Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07HF0324 Gregg L. Prickett, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant, Anton Robert Kareem Naimat.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant, Tassawur Naimat.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Anton Robert Kareem Naimat (Anton) was convicted by a jury of first degree murder and being a felon in possession of a firearm. The jury found true an alleged firearm enhancement associated with the murder, and in a separate proceeding, the trial court found true an allegation Anton had served a prior prison term. Tassawur “Sonny” Naimat (Sonny) was convicted of being an accessory after the fact to the murder. The court sentenced Anton to a total term of 53 years to life: 25 years to life for murder, a consecutive 25 years to life for the firearm enhancement, a consecutive two-year term for felon in possession of a firearm, and a consecutive one-year term for the prior prison term enhancement. The court suspended imposition of Sonny’s sentence and placed him on formal probation for five years.
We refer to the defendants by their first names for the sake of simplicity. We intend no disrespect.
On appeal, Anton and Sonny contend the trial court violated their due process right to a trial by jury as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution by failing to instruct the jury on the defense of accident or mistake. Anton further alleges the court erred in instructing the jury with CALCRIM No. 522, claiming this instruction created a substantial risk of jury confusion. Sonny contends the trial court erred by including a search and seizure waiver as a condition of his probation because the trial court failed to orally pronounce this condition during the sentencing hearing. The Attorney General argues the trial court erred by giving Anton 240 days of presentence conduct credit because Anton, as a convicted murderer, was ineligible for pretrial custody credits by statute.
We find the court erred in granting Anton pretrial custody credit and modify the judgment to correct this error. In all other respects, the judgment is affirmed.
I
FACTS
In February 2007, Anton and his girlfriend, Nicole Villareal, and Villareal’s baby boy, lived with Anton’s father, Sonny, in Sonny’s Irvine, California home. Anton, Villareal, and the baby lived in a game room located on the first floor of the residence. Todd Hollabaugh, Kelly Halbeck, and two other individuals also had rooms in Sonny’s house.
On the evening of February 8, Hollabaugh, Anton, Sonny, Halbeck and Villareal ate dinner together at the residence. Halbeck testified that Sonny, Anton, and Villareal were drinking alcohol. After dinner Halbeck gave Sonny, Anton, and Villareal a ride to the store so Sonny could buy more beer. At approximately 8:00 p.m., Halbeck left the home while Hollabaugh had just returned from the gym.
Hollabaugh drank about three large cans of beer. He noticed that Sonny was drinking beer and whiskey. Hollabaugh heard Sonny and Villareal get into a verbal argument. Hollabaugh intervened and told Villareal to stay in the game room. However, the argument erupted again. Anton came out of the game room and told his father to knock it off. Hollabaugh tried to diffuse the situation by inviting Sonny to sing karaoke with him.
Hollabaugh and Sonny went to the living room and sang karaoke. Villareal, her baby, and Anton remained in the game room. While Hollabaugh and Sonny were singing, they heard a loud bang which seemed to emanate from the game room. A few seconds later, Anton walked out of the game room with a pistol in his hand. He slid to the floor and said, “I just capped her.”
Hollabaugh went to the game room to check on Villareal. He saw that Villareal had been shot in the head and called 911. Hollabaugh waited with Villareal for paramedics to arrive. While Hollabaugh was waiting, Anton came into the game room and asked if Villareal was hurt. Hollabaugh said that she had been hurt, and Anton replied, “Shit, sorry,” then left the house. Sonny drove Anton to a friend’s home in Lake Forest.
Irvine Police Department Officers arrived at the residence and found Villareal. She had a single gunshot wound in the forehead. Sonny returned home after taking Anton to his friend’s apartment, and he was interviewed by the police. He claimed that he was unaware Anton had committed a felony, and Sonny denied that he was attempting to hide Anton by driving him to his friend’s apartment.
Meanwhile, Anton was at the home of his friend, Destiny Rogers. The first words out of his mouth were, “I’m going away for life.” Rogers testified that Anton appeared nervous, upset and anxious, and she asked him why he was going away for life. Anton explained that he had just shot his girlfriend. He was carrying a gun.
Rogers admitted that she smoked marijuana prior to Anton’s arrival.
Anton handed Rogers his wallet and asked her to keep it for him. He said that he had argued with Villareal because she would not give him some drugs, and that he had shot her. He also told Rogers that during the argument Villareal had stepped on his feet and threatened to call her gang-member brothers if she was kicked out of the house. Finally, Anton explained that he had gone into the bathroom in the game room, grabbed a gun, and come out and shot Villareal in the head. Police officers arrived at approximately 3:00 a.m. the following morning.
Anton was arrested at Rogers’ apartment. Later that day, police officers returned to her apartment and found a.38 caliber revolver wrapped in a plastic bag on the patio floor. According to Rogers, Anton, who was wearing gloves, showed her the gun before placing it on her patio floor. The revolver contained five unused rounds and one shell casing. When officers searched the game room they found a box of.38 caliber ammunition and Villareal’s purse. They found crystal methamphetamine and a glass pipe inside her purse.
A forensic scientist and firearms expert testified that the bullet recovered from Villareal’s body had been shot from the revolver found in Rogers’ apartment. Further tests proved the revolver was in good working order. The parties stipulated that DNA profiles of at least three people were found on the gun and compared DNA samples taken from Anton, Rogers and Villareal. Villareal was eliminated as a contributor, but both Anton and Rogers’ DNA were found on the gun. Anton’s DNA was discovered on the gun’s hand grips and trigger.
After Anton and Sonny were arrested, they were placed in a patrol car equipped with a hidden microphone. Anton told Sonny, “They don’t got no evidence, I didn’t do it, I didn’t do it.” Sonny advised Anton to “Plead insanity,” and Anton responded “I know. Insanity ‘till proven guilty.” Anton also stated he should have “[w]rapped her [Villareal] up and took her with us, put her somewhere....”
Paramedics immediately transported Villareal to Western Medical Center in Santa Ana, but seven days later she was declared brain dead and life support was withdrawn. Villareal died from a single gun shot wound to the head.
II
DISCUSSION
Joint Appellate Issues
The trial court refused a defense request to instruct the jury with CALCRIM No. 510, a standard jury instruction on the defense of excusable homicide due to accident or misfortune. Counsel argued the absence of certain facts, i.e., “motive... argument, things of that nature,” and evidence of Anton’s demeanor after the shooting, provided a legal basis for giving the instruction. The court refused the instruction after defense counsel admitted there were no facts to support giving the instruction.
On appeal, Anton and Sonny contend the trial court erred in refusing to instruct the jury on the defense of accident or misfortune in violation of their right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. We disagree.
A trial court is required to give instructions on a defense “only if there is substantial evidence to support the defense.” (People v. Aris (1989) 215 Cal.App.3d 1178, 1192, disapproved on another point in People v. Humphrey (1996) 13 Cal.4th 1073.) To establish the defense of accident or misfortune, there must be substantial evidence of three things: (1) “The defendant was doing a lawful act in a lawful way;” (2) he or she was “acting with usual and ordinary caution;” and, (3) “The defendant was acting without any unlawful intent.” Here, there was no evidence Anton accidentally shot Villareal.
At trial, defense counsel admitted there was no evidence to support this instruction and the trial court agreed. The facts adduced at trial support the trial court’s decision. Specifically, we noted that immediately after the shot was fired, Anton emerged from the bedroom and said, “I capped her.” He did not say, “I capped her by mistake.” Although Hollabaugh testified Anton did not “sound like he was boasting[]” when he made this statement, that does not necessarily translate into evidence of an accident. Furthermore, Anton told Rogers he was “going away for life,” which suggests he knew he had committed some serious crime, and after he was arrested, Anton told his father he should have hid Villareal’s body and he discussed trial strategies for avoiding jail time. Moreover, counsel did not rely on accident or misfortune during closing argument. Instead, he argued his client was guilty of the lesser included offense of voluntary manslaughter because he acted in the heat of passion or while intoxicated. Under these circumstances, the trial court properly refused to give CALCRIM No. 510. (People v. Maury (2003) 30 Cal.4th 342, 424.) Anton’s Appellate Issue
Anton contends the trial court erred by failing to instruct the jury sua sponte that provocation inadequate to reduce deliberate and premeditated attempted murder to attempted manslaughter may still be sufficient to eliminate deliberation and premeditation. He argues CALCRIM No. 522 “does not adequately inform the jury why and how provocation is relevant to this determination. We disagree.
Anton failed to object to this instruction at trial. The Attorney General contends this waives the issue on appeal. However, we consider the issue as one touching on the defendant’s substantial rights. (Pen. Code, § 1259; People v. Martinez (1984) 157 Cal.App.3d 660, 670.)
A trial court’s decision to give or not give a particular jury instruction is a “mixed question of law and fact that is... predominantly legal” and is reviewed de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.) In reviewing jury instructions, the appellate court must “determine whether the instruction, so understood, states the applicable law correctly.” (People v. Warren (1988) 45 Cal.3d 471, 487.) Furthermore, “It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.) Viewed in this light, the instructions given here were adequate.
In addition to CALCRIM No. 522, the court instructed the jury with CALCRIM No. 521 which included an explanation on the meaning of premeditation and deliberation. This instruction states, in part, “A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” The court followed this instruction with CALCRIM No. 522, which states, “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. 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 provocation in deciding whether the crime was first or second-degree murder. [¶] Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.” Furthermore, the court gave a definition of provocation as provided in CALCRIM No. 570. We find the various instructions on heat of passion and provocation adequately stated the applicable law.
CALCRIM No. 521 includes the following provision on premeditation and deliberation: “The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.”
CALCRIM No. 570 states, “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.”
Moreover, the trial court has a duty to instruct on the general principles of law closely and openly connected with the evidence which are necessary for a jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) However, the trial court has no sua sponte duty to give a “‘pinpoint’” instruction that “relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory.” (People v. Mayfield (1997) 14 Cal.4th 668, 778.)
Our Supreme Court recently held that the predecessor to CALCRIM No. 522, CALJIC No. 8.73, is a “‘pinpoint instruction’ relating particular evidence to an element of the offense, and therefore need not be given on the court’s own motion.” (People v. Rogers (2006) 39 Cal.4th 826, 878 (Rogers).) CALCRIM No. 522 is nearly identical to CALJIC No. 8.73 and therefore also a pinpoint instruction. (See Rogers, supra, 39 Cal.4th at pp. 878-879, citing Judicial Council of Cal., Crim. Jury Instns. (2005) Bench Notes to CALCRIM No. 522.) Anton attempts to limit Rogers by relying on People v. Valentine (1946) 28 Cal.2d 121 (Valentine.) However, Rogers emphasized that the conviction in Valentine was “reversed based on a host of instructional errors,” including instructions that a killing is necessarily first degree murder if the defendant had the specific intent to kill, and that the defendant bore the burden of raising a reasonable doubt as to the degree of the murder. (Rogers, supra, 39 Cal.4th at pp. 879-880.)
CALJIC No. 8.73 provides: “When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.”
As noted in Rogers, “Valentine does not stand for the general proposition that the standard heat-of-passion voluntary manslaughter instructions are always misleading in a homicide case where the jury is instructed on premeditated murder and there is evidence of provocation, or that such manslaughter instructions always must be accompanied by instructions on the principle of inadequate provocation set out in CALJIC No. 8.73. In the absence of instructional errors such as were present in Valentine, the standard manslaughter instruction is not misleading, because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder.” (Id. at p. 880.)
Anton also contends the prosecutor’s closing argument compounded the likelihood of juror confusion by telling the jury, “the weight and significance of the provocation are for you [the jury] to decide.” However, he stretches the record beyond its elastic limit to make this claim. Viewed in context, the prosecutor accurately stated the principle that it is the jury who determines issues of fact. (People v. Williams (2001) 25 Cal.4th 441, 454-455.) Therefore, we find no error.
Sonny’s Appeal
At sentencing, the court placed Sonny on five-years’ formal, supervised probation. The following portion of the reporter’s transcript sets forth what the court advised Sonny would be the terms and conditions of probation: “[The court]: The defendant will be on five years of formal supervised probation. That he’s ordered to pay a fine of $1,000 plus penalty assessment, 200 to the state restitution fund, $200 as a probation revocation fund. He is ordered to use no unauthorized drugs, narcotics, controlled substances or alcohol of any kind. [¶] Sir, you are ordered to abstain completely from alcohol. Do you understand that, sir? [¶] The defendant: Yes. [¶] The court: And to submit to alcohol or drug testing as order[ed] by a probation or peace officer. Cooperate with the probation officer in a plan for alcohol or dug treatment. [¶] Seek training, schooling, and employment. Maintain residence and associates as approved by your probation officer. That you may not own, use or possess any type of deadly or dangerous weapons. [¶] You must obey all laws, orders, rules, regulations of the probation department and the court. [¶] You must violate no laws. That means to commit no misdemeanor or felony. That you are not in any way directly or indirectly, to initiate contact with, nor communicate with the family of Nicole Villareal []. [¶] You are ordered to report to the probation department forthwith so that they may begin supervising you. You are ordered to provide a sample of your blood, saliva, and fingerprints as part of California’s DNA data base. [¶] You are reminded as a convicted felon for the rest of your life in the State of California and for a minimum of ten years anywhere in the United States, you may not possess a firearm. [¶] You are ordered to pay actual victim restitution in the amount of $912 pursuant to Penal Code section 1202.4(f), and to pay a $20 court security fee.” When the court asked if Sonny understood and agreed to these terms, Sonny replied, “Yes, sir.” When the court inquired of the district attorney if there “were [] any additional terms that the People were requesting[,]” the district attorney responded, “No, you covered it.”
The clerk’s transcript of the sentencing hearing includes the above-stated terms and conditions, plus the following: “Submit your person and property including any residence, premises, container, or vehicle under your control to search and seizure at any time of the day or night by any law enforcement or probation officer with or without a warrant, and with or without reasonable cause or reasonable suspicion.” Pointing to what Sonny characterizes as a conflict in the record, he argues the search condition must be stricken from the record “[b]ecause it is clear from the reporter’s transcript that the trial court imposed no search condition....” We disagree.
The rule that an oral pronouncement prevails over a contrary written order is not “a mechanical rule” but depends on the circumstances of each case.” (People v. Smith (1983) 33 Cal.3d 596, 599.) In fact, whether an irreconcilable conflict actually exists depends on an objective reading of the full record. (Ibid.) Here, the record is not in conflict so much as the court appears to have inadvertently forgotten to orally pronounce what is a standard and very elementary term of probation. The conditions of probation included limitations on Sonny’s use of drugs and alcohol and his associations with other people. He was ordered to “obey all laws, orders, rules, and regulations....” We find it unlikely that the court intended to release Sonny on probation with conditions in the absence of a search and seizure waiver when so many of the terms and conditions of probation require verification. Our view is supported by the fact that at the time of the sentencing hearing, Sonny was living in a sober living facility. Furthermore, the court had specifically imposed a search condition on Sonny’s bail when he was released following trial.
However, even assuming the discrepancies between the reporter’s and clerk’s transcripts constitute a conflict in the record, “When a clerk’s transcript conflicts with a reporter’s transcript, the question of which of the two controls is determined by consideration of the circumstances of each case.” (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) “‘[A]s a general rule, [a] record [that] is in conflict... will be harmonized if possible.’” (People v. Smith, supra, 33 Cal.3d at p. 599.) Here, the record can be harmonized. The search condition is fully operative notwithstanding the court’s inadvertence.
The People’s Appeal
The court granted Anton 723 days presentence custody credits, 483 actual days and 240 days conduct credit. The People contend this constitutes an unauthorized sentence because Anton is not entitled to conduct credits pursuant to Penal Code section 2933.2. Subdivision (a) of Penal Code section 2933.2 states, in pertinent part, “any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933.” Anton was convicted of murder. Therefore, the court should not have granted him 240 days of presentence conduct credit, pursuant to Penal Code section 2933.2. Therefore, the judgment shall be modified to strike 240 days of presentence conduct credit.
III
DISPOSITION
We direct the clerk of the superior court to strike the award of 240 days conduct credit on Anton’s abstract of judgment, and to send a copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, J. FYBEL, J.