Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF1842 Richard F. Toohey, Judge.
David M. McKinney, 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, Scott Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Cuong Viet Nguyen shot and killed Tri Bui during a fight outside a club; defendant was convicted of Bui’s murder. Defendant appeals, raising three separate arguments.
First, defendant argues he was prejudiced because the jury instruction on voluntary manslaughter failed to specify that intent to kill was not required. We conclude the instructions as a whole made clear to the jury that either intent to kill or a conscious disregard for human life was required for voluntary manslaughter. There was no error in the instruction.
Second, defendant argues the trial court erred by failing to instruct the jury regarding involuntary manslaughter. We conclude there was not sufficient evidence from which a reasonable jury could conclude defendant committed involuntary manslaughter. Therefore, the court did not err in failing to instruct the jury on that lesser included offense.
Finally, the trial court found that a juvenile adjudication constituted a prior strike. Defendant argues there was not substantial evidence that he was at least 16 years of age when he committed that offense, so it could not be a prior strike. We agree, and remand the matter for a retrial on the prior strike allegation.
Statement of Facts and Procedural History
Both defendant and Bui were present at the All Star Café in Stanton on the evening of June 25, 2005. A fight between a group of defendant’s friends and a group of Bui’s friends broke out inside the club about 1:00 a.m. on June 26. Bui was among those thrown out of the club by security after the fight. As Bui walked toward the parking lot, two men who had been watching him argue with the security guards rushed toward Bui and struck him with belts. Others got involved in a fight between Bui’s group of friends and defendant’s group of friends outside the club.
While the fight was going on in the parking lot, defendant and his girlfriend, Thuy Nguyen, went to defendant’s car. (Because defendant and his girlfriend share the same last name, we will refer to her as Thuy. We intend no disrespect.) Defendant believed he saw his friend Phat being “attack[ed].” Defendant retrieved a gun from the glove compartment, placed it behind his back, and ran toward the fight. He shot the person fighting with Phat, “[b]ecause I was afraid for his life that they were going to kill him or they were going to hurt him really bad.” Defendant fired his gun multiple times, striking Bui six times. Defendant and Thuy got into defendant’s car and drove off.
Orange County Deputy Sheriff Daniel Jacobs was conducting a traffic stop nearby, and heard gunshots. Deputy Jacobs arrived at the scene, and found Bui lying face down in the parking lot. Bui was bleeding profusely, and was not breathing. He died as a result of the gunshot wounds. Another victim, Michael Vu Le, had been shot in the right arm.
In March 2006, investigators obtained and served a search warrant on Thuy’s residence. Defendant was at Thuy’s residence and was questioned by the police after the search was conducted. Defendant told the police that Thuy had told him she left the club before the shooting, and that he had not been there. Defendant left town the next day, threw away his gun, and moved to Arizona.
In June 2008, defendant was arrested in Phoenix, Arizona, in connection with Bui’s murder. Defendant initially told the Arizona police he had left the All Star Café before the shooting occurred. Defendant had changed his name while in Arizona.
At trial, defendant offered the testimony of an expert witness on the fight or flight response. The expert testified that a civilian involved in a shooting might suffer from acute stress disorder or posttraumatic stress disorder. The expert also testified a person confronted with what he or she perceives as a threatening situation might experience a psychophysiological response known as “fight or flight.” This stress response might lead to memory loss, and to tunnel vision. The expert testified that in shooting situations, the shooting is often not the product of conscious thought; he agreed on cross-examination that the fight or flight response does not eliminate free will, and that every shooting does not cause the person to suffer from acute stress disorder or posttraumatic stress disorder. The expert’s testimony was limited to general opinions; he did not offer any opinions as to defendant’s response to stress in general or on the night of the shooting.
Defendant was charged with one count of murder and one count of attempted murder. (Pen. Code, §§ 187, subd. (a), 664, subd. (a).) The information alleged he personally discharged a firearm causing death or great bodily injury (id., §§ 12022.53, subd. (d), 1192.7, 667.5), and alleged a prior strike (id., §§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)). A jury found defendant guilty of second degree murder, and found true the firearm allegation. In a bifurcated proceeding, the trial court found true the prior strike allegation. Defendant was sentenced to a total term of 55 years to life in prison. Defendant timely appealed.
Discussion
I.
CALCRIM No. 571
Defendant was charged with murder. Defendant argued he shot Bui, believing he was protecting his friend Phat from death or serious bodily injury, which would reduce the crime from murder to voluntary manslaughter. “California recognizes the doctrine of imperfect defense of another. [Citation.] One who kills in imperfect defense of another—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—lacks malice and is guilty only of manslaughter. [Citation.]” (People v. Genovese (2008) 168 Cal.App.4th 817, 829.) A defendant is guilty of voluntary manslaughter if the killing results from unreasonable self-defense or unreasonable defense of another, and the defendant intentionally killed the victim or acted with conscious disregard for life in unintentionally killing the victim. (People v. Stitely (2005) 35 Cal.4th 514, 551; People v. Blakeley (2000) 23 Cal.4th 82, 88 89; People v. Genovese, supra, 168 Cal.App.4th at p. 829.)
The jury was instructed on imperfect self defense with CALCRIM No. 571, as follows: “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 or imperfect self-defense [sic] of another. [¶] If you conclude that the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. The difference [between] complete self-defense or defense of another, imperfect self-defense or imperfect defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self defense or imperfect defense of another if: [¶] 1. The defendant actually believed he or someone else was in imminent danger of being killed or suffering great bodily injury; [¶] 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. [¶] Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] If you find that the victim threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant knew that the victim had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant received a threat from someone else that he reasonably associated with the victim, you may consider that threat in evaluating the defendant’s beliefs. [¶] Great bodily injury means significant or substantial physical injury. It is injury that [is] greater than minor or moderate harm. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self defense or imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder.” The jury was also instructed that murder requires proof of either an intent to kill, or the commission of an intentional act with a conscious disregard for human life.
Defendant argues CALCRIM No. 571 is prejudicially defective because it does not explicitly state that intent to kill is not an element of voluntary manslaughter.
The Attorney General argues that the issue has been forfeited because defendant did not object to CALCRIM No. 571 in the trial court. “‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.] But that rule does not apply when, as here, the trial court gives an instruction that is an incorrect statement of the law. [Citations.]” (People v. Hudson (2006) 38 Cal.4th 1002, 10111012, italics added.) Defendant argues that the instruction was incorrect as a matter of law; the issue has not been forfeited.
In People v. Genovese, supra, 168 Cal.App.4th at page 819, the Court of Appeal addressed the same argument, and concluded there was no instructional error. In that case, the defendant intervened in a fistfight between the victim and the defendant’s stepuncle. (Id. at p. 824.) The defendant stabbed the victim multiple times. (Ibid.) The defendant claimed he stabbed the victim because he believed his stepuncle could have been killed. (Ibid.) The jury was instructed with CALCRIM No. 571. (People v. Genovese, supra, 168 Cal.App.4th at pp. 828 829.) The defendant was convicted of second degree murder. (Id. at p. 819.)
The appellate court addressed the defendant’s argument regarding instructional error as follows: “Defendant argues the instructions did not inform the jurors they could find him guilty of voluntary manslaughter if they found that he, while acting in imperfect defense of another..., killed either intentionally or unintentionally with conscious disregard for human life. [¶] Either an intent to kill or a conscious disregard for life is an essential requirement of voluntary manslaughter in this scenario. [Citations.] [¶] Defendant argues the trial court should have expressly instructed the jury that intent to kill or conscious disregard for life is an essential element of voluntary manslaughter, in accordance with [People v.] Blakeley[, supra, 23 Cal.4th 82] and [People v.] Lasko [(2000) 23 Cal.4th 101], and the failure to do so left the jurors with no way to apply defendant’s proffered defense to the elements of express or implied malice to ascertain whether these elements had been proven beyond a reasonable doubt. We disagree. [¶] Thus, although the jury was not expressly instructed in that manner, the jury was instructed, ‘A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another.’ (Italics added.)... [¶] The killing could not ‘otherwise be murder’ unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed in the instruction defining murder (i.e., that to prove murder, the prosecution must prove defendant acted with malice aforethought, and there are two kinds of malice aforethought—express, which requires intent to kill, and implied, which requires conscious disregard for human life). [¶] Thus, the instructions did let the jury know that a killing in imperfect self defense..., whether intentional or in conscious disregard of life, is voluntary manslaughter. [¶]... [¶] We conclude there was no error in the jury instructions on voluntary manslaughter.” (People v. Genovese, supra, 168 Cal.App.4th at pp. 831 832.)
Defendant argues that People v. Genovese was wrongly decided. We disagree. Having reviewed the California Supreme Court’s opinions in People v. Stitely and People v. Blakeley, and the language of CALCRIM No. 571 and the other instructions given to the jury, we conclude CALCRIM No. 571 correctly sets forth the applicable rule of law. The instructions as a whole made clear to the jury that either intent to kill or a conscious disregard for life was an element of voluntary manslaughter. There was no need for CALCRIM No. 571 to reiterate this statement of law. There was no error in giving this instruction.
II.
The trial court did not err by failing to instruct the jury regarding involuntary manslaughter.
Defendant argues the trial court erred by failing to instruct the jury on the lesser included offense of involuntary manslaughter based on imperfect self-defense or based on brandishing a weapon with criminal negligence. We review this issue de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
A court must instruct the jury sua sponte on any lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Involuntary manslaughter is a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) The failure to instruct on a lesser included offense requires reversal only if the entire record establishes a reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
“Involuntary manslaughter is a lesser offense of murder, distinguished by its mens rea. [Citation.] The mens rea for murder is specific intent to kill or conscious disregard for life. [Citation.] Absent these states of mind, the defendant may incur homicide culpability for involuntary manslaughter. [Citations.] Through statutory definition and judicial development, there are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. [Citation.]... [F]or all three types of predicate acts the required mens rea is criminal negligence. [¶] Involuntary manslaughter based on the predicate act of a misdemeanor or a lawful act is statutorily defined in Penal Code section 192, subdivision (b), which states the offense is... (1) a killing ‘in the commission of an unlawful act, not amounting to felony, ’ or (2) a killing ‘in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ In addition to these statutorily defined means of committing involuntary manslaughter, the California Supreme Court has defined a nonstatutory form of the offense, based on the predicate act of a noninherently dangerous felony committed without due caution and circumspection. [Citation.]” (People v. Butler (2010) 187 Cal.App.4th 998, 1006 1007.)
“The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.” (CALCRIM No. 580.)
An instruction on involuntary manslaughter is required if there is “sufficient evidence—evidence which was not minimal or insubstantial—showing [the defendant] acted ‘without due caution and circumspection.’ [¶] The words ‘without due caution and circumspection’ refer to criminal negligence—unintentional conduct which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences. [Citation.] If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice. [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 596.)
Even under the most liberal reading of the evidence favorable to defendant, no reasonable jury could conclude he committed involuntary manslaughter. Defendant’s testimony regarding how and why the shooting occurred was as follows:
“Q. And did anything happen at that point?
“A. Then I went back... towards the back again and I looked and that’s when I realized I see [my friend] Phat and a group of people that was trying to attack him.
“Q. Then when you say ‘attack, ’ what do you mean by that?
“A. They were throwing punches. I see stuff flying around.
“Q. When you say ‘stuff flying around, ’ what—explain what you mean by that?
“A. Something metal. I don’t know. I couldn’t tell [you what] it was at that time but I just saw something metal that caught the light.
“Q. Okay. Did you do anything or did something happen then?
“A. Then that’s when I knew he was in trouble so I ran, I went back to the car and I opened the door and I grabbed the gun.
“Q. Okay. And what happened when you did that?
“A. When I grabbed the gun and then I put it back right here and I ran. Thuy tried to grab me. But I keep running because my friend was in trouble, so I ran towards that way. [¶]... [¶]
“Q. So after you pulled away [from Thuy], where did you go?
“A. I ran straight over where I thought Phat and Huy was at.
“Q. Okay.... [W]ere you able to see as you’re going over there who it was?
“A. Yes.
“Q. Who was it?
“A. It was Phat. And I’m not sure if it was Huy and the group of guys that was in that incident inside the bar.
“Q. Okay. At that point, were people still throwing punches?
“A. Yes, they were throwing punches and was—there was so many of them. There was punches swinging everywhere. People swinging something. And I see another guy, a really big guy holding something in his hand and running towards the group. [¶]... [¶]
“Q. So what happened when you ran over there?
“A. I shot the person.
“Q. Okay. And I’m going to ask you about that. Did you have the gun in your hand when you first started going over there?
“A. Yes. While I was rushing over there, I grabbed the gun out and I loaded a bullet.
“Q. Why did you do that?
“A. Because there was so many of them. And so many of them and my friend was in trouble that I didn’t know what else to do.
“Q. And when you got there, was—did you see Phat?
“A. Yes.
“Q. Was there anybody fighting with him?
“A. Yes.
“Q. What did you do?
“A. I shot that person.
“Q. Okay. So why did you do that?
“A. Because I was afraid for his life that they were going to kill him or they were going to hurt him really bad.
“Q. You talking about Phat?
“A. Yes.
“Q. How many times did you shoot him?
“A. I remember pulling the trigger once. Maybe twice. And after that I just—I kind of blacked out. I couldn’t hear anything. I couldn’t basically—it just all happened in flashes. And then the next thing you know I was still pulling the trigger and the gun was empty.”
Defendant also testified he shot Bui “[b]ecause I was afraid for my friend’s life, ” and not for any other reason.
Simply put, no reasonable jury could conclude that defendant saw a fight in process, ran in the other direction to his car, retrieved a gun from his car, loaded it, approached the group beating up his friend, and shot the victim multiple times for the specific purpose of preventing the victim from killing or hurting defendant’s friend without either an intent to kill or a conscious disregard of the risk to human life. The trial court did not err in refusing to instruct the jury regarding involuntary manslaughter.
For the same reason, the court did not err in refusing to instruct the jury regarding involuntary manslaughter based on defendant’s argument that the shooting occurred while he was brandishing a firearm in a grossly negligent manner. Such an instruction was found to be appropriate when the evidence showed the gun discharged as the defendant was drawing it, and there was conflicting evidence as to whether the defendant was pointing the gun when it fired. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 98 99.) Here, by contrast, defendant testified he aimed the gun at Bui and intentionally shot him.
III.
Whether Prior Juvenile Adjudication Qualified as a Strike
The trial court found true that defendant suffered a prior strike, pursuant to Penal Code sections 667, subdivision (d) and (e)(1), and 1170.12, subdivisions (b) and (c)(1). The strike was a juvenile adjudication involving a charge of robbery (Pen. Code, § 211.) For a prior juvenile adjudication to constitute a strike, there must be proof that the juvenile was 16 years of age or older at the time the crime was committed. (Id., § 667, subd. (d)(3)(A).) Defendant argues there was insufficient evidence that he was 16 years old at the time the robbery occurred. “The prosecution bears the burden of proving beyond a reasonable doubt that a defendant’s prior convictions were for either serious or violent felonies. When a defendant challenges the sufficiency of the evidence to uphold a finding that his prior convictions qualified as strikes, the test on appeal is whether a reasonable trier of fact could have found that the prosecution sustained its burden. We review the record in the light most favorable to the trial court’s findings. [Citation.]” (People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)
The Attorney General argues defendant has forfeited this issue by failing to argue in the trial court that the documents on which the court relied in making its true finding were inadmissible. Defendant’s argument is not that the trial court erred in admitting certain documents, but that those documents do not contain sufficient evidence on which a true finding can be based. A challenge to the sufficiency of the evidence is not forfeited by failing to object to the admission of evidence. (People v. Rodriguez (1998) 17 Cal.4th 253, 262; People v. Castillo (2008) 168 Cal.App.4th 364, 369.)
To determine whether a prior conviction counts as a strike, the trier of fact may look to the “entire record of the conviction.” (People v. Guerrero (1988) 44 Cal.3d 343, 355.) “[T]he ‘entire record of conviction’ includes all relevant documents in the court file of the prior conviction.” (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172.) “The ‘record of conviction’ includes the charging document and court records reflecting defendant’s admission, no contest plea, or guilty plea. [Citation.] It also includes those portions of a probation officer’s report which contain the defendant’s admissions. [Citation.]” (People v. Gonzales (2005) 131 Cal.App.4th 767, 773.)
Defendant correctly notes there was no evidence before the trial court that explicitly identified the date the robbery was committed. The evidence did show that defendant’s date of birth was October 10, 1980. The Attorney General argues that a certified record from the California Department of Corrections and Rehabilitation, which was presented to the trial court, establishes the date of the offense in question was December 2, 1997. Defendant would therefore have been 17 years old at the time the crime was committed.
The Attorney General challenges defendant’s contention that this record is speculative. In her argument, the Attorney General concedes that the only evidence of the date of the offense is the single page referred to, ante, from the Department of Corrections and Rehabilitation’s documents, which must be read in conjunction with other documents from the trial court’s file. But the Department of Corrections and Rehabilitation’s other documents are not a part of the “‘record of conviction, ’” and therefore cannot be relied upon to determine whether defendant’s juvenile adjudication constitutes a prior strike. (People v. Lewis (1996) 44 Cal.App.4th 845, 852 [document signed by criminal court judge two months after the defendant pled guilty and was sentenced, which was part of the defendant’s prison file rather than his criminal court file, is not part of the record of conviction, and cannot be used to establish the elements of the prior strike conviction].) We therefore conclude there was not sufficient evidence to support the trial court’s finding that defendant suffered a prior strike. The proper remedy is to remand for retrial of this issue. (People v. Barragan (2004) 32 Cal.4th 236, 239.)
Disposition
Defendant’s sentence is vacated, the true finding as to the allegation of a prior strike is reversed, and the matter is remanded for a retrial on the allegation of a prior strike. In all other respects, the judgment is affirmed.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.