Opinion
B304792
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. ELIZABETH BACILIO PULIDO, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA145770) APPEAL from a judgment of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Affirmed. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Elizabeth Bacilio Pulido fatally shot her boyfriend outside a laundromat. She was charged with first degree murder and a Penal Code section 12022.53 firearm enhancement. A jury found her guilty of the lesser included offense of voluntary manslaughter and found true a section 12022.5 firearm enhancement listed on the verdict form.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that her conviction must be reversed because the trial court failed to sua sponte instruct the jury on the lesser included offense of involuntary manslaughter. She also contends that the section 12022.5 enhancement is unauthorized and must be stricken because it was not alleged in the information. We affirm.
PROCEDURAL HISTORY
An information filed on November 29, 2018 charged appellant with the April 3, 2018 murder of Emilio Alejandre. (§ 187, subd. (a).) The information further alleged that appellant personally and intentionally discharged a firearm, causing great bodily injury and death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53, subd. (b)). Appellant pled not guilty and denied the enhancement allegations.
At appellant's jury trial, her counsel argued that she acted in self-defense. The trial court instructed the jury on that theory as well as the lesser included offense of voluntary manslaughter. The jury found appellant guilty of voluntary manslaughter and further found that she personally used a firearm within the meaning of section 12022.5, subdivision (a). The trial court sentenced appellant to a total of six years in prison: the low term of three years for the voluntary manslaughter and a consecutive low term of three years for the section 12022.5, subdivision (a) enhancement.
The trial court also accepted appellant's no contest plea to possession of a controlled substance (Health & Saf. Code, § 11378) in an unrelated case and imposed a consecutive sentence of one-third the midterm, or eight months, for that offense. The court found that sentence already satisfied due to appellant's pretrial custody credits.
Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
Marco Dominguez testified that he arrived at a Lynwood laundromat around 12:00 a.m. to 12:30 a.m. on April 3, 2018. Appellant immediately approached him and asked him to jump start her silver Jeep. Dominguez obliged before going into the laundromat. He subsequently heard three gunshots. Dominguez looked outside and saw "a female, left hand, back to the door, pointing at someone or something with the gun." Dominguez recognized the woman as appellant, whom he later identified in a photographic lineup and in court.
Los Angeles County Sheriff's Department (LASD) deputy Jacob Thome responded to a call reporting a gunshot victim at the laundromat at approximately 2:20 a.m. He saw a man who appeared to be deceased lying in the driveway. There was a "sharp metallic tool" next to the man's body, and a "set of wires" lying near the front of the laundromat. Thome concluded that the metallic tool and wires together comprised a battery tester, though he identified the metal portion as an "ice pick" in his report.
LASD detective Marc Boisvert testified that he was called to the laundromat to investigate the shooting. Bosivert recovered three shell casings, a battery tester lying about two feet away from the victim, and wires from the tester lying further away. Boisvert called a tech crew to the scene to retrieve surveillance footage from exterior cameras on the laundromat and a nearby private residence. The video from the residence was played for the jury during Boisvert's testimony and admitted into evidence.
According to Boisvert, the video showed victim Alejandre walk up the laundromat driveway and approach appellant's Jeep. About 13 seconds after he initially appeared on the video, Alejandre pulled the sharp portion of the battery tester out of his sweater pocket. Three seconds later, he placed his left hand on the hood of the Jeep, bent or knelt down, and with his right hand made a "stabbing motion" toward the Jeep's front driver's side tire. Alejandre then got up, put the tester back into his pocket, and went to the front driver's side window. While he was there exchanging words with appellant, the brake lights of the Jeep flashed. As Alejandre walked away, appellant opened the door. Alejandre, who was about six to eight feet away, then turned and did "something right there with his hands" near his shirt or jacket pocket. Appellant then fired the first shot from "in the door jamb" of the Jeep. Alejandre began to run, but fell face down. His legs twitched and then he lay still. Appellant could be seen pacing back and forth; she appeared "distraught" and may have been crying. She then drove away from the scene; she never called 911.
LASD deputy Scott Carter testified that he was called to a traffic stop the following day, April 4, 2018. When he arrived, he saw other deputies detaining appellant near a gray Jeep. Carter transported appellant to the booking facility. While she was in the patrol car, appellant spontaneously stated that the gun could be found under the passenger side of the Jeep's dashboard. She also stated that Alejandre had sent her threatening text messages, and "he came at me with a knife[,] and that's why I had to do it." Once they arrived at the booking facility, Carter left appellant in the custody of LASD deputy Anthony Bautista.
Bautista testified that appellant was transferred to his patrol car outside the booking facility. While she was in his car, appellant spontaneously told Bautista that she had gotten into an argument with her boyfriend and shot him at a laundromat. She said that her boyfriend always accused her of cheating and called her a dog, and she did not like that. She twice told Bautista that her boyfriend didn't die because she shot him, he died "because he hit the floor." Appellant told Bautista that the gun she used was in the Jeep, and that she planned to shoot herself too but the gun jammed and she "didn't have it in her" to shoot herself after correcting the jam.
LASD forensic identification specialist Fredericanthony Cruz testified that he photographed evidence at the laundromat on April 3, 2018, as well as items found during his search of an impounded gray Jeep on April 5, 2018. During that search, Cruz found an "AMT CAL .380 .9 millimeter Kurz" gun underneath the plastic panel of the dashboard. He also found two boxes of live ammunition and a receipt showing they were purchased on April 4, 2018, the day after the shooting. In addition, Cruz found a cellphone and a purse.
Los Angeles County deputy medical examiner Dr. Ajay Panchal testified that he performed a toxicology screen and an autopsy of Alejandre. The toxicology screen showed that Alejandre had methamphetamine, marijuana, and alcohol in his system when he died. The autopsy revealed a single gunshot wound to the chest, which Dr. Panchal opined caused Alejandre's death.
LASD senior criminalist Tracy Peck examined the bullet retrieved from Alejandre's body, as well as the three shell casings found outside the laundromat and the gun found in the Jeep. She opined that the bullet and the three casings were all fired from the gun found in the Jeep. Peck further opined that five pounds of pressure had to be applied to the trigger of the gun to fire it. She also testified that the boxes of ammunition found in the Jeep could not be used in the gun.
II. Defense Evidence
A. Appellant's Testimony
Appellant testified that Alejandre, also known as "Night Owl," was her boyfriend. Their relationship began while Alejandre was incarcerated and continued for approximately four months after he was released on December 8, 2017. Alejandre belonged to a criminal street gang that was part of the Mexican Mafia. He also used marijuana and methamphetamine. Appellant testified that Alejandre became delusional and "very, very violent" when he was high on methamphetamine; he thought she was cheating on him and hit, punched, and choked her.
Appellant had a cellphone that she used from March 14, 2018 to her April 4, 2018 arrest. The parties stipulated that defense exhibit L contained a true and accurate copy of the text messages that were on the cellphone. Alejandre sent appellant numerous messages accusing her of cheating and threatening her. He sent similar messages from his brother Juan's cellphone. Juan was a gang member whom appellant knew to carry a gun. Appellant testified that Alejandre purchased a gun with her money "around maybe March."
On March 24, 2018, appellant and Alejandre took a bus to Phoenix, Arizona to visit Alejandre's sister. After they arrived, appellant and Alejandre got into a fight; Alejandre choked appellant and repeatedly punched her in the side of the head. Appellant escaped through the bathroom window after she heard Alejandre cock a gun, but later returned to Alejandre's sister's home.
After several days and another violent incident, Alejandre's sister kicked Alejandre and appellant out of her house. While appellant was alone on the streets, she met a man named Johnny Padilla. Padilla eventually offered to give appellant and Alejandre a ride back to Los Angeles. Appellant testified that Padilla was "tired," however, so she "borrowed" his Jeep on April 1, 2018 and drove back to Los Angeles with Alejandre. Appellant acknowledged during cross-examination that she did not have Padilla's permission to take the Jeep.
Appellant and Alejandre went to appellant's apartment when they returned. Soon thereafter, they began arguing; Alejandre went to his brother's house and left his gun there. Later that day, appellant told Alejandre's niece that she was tired of Alejandre putting his hands on her and showed the niece several injuries on her body. The niece invited appellant to her house, where she gave appellant Alejandre's loaded gun.
Appellant feared that Alejandre would come to her apartment, so in the early morning hours of April 3, 2018, she went to a public place, the laundromat. While she was there, Alejandre sent her threatening text messages from Juan's phone. Appellant believed that Alejandre was coming to get her or be violent with her. The last message she received, in which Alejandre told her she was replaceable, arrived at approximately 2:01 a.m.
Appellant's counsel played the surveillance video from the house near the laundromat for her. She testified that at the beginning of the video, she was in the Jeep watching something on her cellphone. Thirty-three seconds in, she saw Alejandre stabbing her tire. At 38 seconds, Alejandre was at her window, threatening to kill her. Appellant believed Alejandre because he had a sharp weapon on him and had stabbed her tire. Appellant testified that she was scared for her life and tried to leave; because she was panicking, however, she could not get the Jeep into gear. At 40 seconds, appellant got out of the Jeep with the gun in her hand. Appellant testified that she saw Alejandre turn around and reach for his pocket. She fired the first shot between 43 and 45 seconds, after Alejandre told her "You are not going to do anything, you scary ass bitch." She then fired the gun two more times.
At one minute, 13 seconds, appellant walked over to where Alejandre lay. She testified that she was "highly upset" and "crying," and asked Alejandre to forgive her. In response to her counsel's question, "Were you sad?," appellant said, "Yes. It just -- it happened so fast." When asked if she "want[ed] him to die that way," appellant stated, "No. If I could take his place, I would. I didn't want him to die. I didn't want him to get hurt. I just wanted to be at peace in my life. I would take his place if I could. I promise you that. I would take his place if I could." The prosecutor objected, "no question pending," which the court sustained. The court also granted the prosecutor's motion to strike.
At one minute, 27 seconds, appellant approached bystanders and told them she had shot Alejandre. She then got in the Jeep and left the scene. She drove around all night, afraid that Alejandre's brother Juan would try to kill her because he had been at the scene. Appellant testified that she bought the ammunition recovered from the Jeep to protect herself from Juan; she was unaware it did not fit the gun. Appellant acknowledged making statements to the deputies after her arrest, but testified that she was not given the opportunity to fully tell her side of the story.
During cross-examination, appellant acknowledged that she sent Alejandre text messages on April 1, 2018 "that were not nice to him." In those messages, she said Alejandre would "face my warth [sic]," called him a "pussy" and a "weak punk bitch," and said she would "fight you even dirtier than you." One of the messages stated that she would be "lighting everything up" if Alejandre did not call her in five minutes. Appellant stated that she had "a short fuse" and sent the messages when she was upset.
Appellant had texted Alejandre that she was at the laundromat, but was "surprised" when he walked up to the Jeep. She panicked and was trying to leave when he stabbed the tire and threatened to kill her. She did not call 911 on her cellphone because "it happened so fast." She also stated that she did not drive away when Alejandre started walking away because Juan was "in the background" and she feared for her life; "[t]here's two of them and one of me."
When the prosecutor asked why appellant shot at Alejandre two more times after the first shot, appellant stated, "I didn't even know I hit him, ma'am. I'm being honest. I did not even know I hit him. It happened so fast. I thought I aimed at his feet. . . . When I shot the other two shots, I thought it was both coming back. Juan had something in his hand. And I was scared, ma'am. I was really scared for my life." The prosecutor played a recording of a visit appellant had with a friend while she was in custody. On the recording, appellant told her friend that Alejandre "tried to stab me in my face," and had "stuck his hand in but his whole arm didn't fit." Appellant acknowledged that description of the incident was "a little bit different" than how it had actually happened.
B. Other Evidence
Rosa Maria Hinojos testified that appellant used to come to her house to braid Hinojos's granddaughter Jasmine's hair. One day while appellant was there, appellant's boyfriend, whom Hinojos knew as Night Owl, showed up and began arguing with appellant and hitting her with his fists. Hinojos also testified that she had seen Night Owl with a gun.
Hinojos's 13-year-old granddaughter, Jasmine V., testified that she saw a man hit appellant. Jasmine also testified that she had seen appellant with a black eye on one occasion.
Elias Zamorano testified that he lived in appellant's apartment complex. He saw appellant crying and bruised multiple times. Zamorano did not call the police because he did not want to make trouble with Alejandre, who "has people" around the complex.
Renee Figueroa testified that she was the manager of appellant's apartment complex and lived in an apartment that shared a wall with appellant's. She knew that a man named Night Owl stayed at appellant's apartment. She heard Night Owl screaming and cursing at appellant on more than one occasion, saw him swing a golf club at her, and saw appellant with bruises on her arms and bumps on her forehead. Figueroa also saw Night Owl carry a gun in his pants. Other residents of the complex told Figueroa that Night Owl was causing trouble, but she was afraid to call the police.
Dr. Arthur Kowell, a neurologist, testified that he examined appellant at her counsel's request on May 1, 2019. Appellant told Dr. Kowell that she suffered from mood swings, impaired short term memory, blurred vision, dizziness, tinnitus, and insomnia. Based on appellant's performance on a mental status examination, Dr. Kowell assigned her a "mini mental exam score" of 26, which was "one point below the lower margin of normal" for appellant's "age, sex, and level of education."
Trial in this case took place in October and November 2019.
Dr. Kowell also took an MRI scan of appellant's brain and conducted a "neuroquant triage brain atrophy test" because appellant told him a tree fell on her head in 2016. Both tests were "objective," meaning that appellant could not influence their results. Dr. Kowell explained that the neuroquant triage atrophy test is a "data analysis" that "computes various volumes of the brain and compares the volumes to a normative database." The neuroquant triage atrophy test showed that the orbitofrontal lobe of appellant's brain was in the second percentile, meaning that "98 percent of the people match [sic] for her age group . . . have more brain than she does." He stated that appellant could "still be biologically normal," but "she only has a 2 percent chance," so the finding was "probably clinically significant." Appellant's medial orbitofrontal volume was in the fourth percentile, while her "isthmus cingulate on the right side," which "deals with memory" and "has participation as to whether or not you may be depressed," was in the third percentile.
Dr. Kowell opined that appellant's exam was consistent with a traumatic brain injury, and that the symptoms she described were consistent with her decreased brain volume. He stated that the orbitofrontal cortex region of the brain, which often "hits up against the bony inside of the skull" during a traumatic brain injury, is "highly involved in . . . goal directed decision making process" and also affects a person's emotional stability. Dr. Kowell further testified that people who have damage to that area of the brain "will frequently have depression. They may have anxiety. They may have mood swings. They may become easily angered and short fused." He agreed that crying "could be" included as well.
On cross-examination, Dr. Kowell agreed that the low brain volumes he observed would not render appellant incapable of firing a gun. Appellant had full active range of motion in her limbs, was able to read and write, and remained "on the topic" during conversation. Appellant told Dr. Kowell that she was a high school graduate and had been an A student. She did not have any difficulties with activities of daily living, such as driving, bathing, grooming, and eating. She also denied having hallucinations, delusions, or suicidal or homicidal ideations. Dr. Kowell stated, however, that appellant told him she had been taking Seroquel, a "tranquilizing agent" that may be given to patients with schizophrenia, bipolar, or "agitated psychotic behavior."
Dr. Sandra Baca, a domestic violence expert on the trial court's panel, testified about the "cycle of violence," which begins with a "honeymoon phase" where "everything is rosy" and "we're all on our best behavior." During the next phase, the "tension phase," small problems become bigger, "we start saying things, and it begins to escalate." When the tension phase "gets to a breaking point," the cycle enters the violence phase, in which there is screaming and physical violence. The phases are repetitive, and if the cycle is not interrupted, "somebody's going to get hurt." She testified that it is "not easy" for women to leave an abusive situation, as they may not have the courage to do so or have a place to go. She opined that a woman who name calls or defends herself during an attack is still a victim.
Dr. Baca testified that women who suffer from "intimate partner violence" may exhibit symptoms similar to post traumatic stress disorder (PTSD). PTSD can lead to "cognitive distortion," such that an abuse victim may begin to believe negative things that their abuser tells them. PTSD can also lead to "minimization" or rationalization of the abuse; a victim may say things like "He didn't mean it. He loves me." Dr. Baca stated that when a person is "in a state of crisis and our brain is secreting a lot of hormones and steroids into our body, we lose 30 percent of our thinking ability." She opined that the effect would be compounded if the person also suffered some traumatic brain injury.
III. Rebuttal Evidence
The prosecutor re-called LASD deputy Bautista and played an approximately 13-minute recording that was made while appellant was in Bautista's patrol car; the recording was admitted into evidence. Bautista testified that appellant never told him that she had to shoot Alejandre because he was coming toward her neck area with a knife.
DISCUSSION
I. Involuntary Manslaughter Instruction
Appellant's trial counsel did not request an involuntary manslaughter instruction. She contends the trial court nevertheless had a duty to instruct on involuntary manslaughter, because there was substantial evidence that she did not intend to kill Alejandre and that she acted without conscious disregard for human life. We disagree.
A. Standard of Review
Even in the absence of a request, the trial court has an obligation to instruct on a lesser included offense if substantial evidence would support a jury verdict that the defendant was guilty only of the lesser included offense and not the greater offense. (People v. Gonzalez (2018) 5 Cal.5th 186, 196; People v. Romero (2008) 44 Cal.4th 386, 402-403.) Substantial evidence is evidence from which a jury of reasonable people could conclude that the lesser offense, but not the greater, was committed. (People v. Romero, supra, 44 Cal.4th at p. 403; People v. Breverman (1998) 19 Cal.4th 142, 162.) "Even evidence that is unconvincing or subject to justifiable suspicion may constitute substantial evidence and may trigger the lesser-included-offense requirement." (People v. Vasquez (2018) 30 Cal.App.5th 786, 792 (Vasquez).) Yet substantial evidence is not synonymous with "'any evidence, no matter how weak'" (People v. Breverman, supra, 19 Cal.4th at p. 162); "[s]peculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.'" (People v. Simon (2016) 1 Cal.5th 98, 132.)
We review the trial court's failure to instruct on a lesser included offense de novo. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers); Vasquez, supra, 30 Cal.App.5th at p. 793.) In doing so, we consider the evidence in the light most favorable to appellant. (Brothers, supra, 236 Cal.App.4th at p. 30.) We do not evaluate witness credibility, and we resolve "uncertainty about whether the evidence is sufficient to warrant instructions" in appellant's favor. (Vasquez, supra, 30 Cal.App.5th at p. 792.)
B. Legal Principles
Appellant was charged with murder, the unlawful killing of a human being or fetus with malice aforethought. (§ 187, subd. (a).) "Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice is express "when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(2).) Courts have interpreted this language to mean that malice has both a physical and a mental component. A defendant accomplishes the physical component by performing an act, the natural consequences of which are dangerous to life. He or she satisfies the mental component if he or she knows that the conduct endangers the life of another and acts with conscious disregard for life. (People v. Soto (2018) 4 Cal.5th 968, 974.) As the Supreme Court summarized, "implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (People v. Knoller, supra, 41 Cal.4th at p. 143.)
Manslaughter is "'the unlawful killing of a human being without malice.'" (§ 192.) "A defendant lacks malice and is guilty of voluntary manslaughter 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].' [Citation.]" (People v. Blakely (2000) 23 Cal.4th 82, 87-88.) In other words, malice is negated in the lesser included offense of voluntary manslaughter. (Brothers, supra, 236 Cal.App.4th at p. 30.) In the lesser included offense of involuntary manslaughter, however, malice is entirely absent rather than negated (§ 192, subd. (b)); the crime is one of "criminally negligent unlawful homicide." (People v. Ochoa (1998) 19 Cal.4th 353, 423.) "Accordingly, an instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant acted without conscious disregard for human life and did not form the intent to kill." (Vasquez, supra, 30 Cal.App.5th at p. 794.)
C. Analysis
Pointing to her testimony that she "didn't want him to die," her testimony that she thought she aimed at his feet, and her distress in the moments after the shooting, appellant first contends there was substantial evidence that she lacked the intent to kill Alejandre. Respondent does not substantively dispute this contention, despite the trial court's apparent striking of appellant's testimony that she did not want Alejandre to die and appellant's lack of cited authority supporting the proposition that distress or crying evinces a lack of intent to kill. Even if we assume this evidence is indeed substantial evidence of the absence of an intent to kill, an element of express malice, we are not persuaded that appellant has made the other required showing, that she acted without conscious disregard for human life, or implied malice. (See Brothers, supra, 236 Cal.App.4th at p. 34.)
Appellant argues her testimony that she thought she aimed at Alejandre's feet, Dr. Kowell's testimony about her brain volume, and Dr. Baca's testimony about reduced thinking capacity in times of crisis constitute substantial evidence that she acted without conscious disregard for human life. Considered alone or together, this evidence did not require the court to instruct on involuntary manslaughter.
"It is settled that brandishing a loaded firearm at a person is an act dangerous to human life." (People v. McNally (2015) 236 Cal.App.4th 1419, 1425.) Even if appellant was unaware the gun was loaded before she fired the first shot, she fired the gun two more times, applying five pounds of pressure to the trigger each time. She asserts that "her shooting at his feet inferentially sufficed that she was not subjectively aware that her actions carried a high probability of death." However, even claims that a gun was fired accidentally are not sufficient to negate implied malice. (See id. at p. 1426; People v. Curtis (1994) 30 Cal.App.4th 1337, 1359.) Appellant's testimony that she thought she aimed lower than she did accordingly does not demonstrate that she acted without malice. "[T]he state of mind of a person who acts with conscious disregard for life [i.e., implied malice] is, 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.'" (People v. Olivas (1985) 172 Cal.App.3d 984, 988.) Appellant clearly knew her conduct was dangerous to Alejandre as she continued to fire, and that he could have been seriously hurt or killed even if she aimed at his feet. Indeed, she suggested to Bautista that Alejandre died as a result of falling to the ground.
We are not persuaded otherwise by appellant's reliance on Vasquez, supra, 30 Cal.App.5th 786. In Vasquez, the defendant and a friend decided to rob a man, Smith, who was "notably" smaller than defendant. After rooting around in Smith's pockets, they punched him "about 15 times, knocking him to the ground." (Id. at pp. 790-791.) While Smith was on the ground yelling for help, the defendant "stomped on his head 'and like his whole body pretty much' approximately 20 times." (Id. at p. 791.) Meanwhile, defendant's friend threw a metal trash can at Smith, hitting him on the hip. Defendant and his friend then left the scene. (Ibid.) Smith died. Though many of Smith's injuries "considered alone" were nonlethal, he suffered a potentially fatal neck fracture to which a previous surgery may have made him more susceptible; the medical examiner testified that he did not have any other serious head or neck injuries. (Id. at pp. 791-792.) The trial court denied the defendant's request for an involuntary manslaughter instruction. (Id. at pp. 794-795.) The court of appeal agreed with defendant that this was error. It concluded there was "sufficient evidence from which the jury could have reasonably concluded that the beating defendant administered to Smith was not so wanton and brutal as to demonstrate a conscious disregard for human life." (Id. at p. 796.) Almost all of Smith's injuries were not lethal, he did not suffer injuries suggestive of multiple high-impact blows to the head, and his prior surgery rendered him vulnerable to a serious neck injury in the exact spot the fracture occurred. (Ibid.) The court found that a reasonable juror "could have inferred from this evidence that the blows were not particularly severe and further inferred that defendant believed beating up Smith would injure him but not kill him." (Ibid.)
Appellant contends Vasquez is analogous because "[a] reasonable juror could have drawn the inference that [appellant] believed she would scare or injure, but not kill." We agree with respondent that Vasquez is distinguishable, however, because appellant used inherently lethal force against Alejandre when he was only six to eight feet away from her. Moreover, she knew Alejandre did not have his gun at the time, as she was wielding it against him. As respondent notes, "[t]his is not a case in which the defendant merely punched and kicked a victim in a manner that was unlikely to cause the victim's death absent a preexisting condition that was unknown to the defendant."
The evidence from Dr. Kowell likewise does not support the inference that appellant acted without conscious disregard of human life. Appellant asserts that mental illness can negate malice aforethought and support an involuntary manslaughter verdict. That is true as a general proposition. (See, e.g., People v. Rogers (2006) 39 Cal.4th 826, 884; People v. Halvorsen (2007) 42 Cal.4th 379, 414.) The evidence appellant cites, however, does not establish that she suffered from a mental illness that affected her ability to appreciate the life-endangering nature of three gunshots fired at close range. Dr. Kowell testified that certain portions of appellant's brain were smaller in volume than normal. He further testified that people with damage to those brain areas may experience anxiety, depression, and mood swings; may be quick to anger; and may have impaired memory and "goal directed decision making process." No reasonable juror could infer from this testimony that appellant, whose mental status Dr. Kowell assessed as "one point below the lower margin of normal," lacked the ability to harbor malice aforethought or appreciate the danger of her actions. Inferences must be based on evidence, not suspicion, speculation, supposition, surmise, conjecture, imagination, or guesswork (People v. Davis (2013) 57 Cal.4th 353, 360); one or more of the latter would be required to bridge the gap between Dr. Kowell's testimony and appellant's desired inference.
The same is true of Dr. Baca's testimony that "we lose 30 percent of our thinking ability" in a state of crisis, and that such effect would be compounded in an individual with traumatic brain injury. It is unclear from Dr. Baca's testimony what sort of thinking ability suffers, what appellant's baseline level of that ability may have been, or how any reduction may have affected her ability to act with malice or regard of human life. No reasonable juror could conclude from Dr. Baca's testimony that appellant was incapable of acting with malice.
Even crediting the cited testimony in its entirety, as we must for purposes of this review, there was no substantial evidence from which a reasonable juror could entertain a reasonable doubt that appellant acted in conscious disregard of the risk her conduct posed to Alejandre's life. The trial court accordingly did not err by not providing the jury with an involuntary manslaughter instruction.
II. Firearm Enhancement
The information in this case charged appellant only with murder and firearm enhancements applicable to that crime, those set forth in section 12022.53, subdivisions (b), (c), and (d). (See § 12022.53, subd. (a)(1).) The jury convicted appellant of the uncharged, lesser included offense of voluntary manslaughter, and found true a firearm enhancement applicable to that offense, the one set forth in section 12022.5, subdivision (a). Appellant's counsel did not object to the jury instructions or verdict forms, or raise any objection to the section 12022.5 enhancement at sentencing.
Appellant now contends that the section 12022.5 enhancement rendered her sentence unauthorized and must be stricken, because section 12022.5 was not pled in the information. The imposition of an unpled sentence enhancement does not render a sentence "unauthorized" such that the issue may be raised and corrected for the first time on appeal. (People v. Anderson (2020) 9 Cal.5th 946, 962 (Anderson).) Appellant suggests that her claim remains cognizable, however, because the trial court made an error affecting an important issue of constitutional law or a substantial right. (See id. at pp. 962-963.) As respondent does not argue forfeiture, and we may reach the merits of forfeited claims that affect an appellant's substantial rights (id. at p. 963), we address the merits and conclude the trial court did not err.
Appellant acknowledges that there is authority adverse to her position. In People v. Strickland (1974) 11 Cal.3d 946, 951 (Strickland), the defendant was charged with murder but convicted of voluntary manslaughter; the jury also found that he used a firearm. The Supreme Court concluded that the enhancement in then-section 12022.5, which, like current 12022.53, applied only to a list of enumerated felonies including murder, did not apply to the defendant. (Id. at p. 961.) However, it found that he was "nevertheless subject to additional punishment under [then-]section 12022 of the Penal Code because of his having been armed with a deadly weapon at the time he committed the crime of voluntary manslaughter, a felony." (Ibid.) The court reasoned that both enhancements, analogous to today's section 12022.53 and 12022.5, "'do not define a crime or offense but relate to the penalty to be imposed under certain circumstances. Thus section 12022 is not a lesser included offense under 12022.5 but section 12022 would be applicable in any case in which 12022.5 applies. Basically 12022.5 is a limited application of section 12022 with a heavier penalty. In the present case, appellant did not come within the provisions of section 12022.5, as the crime of which he was convicted was not specified in that section, but the jury did find that he used and thus was armed with a firearm, a shotgun, at the time the offense was committed. Appellant was charged in the commission [sic] with the use of a firearm under section 12022.5, thus had notice that his conduct [could] also be in violation of section 12022.'" (Ibid., quoting People v. Provencher (1973) 33 Cal.App.3d 546, 549-550.)
More recently, People v. Fialho (2014) 229 Cal.App.4th 1389, 1397 (Fialho), held that Strickland was not "legislatively overruled by the enactment of the current version of section 1170.1, subdivision (e)." That statute, on which appellant here relies, provides that "[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 1170.1, subd. (e).) Appellant contends that section 1170.1, subdivision (e), coupled with "bedrock principle[s]" of procedural due process, bars the application of the unpled section 12022.5 enhancement in this case. Fialho rejected this contention, and so do we.
As explained in Fialho, "section 1170.1, subdivision (e) does not require the prosecution to include specific statutory references for enhancement allegations. It is well-settled that only the factual allegations underlying an offense or enhancement must be pleaded, unless the relevant statute provides otherwise." (Fialho, supra, 229 Cal.App.4th at p. 1397.) The Fialho court noted that "the information pleaded all the facts necessary for the former section 12022.5 enhancements in the section 12022.53 allegations." (Ibid., fn. omitted.) Fialho further reasoned that because the prosecution is not required to plead lesser included offenses, "it would be incongruous to require the prosecution to plead lesser included enhancements that would apply only to lesser included offenses." (Id. at p. 1398.) Fialho additionally held that "[w]here the jury finds the defendant guilty of voluntary manslaughter as a lesser included offense to murder and finds true a firearm enhancement (§ 12022.53, subd. (d)) that was applicable only to murder, it will be harmless error to impose an uncharged lesser included firearm enhancement (former § 12022.5, subd. (a)) that applies to the lesser included offense of voluntary manslaughter." (Fialho, supra, 229 Cal.App.4th at p. 1398.)
We reject appellant's suggestion that these cases were undermined by People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen) and Anderson, supra, 9 Cal.5th at p. 953. Nguyen, expressly "assume[d], without deciding, that Fialho correctly states the law with regard to lesser included enhancements." (Nguyen, supra, 18 Cal.App.5th at p. 269.) It further stated that "[t]he fact that the prosecution alleges the greatest potentially available enhancement does not suggest that it has made a discretionary charging decision to forgo a lesser included enhancement, if the greater turns out to be unavailable." (Ibid.) The situation in Nguyen was "significantly different" by the court's own recognition, because the prosecution there failed to allege that the defendant's prior conviction qualified as a five-year serious felony conviction enhancement and instead "affirmatively indicated that the prior conviction was being pleaded solely for the purposes of the three strikes law." (Id. at pp. 266, 269.) Nguyen held that the defendant lacked notice of the enhancement, rendering his sentence unauthorized. (See id. at pp. 270-272.) Nguyen is not applicable.
Anderson considered whether a trial court properly imposed enhancements of 25-years-to-life under section 12022.53, subdivisions (d) and (e) on defendant's five robbery convictions after failing to allege those enhancements in the information. (Anderson, supra, 9 Cal.5th at pp. 949-950.) The court held that the defendant did not have adequate notice of those enhancements under section 1170.1, subdivision (e). (Id. at p. 955.) In doing so, it relied upon People v. Mancebo (2002) 27 Cal.4th 735, which held a multiple victim enhancement under the One Strike law must be pled and proved. Anderson explained that "the reasoning of Mancebo applies equally to a sentence enhancement imposed under section 12022.53" and entitled Anderson "to a pleading that provided him with fair notice that he faced 25-year-to-life enhancements under section 12022.53(e) as to each charged robbery offense." (Anderson, supra, 9 Cal.5th at p. 955.) Here, unlike Anderson and Nguyen, appellant had notice that firearm enhancements were at issue; section 12022.53 enhancements were alleged in the information. "To require that a specific lesser included enhancement code section be pleaded before a lesser included enhancement can be imposed under such circumstances 'would improperly elevate form over substance.'" (Fialho, supra, 229 Cal.App.4th at p. 1398.) Appellant had notice that she was subject to the lengthy firearm enhancements applicable to murder. The application of a lesser but substantively analogous enhancement to appellant's voluntary manslaughter conviction was not error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.