Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Ct. No. BAF003430 Richard T. Fields, Judge.
McIntyre, Acting P. J.
A jury convicted Oscar Rafael Sanchez of the second-degree murder of Carlos Mendoza. He appeals, contending: (1) the trial court incorrectly instructed the jury; (2) the prosecutor committed prejudicial misconduct; (3) his counsel provided ineffective assistance; and (4) cumulative error compels reversal of the judgment. We find no prejudicial error warranting reversal of the conviction and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2004, Mendoza and James Johnson attended a wedding reception and a party after the reception. Johnson was carrying a loaded semi-automatic handgun for protection and he gave the gun to Mendoza at the party because he considered himself too drunk to carry it. Johnson watched Mendoza pull the clip from the gun, check to see that no round was chambered in the barrel of the gun, replace the clip, switch two safeties into the "on" position and place the gun into a leg pocket on Mendoza's pants.
At some point, Mendoza called Sanchez, his neighbor, to get some marijuana and the men decided to meet at Mendoza's home. Mendoza and Johnson arrived at the home shortly after 2:00 a.m. the following morning and they smoked amphetamine while they waited for Sanchez. About a half-hour later, Sanchez arrived at the home with Andrew Garcia, Francisco Sanchez (Francisco) and Julio Hernandez; the men talked and shared drinks, marijuana and amphetamine. At about 4:30 a.m., Johnson's girlfriend picked him up, but he decided to leave his gun with Mendoza.
Garcia, Francisco and Hernandez testified at trial, but gave differing accounts as to what transpired after Johnson left. Francisco, Sanchez's cousin, testified that after Johnson left, Mendoza and Sanchez fell over each other and Sanchez indicated with a hand sign that Mendoza had a gun. Francisco, Sanchez and Garcia then went outside to shoot a bow and arrow for about 15-20 minutes. During this time, Francisco claimed that Mendoza was "mad dogging" or staring at him, so he told Sanchez that they should leave. The four men went to Sanchez's home and Mendoza came over uninvited a short time later.
Francisco claimed that Mendoza continued to stare at him, pulled out a gun, "click[ed] it" and put it in Francisco's face. As Mendoza pulled the slide back, Francisco thought he was going to be killed. Sanchez then turned around, saw what was happening and said "what's up." As Mendoza turned and pointed the gun at Sanchez, Sanchez tried to grab the gun and the two men struggled over it. Sanchez then tripped Mendoza and fell on top of him as the men struggled for the gun. Francisco claimed that the gun fired as Sanchez tried to pull it away from Mendoza and that both men had their hands on the gun at the time.
Hernandez testified that after Johnson departed, he, Sanchez and Francisco went to Sanchez's home and that Mendoza later came over while Hernandez was in the kitchen cooking. While in the kitchen, Hernandez heard Sanchez say "'what, what's going on,'" wrestling and then a gun shot. After he heard the gun shot, Hernandez ran to the door and saw Sanchez getting to his feet and Mendoza on the ground. Hernandez thought Sanchez was holding the gun in his left hand when he got up, but believed that Sanchez was right-handed. When Hernandez asked what had happened, Sanchez replied that Mendoza had "tried to smoke [him]."
During an earlier police interview Hernandez denied being at Sanchez's home on the night of the incident. During that same interview, Hernandez informed police of Sanchez's claim that Mendoza had been watching Sanchez's house and wanted to mess with Sanchez's wife. At trial, however, Hernandez denied or could not remember making these statements.
The police interviewed Garcia, Sanchez's lifelong friend, before trial. During the first interview, Garcia stated that Mendoza "showed" the gun to Francisco and did not point it at Francisco. Sanchez then grabbed the gun away from Mendoza, showed Francisco the gun, told Francisco it was loaded, stated "this is the way you shoot a gun" and then fired it. Garcia told police that Sanchez and Mendoza were not fighting for the gun and when he asked Sanchez why he had shot Mendoza, Sanchez replied that he acted to defend Francisco. During a second interview, Garcia stated that Sanchez acted to defend himself and the other people in the room. He also claimed that he was on drugs at the time of incident, did not remember anything and did not know what happened, but that Sanchez and Mendoza had struggled for possession of the gun.
At trial, however, Garcia claimed that he either did not remember his earlier statements to detectives or did not agree with the statements. He denied seeing Sanchez grab the gun and did not remember telling detectives that Sanchez had grabbed the gun. He also claimed that he did not know who had fired the gun and could not remember telling officers that Sanchez had said "this is the way you shoot a gun." Garcia testified that Mendoza took out the gun and appeared to point it at Francisco, but when pressed as to whether Mendoza actually pointed the gun at Francisco, Garcia claimed he had been drunk and did not know.
Despite inconsistencies regarding the shooting, Garcia, Francisco and Hernandez gave similar accounts about the subsequent events. Francisco and Hernandez testified that they wrapped Mendoza's body in a rug and put the body in the back of a truck. Francisco stated that Hernandez drove the truck while he followed in a gray Thunderbird driven by Garcia. The men tried to push the truck off the edge of a cliff, but they ultimately gave up, left the truck and returned to the crime scene and then left. Garcia told a similar story to police during his first interview and at trial.
Garcia, Francisco and Hernandez pleaded guilty to being an accessory to murder. An information was filed charging Sanchez with murder and alleging that he personally used a handgun and intentionally discharged a firearm proximately causing great bodily harm. A jury found Sanchez guilty of second-degree murder, but not guilty of the enhancements. The trial court sentenced Sanchez to an indeterminate term of 15 years to life in prison. Sanchez appeals.
DISCUSSION
I. Alleged Instructional Error
A. Standard of Review and Waiver
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Mandrake (2000) 85 Cal.App.4th 579, 585.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Mussel white (1998) 17 Cal.4th 1216, 1248.) The absence of an essential element in one instruction may be supplied by another or cured in the light of the instructions as a whole; we must look to the entire charge, rather than merely one part, to determine whether error occurred. (Ibid.) Accordingly, to prevail on a claim that the jury instructions were misleading, the defendant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We also assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
Generally, a defendant who believes that an instruction is erroneous or requires clarification must request correction or clarification of the instruction to avoid waiving the issue on appeal. (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Nonetheless, we will reach the issue if the defendant's substantial rights were affected by the error. (Pen. Code, § 1259; People v. Coffman (2004) 34 Cal.4th 1, 103, fn. 34.) Substantial rights are equated with a miscarriage of justice, which results if it is reasonably probable the defendant would have obtained a more favorable result had the jury been properly instructed. (Cal. Const., art. VI, § 13; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Here, Sanchez acknowledges that he did not object to the instructions in the trial court, but argues that we may nonetheless reach the issue because his substantial rights were affected by the alleged errors. (Pen. Code, § 1259.) In light of this argument and Sanchez's additional contention that, to the extent his challenges have been forfeited by counsel's failure to object, he received ineffective assistance of counsel, we will examine the claims on their merits.
B. Voluntary Manslaughter
Sanchez points out that CALJIC Nos. 8.11 (malice aforethought), 8.31 (second degree murder) and 8.40 (voluntary manslaughter) use almost the identical language to describe conscious disregard for human life, but use the definition for different purposes. He contends that the standard CALJIC instructions did not inform the jury that a killing is reduced to voluntary manslaughter if they find heat of passion, sudden quarrel or imperfect defense of self or others. Sanchez suggests the jury found him guilty of second degree murder without even considering whether the crime could have been voluntary manslaughter. A review of the instructions given belies Sanchez's contentions.
During closing argument, the trial court cautioned the jury to read the instructions carefully and to follow its instructions and not counsel's argument. The trial court properly instructed the jury as to the elements of murder in accordance with CALJIC Nos. 8.10 and 8.11. The jury was also instructed as to voluntary manslaughter (CALJIC Nos. 8.40 & 8.43), that voluntary manslaughter and involuntary manslaughter were lesser crimes to second degree murder (CALJIC No. 8.75), if it had reasonable doubt as to whether the crime was murder or the lesser-included offense of manslaughter, it had to resolve that doubt by finding the crime to be manslaughter rather than murder (CALJIC Nos. 8.72 & 8.75) and the People had the burden of proving beyond a reasonable doubt each of the elements of murder. (CALJIC No. 8.50.) These instructions also informed the jury the distinction between murder and manslaughter, ire., that manslaughter does not require malice and malice is absent if the act causing the death is done in the heat of passion, during a sudden quarrel or in the actual but unreasonable belief to defend against imminent peril to life or great bodily injury. (CALJIC No. 8.50.)
Finally, the court instructed the jurors to consider the instructions as a whole (CALJIC No. 1.01) and informed them that they had the discretion to choose the order in which they evaluated the crimes and the evidence and they might find it productive to reach tentative conclusions on all charged and lesser crimes before reaching any final verdict. (CALJIC No. 8.75.) By finding Sanchez guilty of second degree murder, the jury necessarily rejected the argument that Sanchez acted without malice, upon a sudden quarrel, in the heat of passion or in the actual but unreasonable belief that he needed to defend himself or another. When considered as a whole, the instructions given by the trial court were not inadequate or misleading and we refuse to speculate that the jury found Sanchez guilty of second degree murder without considering the lesser included offenses.
C. Involuntary Manslaughter
The trial court instructed the jury that: "Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter . . . . [¶] There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. [¶] A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life. [¶] . . . [W]within the meaning of this instruction, an unintentional killing in unreasonable self defense without malice aforethought and without an intent to kill and without conscious disregard for human life, is involuntary manslaughter and thus unlawful." (CALJIC No. 8.45.)
The trial court omitted from the instruction, the concepts that a killing is unlawful within the meaning of this instruction if it occurred during the commission of a misdemeanor or as a result of criminal negligence: "1. During the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission; or [¶] 2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection." (CALJIC No. 8.45.)
Sanchez asserts that the trial court erred by not providing a complete involuntary manslaughter instruction because the evidence supported a conclusion that he grabbed the gun without due caution and circumspection and this act led to the shooting. Defense counsel, however, agreed to the modification. Apart from any waiver and assuming, without deciding, that the trial court erred when it provided the jury with this truncated version of CALJIC No. 8.45, the assumed error was harmless because it is not reasonably probable Sanchez would have obtained a more favorable outcome had the jury been fully instructed on the omitted theories. (People v. Silverman (1998) 19 Cal.4th 142, 178; Watson, supra, 46 Cal.2d at p. 836.)
Under the instructions given to the jury, it would have acquitted Sanchez of murder and convicted him of involuntary manslaughter if it had found that he grabbed the gun without a subjective understanding that struggling for a loaded firearm could result in death. Accordingly, the omitted instructions would not have applied to a killing that occurred under the facts as found by the jury. Having determined that Sanchez harbored malice aforethought, no reasonable jury would have also made the contradictory findings required to support an involuntary manslaughter verdict under the omitted instructions, ire., that Sanchez acted without malice aforethought and without conscious disregard for life. Accordingly, the assumed error was harmless. (People v. Beardsley (1991) 53 Cal.3d 68, 86-87.)
II. Prosecutor Misconduct, Ineffective Assistance of Counsel and Cumulative Error
Sanchez asserts that the prosecution committed misconduct by repeatedly eliciting testimony from Garcia, Francisco and Hernandez that they had pleaded guilty to being accessories to murder; rather than just accessories after the fact. He claims the prosecutor compounded the error by telling the jury during closing argument that he personally believed that Sanchez had committed a "cold-blooded" murder.
Sanchez concedes that defense counsel did not object to any of the People's statements nor request an admonition from the trial court; accordingly, his claim of prosecutor misconduct is waived. (People v. Hill (1998) 17 Cal.4th 800, 820 [defendant may not complain on appeal of prosecutor misconduct unless in a timely fashion defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety].) However, Sanchez claims that counsel was ineffective for failing to object and we review his claims in this context.
A party claiming ineffective assistance of counsel bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurgle (2002) 28 Cal.4th 557, 610-611.) When an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsel's performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved of on other grounds in In re Missourian (1995) 9 Cal4th 535, 545, fn. 6.) Where trial counsel's reasons for challenged decisions do not appear in the record, we will find counsel ineffective only if there is no conceivable reason for counsel's acts or omissions. (People v. Weaver (2001) 26 Cal.4th 876, 926.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (Eng., In re Clark (1993) 5 Cal.4th 750, 766.)
Here, the record does not indicate why counsel did not object to the testimony of Garcia, Francisco and Hernandez regarding the exact nature of their guilty pleas, counsel made no statement regarding his tactics, nor was he asked for an explanation. Under these circumstances Sanchez is not entitled to relief on direct appeal and his remedy, if any, is by means of a petition for writ of habeas corpus. (People v. Mendoza Tell (1997) 15 Cal.4th 264, 266-267.)
Sanchez complains that counsel was ineffective for failing to object to the prosecutor's recitation of his personal beliefs. The trial court, however, sea sponge instructed the jury to disregard the prosecutor's personal beliefs about the case and to decide the matter solely upon the evidence presented. Absent evidence to the contrary, we presume the jurors followed the court's admonitions and instructions. (People v. Houston, supra, 130 Cal.App.4th at p. 312.) Accordingly, the failure to object to these remarks was not prejudicial.
Sanchez also argues he received ineffective assistance when his counsel failed to object to the omitted portions of the involuntary manslaughter jury instructions. Even assuming counsel erred, as discussed in section I(C), supra, the assumed error was not prejudicial and the lack of prejudice defeats Sanchez's claim of ineffective assistance of counsel.
Finally, we find no merit to Sanchez's cumulative error contention. As discussed above, the trial court did not commit any error and, even if it did, such errors were harmless individually, as well as cumulatively.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.