Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. SWF013086, Judith C. Clark, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Stacy Tyler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
A jury found defendant and appellant Deion Michael Thompson (hereafter defendant) guilty of voluntary manslaughter as a lesser included offense to the charged crime of first degree murder in connection with the shooting death of his stepfather, Eric White (count 1), and assault with a semiautomatic firearm on his mother, Lydia White, (count 2). The jury also found true the special allegations in connection with both counts that defendant personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a) and the special allegation in connection with count 2 that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless indicated otherwise.
Defendant raises various claims of error in this appeal, the details of which we recount, below, in our discussion of his claims. We conclude that defendant’s claims lack merit. Therefore, we will affirm the judgment.
FACTS
Defendant shot his stepfather and his mother on the night of August 8, 2005. According to his 911 call, defendant’s stepfather was “assaulting” defendant’s mother after she “got in the way” during an argument between defendant and his stepfather. When defendant saw his stepfather holding his mother down, defendant “went and got the gun,” pointed it at his stepfather and told him to leave. When his stepfather came toward him, defendant fired the gun. Eric White died as a result of two gunshot wounds, one of which was caused by a bullet that entered the back of his head. Defendant’s mother survived, although she was hit by a single bullet that entered her back, fractured her right shoulder blade, collapsed her left lung, and then lodged in her left arm.
When interviewed by two detectives from the sheriff’s department about three hours after the shooting, defendant said that he had gone to his mother’s house after spending the weekend with his girlfriend. In the evening his mother and stepfather barbequed in the front yard and drank cocktails while defendant watched television. Defendant’s stepfather and mother had several arguments, none of which was serious or violent, during the evening. Eventually his mother and stepfather came in the house. According to defendant, they both looked drunk. His stepfather came into the room where defendant was watching television and accused defendant of not doing the yard work he had asked defendant to do. When defendant responded that his stepfather had not asked him to do any yard work, his stepfather got angry. Defendant’s mother came into the room and encouraged the stepfather to go upstairs with her because he was drunk. Defendant got up from the couch, which the stepfather apparently took as a challenge, because he started to walk aggressively toward defendant while pounding one hand, which he had made into a fist, into his other hand and asking defendant, “What the fuck you gonna do?”
Defendant’s mother stepped between the two men, put her arms around defendant’s stepfather, and urged him to stop by saying, “This is my son. Eric, why . . . are you doing this?” Defendant’s stepfather said, “Fuck that. He’s grown. He’s grown.” Defendant in the meantime had backed away while his mother and stepfather struggled with each other. When his mother would not let go, defendant’s stepfather picked her up and “slammed” her into the door. Defendant’s mother cried out to the stepfather and asked him to stop. Defendant told his stepfather to get his hands off defendant’s mother; “Get the fuck away from her.” After his stepfather looked at him “with a real angry face,” as if he were going to come at him again, defendant ran upstairs and got his mother’s gun, which was on the nightstand in her bedroom. Defendant knew his mother had a gun because she bought it after she had a problem with a previous boyfriend. Defendant said that he was intimidated by the situation because his mother had been in a previous abusive relationship and it really frightened him. Although he had second thoughts about getting the gun, those thoughts vanished when he heard a loud thump downstairs followed by his mother crying and asking his stepfather to stop.
Defendant pulled the slide to make sure the gun was loaded and then ran downstairs. He found his mother and stepfather holding on to each other and struggling on the couch and then on the floor of the TV room. According to defendant, his stepfather was on top of his mother and they were arguing. Defendant opened the front door, told his stepfather to leave, and when he refused, defendant repeated the demand. When his stepfather jumped up and ran toward him, defendant “opened fire.” Defendant only remembered firing the initial shot, but by the time he finished the slide on the gun had locked back and his stepfather was on the ground. When defendant realized that his stepfather was bleeding he immediately ran to the phone in the kitchen and called 911.
A handgun expert testified at trial, among other things, that the slide locks back on a semiautomatic handgun when all the rounds in the weapon have been fired.
Additional facts will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
We first address the challenges defendant raises to the jury instructions, and begin with his claim that the trial court erred when it refused to instruct the jury on the doctrine of transferred self-defense.
1.
INSTRUCTION ON TRANSFERRED SELF-DEFENSE
Defendant claimed at trial that he acted in self-defense when he shot his stepfather. The trial court instructed the jury on self-defense as it related to the murder charge. Defendant contends that the trial court should also have instructed the jury on so-called transferred self-defense, a theory that would also excuse defendant’s act of shooting his mother, which defendant claimed was completely inadvertent. Because he did not request an instruction on transferred self-defense, defendant contends that the trial court should have given it sua sponte. We will not resolve the issue because the jury in this case obviously rejected defendant’s claim of self-defense, as evidenced by its verdict finding him guilty of voluntary manslaughter, and therefore failure to instruct on transferred self-defense necessarily was harmless, for reasons we now explain.
“[T]he doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander.” (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024.) The court in Mathews held that under the facts in that case the trial court did not have a duty to instruct sua sponte on the theory of transferred self-defense. (Id. at p. 1025.) Arguably the facts of this case give rise to a duty to instruct sua sponte on the application of the doctrine of self-defense to defendant’s act of inadvertently shooting his mother. But the record reveals that the jury was instructed on self-defense as it related to the murder charge, a theory the jury obviously rejected when it found defendant guilty of voluntary manslaughter. Consequently, failure to instruct the jury on the doctrine of self-defense as it related to the crime of assault with a semiautomatic firearm on defendant’s mother necessarily was harmless. Simply put, if the jury found that defendant’s act of shooting his stepfather was not in self-defense, and as such justifiable, then they could not have found that his inadvertent act of shooting his mother was in self-defense, because that justification was entirely derivative of the justification for the homicide. Therefore, we conclude that if the trial court erred, that error was harmless beyond a reasonable doubt in this case.
2.
INSTRUCTION ON ACCIDENT AND MISFORTUNE
Defendant requested that the trial court instruct the jury according to then CALJIC No. 4.45 on accident and misfortune, but the trial court refused the request. Defendant contends the trial court erred. Defendant is wrong.
The requested instruction would have told the jury that, “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show . . . neither criminal intent nor purpose, nor criminal negligence, he . . . does not thereby commit a crime.” (CALJIC No. 4.45 (Fall ed. 2006).) The instruction was not relevant in this case because defendant did not claim that he fired the gun accidentally and thereby committed that act by accident. Defendant intended to fire the gun. The only accident was that defendant unintentionally shot his mother in the course of intentionally shooting his stepfather. These facts present a classic example of transferred intent, a principle that applies when the defendant, intending to shoot one person, fires a gun but hits a different person. In that situation, the defendant’s intent to harm someone else is irrelevant; “‘the criminality of the act will be deemed the same.’” (People v. Suesser (1904) 142 Cal. 354, 366.)
As a separate but related claim, defendant contends the trial court should have instructed the jury sua sponte on the defense of innocent intent. We will not address the particulars of defendant’s claim, not only because his argument is nearly incomprehensible, but also because the assertion is simply a recapitulation of his claim that he did not intend to shoot his mother. As previously discussed, under the doctrine of transferred intent, defendant remains criminally liable for the unintended consequence of his intentional act of firing the gun at his stepfather because defendant’s intent follows the bullet. (People v. Suesser, supra, 142 Cal. at p. 366.)
3.
INSTRUCTION ON PRIOR THREATS OF VIOLENCE BY THE VICTIM
Defendant asked the trial court to instruct the jury according to CALJIC No. 5.50.1 which would have told the jurors, in pertinent part, that in deciding whether defendant actually and reasonably believed that his life or physical safety was in danger at the time he committed the alleged crimes, they could consider evidence that the victim on a prior occasion had assaulted or threatened defendant with physical harm. The prosecutor objected to the instruction, and the trial court denied defendant’s request. In doing so, the trial court noted that it had not found any authority to support giving the instruction, with appropriate modifications, when the defense is that the victim had made prior threats against another person and defendant claims that he acted in defense of that other person.
In this appeal, defendant contends the trial court had a sua sponte duty to give CALJIC No. 5.50.1. Because defendant requested the instruction in the trial court, albeit in the context previously noted, we construe his claim on appeal to mean that there was evidence presented at trial to show that in the past defendant’s stepfather had assaulted or threatened to assault defendant. No evidence of that type was presented at trial, and for that reason alone we reject defendant’s claim. Moreover, because such an instruction is in effect a pinpoint instruction that relates specific facts to particular legal issues at trial, there is no sua sponte duty to give the instruction. (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.)
But even if we were to conclude that the trial court should have given the instruction, either as defendant requested at trial or sua sponte as he contends on appeal, we would also conclude that any error was harmless. In deciding whether defendant acted in self-defense or defense of his mother, the jurors were not precluded from considering prior violent acts or threats of violence by his stepfather of which defendant was aware. (People v. Spencer (1996) 51 Cal.App.4th 1208, 1220-1221.) Moreover, defense counsel told the jury during closing argument that defendant knew his stepfather had been in fights and had knocked out guys who were bigger than the stepfather, and that the jury could consider defendant’s knowledge in that regard in deciding whether he honestly and reasonably believed he needed to defend himself or his mother from death or great bodily injury. Because the jury was not precluded from considering the evidence of the victim’s prior acts of assault in deciding the reasonableness of defendant’s purported act of defending himself or his mother, we must conclude that if the trial court erred by refusing defendant’s request to give CALJIC No. 5.50.1, the error was harmless in that it is not reasonably probable the jury would have reached results more favorable to defendant on either charge if the trial court had given the instruction. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [state law standard applies to determine prejudice from instruction that erroneously told jury they could not consider evidence of battered women’s syndrome in deciding whether the defendant acted in self-defense].)
4.
SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence is sufficient to show that he acted in self-defense and therefore we must reverse the jury’s verdict finding defendant guilty of voluntary manslaughter. Although we do not share defendant’s view of the evidence, we will not address that aspect of his assertion. Defendant’s entire claim is irrelevant because it turns review for sufficiency of the evidence on its head, and in any event is based on a claim of imperfect self-defense of others rather than on self-defense.
The pertinent legal principles are undisputed. “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The trial court instructed the jury that it could find defendant guilty of voluntary manslaughter, as a lesser included offense to the charged crime of murder, on two theories—that defendant acted in the heat of passion and upon reasonable provocation, or that he honestly but unreasonably believed he needed to defend himself or his mother from imminent danger of death or great bodily injury. The evidence presented at trial is sufficient to support the jury’s guilty verdict on either theory of voluntary manslaughter presented at trial. Defendant simply is wrong in his view that the only conclusion supported by the evidence is that he acted in self-defense or defense of others and therefore is not guilty of any crime because his act of firing the gun was justifiable. The jury was presented with that defense at trial and rejected it. “[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Consequently, even if we were to share defendant’s view of the evidence regarding self-defense, which we do not, we nevertheless would conclude that other evidence supports the jury’s verdict finding defendant guilty of voluntary manslaughter. Therefore, we must affirm that verdict on appeal.
5.
IMPOSITION OF THE MIDTERM SENTENCE
Defendant contends that the trial court abused its discretion by imposing the midterm sentence on count 2 because the trial court should have granted probation to defendant and in any case should only have imposed the low term sentence because there were mitigating circumstances. Defendant’s claim lacks merit.
Because the jury found defendant guilty of assault with a semiautomatic firearm and voluntary manslaughter, defendant was presumptively ineligible for probation “[e]xcept in unusual cases.” (§ 1203, subds. (e)(2) & (e)(3).) “The standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) A trial court’s act is an abuse of discretion if the act is “arbitrary, capricious, or ‘“exceeds the bounds of reason, all of the circumstances being considered.”’ [Citation.]” (Ibid.)
In sentencing defendant the trial court recounted what the court described as “numerous considerations both in aggravation and in mitigation,” including the fact that defendant is young and has no history of criminal conduct. In addition, the trial court noted that defendant had finished school and had a job. On the other hand the trial court cited the fact that defendant overreacted by getting the gun and shooting, which in the trial court’s view was “entirely out of proportion with the situation.” The trial court also cited the seriousness of the crimes defendant committed and then found that the case was not unusual and therefore did not warrant a grant of probation. The trial court did not act in an arbitrary or capricious manner and its decision to deny probation does not exceed the bounds of reason under all the circumstances being considered. Therefore, we must conclude that the trial court did not abuse its discretion by denying probation to defendant. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)
Similarly, in imposing the middle term sentences on defendant’s convictions for assault with a semiautomatic weapon and voluntary manslaughter, the trial court cited various circumstances both in mitigation and aggravation, but decided that the “presumptive middle term of punishment is appropriate with regards to this matter.” After imposing the middle term sentence on both counts, the trial court exercised its discretion to have the term on count 1 run concurrently to the term on count 2. Once again, we must conclude that the trial court’s choice of the middle term sentence is not an abuse of discretion, defendant’s contrary claim notwithstanding.
As his final claim, defendant contends that the abstract of judgment incorrectly includes section 1192.7, subdivision (c)(8), which designates a serious felony, in the section for enhancements tied to specific counts. Because section 1192.7, subdivision (c) only defines serious felonies for the purpose of plea bargaining, and does not specify an additional term of imprisonment, defendant contends the section should not be included in the abstract. We agree with defendant on this point, although we cannot conceive of any way in which including the serious felony designation could adversely affect defendant. Because defendant does not claim any adverse impact, we will not pursue the issue. Instead, we encourage the trial court not to repeat the error in the future.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.