Opinion
A135702
03-13-2014
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County
Super. Ct. No. SC070813A)
Ignacio Sanchez was convicted, following a jury trial, of attempted murder, assault with a semiautomatic firearm, and making terrorist threats. On appeal, he contends the trial court erred when it (1) failed to instruct the jury sua sponte on the defense of accident; (2) refused to instruct the jury on the heat of passion theory of voluntary manslaughter; and (3) refused to stay the sentence on the assault with a firearm conviction under section 654. We shall stay the six-year concurrent sentence imposed on the assault conviction, but shall otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with attempted murder (Pen. Code, §§ 664/187, subd. (a)—count one); assault with a semiautomatic firearm (§ 245, subd. (b)—count two); and threatening to commit a crime that would result in death or great bodily injury (§ 422—count three). Count one included allegations that appellant personally and intentionally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)); that he personally used a deadly weapon, a knife (§ 12022, subd. (b)); and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Count two included allegations that he personally used a firearm (§ 12022.5, subd. (a)) and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury found appellant guilty of all charges and found all of the enhancement allegations to be true.
On June 5, 2012, the trial court sentenced appellant to a total term of 32 years to life in state prison.
On June 12, 2012, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Juan Antonio Haro-Ortiz (Ortiz) testified that he had worked at a Target store with appellant's partner, Veronica Chavez. Two or three months before the incident leading to appellant's arrest, Ortiz and Chavez had an affair, which lasted about a month. When the affair started, Chavez told him that she and appellant were no longer living together. During the month of the affair, Ortiz and Chavez phoned and texted each other. The text messages were sometimes affectionate or sexual. After the affair ended, both Ortiz and Chavez changed their phone numbers, and neither gave the other the new number.
On November 12, 2009, Ortiz was living in Redwood City with his wife and two young children. He left his house at 10:00 p.m., planning to drive to his job at Target. He walked to his truck, which was parked outside his house, got into the driver's seat, and put the key into the ignition. Ortiz then saw a shadow movement, turned around, and saw a person with his face covered pointing a gun at him. As soon as Ortiz turned around, he heard a gunshot. Ortiz moved backward and then heard another shot. The person came up to the truck and attempted to open the truck door while Ortiz tried to hold it shut. The sweatshirt the person had been holding over his face fell and Ortiz saw that it was appellant, whom he had seen several times in the Target parking lot.
Ortiz, who hoped to escape, opened the truck door, got out, and said to appellant, " 'Hey, calm down. Let's talk.' " Appellant pointed the gun at his stomach and said in a calm voice, " 'I'm going to kill you.' " Ortiz pushed appellant's arm away from his stomach several times, so the gun would not be pointing at him, until finally appellant pointed the gun again at his stomach, and said, " 'I'm going to fucking do you in.' " Ortiz managed to push appellant's hand down as he shot, and the bullet hit Ortiz in the leg. Ortiz saw appellant pull the trigger and believed appellant shot him on purpose.
After he was shot, Ortiz screamed and fell to the ground. He asked appellant not to kill him and to think about their families. Appellant then came closer and pointed the gun at him again. Appellant pulled the trigger and Ortiz heard two sounds "like click, click" coming from the gun. Ortiz started moving backwards on the ground, thinking appellant was out of bullets. Appellant pulled out a knife and started stabbing him. He no longer had the energy to defend himself. He believed appellant stabbed him about 15 times altogether, in his head, face, ribs, arm, back, and chest. At some point, Ortiz grabbed the blade of the knife with his hand, but appellant pulled the knife away, cutting Ortiz's fingers. During the attack, Ortiz was crying and yelling, and appellant continued to say that he was going to kill Ortiz.
Ortiz was not aware that someone else had arrived at the scene until he heard someone tell him to stand up. With great difficulty, he walked back to his house. Before he got to his house, he saw appellant's van drive away. He was taken to Stanford Hospital, where he remained for a week. As a result of the attack, the bone over Ortiz's left eye was permanently damaged and he lost strength in the leg that was shot.
Immediately after the incident, Ortiz told police that the man who attacked him was Veronica Chavez's husband and that Chavez was a coworker at Target. He said he thought appellant might have believed that he and Chavez were having an affair, but initially denied that they had in fact had an affair.
Ortiz's landlord, Marciel Sampson, testified that, on the night of the incident, Ortiz and his family were renting an apartment in Sampson's house. Sampson was in bed when he heard three noises outside; his wife said it was three shots. Sampson then heard a knock on the door and someone calling his name. When he opened the door, Ortiz, whose face was bloody, collapsed on his doorstep. Ortiz said he was hurt and gave Sampson two names. Sampson called the police. Sampson gave police the recordings from his four home surveillance video cameras, which were working that night.
The footage from Sampson's video cameras showed a man getting into his vehicle and closing the door. Four seconds later, the door is opened again and, four seconds after that, a muzzle flash occurred. It was possible that there were additional muzzle flashes that were not captured by the cameras because of the slow speed at which the cameras recorded or because they were obscured or out of view of the cameras.
Ortiz's neighbor, Noe Vargas, testified that he heard three gunshots, and then heard a banging noise. He went outside to investigate and saw two people struggling next to a van. There was a man who was hurt on the ground and another man with a gun was bending over him. The man on the bottom was grabbing the free arm of the other man (the arm not holding the gun), "like trying to protect himself and struggling." Vargas saw the man on top point the gun at the other man, trying to shoot him, but the bullets would not come out, and the gun made the sounds, "click, click, click" as he pulled the trigger. Vargas recalled telling police that he also saw the man with the gun striking the man below him, but he did not remember if he was using his hand or something that was in his hand to do so. Vargas heard the injured man on the bottom repeatedly yell, "promocion," which in Spanish means something like "colleague." He never saw the man on the bottom try to hit the other man. He was only defending himself.
Vargas watched the struggle briefly before he said, " 'Hey, what's going on?' " The man with the gun looked at Vargas, stopped hurting the man below him, and walked to his car. He threw something inside the car, started the engine, and drove away. The injured man got up and yelled for help. He also said that he knew the man who had shot at him, and that the man's wife worked at Target.
When he later viewed a photo lineup, Vargas selected someone other than appellant as the gunman.
When Ortiz arrived at the emergency room at Stanford University Hospital on the night of the incident, he was in critical condition. His blood pressure was low, he was not breathing well, and he was suffering from very severe injuries. A large stab wound to his chest had collapsed one of his lungs. He also had multiple other stab wounds to his head, face, chest, and left hand, and a gunshot wound to his left leg. In all, he had approximately 15 to 20 separate injuries, which required nearly 100 sutures to close.
Dr. Peter Benson, a forensic pathologist, detailed Ortiz's injuries, testifying that the gunshot wound entered the front and exited the back of Ortiz's left thigh. That injury caused permanent nerve damage. There was a cluster of sharp force injuries on his forehead, a gaping wound on the bridge of his nose, and two cuts on his chin. There was a gaping stab wound to the left chest that penetrated the left lung, which was, by itself, a potentially lethal injury. There were two stab wounds to the left shoulder area, another stab wound to the back of the left upper arm, a number of sharp force injuries to the left hand, and cuts and abrasions to the right hand. The injuries to Ortiz's hands were "highly characteristic" of defensive wounds.
Veronica Chavez testified that she and appellant had been together for 10 years. Their relationship was not a happy one and they both had affairs with other people. She stayed with appellant because of their three children.
Beginning in about June 2009, Chavez had a two-month affair with Antonio Ortiz, with whom she worked at Target. During the affair, they talked on the telephone and sent each other text messages, some of which were sexually explicit. After the affair ended, Chavez changed her phone number and did not give Ortiz the new number; he never contacted her at the new number. During her affair with Ortiz, Chavez broke up with appellant and kicked him out of the house. Appellant was gone about two weeks before he moved back in. After she ended her relationship with Ortiz, Chavez began another relationship with a man named Juan Carlos, from whom she received sexually explicit text messages at her new phone number.
When appellant returned home, he asked whether Chavez had had an affair while he was gone. She also saw him looking at her phone more than once, including at least one time—about a month before the shooting of Ortiz—when there was a sexually explicit message from Juan Carlos on it.
Shortly after appellant's arrest, his aunt, Isabel Torres, called Chavez and asked her to come to Torres's house. When Chavez arrived, Torres was very upset and said that what had happened was Chavez's fault. She told Chavez that, a couple of months before Ortiz was shot, appellant had come to her house to ask for a gun so he could look for Ortiz.
In subsequent testimony, Torres denied that appellant had come to her house two months before the incident on November 12, 2009, saying he wanted a gun to go look for Ortiz. She also denied that she had told Chavez this when Chavez came to her house shortly after appellant's arrest. On cross-examination, Torres acknowledged that she loved appellant because he was part of her family, but denied that she was lying to protect him.
On cross-examination, Chavez acknowledged that, after she ended her affair with Ortiz , she still saw him at work and he repeatedly asked her to get back together. The last time he asked this was on Halloween of 2009. He wanted to engage in a casual sexual relationship with her. He never expressed hostility toward appellant, although, when Chavez heard about the incident in which Ortiz was injured, she initially thought he and appellant had been in a fight.
Genaro Hernandez, a friend of appellant's, testified under a grant of immunity. He testified that, at approximately 10:00 p.m. on the night of November 12, 2009, appellant came to his house and asked if he could borrow some clothes and take a shower. Appellant gave Hernandez the clothes he had been wearing, and Hernandez's wife laundered them. Hernandez gave appellant a complete change of clothes, including shoes. Appellant also gave him a gun, a knife, and a bloody paper towel or napkin, and asked him to "take care of" them. Appellant told Hernandez everything was "fine." Hernandez unloaded the gun, and put the things appellant had given him, including a casing, in a bag in his laundry room. The next day, Hernandez wiped off the gun and washed blood off the knife. He could not reach appellant after that. A couple of days later, the police contacted Hernandez and he gave them the items appellant had left with him.
When appellant was subsequently arrested, he gave the name Rudy Negron Robles and provided what appeared to be a valid California driver's license in that name. A criminalist searched appellant's van and found a box of ammunition with six rounds missing. DNA from the bloody napkin matched Ortiz's DNA, with the probability of a random match being one in 90 billion. There was a mixture of DNA from at least two people on the handle of the knife; Ortiz was the major contributor and appellant was excluded. Ortiz could have been a contributor to a partial profile on the knife blade, with the probability of a random match being one in 23,000.
Criminalist Eugene Banga-An, who worked as a firearms and toolmark examiner for the San Mateo County Sheriff's Forensic Laboratory, testified that he had examined a .380 auto Grendel semiautomatic pistol, which could hold a maximum of 12 rounds. It was a low quality firearm and was in poor condition. It failed to operate properly 14 out of 30 times Banga-An test-fired it, malfunctioning in two ways. Both malfunctions involved the improper reloading of the gun after a shot was fired, such that pulling the trigger would produce clicking sounds, but no bullet would fire. In both situations, the gun would have to be manually adjusted before it could fire again. In addition, for the gun to fire, it was necessary to pull the trigger. The design of the gun made it unusually hard to pull the trigger, making it more difficult to fire than a typical semiautomatic firearm. Banga-An believed that two bullet casings recovered from the scene of the shooting had been fired from this gun.
Defense Case
Appellant testified that he and Veronica Chavez had been a couple since 2000. They had three children together. In June or July of 2009, he and Chavez argued, and appellant moved out of their house for 10 days. During that separation, Chavez told him that "she was getting to know a person." After the 10 days, he bought roses and a ring for Chavez, returned to the house, and asked her to marry him. Chavez accepted his proposal. She said she had lied when she said she was getting to know someone else and had said it to make him feel bad.
After that, appellant was happy, until he started looking at Chavez's phone and saw that one unknown phone number would appear for three days, then another. Appellant went to MetroPCS to obtain the names of the people who were calling, and the names included Antonio Haro, Antonio Ortiz, and another name. He then started seeing text messages on Chavez's phone, and suspected that she was cheating on him. He therefore hid a video camera under the seat of her car to record audio. He later listened to the audio recording and heard that she had met with a person named Antonio outside of Antonio's house. Antonio told Chavez to leave appellant and that he could "take care of appellant. Appellant took these last words as a threat.
Because he was concerned about his safety, appellant obtained a gun and ammunition from a coworker in late August or early September 2009. He denied speaking to Isabel Torres about a gun or saying that he wanted a gun to hunt for Antonio. Between September and November 2009, he did not see text messages on Chavez's phone, but saw different phone numbers. Although he and Chavez were planning their wedding, he was suspicious of her and felt very depressed. He was also concerned that Antonio might do something violent. Shortly before the incident with Ortiz, appellant saw two suspicious text messages on Chavez's phone, which included poems and, at the end of each message, the name, "Anthony @ Michoacán."
On the night of November 12, 2009, appellant could not sleep and decided to "confront that person because I wanted to tell him to stay away from my wife, for him to stop, that he wouldn't continue bothering her." He brought the gun because of the threat and the possibility that Antonio would have a weapon or "friends or cousins with him there." Appellant had no plan to harm Ortiz and just intended to talk to him.
Appellant drove to Ortiz's house and waited outside. After Ortiz got into his car and closed the door, appellant walked up, opened the car door, and moved backward. He did not have any clothing over his face and the gun was in his pocket. Appellant told Ortiz "that I already knew and that I wanted him to be away from my wife." Ortiz quickly got out of his car and came toward appellant with his hands raised. Appellant told him to stop, but he kept walking toward appellant. Appellant therefore took the gun out of his pocket. Ortiz then grabbed appellant's right hand, which was holding the gun, and appellant tried to pull his hand and the gun away. At that point, the gun fired accidentally; appellant did not pull the trigger.
Appellant and Ortiz continued to struggle. Eventually, as appellant held Ortiz's shoulder, they both fell to the ground. This caused appellant to hit Ortiz in the face with the gun about five times. On the ground, appellant was on top of Ortiz and they continued to struggle. Appellant never regained control of the gun during the struggle, although the gun moved from his right hand to his left hand. Then, while both men had their hands on the gun, it went off again.
When appellant realized he could not get the gun away from Ortiz, he took a knife out of his pocket and hit Ortiz on the side of the head. He did not want to harm Ortiz. He "just wanted to grab the gun and go away." When Ortiz finally let go of the gun, the incident ended and appellant left in his car. Appellant had not intended to hurt or kill Ortiz during the incident, but only to maintain control of the gun. He never said he was going to kill Ortiz. Nor did he ever intentionally pull the trigger on the gun.
On cross-examination, appellant acknowledged that, during the incident, Ortiz was screaming, "Don't kill me. I have children." But his intention was not to kill Ortiz, and the gun fired accidentally all three times. In addition, he only inflicted two knife wounds during the struggle, to Ortiz's head and shoulder. He did not inflict the stab wound to Ortiz's chest.
Appellant also acknowledged that, in his first interview with police on November 13, 2009, he denied any involvement in the incident with Ortiz. He lied during that interview because he did not want to get his friend, Genaro Hernandez—to whom he had given his clothes and the weapons—into trouble and because he did not want to get himself into trouble either. The videotaped interview was played for the jury.
On November 16, 2009, appellant participated in a second videotaped interview with police, which was also played for the jury. In that interview, he eventually admitted driving to Ortiz's house, waiting outside for him, and confronting him in his car. He also told police that, after Ortiz came at him, he pulled out a gun and shot once in Ortiz's direction. He said that Ortiz, who was lying on his back with appellant standing over him, was hitting him. He therefore stabbed Ortiz once. He stopped stabbing Ortiz because he "knew that what [he] was doing was wrong." He then got in his van and drove away. He said he did not intend to kill Ortiz, but Ortiz got aggressive. After first claiming that he had thrown away the weapons and burnt the clothing, he admitted that he had given the weapons to a friend and told him to throw them away. Appellant also admitted that he had been planning to confront Ortiz for a week before going to his house. At trial, appellant testified that he did not understand everything the police said during the second interview because he had not slept or eaten.
John Jacobson, an independent forensic scientist, testified that he had reviewed two reports on the gun involved in the shooting in this case, and criticized prosecution criminalist Banga-An's examination of the gun and related reports. From reading the reports, Jacobson believed that certain characteristics of the firearm rendered it dangerous because it could misfire or hang fire, i.e., a shot could be fired without a trigger pull. The evidence in the reports led him to believe that the gun had not been subjected to multiple trigger pulls.
DISCUSSION
I. Trial Court's Failure to Instruct on the Defense of Accident
In his opening brief, appellant contended the trial court erred when it failed to instruct the jury sua sponte with CALCRIM No. 3404, on the defense of accident. Respondent then argued in its brief that this claim is precluded by the holding in People v. Anderson (2011) 51 Cal.4th 989, 997-998 (Anderson), in which the California Supreme Court held that trial courts generally do not have a duty to instruct sua sponte on accident. In his reply brief, appellant conceded that Anderson had disapproved the case appellant had relied upon, People v. Gonzales (1999) 74 Cal.App.4th 382 (see Anderson, at p. 998, fn. 3), and that "Anderson appears to control."
CALCRIM No. 3404 states in relevant part: "[The defendant is not guilty of [charged crime(s)] if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of [charged crime(s)] unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]"
As appellant has forthrightly acknowledged, because defense counsel did not ask the trial court to instruct the jury on the defense of accident, the court had no sua sponte duty to give CALCRIM No. 3404. (See Anderson, supra, 51 Cal.4th at pp. 996-998.)
Appellant does state that, while he understands that we must follow Supreme Court precedent (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), he "still makes this argument in the hope that he might someday obtain relief in the federal court on what he believes is his due process right to have a jury instructed on the defense of accident. [Citation.]"
II. Trial Court's Refusal to Instruct on the Heat of Passion
Theory of Voluntary Manslaughter
Appellant contends the trial court erred when it refused to instruct the jury on the heat of passion theory of voluntary manslaughter.
During the trial, defense counsel asked the trial court to instruct on attempted voluntary manslaughter under the theories of heat of passion and imperfect self-defense. The court agreed to instruct on the theory of imperfect self-defense, but refused to instruct the jury on heat of passion, explaining: "The evidence does not rise to the level of giving [an instruction on] the lesser included offense of voluntary manslaughter, heat of passion. There is insufficient evidence in the record to support the contention that there was sufficient provocation that was not too remote, and that, coupled with the defense offered through [appellant] himself, was a denial of any intent to kill Mr. Ortiz. I think it is inappropriate to give this lesser included offense instruction. This would mitigate an attempt to intentionally kill by a finding that there is a lack of malice. That is not what the evidence supports even by the defendant's own version of the events.
"This is distinct from the attempted voluntary manslaughter [instruction] based upon imperfect self-defense. It's a different theory and analysis all together.
"So there is an insufficient level of evidence in the record to support giving CALCRIM No. 603."
CALCRIM No. 603 provides: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.
"The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if:
"1 The defendant took at least one direct but ineffective step toward killing a person; "2 The defendant intended to kill that person;
"3 The defendant attempted the killing because (he/she) was provoked; "4 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; "AND
"5 The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or 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.
"In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.
"[If enough time passed between the provocation and the attempted killing for a person of average disposition to "cool off" and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.]
"The People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder."
" ' "Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. [Citation.]" [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] "But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' [citation], 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. Moye (2009) 47 Cal.4th 537, 549 (Moye).)
" ' "A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.]
" ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " [Citation.]' [Citation.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]' [Citation.] [¶] To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.] . . . ' "However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter. . . ." [Citation.]' [Citation.]" (Moye, supra, 47 Cal.4th at pp. 549-550.)
The trial court is required to instruct on all theories of a lesser included offense, such as voluntary manslaughter, that find substantial evidentiary support, but " 'the existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense . . . . [Citations.] "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could . . . conclude[]' " that the lesser offense, but not the greater, was committed. [Citations.]' [Citation.]" (Moye, supra, 47 Cal.4th at p. 553; accord, People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) "[S]ubstantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Breverman, at pp. 162-163.)
In the present case, appellant argues that, even though he claimed to have acted in self-defense, there was evidence—including the evidence regarding text messages he believed to be related to the prior affair, his testimony about an earlier overheard threat, and his testimony that Ortiz came at him with his arms raised on the night of the incident—which, together, demonstrated cumulative provocation and provided sufficient evidence to warrant a heat of passion instruction. We disagree.
First, the evidence presented at trial related to the subjective element of heat of passion was insufficient to warrant such an instruction. Although there was evidence that appellant's partner, Veronica Chavez, had had an affair with Ortiz and that appellant had seen Ortiz's phone number on Chavez's phone, the affair had ended months earlier. Appellant testified that he saw text messages from "Anthony," which included poems of some sort, a week before the incident and, in his second interview with police, admitted that he had been thinking about confronting Ortiz for a week before he did so. Appellant also testified that he obtained the gun used in the attack at least two months earlier because he was afraid for his safety after hearing Ortiz threaten him. This evidence showed that any passion that might have been aroused in appellant from prior provocation would necessarily have dissipated by the night of the incident. (See Moye, supra, 47 Cal.4th at p. 550 [" ' "if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter. . . ." [Citation.]' [Citation.]"].) Appellant's conduct was consistent with an attempt to kill Ortiz based on appellant's ongoing anger and a desire for vengeance, rather than on his being under " 'the actual influence of a strong passion' " induced by provocation. (Ibid.)
Appellant also testified that he only wanted to talk to Ortiz and that all of Ortiz's injuries resulted either from appellant's defensive response to Ortiz's aggressive behavior or from the accidental firing of the gun. This testimony did not support a heat of passion instruction either. The Supreme Court addressed a similar situation in Moye, in which the defendant's "only claim was that he acted out of self-defense in using [a baseball] bat to thwart [the victim's] continuing advances." (Moye, supra, 47 Cal.4th at p. 554.) As in Moye, "no principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether [appellant] subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter, and the evidence actually introduced on the point—the defendant's own testimony—was to the contrary." (Id. at p. 554; compare Breverman, supra, 19 Cal.4th at pp. 163-164 [where there was evidence that a "mob" of armed young men with hostile intent trespassed on defendant's property and acted in a menacing manner, which caused "immediate fear and panic" on defendant's part, a reasonable jury could find that defendant acted in the heat of passion]; People v. Berry (1976) 18 Cal.3d 509, 516 [although defendant had waited in apartment for 20 hours before killing his wife, evidence showed that a "long course of provocatory conduct" by his wife reached its "final culmination" in apartment and that "defendant killed in a state of uncontrollable rage"].)
In addition, the evidence presented at trial related to the objective element of heat of passion was insufficient to warrant such an instruction. The assertedly provocative conduct on Ortiz's part took place months earlier, except for two text messages from "Anthony," which appellant saw a week earlier. Neither these prior incidents, nor Ortiz's allegedly aggressive stance that night constituted "legally sufficient provocation to cause an ordinarily reasonable person to act out of a heat of passion," especially given the "cooling-off period" between the prior acts and appellant's attempt to kill Ortiz. (Moye, supra, 47 Cal.4th at pp. 551, 552.)
The evidence presented at trial thus was insufficient to support an instruction on the heat of passion theory of voluntary manslaughter. (See Moye, supra, 47 Cal.4th at p. 553; Breverman, supra, 19 Cal.4th at p. 162.)
III. Section 654
Appellant contends the trial court erred when it refused to stay the sentence on the assault with a semiautomatic firearm conviction under section 654. Respondent agrees.
The jury convicted appellant of one count of attempted murder (count one), and one count of assault with a semiautomatic firearm (count two). Prior to sentencing, defense counsel argued and the prosecutor conceded that the sentence on count two should be stayed, pursuant to section 654. At the sentencing hearing, the trial court expressed the belief "that the facts establish a distinct offense of [assault] separate from the attempted murder." It therefore imposed a sentence of 32 years to life on count one, the attempted murder, and a concurrent sentence of six years on count two, the assault with a semiautomatic firearm.
Section 654, subdivision (a), provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Our Supreme Court has long " 'interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions. [Citations.] . . . [E]xecution of the sentence for one of the offenses must be stayed.' [Citations.]" (People v. Mesa (2012) 54 Cal.4th 191, 195)
" ' " Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." [Citation.]' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.) We review a trial court's finding of more than one intent and objective for substantial evidence. (People v. Yang Vang (2010) 184 Cal.App.4th 912, 915-916.)
Here, as both parties observe, there was absolutely no evidence suggesting that appellant's intent and objective differed with respect to the assault charge and the attempted murder charge. Rather, the evidence showed only that he harbored a single intent and objective throughout the incident: to kill Ortiz. (See People v. Rodriguez, supra, 47 Cal.4th at p. 507.) Hence, because substantial evidence does not support a finding that appellant harbored multiple objectives as he attacked Ortiz with a gun and knife, the trial court should have stayed his sentence on count two, pursuant to section 654. (See People v. Yang Vang, supra, 184 Cal.App.4th at p. 916.)
DISPOSITION
The six-year concurrent sentence imposed on count two, assault with a semiautomatic firearm, is stayed. In all other respects, the judgment is affirmed.
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Kline, P.J.
We concur: __________
Richman, J.
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Brick, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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