Opinion
2d Crim. B328478
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. OSCAR ARNOLD MONSIBAIS, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County, Nos. KA128056, KA127820 of Los Angeles David C. Brougham, Judge
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
BALTODANO, J.
Oscar Arnold Monsibais appeals from the judgment after a jury convicted him of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 3 and 4), and possession of ammunition (§ 30305, subd. (a)(1); count 5). The trial court also found true the allegation that he had previously been convicted of four serious and/or violent felonies. (§§ 667, subds. (b)-(j), 1170.12.) He was sentenced to 15 years and four months in state prison.
Further unspecified statutory references are to the Penal Code.
Monsibais contends (1) count 1 must be reversed because the trial court failed to instruct the jury on the lesser included offense of attempted voluntary manslaughter and (2) the sentence for count 5 must be corrected and stayed pursuant to section 654. We modify the judgment to correct the sentence on count 5 but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
Counts 1-3
In March 2021, a Pomona police officer responded to the scene of a reported shooting. When the officer arrived, J.M. was on the ground with a gunshot wound to the abdomen.
The shooting took place in an alley near a strip mall and a surveillance camera recorded the incident. The surveillance videos were presented to the jury, and two detectives described what they saw in the videos. In the videos, a silver car pulled up to the alley, and a woman from the car (Monsibais's cousin) got into a verbal altercation with another woman in the alley. The other woman walked toward Monsibais's cousin with her hand raised. Monsibais told the detectives that the woman had a knife in her hand. Monsibais and another man got out of the car and stood close to Monsibais's cousin.
J.M. came out of a store and picked up a hard object attached to a pink lanyard. He approached Monsibais while holding the object in his right hand. One detective described that J.M.'s right hand was "behind him . . . winding up." Monsibais began to retreat by taking a few steps back but then drew a firearm and began shooting. J.M. ran back towards the store, and Monsibais fired two or three shots at him. J.M. hid behind a car and then attempted to take a few steps toward Monsibais. Monsibais shot at J.M. again and struck him in the abdomen. Monsibais got into the car and left the scene.
Monsibais was later arrested for a separate firearm offense and was interviewed by police officers about the shooting incident. The officers showed Monsibais the surveillance footage of the shooting. Monsibais said he was "just protecting my cousin." He said that the woman who was fighting his cousin "pulled out a knife on us" and that he saw it as a "threat." He also said that J.M. pulled out a heavy object and tried to hit them with it. J.M. was "swinging" the object. Monsibais shot at J.M. because he did not want to get hit.
Counts 4-5
In June 2021, a police officer conducted a traffic stop on a car in which Monsibais was the front seat passenger. During a patdown search, the officer found a loaded firearm in Monsibais's front pocket. No other ammunition was located. The parties stipulated that as of March and June 2021, Monsibais had previously been convicted of a felony and it was unlawful for him to possess or own ammunition due to his felony status.
Sentencing
The trial court sentenced Monsibais to a total of 15 years and four months. The court dismissed three of Monsibais's four prior strikes and imposed seven years for count 1, doubled to 14 years; three years for count 2, doubled to six years but stayed pursuant to section 654; two years for count 3, doubled to four years to be served concurrently; 16 months for count 4 (eight months, one-third the midterm of two years, doubled) to be served consecutively; and 16 months for count 5 (eight months, one-third the midterm of two years, doubled) to be served concurrently.
DISCUSSION
Jury instruction error
Monsibais contends the trial court prejudicially erred when it did not instruct the jury on voluntary manslaughter under a theory of heat of passion and imperfect self-defense. The Attorney General contends Monsibais's claim of error is barred by the invited error doctrine. We agree with the Attorney General.
A trial court has a sua sponte duty to instruct the jury on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present and there is substantial evidence that would support a conviction of a lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154, overruled on another ground in People v. Schuller (2023) 15 Cal.5th 237; People v. Cooper (1991) 53 Cal.3d 771, 827 (Cooper).) This duty exists even when a defendant not only fails to request the instruction but expressly objects to it being given. (Breverman, at p. 154.) But a defendant" 'may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.' [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 905 (Horning); People v. Barton (1995) 12 Cal.4th 186, 198.)
To determine whether there is invited error, the question is "whether the attorney's conduct went beyond a mere failure to object and constituted an invitation to the court, excusing the judge from giving the correct instruction on the law relevant to the issues in the case." (People v. Graham (1969) 71 Cal.2d 303, 319, disapproved on another ground in People v. Ray (1975) 14 Cal.3d 20, 29, fn. 7.) The "record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice." (Cooper, supra, 53 Cal.3d at p. 831.)
Here, after both parties rested their case, the parties and the court discussed the proposed jury instructions outside the presence of the jury. Monsibais was personally present during these proceedings. The court mentioned they had discussed jury instructions "extensively off the record" and then listed all the instructions in the proposed final packet, which included instructions for CALCRIM No. 600 attempted murder, CALCRIM No. 505 justifiable homicide: self-defense or defense of another, CALCRIM No. 875 assault with a firearm, and CALCRIM No. 3470 right to self-defense or defense of another. The following colloquy occurred:
"The court: . . . [Defense counsel], I believe you're specifically requesting that no lesser be given; is that correct?
"[Defense counsel]: That's correct, your honor, yes.
"The court: So to that end, I'll note that count 2 appears to be a lesser of count 1. However, the People have charged that and by charging that that lesser will be presented to the jury. No other lesser will be given or appear to be triggered by the facts here."
The court instructed the jury on CALCRIM Nos. 600, 505, 875, and 3470; it did not instruct on attempted voluntary manslaughter.
In our view, Monsibais's lack of objection was" 'more than mere unconsidered acquiescence.'" (Horning, supra, 34 Cal.4th at p. 905.) The record reflects a "conscious, deliberate tactical choice" to not present the jury with the lesser included offense of attempted voluntary manslaughter. (See Cooper, 53 Cal.3d at p. 831.) In addition to the parties and the court "extensively" discussing the jury instructions off the record, the court modified the instructions regarding attempted murder and assault with a firearm at Monsibais's request. The court specifically noted Monsibais's unambiguous request for no instruction on lesser included offenses. This implies Monsibais was aware he had the option to request such an instruction, but declined it, and chose a strategy of acquittal on a perfect self-defense theory. Because the court granted Monsibais's request to not instruct on lesser offenses, he cannot now complain on appeal that the court did what he requested. (Ibid.)
We need not decide whether the evidence warranted a lesser included offense instruction for attempted voluntary manslaughter because we conclude Monsibais waived the issue by inviting error.
Monsibais contends his counsel rendered ineffective assistance when he requested no instruction on lesser included offenses. A defendant alleging ineffective assistance must prove (1) deficient performance, and (2) resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Riel (2000) 22 Cal.4th 1153, 1175.) We need not address both prongs of this test. If a defendant fails to establish either prong, the claim should be denied. (Strickland, at p. 687.)
To show deficient performance, the defendant must prove counsel's performance was "outside the wide range of professionally competent assistance." (Strickland, supra, 446 U.S. at 690.) Monsibais has not carried his burden. His counsel could have reasonably wanted to avoid the possibility of a compromised verdict and opted for an "all or nothing" strategy in pursuing a perfect self-defense argument to both counts 1 and 2. (See Cooper, supra, 53 Cal.3d at p. 827 [counsel's decision to "guard against a compromise verdict" and" 'utilize an all-or-nothing'" strategy was a tactical decision].) Because Monsibais cannot show counsel's tactical decision fell below the range of competent performance, his ineffective assistance of counsel claim fails.
Sentencing for count 5
The trial court imposed a 16-month sentence for counts 4 and 5, consisting of eight months, one-third the midterm of two years, and doubled for the strike. It imposed a consecutive sentence for count 4 and a concurrent sentence for count 5. Monsibais contends, and the Attorney General concedes, the trial court erred in sentencing him on count 5 because the sentence should have been stayed pursuant to section 654 and the court used the incorrect term calculation. We agree.
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) Because counts 4 and 5 stemmed from the one single act of possessing a loaded firearm, and all the ammunition was loaded in the same firearm, the sentence for count 5 should have been stayed pursuant to section 654. (See People v. Lopez (2004) 119 Cal.App.4th 132, 138 (Lopez) [holding that the sentence for an ammunitions possession must be stayed because possession of a firearm and ammunition inside it was an indivisible course of conduct].)
The trial court also erred by imposing a concurrent term for count 5 but using the calculation formula for a consecutive subordinate term pursuant to section 1170.1. (See People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3 [concurrent terms are not subject to the subordinate term computation under section 1170.1 and are imposed at the full base term], overruled on other grounds in People v. Poisson (2016) 246 Cal.App.4th 121, 125.)" 'The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence'" and not a concurrent one or one that must be stayed pursuant to section 654. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.) We exercise our inherent authority to correct the unauthorized sentence by modifying the sentence of count 5. (Id. at p. 1198; § 1260.) The sentence for count 5 is modified to four years, consisting of the midterm of two years, doubled for the strike prior, and stayed pursuant to section 654. (Lopez, supra, 119 Cal.App.4th at p. 139.)
DISPOSITION
We modify the judgment to impose a sentence on count 5 of four years (the midterm of two years, doubled) stayed pursuant to section 654. (§ 1260.) The trial court is directed to prepare an amended abstract of judgment to reflect the corrected sentence and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: YEGAN, ACTING P. J., CODY, J.