, what the defendant is in effect arguing, is that I should be allowed to claim that I was not the shooter. I had nothing to do with the shooting. Don’t even know who did the shooting, but if the jury thinks I’m lying about all of that then it’s self-defense, or I was provoked, and the law doesn’t allow that. [¶] He’s made his decision. He’s in essence chosen his path here, and having made that decision, he is not entitled to have instructions for factual scenarios for which there was absolutely no evidence....”
B. Duty to Instruct on Lesser Included Offenses
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct... 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.] 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. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154–155 (Breverman).)
Instructions on lesser included offenses “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.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] Moreover, as we have noted, the sua sponte duty... arises even against the defendant’s wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself.” (Breverman, supra, 19 Cal.4th at pp. 162–163, fn. omitted.)
“On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support” (Breverman, supra, 19 Cal.4th at p. 162), even if the instructions have been specifically requested by the defense (People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12, superseded in part by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777).
C. The Law of Homicide
“ ‘ “Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of... voluntary manslaughter. (§ 192.)” [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] “But a defendant who intentionally and unlawfully kills lacks malice... in limited, explicitly defined circumstances: either when the defendant acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)), or when the defendant kills in ‘unreasonable self-defense’—the unreasonable but good faith belief in having to act in self-defense [citations].” Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye), italics omitted.)
Heat of passion and imperfect self-defense are not elements of voluntary manslaughter that must be proved beyond a reasonable doubt to support a conviction of this form of voluntary manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 469–470.) Rather, if “the People’s own evidence suggests that the killing may have been provoked or in honest response to perceived danger, ” or the defendant “proffer[s] some showing on these issues sufficient to raise reasonable doubt of his guilt of murder.... [¶]... [T]he People must prove beyond a reasonable doubt that these circumstances were lacking in order to establish the murder element of malice.” (Id. at pp. 461–462, citations omitted.)
1. Provocation and Heat of Passion
CALCRIM No. 570, the instruction requested by Meyers on a killing on a sudden quarrel or heat of passion tells the jury, in relevant part, that: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured [his] reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up [his] own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.”
The instruction points out that there are both objective and subjective components that must be shown. To satisfy the objective component of the heat of passion theory of voluntary manslaughter, there must be evidence of provocation that is “ ‘caused by the victim [citation], or [is] conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]’ [Citation.]” (Moye, supra, 47 Cal.4th at pp. 549–550.) To satisfy the subjective component, “the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation. [Citation.]” (Id. at p. 550.)
In Moye, our Supreme Court held that the evidence did not support instruction on a sudden quarrel/heat of passion theory of voluntary manslaughter, where the defendant bludgeoned his victim to death with a baseball bat. (Moye, supra, 47 Cal.4th at p. 540–541.) The defendant claimed to have used the bat defensively to allegedly fend off an attack from the homicide victim, but his own uncontested testimony established he did not act rashly, or without due deliberation and reflection, or from strong passion rather than from judgment. (Id. at p. 541.) Substantial evidence was therefore lacking that defendant killed while subjectively under the actual influence 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. (Id. at p. 553.)
The jury was instructed on justifiable homicide based on both reasonable self-defense, as a complete defense to murder, and on manslaughter based on unreasonable or imperfect self-defense, which reduces murder to voluntary manslaughter. (Moye, supra, 47 Cal.4th at p. 550.) Moye was convicted of second degree murder.
2. Imperfect Self-Defense
As noted, imperfect self-defense can also negate the element of malice in a homicide. Thus, a person who kills intentionally or with conscious disregard for danger to human life, but with an actual but unreasonable belief in the need to defend himself, is guilty of voluntary manslaughter rather than murder. (People v. Blakeley (2000) 23 Cal.4th 82, 91.) The instruction Meyers requested, CALCRIM No. 571, advises the jury in relevant part that: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because [he] acted in [imperfect self-defense]. [¶]... [¶] The defendant acted in [imperfect self-defense] if: [¶] 1. The defendant actually believed that [he] was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable.”
Meyers did not, and does not, contend that the evidence supported a claim of right to use deadly force in actual self-defense as an excuse to homicide.
D. The Evidence
The only issue in this case is whether there was substantial evidence that Meyers shot Hayden either in the heat of passion or acting in imperfect self-defense. Certainly nothing presented in the prosecution’s evidence would have required the requested instructions. The prosecution evidence showed that Meyers, having been shot in the same location 13 days earlier, returned to that location in a borrowed vehicle that would not be recognized as his, with two confederates and at least two loaded weapons, and with a motive for revenge and retaliation. He was apprehended fleeing the scene of the fatal shooting, and observed by police attempting to dispose of a weapon with three expended shells, consistent with the type of weapon used to kill the victim. When arrested, he told officers that the shooting was in retaliation for the earlier attack—“They shot me in the leg last week. I had to shoot them back.” Meyers does not challenge the sufficiency of this evidence to support his conviction for a willful, deliberate and premeditated murder, or to support the jury’s finding that he personally and intentionally discharged a firearm in the commission of the crime. Nothing in this evidence would support an inference that Meyers shot Hayden in the actual but unreasonable belief that use of deadly force was required in self-defense, or that Meyers acted under the influence of strong passion induced by provocation.
Neither defense witness Brown nor Adkins offered support for the requested instructions. Brown did not testify to an altercation of any nature between Meyers and Hayden. Brown said only that he heard an argument between Hicks and a man standing outside of the car “but I didn’t really think it was like really serious stuff.” “[I]t got out of hand, ” the person on the sidewalk “clutched something, ... [l]ike he went into his coat.” Brown ducked and heard two gunshots “like simultaneously, and a couple more after that.” Afterward, Meyers had a shocked look on his face. Adkins testified only that shortly before the shooting she had seen a group of five or six people near her house, laughing and talking loudly, which was not unusual in the neighborhood. She did not testify that she observed or heard any altercation, nor did she testify that she heard threats exchanged.
Brown testified that the car had stopped, contradicting Meyers testimony that the car was moving about 15 miles per hour.
The question then is simply this: Did Meyers’s own testimony, in which he completely denied that he was the shooter, or that he even had a gun in his possession at the time of the shooting, constitute substantial evidence requiring the requested mitigation instructions? The answer here is clearly no.
A succinct synopsis of Meyer’s position is contained in his citation to the oft quoted statement that “liars often speak the truth.” (People v. Sinclair (1998) 64 Cal.App.4th 1012 (Sinclair), citing 3A Wigmore, Evidence, § 1010 (Chadbourn rev. 1970).) Meyers essentially argues that a rational jury could well have believed that he perjured himself in denying that he shot Hayden, yet still might have believed his testimony that he was in fear of his life when he did so. Perhaps—although it is clear from the jury’s verdict that they did not believe his testimony at all.
“We do not question a jury’s right to accept part of the testimony of a witness, while rejecting the rest. [Citations.]” (People v. Medina (1978) 78 Cal.App.3d 1000, 1005–1006 (Medina).) In Medina, the prosecution produced evidence that the defendant participated in a gang confrontation on a public street, shot and killed the victim, and later bragged about the shooting to an undercover officer. (Id. at pp. 1002–1003.) In stark contrast, the defendant testified that he spent the whole day at his mother’s home drinking beer and talking. (Id. at pp. 1003–1004.) The defendant argued the evidence of his intoxication supported diminished capacity instructions. The Court of Appeal disagreed, explaining that “one incidental aspect of [the defendant’s] alibi—defendant’s intoxication” was not substantial evidence to support the instruction. (Id. at pp. 1005–1006.) The court noted that “[d]efendant advances his argument that he was entitled to diminished capacity instructions, in spite of the fact that no single witness to the homicide even hinted that he was intoxicated, while no single witness to defendant’s intoxication—including defendant himself—placed him anywhere near the scene of the crime.” (Id. at p. 1005, fn. omitted.) The court further observed that “[i]t defies common sense that a jury, which has so decisively rejected the alibi sworn to by four witnesses, would nevertheless rely on one incidental aspect of that alibi—defendant’s intoxication—for the purpose of entertaining a reasonable doubt as to his capacity to harbor malice seven blocks away. To have given the requested instructions would have been an insult to the jurors, as well as an embarrassment to the law, the court and even, we suspect, to the defense.” (Id. at p. 1006, fn. omitted.)
Meyers seeks support in People v. Elize (1999) 71 Cal.App.4th 605 (Elize). In Elize, the defendant was confronted by two women in the parking lot at his workplace and an argument and struggle ensued, with one of the women striking him with some object. (Id. at p. 607.) The prosecution presented evidence that defendant, who worked as a security guard, pulled out his gun and fired, shooting a hole through the shirt of one of the women. (Ibid.) The defendant testified that one of the women grabbed his gun; he responded by grabbing her hand and attempting to point the gun upward, and the gun discharged. (Id. at p. 609.) The Court of Appeal held self-defense instructions were required. (Id. at pp. 610, 616.) “[A] jury could find from the evidence presented that defendant was sought out and attacked by two angry women much larger than he, that he was being beaten with pipes, that this beating accounted for his broken wrist, that one of the women tried to take his handgun, and that he struggled with that woman while the other continued to beat him. A jury could disbelieve defendant’s testimony that the gun fired accidentally during this struggle. A jury could find that defendant fired the gun intentionally, hoping to end the attack upon him either by hitting one of his assailants or by firing into the air to scare off his attackers.” (Id. at pp. 615–616.) Critically, however, the evidence cited in this passage came not only from the defendant’s own testimony but from several prosecution witnesses as well, and it was not directly contradicted by a claim by the defendant that he was not armed or did not fire a gun at all. (Id. at pp. 608–609.) Therefore, the evidence in support of the self-defense instructions was substantial and the instructions were required.
Meyers also cites People v. Barton (1995) 12 Cal.4th 186 (Barton). In Barton, the defendant was charged with murder, but was convicted of voluntary manslaughter where the trial court instructed on manslaughter as a lesser included offense based on both heat of passion and imperfect self-defense, over the defendant’s objection. Defendant, testifying on his own behalf, admitted that he shot the victim, but claimed that the shooting was an accident. (Id. at pp. 192–193.) The Supreme Court approved the lesser offense instructions and affirmed the conviction, stating that “[t]ruth may lie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court’s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury’s truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an ‘all or nothing’ choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.” (Id. at p. 196, fn. omitted.) In Barton, there was prosecution evidence in addition to the defendant’s own testimony providing a basis for the manslaughter instructions. (Id. at p. 202.) There was therefore substantial evidence “ sufficient to ‘deserve consideration by the jury, ’ that is, evidence that a reasonable jury could find persuasive...” requiring the instructions. (Id. at p. 201, fn. 8.) But the Supreme Court emphasized that “[a] trial court need not, however, instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime (for example, when the only issue at trial is the defendant’s identity as the perpetrator). Because in such a case ‘there is no evidence that the offense was less than that charged’ [citation], the jury need not be instructed on any lesser included offense.” (Id. at p. 196, fn. 5.)
The facts here are quite similar to those in Sinclair, supra, 64 Cal.App.4th 1012. In Sinclair, there was “overwhelming evidence defendant fired the fatal shot, including photographs and a videotape, ” and the defendant fled the country following the shooting and was arrested years later. (Id. at p. 1017.) At trial, the defendant testified that after he entered a bar he was hit in the face with a bottle, and repeatedly challenged, threatened, surrounded, and insulted by a group of about six people, at least one of whom was armed with a gun. (Ibid.) As he tried to leave the bar, one of the men “raised his hand as if to hit defendant. Thereupon, defendant, who was unarmed, heard a shot and ran with a crowd for a door.... [D]efendant did not even know who was eventually shot in the face.” (Ibid.) The question there, as here, was whether the defendant “was entitled to instructions on voluntary manslaughter, even though he denied under oath he shot the decedent or was even armed.” (Id. at p. 1016.) The Court of Appeal held that voluntary manslaughter instructions were not required in such circumstances. (Id. at pp. 1021–1022.) The court recognized that there are undoubtedly scenarios in which “a defendant’s under-oath denial she or he committed a homicide may be colored by other testimony, which creates substantial evidence sufficient to support manslaughter instructions.” (Id. at p. 1020.) No such evidence was before the jury, and the manslaughter instructions were not required. (Ibid.)
Sinclair cites a number of other cases where no substantial evidence supported lesser included offense instructions even if the defendant’s testimony on that issue was given full credibility. (Sinclair, supra, 64 Cal.App.4th at pp. 1019–1020; see also People v. Leach (1985) 41 Cal.3d 92, 97–99, 106; People v. Chambers (1982) 136 Cal.App.3d 444, 448–450, 455–456; People v. Harris (1979) 93 Cal.App.3d 103, 109–111, 118–119; People v. Salas (1978) 77 Cal.App.3d 600, 606, 607–608; People v. Whalen (1973) 33 Cal.App.3d 710, 714–715, 718; People v. Birch (1969) 3 Cal.App.3d 167, 170–174, 176.)
To have required the manslaughter instructions here, there must have been evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (Moye, supra, 47 Cal.4th at p. 553.) In determining whether there is substantial evidence to support an instruction, the trial court is bound to take the defendant’s testimony, at least for this limited purpose, as entirely true, “regardless of whether it was of a character to inspire belief. [Citations.]” (People v. Wilson (1967)66 Cal.2d 749, 762.) Here, however, even if the jury had been willing to somehow accept only Meyers’s testimony that he unexpectedly found himself on the same street where he had earlier been shot, and that he feared for his life from the “crowd” approaching his car, that testimony would still not provide any evidence from which a reasonable trier of fact could find either the objective or subject elements of a heat of passion defense.
Both a claim of killing in heat of passion and imperfect self-defense are more accurately characterized as “ ‘theories of partial exculpation’ that reduce murder to manslaughter by negating the element of malice. [Citation.]” (Moye, supra, 47 Cal.4th at p. 549.)
The objective element of a heat of passion claim requires that the “provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim[, and]... the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]” (Moye, supra, 47 Cal.4th at pp. 549–550, italics added.) Meyers testified only that there was a verbal altercation of some kind between Hayden and Hicks. He claimed Hayden was “talking loud with the passengers that was inside of my car” and “[i]t was just a lot of cursing going on.” He could hear nothing that the individuals on his side of the car were saying because his window was rolled up. The only statement he attributed to anyone outside the vehicle at any time was “[t]here go that nigger right there.” He did not testify that he saw anyone in the crowd with a weapon, or that he was threatened with a weapon, only that he saw a “chrome shiny object” in one person’s hand. That person could not have been Hayden, who was on the passenger side of the car according to Meyers. Meyers denied that Hayden was the person who had earlier shot him.
Therefore no evidence was presented, even by Meyers, that Hayden did anything that would “cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (Moye, supra, 47 Cal.4th at p. 550.) Even more significantly, to satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under “ ‘the actual influence of a strong passion’ induced by such provocation. [Citation.]” (Ibid.) There is a complete absence of any such evidence. As in Moye, “substantial evidence that defendant acted while under ‘the actual influence of a strong passion’ [citation] in response to legally sufficient provocation, such as caused him to ‘ “act rashly or without due deliberation and reflection, and from this passion rather than from judgment” ’ [citation] was lacking” and the evidence actually introduced on the point—the defendant’s own testimony—was to the contrary. (Id. at pp. 553–554.)
Meyers’s testimony likewise fails to provide any substantial evidence to support a claim of imperfect self-defense. While Meyers testified that he actually believed that he was in imminent danger of being killed or suffering great bodily injury, he did not testify that he ever actually believed that the immediate use of deadly force was necessary to defend against the danger—and directly denied that he personally resorted to the use of force of any kind. (See People v. Blakeley, supra, 23 Cal.4th at p. 91; CALCRIM No. 571.) Again, there was no evidence upon which a jury of reasonable persons could conclude that Meyers used deadly force in the actual, albeit unreasonable, belief that use of such force was necessary.
We emphasize that we do not hold that a defendant who denies killing a victim is never entitled to voluntary manslaughter instructions as lesser included offenses, only that no such instructions were supported here. Where substantial evidence in the record supports such instructions, the trial court has a sua sponte duty to provide such instructions regardless of defense strategy and regardless of whether the defendant admits or denies killing the victim. (See Sinclair, supra, 64 Cal.App.4th at p. 1020 [“[w]e do not mean to suggest that every time the accused completely denies under oath any participation in the charged homicide, there is no duty to instruct on lesser and necessarily included offenses”].)
“[N]o fundamental unfairness or loss of verdict reliability results from the lack of instructions on a lesser included offense that is unsupported by any evidence upon which a reasonable jury could rely.” (People v. Holloway (2004) 33 Cal.4th 96, 141.)
E. Any Error was Harmless
Even were we to assume error in the refusal to give the requested manslaughter instructions, we would have little difficulty finding it harmless. Generally, prejudice from a failure to instruct on a lesser included offense is determined by the People v. Watson standard: reversal is warranted only if it appears reasonably probable the defendant would have achieved a more favorable result had the error not occurred. (Breverman, supra, 19 Cal.4th at p. 149; People v. Watson (1956) 46 Cal.2d 818, 836.) Meyers argues that we must find any error harmless beyond a reasonable doubt, applying the more rigorous standard under Chapman v California (1967) 386 U.S. 18. In Moye, our Supreme Court more recently confirmed that the Watson standard of harmless error applies to review of failure to instruct on lesser homicide offenses. (Moye, supra, 47 Cal.4th at pp. 555–558.) On appellate review under Watson, we focus on what “ ‘a jury is likely to have done in the absence of the error....’ ” (Id. at p. 556, italics omitted.)
The jury here found the murder of Hayden to be willful, deliberate and premeditated, and found that Meyers personally used a firearm in the commission of the offense. In doing so it not only rejected Meyers’s testimony that he did not fire the fatal shot, but further necessarily rejected his claims that his encounter with Hayden in the neighborhood where he had earlier been shot was merely unfortunate happenstance.
Having also heard and rejected his argument that there was evidence of provocation sufficient to mitigate the crime to second degree murder, it is impossible to see how the jury could have found that same evidence sufficient to negate malice, and to support a verdict of voluntary manslaughter. We find no reasonable probability that Meyers would have obtained a more favorable outcome had the requested instructions been given. (Moye, supra, 47 Cal.4th at p. 556; Breverman, supra, 19 Cal.4th at p. 149.)
III. Disposition
The judgment is affirmed.
We concur: Jones, P. J.; Needham, J.