Opinion
G044422 Super. Ct. No. FSB054593
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER MEZA, JR., Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of San Bernardino County, Ronald M. Christianson, Judge. Affirmed as modified.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Francisco Javier Meza, Jr., appeals from a judgment entered after a jury found him guilty of premeditated attempted murder, and found true firearm and gang enhancements. We affirm.
Defendant argues the trial court erred by failing to instruct the jury sua sponte on attempted voluntary manslaughter as a lesser included offense of attempted murder. The evidence was insufficient to allow a reasonable jury to find defendant guilty of attempted voluntary manslaughter but not attempted murder, so the trial court's failure to instruct on the lesser included offense was not error. (People v. Breverman (1998) 19 Cal.4th 142, 161 (Breverman).) Even if the failure to instruct the jury regarding attempted voluntary manslaughter was error, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Defendant also argues his trial counsel was required to request jury instructions on attempted voluntary manslaughter, and the failure to do so constituted ineffective assistance of counsel. Defendant's trial counsel's assistance was not ineffective, and, even if it was, counsel's failure to request attempted voluntary manslaughter instructions did not prejudice defendant.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 10, 2006, around 7:00 p.m., Jose Delacruz was walking near his home. A white car pulled up behind him, and the driver, later identified as Jonas Vargas, got out and approached Jose, asking "where [he] was from." Vargas was a member of the Colonial Trece gang. Jose told Vargas, "I don't gang bang, I don't want no problems," but as he began to walk away, Vargas struck him on the head. Jose started to run away, and Vargas got back in his car. As Vargas drove away, Jose threw a beer bottle, which hit Vargas's car. After Vargas drove away, Jose saw his brother, David Delacruz, approaching, and told him what had occurred. David told Jose that after what had happened, Jose should accompany him to work; the brothers waited on the street for David's ride to work to arrive.
Jose Delacruz and his brother David Delacruz are referred to by their first names to avoid confusion.
Vargas was angry to discover broken glass and beer on his car. Vargas returned to a friend's house where defendant, who was also a member of the Colonial Trece gang, was present. Vargas told defendant and several other friends at the house what had occurred, and "everybody at the house wanted to go and do something about it, but I told 'em nah. And [defendant] decided he'll come with me. So him and I both got into the car, and as I was pulling out of the driveway again I seen that the two guys were across the street. Not that far from where the incident actually happened."
After waiting for their ride for about 10 minutes, David and Jose saw Vargas's white car again approach and pull up next to them. Defendant was in the front passenger seat of Vargas's car. David began to approach Vargas's car "to confront why is he following my brother for," but before Jose or David could say or do anything, defendant pointed a gun out of the front passenger side window and shot David in the abdomen. As Vargas was about to drive away, Jose ran toward the car and threw another beer bottle. After leaving the scene, Vargas noticed that defendant's face was bleeding and there were pieces of glass all over the car.
David survived the shooting, but later underwent surgery and was hospitalized for several weeks as a result of his injuries.
A jury convicted defendant of premeditated attempted murder. (Pen. Code, §§ 664, 187 subd. (a).) (All further statutory references are to the Penal Code.) The jury found that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with a specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).) The jury also found defendant personally and intentionally discharged a firearm, causing great bodily injury during the commission of the offense. (§ 12022.53, subd. (d).) Defendant was sentenced to life in prison with the possibility of parole, with the requirement that he serve a minimum of 15 years, plus a consecutive sentence of 25 years to life. Defendant timely appealed.
DISCUSSION
I.
THE TRIAL COURT HAD NO DUTY TO INSTRUCT THE JURY SUA SPONTE ON ATTEMPTED VOLUNTARY MANSLAUGHTER.
Defendant argues the trial court had a sua sponte duty to instruct the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder and the failure to do so was reversible error. "We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
A.
Sua Sponte Duty to Instruct on Lesser Included Offense
In criminal cases, the trial court is required to give jury instructions on the general principles of law relevant to the issues raised by the evidence, even if counsel does not request such instructions. (Breverman, supra, 19 Cal.4th at p. 154.) "'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.]'" (Ibid.) "'Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]'" (Id. at p. 155.) Instructions on a lesser included offense are required only when "evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.]" (Id. at p. 162.) "'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.]" (Ibid.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Id. at p. 177.)
Murder is an unlawful killing with malice aforethought. (§ 187, subd. (a).) Manslaughter is an unlawful killing without malice. (§ 192.) Voluntary manslaughter is a lesser included offense of murder. (Breverman, supra, 19 Cal.4th at p. 161). "[M]alice may be 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." (§ 188.) Malice is presumptively absent when a defendant kills upon a sudden quarrel or heat of passion. (§ 192, subd. (a).) Malice is also absent when the accused acts in "imperfect self-defense." (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.)
Under the rule set out by the Supreme Court in Breverman, the question this court must address is whether there was substantial evidence at trial, from which a reasonable jury could have found defendant committed attempted voluntary manslaughter but not attempted murder. We conclude there is insufficient evidence to support a finding that defendant committed the lesser, but not the greater, offense, so the trial court had no duty to instruct the jury sua sponte on attempted voluntary manslaughter.
B.
Heat of Passion
We first consider whether the evidence supported an instruction on attempted voluntary manslaughter under a heat of passion theory. The heat of passion theory has both objective and subjective components. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) For the objective component to be satisfied, there must be sufficiently provocative physical or verbal conduct to "cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Moye (2009) 47 Cal.4th 537, 560.) The provocative conduct must have been caused by the victim or reasonably believed by the defendant to have been caused by the victim. (People v. Manriquez, supra, at p. 583.)
As for the subjective component, the reason of the defendant must, at the time of the killing, have actually been "'obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly.'" (People v. Barton (1995) 12 Cal.4th 186, 201.) "When relying on heat of passion as a partial defense to the crime of attempted murder, both provocation and heat of passion must be demonstrated. [Citation]." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) A heat of passion defense may never be based on revenge. (People v. Berry (1976) 18 Cal.3d 509, 515; see Breverman, supra, 19 Cal.4th at p. 163.)
As to the objective component, defendant argues Jose's throwing of the first bottle at Vargas's car was sufficient provocation. Defendant also argues that the jury could have found the second bottle was thrown at the same time as or even before the shooting, and that this was also sufficient provocation. Neither argument is tenable as a matter of law, and the second argument is contradicted by the evidence adduced at trial.
Testimony at trial was contradictory as to whether defendant was in Vargas's car during the first encounter with Jose. Jose testified that defendant was a passenger in Vargas's car during the initial encounter. Vargas, however, testified defendant joined him only after the initial encounter.
Even if defendant was present during the initial encounter, Jose's behavior was not of a type that a reasonable jury could find was sufficient provocation that could support a heat of passion defense. A taunt that "would not drive any ordinary person to act rashly or without due deliberation and reflection" is not sufficient provocation. (People v. Najera (2006) 138 Cal.App.4th 212, 226.) Jose responded to Vargas's verbal and physical harassment by first attempting to get Vargas to leave him alone, then by throwing a bottle at Vargas's car as Vargas drove away. Even if defendant was present, that was not the kind of behavior that would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. Although Jose's throwing of the bottle was no doubt a poor choice, it was, under the circumstances, the type of minor taunt that would not have provoked a reasonable person to commit attempted murder in the heat of passion.
Even if the throwing of a bottle was the type of act that would provoke the average gang member to act in a heat of passion, the law requires that a victim's behavior be such as would provoke a reasonable person of average disposition, not a person who is easily provoked because of loyalty to a gang or an otherwise unreasonable disposition. (People v. Humphrey (1996) 13 Cal.4th 1073, 1087 ["Our decision would not, in another context, compel adoption of a '"reasonable gang member" standard'"]; see People v. Lujan (2001) 92 Cal.App.4th 1389, 1415 ["The foregoing does not constitute conduct by a reasonable person of average disposition; it is the actions of an obsessed stalker"].) To adopt a reasonable gang member standard would improperly turn the objective, reasonable person standard into a subjective, individualized standard.
If, in fact, defendant was not present at the initial encounter, but rather heard about the first thrown bottle when Vargas returned to his friend's house, the heat of passion defense is even more tenuous. Choosing to return with Vargas to the scene, while carrying a gun in order to avenge Jose's slight to a fellow gang member, was merely coldblooded revenge of the type upon which a heat of passion defense may not be based. (People v. Berry, supra, 18 Cal.3d at p. 515.)
Defendant also argues the jury could have construed the evidence to show Jose threw the second bottle immediately before or at the same time as the shooting, and this was sufficient provocation. If there was evidence that Jose threw a bottle at defendant before the shooting, this argument might be worth further consideration. However, the testimony of Jose and Vargas was consistent—Jose threw the second bottle only after defendant shot David. Jose, David, and Vargas agreed that the shot was fired as soon as Vargas's car pulled up to Jose and David, before either had a chance to engage in any conduct that could have been perceived as provocative.
David's conduct prior to the shooting was also not sufficient provocation. At trial, David testified he began walking toward Vargas's car immediately before the shooting, but that the shot was fired before he had the chance to say or do anything. Jose's and Vargas's testimony was consistent with David's in this regard. There was no indication that David had a weapon or appeared to have a weapon. Merely approaching someone is not sufficient provocation, even when there is previous ill will between the people involved. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1225 [victim making a U-turn and alighting unarmed from truck to approach the defendant was not the type of behavior that would cause an ordinary person of average disposition to act rashly, even where there was a previous dispute between victim and the defendant].)
Even if the evidence at trial had shown David's or Jose's conduct rose to the level of sufficient provocation, there was no evidence that would satisfy the subjective component by showing defendant's reason or judgment was actually obscured by the heat of passion. Rather, the evidence showed defendant shot David immediately upon pulling up next to him, without indicating any anger or obscured judgment. There was no evidence at all showing defendant was actually in an agitated mental state at the time of the shooting.
The evidence at trial would not have allowed a reasonable jury to find that defendant committed attempted voluntary manslaughter under a heat of passion theory, but not attempted murder. Therefore, under Breverman, the trial court had no sua sponte duty to instruct the jury on attempted voluntary manslaughter based on a heat of passion theory.
C.
Imperfect Self-defense
"[W]hen 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.)
If, in fact, Jose had attacked defendant with a bottle, and defendant had responded by shooting David, an imperfect self-defense theory might merit further consideration. However, under the facts adduced at trial, no reasonable jury could have found that defendant believed himself in danger of death or great bodily injury, because defendant simply pulled up next to Jose and David and immediately shot David, before either Jose or David could do anything. David began walking toward the car, but there was no evidence that he was threatening defendant or appeared to have a weapon. Defendant fired the shot so quickly that neither Jose nor David had the opportunity to say or do anything to cause defendant to believe himself in imminent danger of harm, let alone imminent danger of death or great bodily injury.
The evidence would not have allowed a reasonable jury to find that defendant committed attempted voluntary manslaughter under an imperfect self-defense theory, but not attempted murder. The trial court did not err in failing to instruct the jury sua sponte on the lesser included offense.
II.
EVEN IF THE TRIAL COURT ERRED, THE ERROR WAS HARMLESS.
The trial court did not err in failing to instruct the jury on attempted voluntary manslaughter. Assuming, arguendo, the trial court did err, the error was harmless.
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
"[A] determination that a duty arose to give instructions on a lesser included offense, and that the omission of such instructions in whole or in part was error, does not resolve the question whether the error was prejudicial. Application of the Watson standard of appellate review may disclose that, though error occurred, it was harmless." (Breverman, supra, 19 Cal.4th at pp. 177-178.)
Given the insufficiency of evidence supporting attempted voluntary manslaughter, as detailed ante, it is not reasonably probable that a result more favorable to defendant would have been reached had the jury been instructed on the lesser included offense. There was no miscarriage of justice under the Watson test, and no reversible error.
III.
THE FAILURE TO REQUEST JURY INSTRUCTIONS ON ATTEMPTED VOLUNTARY MANSLAUGHTER DID NOT VIOLATE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Defendant contends his trial counsel's failure to request jury instructions on attempted voluntary manslaughter constituted ineffective assistance of counsel. There are two factors the court evaluates in considering whether counsel's conduct requires reversal. {Strickland v. Washington (1984) 466 U.S. 668, 687.) First, the defendant must show that his or her counsel's performance fell below an objective standard of "reasonably effective assistance," defined by prevailing professional norms. (Ibid.) Second, the attorney's assistance must result in actual prejudice to the defendant. (Ibid.) However, the court need not fully determine counsel's performance before examining the extent, if any, of actual prejudice to the defendant as a result of the alleged ineffective assistance. (Id. at p. 697.) As discussed ante, substantial evidence did not support a jury instruction on the lesser included offense of attempted voluntary manslaughter, and defendant was not prejudiced by the lack of instruction on the lesser included offense. No prejudice resulted from defendant's trial counsel's failure to request an instruction on the lesser included offense, so we need not address whether counsel's performance fell below the standard of reasonably effective assistance.
IV.
THE ABSTRACT OF JUDGMENT MUST BE CORRECTED TO ACCURATELY REFLECT DEFENDANT'S SENTENCE FOR A TTEMPTED MURDER.
At the sentencing hearing, the trial court sentenced defendant to life with the possibility of parole for the attempted murder conviction. However, the abstract of judgment states defendant was sentenced to life without the possibility of parole. "Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. 'The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation] it cannot add to or modify the judgment which it purports to digest or summarize.'" (People v. Mesa (1975) 14 Cal.3d 466, 471; see People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Appellate courts can, and should, correct clerical errors in the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We remand to the trial court to prepare a new abstract of judgment that accurately reflects defendant's correct sentence, as orally pronounced by the trial court at the sentencing hearing.
DISPOSITION
We direct the trial court to prepare an amended abstract of judgment that accurately reflects defendant's correct sentence, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, ACTING P. J. IKOLA, J.