Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County No. SCD199713, Charles G. Rogers, Judge.
HALLER, J.
Donald Walker appeals from a judgment convicting him of attempted premeditated murder with an enhancement for personal discharge of a firearm causing great bodily injury (count 1), and assault with a firearm with an enhancement for personal use of a firearm (count 2). Challenging his conviction on count 1, he contends the trial court erred in failing to sua sponte instruct the jury on unreasonable self-defense to support the lesser included offense of attempted voluntary manslaughter. We find no reversible error.
Walker received an indeterminate life sentence on count 1, and a determinate stayed sentence on count 2. As agreed by the parties, the trial court erred in ordering that a restitution fine for the victim's medical expenses be payable to County Medical Services rather than to the victim. We agree with the Attorney General that it is appropriate to modify the judgment to correct this error and there is no need for the trial court to again rule on this matter. The parties also agree the abstract of judgment for count 2 needs to be corrected to reflect the trial court's order staying sentence on count 2.
We modify the judgment to order that the restitution fine for medical expenses be payable directly to the victim. As so modified, the judgment is affirmed. On remand, the trial court is directed to amend the abstract of judgment for count 1 to reflect this change, and to correct the abstract of judgment for count 2 to reflect the stayed sentence on count 2.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of June 14, 2006, victim Michael Cooper went to a bar located in a restaurant in Mission Valley, where he met friends Lettice Curry and Elizabeth Santillan. Walker and two friends (codefendant Troy Plummer and Carl Mason) also went to the bar. These two groups did not know each other. Cooper arrived in his own vehicle, and Curry and Santillan arrived in Curry's vehicle. Walker, Plummer, and Mason arrived in Mason's vehicle. All three vehicles were parked in the same area of a parking lot across the street from the restaurant. Cooper's vehicle was parked next to Curry's vehicle, and Mason's vehicle was parked two cars down and across the parking lot lane from Curry's vehicle.
All these individuals left the bar at closing time. When they arrived at the parking lot, Plummer asked Curry for her phone number, and Curry gave it to him. Cooper, who used to date Curry, confronted Plummer about this, yelling, "Hey, blood, did you get my girl's number?" Cooper continued to aggressively question Plummer as he followed Plummer across the parking lot lane to Mason's car. When Cooper was walking across the parking lot lane towards Mason's car, Plummer heard Curry yell, "You all might want to leave. He [Cooper] has AKs [assault rifles] in his car." During these interactions, Walker was standing by Mason's car, close enough to hear what was being said.
In response to Cooper's confrontation of Plummer, Walker told Mason to pop the trunk of his (Mason's) car. Mason opened the car door and pushed a button to open the trunk. As Cooper arrived near the vehicle, Walker retrieved a shotgun from the trunk. Walker put the gun by Cooper's face and stated, in taunting fashion, "Where's your AK now? Who's your blood now?" Cooper put his hands up and said, "It's really not that serious." Walker then repeatedly swung at Cooper with the butt of the gun while Cooper ducked. On the third swing, Walker struck Cooper in the face.
After being hit, Cooper put his hands up, covered his face, and started moving away in the direction of his car. While moving away, Cooper stated, "Hey, it's all right." Walker followed Cooper and shot him in the back. At the time he was shot, Cooper was in the middle of the parking lot lane, about 10 to 25 feet from Walker. Once shot, Cooper continued walking and then collapsed in some bushes. Walker and his companions fled the scene in Mason's vehicle. Cooper suffered life-threatening injuries, but survived.
After a jury trial, Walker was convicted of attempted premeditated first degree murder and an enhancement for personally discharging a firearm and causing great bodily injury (count 1), and assault with a firearm with an enhancement for personal use of a firearm (count 2). Plummer was charged with assault with a firearm with an enhancement for personal use of a firearm. Plummer testified in his own defense, and was acquitted.
The evidence was conflicting as to whether Plummer also hit Cooper with a firearm.
DISCUSSION
Failure to Instruct on Unreasonable Self-defense
Walker's primary defense at trial focused on the theory that he was not involved in the assault or shooting based on conflicts and weaknesses in the eyewitness identification evidence. On appeal, Walker does not dispute that there is sufficient evidence to support the jury's finding that he was the person who hit and shot Cooper with the gun. As a secondary theory, Walker's trial counsel argued that he was at most guilty of attempted voluntary manslaughter because of evidence showing reasonable provocation and heat of passion. The jury was instructed on the lesser included offense of attempted voluntary manslaughter based on provocation and heat of passion.
Walker's trial counsel did not request instructions on attempted voluntary manslaughter based on an unreasonable self-defense theory. Walker asserts the trial court had a sua sponte duty to instruct the jury on this theory.
A trial court has a sua sponte obligation to instruct on a lesser included offense when the offense is supported by evidence. (People v. Breverman (1998)19 Cal.4th 142, 154, 162.) The duty to instruct does not arise if there is " 'any evidence, no matter how weak' " in support of the lesser offense, but rather only arises if there is evidence " 'substantial enough to merit consideration' by the jury." (Ibid., italics in original.) Substantial evidence exists if there is evidence that a reasonable jury could find persuasive. (Ibid.) In deciding whether there is substantial evidence to warrant the instruction, the court should not evaluate the credibility of witnesses and should resolve doubts in favor of giving the instruction. (Ibid.; see People v. Strozier (1993) 20 Cal.App.4th 55, 63.) If the evidence in support of the lesser offense is " 'minimal and insubstantial,' " the court need not give the instruction. (People v. Barton (1995) 12 Cal.4th 186, 201.)
Voluntary manslaughter based on unreasonable self-defense is a lesser included offense of murder. (People v. Barton, supra, 12 Cal.4th at pp. 200-201.) If the defendant actually, but unreasonably, believed there was an imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and is guilty only of voluntary manslaughter. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) The trial court has a sua sponte duty to instruct on this theory "whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense." (People v. Barton, supra, 12 Cal.4th at p. 201.)
Unreasonable self-defense requires that (1) the defendant actually believed there was a danger of harm, and (2) the defendant feared the harm was imminent. (People v. Manriquez, supra, 37 Cal.4th at p. 581.) " '[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense.' " (Ibid.) Further, " '[f]ear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. . . . " '[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.'. . ." ' " (Ibid., italics in original.)
Generally, the trial court's failure to sua sponte instruct on a lesser included offense requires reversal under state law only if it is reasonably probable the defendant would have obtained a more favorable outcome had the instruction been given. (People v. Rogers (2006) 39 Cal.4th 826, 867-868; People v. Randle (2005) 35 Cal.4th 987, 1003.) The more stringent harmless beyond a reasonable doubt standard for federal constitutional error may apply if the instructional error deprives the defendant of the right to present a complete defense. (People v. Rogers, supra, at pp. 868, fn. 16, 871-872.) There is no dispute that this case merely involves state law error reviewable under the reasonable probability standard. As we shall explain, assuming the trial court had a duty to instruct on unreasonable self-defense, the error was not prejudicial.
According to codefendant Plummer's testimony, during the confrontation between Plummer and Cooper, Curry yelled that Cooper had "AKs" in his car. The jury could reasonably find that Walker, who was standing nearby, heard this statement, as suggested by Walker's reference to an AK when he pulled the gun on Cooper. The jury could also infer that Walker believed Cooper was walking towards his (Cooper's) car after he was hit in the face. Plummer testified that he assumed Cooper's car was next to Curry's car because before the confrontation started Cooper was standing urinating near that vehicle, and after Cooper was hit he walked in the direction of that vehicle. The jury could infer that Walker made the same assessment as Plummer regarding the location of Cooper's car. Considering Curry's statement about guns in Cooper's car and Cooper's subsequent movement towards his car, arguably there was sufficient evidence to warrant instruction on unreasonable self-defense based on an inference that Walker believed Cooper was going to get a gun from his car after he was hit in the face.
However, it is not reasonably probable that if the instruction had been given the jury would have found that Walker acted in unreasonable self-defense. As stated, unreasonable self-defense requires that the defendant actually believe there is a need to defend from imminent harm. An inference that Walker actually feared immediate harm from Cooper was, at best, extremely weak. Walker must have known that during the confrontation between Cooper and Plummer, Cooper did not at that point intend to use any guns he may have had in his car because Cooper made no movement towards his car but instead merely followed Plummer to Mason's car. Consistent with this, Plummer testified that he was surprised when Walker pulled out the gun, explaining that although Cooper approached aggressively, Plummer thought that the most that would happen was a fight and he "never thought a gun would be involved . . . ." Further, Plummer described Walker as "taunting" Cooper when he pointed the gun at Cooper's face and asked him "Where's your AK now? Who's your blood now?" A taunting tone of voice suggests bravado, not fear.
Once Walker confronted Cooper with the gun, the nature of Cooper's response creates a strong inference that Walker did not suddenly develop a fearful state of mind. Witnesses consistently reported that Cooper retreated and made statements indicating he wanted the confrontation to end. That is, Plummer testified that when Walker first pulled out the gun, Cooper stated, "It's really not that serious." Michael Martin—a third party observer who did not know the people involved in the incident—testified that Cooper stated, "Hey, it's all right" as he backed away after being hit in the face. Martin described Cooper's demeanor after being hit as not "want[ing] [any] trouble" and "trying to back pedal out of this initial confrontation mode."
When Walker shot Cooper, Cooper was in the middle of the parking lot lane; he had not reached his car where the weapons were supposedly located. The fact that Cooper had not arrived at his car at the point he was shot further undermines an inference that Walker had developed a concern that Cooper posed a threat of imminent harm. Additionally, during a recorded conversation between Plummer and Walker the day after the crime when they were arrested and waiting in the back of a police car, Walker made statements suggesting he committed the shooting, but made no mention that he shot Cooper because he was afraid.
After making the statements suggesting he committed the shooting, Walker indicated he did not know what happened, stating: "What's fucked up is I wasn't even, I don't even know what happened dawg . . . ."
Given the dearth of evidence that Walker actually believed there was a danger of imminent harm as Cooper retreated from the confrontation, we conclude it is not reasonably probable the jury would have reached a more favorable verdict had it been instructed on unreasonable self-defense. (See People v. Manriquez, supra, 37 Cal.4th at pp. 582-583 [no reversible error from failure to instruct on lesser included offense when evidence in support of that offense was '' 'at best, extremely weak' "].)
Restitution Fine for Medical Expenses
The trial court imposed a restitution fine of $43,312.12 on Walker based on the amount of Cooper's medical expenses. The fine was ordered to be paid to County Medical Services. As agreed by the parties, the court was authorized to make the fine payable directly to the victim, and was not authorized to make it payable to County Medical Services. (Pen. Code, § 1202.4, subd. (f)(2), (3)(B); People v. Hove (1999) 76 Cal.App.4th 1266, 1270-1274 [section 1202.4 requires direct payment to victim regardless whether victim has coverage for medical expenses and irrespective of third party's indemnification or subrogation rights].)
Subsequent statutory references are to the Penal Code.
The Attorney General requests that we modify the judgment, whereas Walker requests that we remand the matter for the trial court's redetermination of this restitution issue. There is no need for a remand because it is apparent the trial court intended to impose the restitution fine for medical expenses as required by section 1202.4. (§ 1202.4, subd. (g) [full restitution shall be ordered unless trial court states compelling reasons for not doing so].) Accordingly, we modify the judgment to make the $43,312.12 restitution fine for medical expenses payable to Cooper.
We note also that the abstract of judgment states that the fine is $43,212.12. This figure should be corrected to conform with the $43,312.12 figure in the reporter's transcript and minute order.
Stay of Sentence for Count 2
Walker was sentenced to life with the possibility of parole for attempted first degree murder (§§ 187, subd. (a), 189, 664), and to 25 years to life for the enhancement for personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). A determinate sentence on count 2 (assault with a firearm with a personal firearm use enhancement, §§ 245, subd. (a)(2), 12022.5, subd. (a)), was stayed under section 654.
The record shows, and the parties agree, that the abstract of judgment for count 2 fails to reflect the trial court's order that sentence on the count 2 offense and its enhancement is stayed. We order this correction.
DISPOSITION
We modify the judgment to make the $43,312.12 restitution fine for medical expenses payable to Cooper. As so modified, the judgment is affirmed. The trial court is directed to (1) prepare an amended abstract of judgment for count 1 to reflect this modification, and (2) prepare a corrected abstract of judgment for count 2 to reflect the stayed sentence on the count 2 offense and its enhancement. Copies of these revised abstracts of judgment shall be transmitted to the Department of Corrections and Rehabilitation.
WE CONCUR: HUFFMAN, Acting P. J., MCDONALD, J.