Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB702182 Ronald M. Christianson, Judge.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Teresa Torreblanca and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant James Eugene Bennett appeals from his conviction of murder (Pen. Code, § 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3) with associated enhancements. Defendant contends (1) the trial court erred in refusing his request for instructions on voluntary manslaughter, and (2) his conviction of premeditated attempted murder must be reversed because premeditation was never charged. In a supplemental brief, defendant contends (1) the trial court erred in refusing his request for instructions on imperfect self-defense; (2) his trial counsel provided ineffective assistance by failing to request an instruction on provocation sufficient to reduce first degree murder to second degree murder; and (3) the information did not plead an essential element of first degree murder. The People concede error with respect to defendant’s contention that his conviction of premeditated attempted murder cannot stand because premeditation was not charged, and we accept that concession. We therefore remand the matter for resentencing on count 2. We find no other prejudicial error.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
In June 2007, Christopher Barrios lived in Mentone with his girlfriend, Jessica Licause, and James Bolton. Defendant and his family had lived with Barrios for about a month earlier that year but had moved out after a dispute over a drug transaction.
On the night of June 8, 2007, Barrios let Bolton borrow his Cadillac. Bolton wrecked the Cadillac and fled the scene because he had outstanding warrants and was on parole. Bolton telephoned Barrios to tell him about the accident but was unable to speak with him and instead left a message with Licause.
Barrios went to the accident scene; he was visibly angry in his contacts with the responding officer. Barrios demanded to know what steps were being taken and what the officer had discovered about the accident.
Barrios attempted to reach Bolton at the house of Brandy Canez, where defendant and his family were then staying, and Barrios spoke to defendant in some of those calls. During the telephone calls, Barrios was upset and angry; he told defendant that if defendant did not tell him where he could find Bolton, Barrios was going to find Bolton and “whack him and everything around him.” Barrios and Licause had sent several text messages to defendant’s telephone that night making death threats.
Barrios usually kept a gun near his bed, and he had shown defendant the firearms he kept at his house. Two days or so before the shooting, Barrios had gotten rid of his guns after a domestic violence incident in which he had threatened to kill Licause. Barrios denied that he was a “Vago” or that he had ever said he was an enforcer for the Vagos. Barrios denied that he had been angry at defendant and stated he had intended to threaten only Bolton.
Canez testified that on the night of June 8, 2007, everyone in her house was afraid of Barrios. Canez moved her children to a friend’s house to keep them safe, and defendant’s children were moved to the back bedroom. The adults in the house kept watch in case Barrios showed up. At some point, Canez left the house with defendant, defendant’s brother Darrin, and Bolton to pick up a shotgun from a friend to defend themselves. On the way back, Canez heard defendant say the friend had given him a “green light.” Canez interpreted that to mean “it would be okay to go, as far as any kind of gang protocol or whatever.” The group decided there were not enough of them to defend against an attack by Barrios, so Canez went out and recruited more people to join them.
Canez was charged with being an accessory after the fact. She testified under a plea agreement pursuant to which she would receive a maximum prison term of three years if she was untruthful or six months if she was truthful.
At approximately 4:00 in the morning of June 9, 2007, defendant and five or six others left to go to Barrios’s house. One of the group said something like, “[t]his is going down, ” and defendant stated something like, “nobody jump the gun and do anything stupid.”
Barrios and Licause had gone to bed at about 11:30 on the night of June 8, 2007. In the early morning hours of June 9, defendant, wearing a hood, broke through the French doors to the bedroom and entered with a shotgun. He stated, “What are you going to do, motherfucker?” Barrios grabbed a baseball bat, and defendant fired a shot. Barrios heard Licause scream, and two more shots went off. One of the shots struck Licause in the chest. Barrios heard someone yell, “Let’s go, ” and he saw defendant run out the way he had entered. Licause died from the shotgun wound.
When the group returned to Canez’s house, one of them said to get the shotgun and get out of there, that they all needed to go, and Canez heard someone say they were both dead. Darrin told Canez he had never entered the house. She later heard defendant admit to shooting Barrios and Licause; defendant stated he had fired at Licause after she started screaming. Bolton did not enter the house because he was assisting Darrin, who had become tangled in a barbed wire fence. When the group got back to the car, defendant said he “blew them both away.”
Bolton was charged with Licause’s murder. He entered into a plea agreement under which he pled guilty to voluntary manslaughter, assault with a deadly weapon, and possession of a firearm with a sentence range of three to 13 years, to be determined based upon the truthfulness of his trial testimony as judged by the trial court.
Bolton testified that Barrios had said he was an enforcer for the Vagos. Bolton had seen guns at Barrios’s house, and he had seen a shotgun next to Barrios’s bed the night before the shooting.
The jury found defendant guilty of first degree murder (§ 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), and found true the firearm enhancement allegations as to both counts (§§ 12022.53, subds. (b)-(d), 12022.5, subd. (a).) The trial court found true the allegation that defendant had one strike prior (§§ 667, subds. (b)-(i), 1170.12).
The trial court sentenced defendant to 50 years to life for count 1, plus a consecutive enhancement of 25 years to life for the use of a firearm causing death. (§ 12022.53, subd. (d).) The court imposed a consecutive indeterminate life term with a 14-year minimum for count 2, plus a consecutive 20-year enhancement for firearm use. (§ 12022.53, subd. (c).) The trial court stayed defendant’s sentence for count 3 under section 654 and stayed execution of the remaining firearm enhancements. The total sentence was three indeterminate life terms with 109 years of minimum terms.
III. DISCUSSION
A. Voluntary Manslaughter and Imperfect Self-defense Instructions
Defendant contends the trial court erred in refusing his request for instructions on voluntary manslaughter and imperfect self-defense.
1. Additional Background
At trial, defendant requested instructions on voluntary manslaughter based on a killing in the heat of passion and specifically asked the court to give CALCRIM No. 570, which defines the offense. The trial court denied the request, stating the evidence did not support it.
Defendant also requested instructions on imperfect self-defense. The trial court denied that request as well, again stating the evidence did not support it.
The trial court instructed the jury on first and second degree murder.
2. Standard of Review
This court applies a de novo standard of review to a trial court’s refusal to instruct on a lesser included offense (People v. Cole (2004) 33 Cal.4th 1158, 1218) or on imperfect self-defense (see People v. Manriquez (2005) 37 Cal.4th 547, 581).
3. Analysis
The trial court has a duty to instruct the jury sua sponte on a lesser included offense or imperfect self-defense theory when there is substantial evidence in the record from which a reasonable jury could find that the lesser, but not the greater, offense was committed (People v. Moye (2009) 47 Cal.4th 537, 548-549), or that the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury (People v. Manriquez, supra, 37 Cal.4th at p. 582).
a. Voluntary manslaughter
First degree murder is an unlawful killing committed with malice, premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second degree murder is an unlawful killing committed with malice but without premeditation and deliberation. (Ibid.) Voluntary manslaughter is a lesser included offense of murder. (People v. Lasko (2000) 23 Cal.4th 101, 111.) A defendant who intentionally commits an unlawful killing without malice aforethought is guilty of the lesser included offense of voluntary manslaughter if he acts “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).)
For voluntary manslaughter based on heat of passion, the ‘“heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances....’” (People v. Steele (2002) 27 Cal.4th 1230, 1252.) To trigger the trial court’s duty to instruct on voluntary manslaughter under a heat of passion theory, there must be substantial evidence of both provocation and heat of passion. (Ibid.) In determining whether substantial evidence exists, the court does not evaluate the credibility of the witnesses. (People v. Elize (1999) 71 Cal.App.4th 605, 615.)
Provocation may occur over a period of time (People v. Wharton (1991) 53 Cal.3d 522, 571-572) and may be anything that arouses intense fear, anger, or jealousy (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704). Voluntary manslaughter committed under a heat of passion has both an objective and a subjective component. (People v. Moye, supra, 47 Cal.4th at p. 549.) The objective component requires that the heat of passion arise from sufficient provocation, that is, the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation or reflection. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) The subjective component requires that the defendant was “under ‘the actual influence of a strong passion’ induced by [adequate] provocation.” (People v. Moye, supra, at p. 550.)
To establish the objective component, defendant relies on People v. Breverman (1998) 19 Cal.4th 142, among other authorities. In Breverman, the court held that voluntary manslaughter instructions were warranted when the defendant feared a group of men armed with bats that approached his house in a menacing manner. (Id. at pp. 163-164.) Breverman is distinguishable on its facts—here, conversely to the situation in Breverman, defendant assembled a group of men, armed himself, and burst into Barrios’s house in the middle of the night. Defendant was the trespasser, not the frightened homeowner.
Nonetheless, even if we assume for purposes of argument that the objective component was met; in other words, that Barrios’s threats were such as would lead an average person to act rashly, the record lacks evidence sufficient to establish the second component. The subjective element is not established if circumstantial evidence shows that the defendant’s passions did in fact cool; such evidence might include rational conversation, conducting other business, or preparing for the killing. (See People v. Golsh (1923) 63 Cal.App. 609, 617.) For example, in People v. Butler (2005) 127 Cal.App.4th 49, 61, the court held that voluntary manslaughter instructions were not warranted because, among other things, the defendant armed himself with a gun before confronting a group of men with whom he had had a dispute a few days earlier. Here, the evidence showed defendant prepared for the killing. He made a trip to a friend’s house in San Bernardino to obtain a shotgun and to get the “green light” in accordance with gang protocol. He assembled a group to go to Barrios’s house in the middle of the night, and he wore a hood when he broke into Barrios’s bedroom through French doors.
Defendant nonetheless contends the requisite emotional state was established by evidence that “he was force[d] to send his children to the back of the house, Canez recruited others to provide security, and the adults in the house kept watch at the windows.” It was undisputed, however, that all the adult males left Canez’s house in Redlands to go get a shotgun in San Bernardino, while defendant’s wife and their children, and possibly Canez’s babysitter and children, were left alone at Canez’s house. Moreover, when defendant left with the group to go to Barrios’s house, the door to Canez’s house was left unlocked. No reasonable jury could conclude from that evidence that defendant was acting from extreme fear.
Defendant also relies on his statement to Canez that “he couldn’t believe that he had pulled the trigger that fast.” However, the only direct evidence of defendant’s mental state was Canez’s testimony that he told her he started firing because Licause started screaming. In People v. Jackson (1980) 28 Cal.3d 264, 306, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3, the court held that the trial court had properly refused a voluntary manslaughter instruction when the evidence showed the defendant became enraged when the elderly victim awoke during a burglary and started to scream.
Finally, even if the trial court erred in refusing defendant’s requested instruction, reversal is required only if it appears reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Wharton, supra, 53 Cal.3d at p. 571, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Here, any instructional error was harmless even if we apply a heightened standard of review. Defendant could not have been prejudiced by the trial court’s refusal to instruct on voluntary manslaughter because “the jury necessarily resolved the factual question adversely” to him when it found him guilty of first degree murder. (People v. Mincey (1992) 2 Cal.4th 408, 438.) In People v. Wharton, supra, 53 Cal.3d at page 572, the court stated that “[b]y finding defendant was guilty of first degree murder, the jury necessarily found defendant premeditated and deliberated the killing. This state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion....” The same is so in the case before us.
b. Imperfect self-defense
When the evidence shows that the defendant harbored an actual, albeit unreasonable, belief in imminent peril, instructions on imperfect-self defense may be required. (People v. Randle (2005) 35 Cal.4th 987, 996-997, overruled on another ground in People v. Chun, supra, 45 Cal.4th at p. 1201.) “‘Imperfect self-defense obviates malice because that most culpable of mental states “cannot coexist” with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand. [Citations.]’ [Citation.]” (Randle, supra, at p. 995.)
Imperfect self-defense applies when the victim’s use of force against the defendant is unlawful, even if the defendant initiated the chain of events that led the victim to attack the defendant. (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179.) Imperfect self-defense does not apply, however, when the defendant created circumstances under which the victim’s attack is legally justified. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) As the court in Christian S. explained, “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.” (Ibid.)
Applying that principle, the court in People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834, held that the defendant was not entitled to instructions on imperfect self-defense. The defendant committed a burglary when he entered the victim’s hotel room to steal drugs. According to the defendant, the victim leapt from his bed and pushed the defendant against the wall, and the defendant then slashed him with a box cutter. The court stated, “[A] defendant who—through his own wrongful conduct, such as initiating a physical assault or committing a felony—has created circumstances under which his adversary’s attack or pursuit is legally justified may not invoke unreasonable self-defense. [Citations.]” (Ibid.)
Here, defendant broke into Barrios’s bedroom carrying a shotgun and yelled at Barrios, who was in bed with Licause. Barrios grabbed for a weapon to defend himself, and a shot was fired at him but missed him. Licause screamed, and another shot was fired; that shot killed her. Even if defendant believed that Barrios had grabbed a gun rather than the baseball bat he actually seized, defendant was the one who created circumstances under which Barrios was legally justified in defending himself. (§ 198.5.) The trial court did not err in refusing the instruction on imperfect self-defense.
B. Premeditated Attempted Murder
Defendant contends his conviction of premeditated attempted murder must be reversed because premeditation was never charged.
1. Additional Background
The information charged defendant with murder and attempted murder. However, the information did not allege that the attempted murder was premeditated. During voir dire, the jury was told that defendant was charged with murder and attempted murder, but no mention was made of premeditation with respect to the attempted murder count. The jury was not instructed on premeditation with respect to count 2, and no verdict form with a potential finding of premeditation was submitted to the jury. The trial court nonetheless sentenced defendant to an indeterminate life term with a 14-year minimum term, which is the sentence for premeditated attempted murder with a prior strike.
2. Analysis
Section 664, subdivision (a) provides that the fact that an attempted murder is willful, deliberate, and premeditated must be “charged in the accusatory pleading and admitted or found to be true by the trier of fact.” (See also People v. Lee (2003) 31 Cal.4th 613, 623 [premeditation must be alleged in the information]; People v. Seel (2004) 34 Cal.4th 535, 539 (Seel) [premeditation is an element of the offense of attempted murder with premeditation]; People v. Arias (2010) 182 Cal.App.4th 1009, 1016-1021 [reversal of premeditated attempted murder required when pleading requirements of section 664, subdivision (a) were not met].) We therefore determine that the People have properly conceded error, and defendant must be resentenced for count 2.
C. Assistance of Counsel
Defendant contends his trial counsel provided ineffective assistance by failing to request an instruction, specifically CALCRIM No. 522, on provocation sufficient to reduce first degree murder to second degree murder.
CALCRIM No. 522 provides, “Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide.
When provocation is insufficient to reduce a killing from murder to manslaughter, the same provocation may nevertheless be sufficient to reduce first degree murder to second degree murder. (People v. Thomas (1945) 25 Cal.2d 880, 903; see also CALCRIM No. 522.) The court in People v. Thomas explained: “Provocation of a kind, to a degree, and under circumstances insufficient to fully negative or raise a reasonable doubt as to the idea of both premeditation and malice (thereby reducing the offense to manslaughter) might nevertheless be adequate to negative or raise a reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation.” (People v. Thomas, supra, at p. 903.) However, as defendant acknowledges, an instruction on that theory is a pinpoint instruction, and the trial court has no duty to give it sua sponte. (See People v. Rogers (2006) 39 Cal.4th 826, 879-880; see also CALCRIM NO. 522 Bench Notes.) Defendant argued his counsel should have requested that instruction.
A defendant who claims he received ineffective assistance of counsel has the burden of establishing both that his counsel’s performance was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms, and that prejudice resulted, i.e., that in the absence of the error, a more favorable result was reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; In re Neely (1993) 6 Cal.4th 901, 908-909.)
In People v. Middleton (1997) 52 Cal.App.4th 19, disapproved on another ground in People v. Gonzalez (2003) 31 Cal.4th 745, 752, the court held that provocation, in the context of murder, is a defense to the element of deliberation, not an element of the crime, as it is in the context of manslaughter. (People v. Middleton, supra, at pp. 32-33.) In Middleton, the trial court instructed the jury on the relationship between provocation and voluntary manslaughter. (Id. at p. 33.) The defendant contended the trial court must have therefore determined that sufficient evidence existed to instruct on provocation as it related to first and second degree murder. (Ibid.) On appeal, however, the court determined the evidence in the record was insufficient to require any provocation instruction. (Id. at pp. 33-34.)
Here, as we explained above in section A.3., the evidence was insufficient to support an instruction on voluntary manslaughter because there was no evidence of adequate provocation or that defendant was under the influence of a strong passion induced by such provocation. For the same reasons, the evidence of provocation was insufficient to support giving CALCRIM No. 522. The evidence against defendant was overwhelming, and that evidence pointed only to his guilt of first degree murder.
D. Adequacy of Pleading First Degree Murder
Defendant contends his conviction for first degree murder must be reversed, because the information did not specifically allege that the murder was premeditated.
The information herein alleged, “On or about June 9, 2007, in the above named judicial district, the crime of MURDER, in violation of PENAL CODE SECTION 187(a), a felony, was committed by [defendant]... who did unlawfully, and with malice aforethought murder Jessica Renee Licause, a human being.”
Defendant bases his argument primarily on Apprendi v. New Jersey (2000) 530 U.S. 466 and Seel, supra, 34 Cal.4th 535. In Apprendi, the United States Supreme Court held that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt. (Apprendi, supra, at p. 490.) In Seel, the issue before the court was whether double jeopardy principles barred a retrial of a premeditation allegation. The appellate court had determined the evidence was insufficient to support a finding that the defendant had committed premeditated attempted murder under section 664, subdivision (a), which provides that a defendant convicted of attempted murder may be sentenced to life with the possibility of parole if the attempted murder was willful, deliberate, and premeditated. (Seel, supra, at p. 541.) In that context, our Supreme Court held that section 664 is a penalty provision for purposes of Apprendi, and because the allegation under that section placed the defendant in jeopardy for an offense greater than attempted murder, evidentiary insufficiency to support a true finding on that allegation barred retrial under double jeopardy protections. (Seel, supra, at p. 541.)
Here, the jury was specifically instructed as to the degrees of murder and specifically found that the murder was in the first degree. Thus, the issue whether the crime was first degree murder was submitted to the jury and found beyond a reasonable doubt. The holding of Apprendi was satisfied. Moreover, if defendant is claiming he was deprived of his due process right to notice of the charges against him, he has forfeited that claim by failing to raise it in the trial court. (People v. Toro (1989) 47 Cal.3d 966, 975-976, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3 [a defendant’s failure to object in the trial court on the ground he lacked notice of the charges forfeits the issue for appellate review].)
Finally, we observe that “[a]n accusatory pleading charging simply murder, without specifying the degree, is sufficient to charge any degree of murder. [Citations.]” (People v. Anderson (2002) 28 Cal.4th 767, 776; see also People v. Terry (1962) 57 Cal.2d 538, 555 [finding adequate an information that charged that the defendants “did willfully, unlawfully and feloniously and with malice aforethought murder” the victim].) More specifically, charging murder in the short form as permitted by sections 951 and 952 puts the defendant on notice that he or she may be convicted of first degree murder under any applicable theory. (People v. Crawford (1990) 224 Cal.App.3d 1, 8.) We therefore find no pleading error.
“An... information may be in substantially the following form: The people of the state of California against A. B. In the superior court of the state of California, in and for the county of _______. The... district attorney of the county of _______ hereby accuses A. B. of a felony, ... to wit: (giving the name of the crime, as murder, burglary, etc.), in that on or about the ___ day of _______, 19__, in the county of ______, state of California, he (here insert statement of act or omission, as for example, ‘murdered C. D.’).” (§ 951.)
“In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused” (§ 952.)
IV. DISPOSITION
Defendant’s sentence for count 2 is vacated and the matter is remanded for resentencing on that count. In all other respects, the judgment is affirmed.
We concur: MCKINSTER J., KING J.
“If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter].
“[Provocation does not apply to a prosecution under a theory of felony murder.]” (CALCRIM No. 522.)