Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F01141
RAYE, P. J.Defendant Anthony James Winters appeals following his conviction of second degree murder (Pen. Code, § 187; undesignated statutory references are to the Penal Code) with an enhancement for personal and intentional discharge of a firearm causing death (§ 12022.53, subd. (d)). Defendant contends the trial court violated a duty sua sponte to instruct the jury on voluntary manslaughter upon a sudden quarrel, based on abrasions on the victim’s hand. Defendant also seeks correction of a clerical error in the clerk’s minutes regarding sentencing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with the September 13, 2007, murder of victim Alfredo Perez, with personal and intentional discharge of a firearm causing death (§ 12022.53 subd. (d)).
Evidence adduced at the November 2009 trial included the following:
Defendant’s DNA matched DNA found on a Red Bull beverage can at the crime scene, producing an evidence profile estimated to occur at random at a frequency of one in 63 quintillion of the African-American population, one in 140 quintillion of the Caucasian population, and one in nine sextillion of the Hispanic population.
Bank records and security camera images showed that, at 10:23 p.m. on September 13, 2007, the victim withdrew $80 from a bank ATM at a strip mall. Security camera images from nearby businesses (bearing disparate time stamps and using time-lapse video rather than fluid motion) then showed the victim walking a bicycle along the strip mall, accompanied by a male wearing a dark shirt with a distinctive design and holding a can. There was evidence the male had purchased a beverage at a nearby market a few minutes earlier.
The two men disappeared into a restaurant alcove, out of camera range. Seconds later, the victim ran out of the alcove with blood on his shirt. A passing motorist heard a gunshot and then saw the victim run, fall, get up, run, and stop at a ditch. The motorist, who did not know the victim, drove him to get medical assistance.
Other witnesses testified they heard the gunshot and then saw the victim run away from the restaurant and fall or collapse by the ditch.
The pathologist testified the victim died from a gunshot wound to the lung. The victim had recent abrasions--“two little tiny things”--on the knuckle area of his right hand. When asked on cross-examination if the abrasions suggested a “struggle like a punch or a grabbing, ” the expert testified, “[T]hey’re on the back of the hand over lining [sic] a bony area on the knuckle. It’s the end knuckle, not the ones that we normally punch with. So it would be more consistent with a punch than a grab. Because it’s, you know, in an area that would get knocked. But, again, they’re in the--they’re in an odd area of the hand to be involved in a punch, but they could have got caught on something sharp--a piece of jewelry or teeth or something--that could have caused the knuckle to injure there.” The pathologist said there is no way of knowing what caused the abrasions, but the possibility of a struggle could not be excluded. There was no evidence of defensive wounds. On redirect examination, the doctor testified the abrasions could have been caused by crawling in a ditch.
The police found $60 in twenties in the victim’s wallet, and another $20 bill and a few coins on the ground where paramedics removed the victim’s clothing. The victim’s girlfriend testified the victim had a marijuana habit and would buy the drug from anyone.
The police found a Red Bull can in the restaurant alcove, with no usable fingerprints but with measurable DNA on the lip of the can. The police later obtained the DNA sample from defendant which matched the sample taken from the Red Bull can. Defendant told police he had not been to the strip mall since July 2007 (months before the September 2007 killing).
Defendant did not testify at trial. The defense challenged whether the can in the alcove was the can carried by the figure in the video. The defense argued the video images were unclear, and no eyewitness identified defendant in court.
The jury found defendant not guilty of first degree murder, guilty of second degree murder, and found true the section 12022.53 allegation of personal and intentional discharge of a firearm causing death.
The trial court sentenced defendant to a term of 15 years to life for murder, plus 25 years to life for the enhancement, totaling 40 years to life.
DISCUSSION
I. Jury Instruction
Defendant argues the trial court violated a duty sua sponte to instruct the jury on voluntary manslaughter as a lesser included offense of murder, because the abrasions on the victim’s hand may have been caused by a sudden quarrel. Applying independent review to this issue, which was not raised in the trial court (People v. Cole (2004) 33 Cal.4th 1158, 1218), we find no error.
A trial court must instruct sua sponte on a lesser included offense if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177.) The duty to instruct sua sponte on lesser included offenses (as opposed to defenses) “arises even against the defendant’s wishes, and regardless of the trial theories or tactics the defendant has actually pursued.” (Id. at p. 162; but cf. People v. Hardy (1992) 2 Cal.4th 86, 184 [trial court need not instruct on lesser included offense where defendant expressed deliberate tactical purpose for objecting to the instruction].)
The court must instruct on voluntary manslaughter as a lesser included offense of murder where there is substantial evidence from which the jury could reasonably conclude the killing was committed in a sudden quarrel or in the heat of passion. (People v. Breverman, supra, 19 Cal.4th at p. 162 [voluntary manslaughter instruction was required where there was evidence that a sizeable group of young men, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon property occupied by the defendant and smashed his vehicle, and the defendant’s statement to police reflected his fear and panic].) The standards for voluntary manslaughter upon a sudden quarrel or heat of passion are stated in Breverman, supra, 19 Cal.4th at p. 163, and reiterated in CALCRIM No. 570, which says:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. 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. [¶]... [¶]
“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 from judgment....”
Here, there was no sufficient evidence of voluntary manslaughter. Defendant bases his argument on the evidence that the shooting happened suddenly after the two men had been walking together amiably; the victim had fresh abrasions on his hand and no defensive wounds; and the expert witness could not exclude a struggle as the source of the abrasions.
However, there was insufficient evidence of a quarrel, and no time for a quarrel. Defendant acknowledges in his appellate brief that “the shooting happened suddenly--in an instant, ” and the victim ran out of the alcove with blood on his shirt “[i]mmediately after” entering the alcove with the male in the dark shirt. Moreover, the abrasions themselves were not direct evidence of a quarrel but, at best, evidence from which a quarrel might arguably be inferred. The expert said the abrasions were on an area of the knuckle not associated with punching. If the abrasions were related to a struggle, it was because the skin got caught on something sharp. Alternatively, the victim could have sustained the scrapes when he collapsed in the ditch. Thus, there was insufficient evidence of a quarrel.
Even assuming a quarrel, there was no evidence that defendant was the one being provoked rather than doing the provoking, nor was there any evidence of conduct by the victim sufficient to conclude that a reasonable person in defendant’s position would react from passion and kill the victim--evidence which would be required to support a verdict of voluntary manslaughter, as stated in the jury instruction. Defendant cites authority that a fist blow causing substantial pain or injury may be sufficient provocation for voluntary manslaughter. However, even assuming for the sake of argument sufficient evidence of a blow by the victim, there is no evidence whatsoever of substantial pain or injury to defendant.
“Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709 [where defendant did not testify, his state of mind was not argued by the defense, and no evidence in the record remotely suggested objectively reasonable provocation, there was no basis to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder].)
We conclude the evidence was insufficient to require the trial court to instruct sua sponte on voluntary manslaughter upon a sudden quarrel or heat of passion. Since we find no error by the trial court, we need not address defendant’s argument that error caused prejudice requiring reversal.
II. Typographical Error In Clerk’s Minutes
Defendant asks us to direct the trial court to correct a typographical error in the clerk’s minutes, which incorrectly indicates a minimum sentence of 25 years for the murder, rather than the 15 years imposed by the trial court. The clerk’s minutes state: “IN RE: CT 1: PROBATION DENIED; 25-LIFE; ALLEG. PC 12022.53(d) = 25-LIFE C/S [¶] TOTAL ISL AGG. = 40-LIFE YEARS SP.” (Emphasis added.)
An error is apparent on the face of the clerk’s minutes, because they add 25 and 25 and get 40.
The abstract of judgment and the reporter’s transcript correctly show the trial court sentenced defendant to a term of 15 years to life for murder, plus 25 years to life for the enhancement, for a total of 40 years to life.
The People concede the typographical error in the clerk’s minutes but consider correction unnecessary, since the abstract of judgment is correct. We agree with the People.
Defendant offers no authority requiring action by this court to correct the typographical error in the clerk’s minutes. Defendant simply argues he is entitled to an accurate record on appeal, and he says it is impossible to predict whether he might suffer any future prejudice from the inaccuracy.
An inconsistency in a record will be harmonized if possible; if not possible, the circumstances of each particular case determine whether one portion of the record should prevail as against contrary statements in another part of the record. (People v. Smith (1983) 33 Cal.3d 596, 599.) Here, the typographical error is apparent on the face of the clerk’s minutes, because the math is wrong. The source of the error is easily ascertainable from the abstract of judgment and the reporter’s transcript. We need not order correction of the clerk’s minutes.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., MAURO, J.