Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle R. Rosenblatt, Judge, Los Angeles County Super. Ct. No. GA057243 c/w BA256540
Jesse N. Robles for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
SPENCER, P. J.
INTRODUCTION
Defendant Jose de Jesus Sanchez appeals from a judgment of conviction entered after a jury trial. Defendant’s conviction in case number GA057243 arose out of an incident in which a vehicle he was driving struck another vehicle, killing Judith Cope and injuring John Cope, and struck a vehicle driven by Christine Alton.
Defendant was charged in count 1 with murder (Pen. Code, § 187, subd. (a)) and in count 2 with gross vehicular manslaughter while intoxicated (id., § 191.5, subd. (a)) in connection with the death of Judith Cope. Defendant was charged in count 3 with driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), in count 4 with assault with a deadly weapon by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)), and in count 5 with mayhem (id., § 203), in connection with the injury of John Cope. Defendant was charged in count 6 with assault with a deadly weapon by means likely to cause great bodily injury (id., § 245, subd. (a)(1)) on Christine Alton. Finally, in count 7, defendant was charged with leaving the scene of an accident (Veh. Code, § 20001, subd. (a)).
The jury convicted defendant on count 1 of the lesser offenses of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and vehicular manslaughter (id., § 192, subd. (c)(1)), and on count 2 of the lesser offense of vehicular manslaughter (ibid.) in the death of Judith Cope. The jury found defendant not guilty on counts 3 and 5 but convicted him on count 4 of assault with a deadly weapon on John Cope. It also found true the allegation that defendant personally inflicted great bodily injury on John Cope (id., § 12022.7, subd. (a)). The jury found defendant guilty of assault with a deadly weapon on Christine Alton on count 6. It found defendant not guilty on count 7.
Defendant admitted a prior serious felony conviction (Pen. Code, §§ 667, subds. (a)(1), (b)-(i), 1170.12). The trial court sentenced defendant to 12 years on count 1 and stayed sentence on count 2 pursuant to Penal Code section 654. The court imposed two years each on counts 4 and 6, adding an additional year for the infliction of great bodily injury enhancement. The court imposed a five-year enhancement for defendant’s prior serious felony conviction. It also imposed an additional year for a probation violation in a prior case, number BA256540, for a total state prison term of 23 years.
Although defendant was convicted in case number BA256540 of assault with a firearm under subdivision (a)(2) of section 245, the abstract of judgment reflects a conviction of assault with a deadly weapon under subdivision (a)(1) of section 245. The abstract of judgment therefore must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
On appeal, defendant challenges the trial court’s refusal to instruct the jury that the affirmative defense of duress applied to the charges of voluntary manslaughter and vehicular manslaughter. We reject his contentions and affirm the judgment.
FACTS
On the afternoon of May 1, 2004, defendant picked up his friend, Jose Villasenor (Villasenor) in his Ford Expedition. They drove around East Los Angeles, making a few stops. During this time, they smoked marijuana and drank beer.
As they were driving on Huntington Drive toward Eastern Avenue, a truck pulled up alongside the Expedition. Three young men who looked like gang members were inside. They asked, “Where you from?” Villasenor told defendant to say nothing, but defendant responded, “Cypress Park.” The men began shooting at them. Defendant hit the gas pedal and sped through the Eastern Avenue intersection.
Believing that the truck was pursuing them, defendant continued speeding down Huntington Drive. After a few blocks, Villasenor looked back and saw that the truck was not following them. He told defendant repeatedly that the truck was not following them, and defendant needed to slow down before he killed someone. Defendant insisted that the truck was still chasing them and did not slow down.
The Expedition struck a catering truck. Its passenger-side rearview mirror was knocked back into the Expedition, where it hit Villasenor in the face. Villasenor yelled at defendant to pull over because he was going to kill someone. Defendant insisted that the truck was still chasing them and they needed to get Villasenor to the hospital. He continued speeding down Huntington Drive, not stopping or slowing for red lights, weaving in and out of traffic.
Defendant turned onto Marengo Avenue. Villasenor reached for the steering wheel. Defendant pushed him away and accelerated, speeding through numerous stop signs. Villasenor continued telling defendant to stop but to no avail. At Oak Street, defendant sped through the intersection so fast that the Expedition became airborne, and Villasenor hit his head on the roof of the vehicle. Defendant was sitting back in his seat, one hand on the steering wheel, smiling, as he continued driving at 65 to 75 miles per hour. At that point, there were no vehicles behind the Expedition.
Christine Alton had stopped her car at the intersection of Marengo Avenue and Monterey Road. As she pulled into the intersection, she saw the Expedition approaching at a high rate of speed. It ran through the stop sign and struck her car, sending it spinning to the curb. Alton was cut and bruised as a result of the collision.
Judith Cope was driving her car toward the intersection of Marengo Avenue and Monterey Road. Her son John was in the front passenger seat. After striking Alton’s car, defendant’s Expedition began rolling over and struck Cope’s car. It pushed Cope’s car back almost 70 feet and continued sliding another 20 feet. Cope died of multiple internal injuries, while John suffered broken bones and dislocations, bruising and lacerations.
Four months earlier, defendant had been placed on probation for three years following a guilty plea in a case arising from a 2003 incident in Orange County. Defendant was arrested after leading police on a high speed chase. The arresting officer noticed a strong odor of marijuana in defendant’s vehicle. The conditions of defendant’s probation included not using alcohol or controlled substances and not driving a motor vehicle with alcohol or controlled substances in his system.
DISCUSSION
The trial court instructed the jury on duress pursuant to CALJIC No. 4.40 as follows: “A person is not guilty of a crime other than Murder when he engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances:
“1. Where the threats and menaces are such that they would cause a reasonable person to fear that his life would be in imminent danger if he did not engage in the conduct charged, and
“2. If this person then actually believed that his life was so endangered.
“This rule does not apply to threats, menaces, and fear of future danger to his life, nor does it apply to the crime of Murder, which is charged in Count 1.”
During deliberations, the jury submitted the following request: “Regarding Instruction 4.40 . . . , does this instruction apply to the lesser crimes in Count 1 (Voluntary Manslaughter and Vehicular Manslaughter) as well as to the crime of Murder[?]” The trial court responded: “Instruction 4.40 does not apply to the crime of Murder as charged in Count 1, nor does it apply to any of the lesser crimes to Count 1, i.e., Voluntary Manslaughter or Vehicular Manslaughter.”
Defendant contends that duress is a defense to the crimes of voluntary and vehicular manslaughter, therefore the trial court erred in instructing the jury that CALJIC No. 4.40 was inapplicable to those crimes. We need not resolve defendant’s contention, in that, as the People point out, any error was harmless beyond a reasonable doubt.
The jury convicted defendant on counts 4 and 6 of assault with a deadly weapon on John Cope and Christine Alton. In doing so, it rejected the defense of duress, which applied to the crime of assault with a deadly weapon. Inasmuch as the assaults on John Cope and Christine Alton arose out of the same transaction as the death of Judith Cope, the jury necessarily rejected the defense of duress as to the charges arising from her death. This being the case, no conceivable prejudice arose from the instruction that duress was not a defense to voluntary and vehicular manslaughter (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99, fn. 31), and reversal is not required (People v. Swain (1996) 12 Cal.4th 593, 607).
The judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment reflecting a conviction in case number BA256540 of assault with a firearm under section 245, subdivision (a)(2), and to forward a copy to the Department of Corrections.
We concur: VOGEL, J., MALLANO, J.