Opinion
F085346
09-18-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE BRIGGS, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F22904417 Gregory T. Fain, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Following a jury trial, defendant Johnny Lee Briggs was convicted of first degree murder, with a firearm enhancement. He argues (1) the trial court prejudicially erred by refusing his request to instruct the jury on voluntary manslaughter as a lesser included offense; and (2) even if we affirm, we should instruct the trial court to amend the sentencing minutes and the abstract of judgment to correct certain clerical errors. Finding insufficient evidence to require a voluntary manslaughter instruction, we affirm, with instructions to make the requested record corrections.
PROCEDURAL SUMMARY
The Fresno County District Attorney charged defendant with a single count of first degree murder (Pen. Code, § 187, subd. (a)), alleging an enhancement for the intentional use of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)).At trial, after considerable discussion with counsel, the court denied defendant's request to instruct the jury on voluntary manslaughter as a lesser included offense. The jury convicted defendant of first degree murder and found true the section 12022.53, subdivision (d) firearm enhancement. Appellant was sentenced to prison for 25 years to life on the murder conviction and a consecutive 25 years to life on the firearm enhancement. This appeal followed.
All further statutory references are to the Penal Code.
The information also alleged as an aggravating factor that defendant had numerous prior convictions or convictions of increasing seriousness under rule 4.421(b)(2) of the California Rules of Court. However, at the People's request the trial court later struck the prior conviction allegations.
As discussed below, the trial court mistakenly stated that it was imposing the enhancement sentence under section 12022.53, subdivision (b)-which authorizes a 10-year prison term for simple use of a firearm without discharge, and which was not alleged in the information or found true by the jury-instead of section 12022.53, subdivision (d).
FACTUAL SUMMARY
Defendant shot and killed his cousin, Russell Lowe, one evening in June 2022 at a Fresno public park where Lowe frequently socialized. Earlier that evening, Lowe had picked up Kenyanna Ricks-with whom he had several children-and dropped her off near the park, telling her he would meet her at the park soon. According to the detective later assigned to the homicide case, Ricks reported that while she was in the car with Lowe driving toward the park, Lowe received a call on speakerphone during which the caller mentioned that defendant was at the park. Defendant and Lowe had once been "fairly close" but they were no longer on friendly terms, for reasons unknown to Ricks.
At trial, Ricks denied having said this to the detective but testified that Lowe did receive a call from another woman during their drive.
After being dropped off, Ricks walked to the park and sat on the bleachers near one of the softball fields. About 60 people were at the park that evening, and a recreational team was playing or practicing on the softball diamond. Defendant was indeed at the park already; Ricks saw him standing near the bleachers, acting "nonchalant" and talking with others.
Soon after, Lowe arrived in his car; but he did not park in a designated space. He double parked in the middle of the street, got out, and left the car running and his driver's side door open. Lowe walked over to the bleachers where Ricks was. Ricks testified that Lowe was acting "cocky" but "he wasn't looking like he was angry or anything." At the same time, she also testified that, although she did not know the basis for "whatever dispute, whatever argument [defendant and Lowe] had," she knew that "when [Lowe] got out [of] the car like that, there was a reason for it."
At trial, Ricks described Lowe's fatal encounter with defendant as follows. Lowe was coming toward Ricks from one direction, defendant was coming up from behind her, and they stopped in front of her, about six feet apart from each other. Lowe greeted defendant by saying," 'What's up, bitch ass nigger?'" Lowe did not "flinch" or "lunge" at defendant; he "just stood there." Defendant did not say anything back, but he pulled a gun partly out of his pocket, displaying the handle to Lowe. Lowe stayed where he was standing and said," 'I'm not worried about that.'" Defendant then pulled out the gun and shot Lowe in the face. Lowe fell to the ground, and Ricks rushed to give him CPR. Defendant walked past them, smiled, and walked away.
Two men who were playing on the softball diamond that evening also testified at the trial. Both heard the gunshot and an argument beforehand, but neither saw the shooting nor heard any of the words exchanged. The first ballplayer, who was playing shortstop, took special notice of Lowe's arrival because it was his car that Lowe had double parked beside. The shortstop did not know Lowe, but he described seeing a tall African American man get out of the car and walk into the park fast, "like he was in a hurry." He saw Lowe give a little hug to a woman (perhaps Ricks) and then walk up to a group of about five men standing nearby. When asked whether Lowe seemed angry, the ballplayer testified, "He just looked like he was there to do something, that's it." He added that Lowe's "face looked a little angry, but he just had a calm like look type of face [sic]." After Lowe approached the group, the shortstop looked away for less than 15 seconds and then heard the gunshot. Just before the gunshot, he heard "a mild argument, like voices were getting loud" for "a couple [of] seconds, maybe to a minute." He did not hear any threats, nor could he hear any of the statements being made.
The second ballplayer was standing near first base conversing, with his back to the bleachers, when he heard the loud pop of the gunshot behind him. When asked whether he heard any sort of argument or loud words spoken beforehand, the second ballplayer answered that it was "just loud in general," with music and people talking. He recalled a group of about six African American people in the area. He heard "somebody getting really loud," and he did hear a short argument, which he described as "two people ... bickering" behind him. He estimated that 45 seconds or less passed between the bickering and the pop of the gunshot. Like his teammate, the first baseman could not say what words were exchanged before the gunshot, and he did not hear any threats.
Lowe was taken to the hospital, where he died about two weeks later as a result of the gunshot, which perforated his brain. Defendant was apprehended the day after the shooting.
DISCUSSION
I. No Duty to Instruct on Voluntary Manslaughter
The trial court instructed the jury on first degree murder and second degree murder but declined defendant's request to also instruct on voluntary manslaughter based on sudden quarrel or heat of passion. After independent review of the record, we agree with the trial court that there was insufficient evidence of provocation that would have caused a person of average disposition to act rashly and without due deliberation, so as to warrant a voluntary manslaughter instruction.
A. Governing Law
A trial court has a sua sponte duty to instruct on a lesser included offense if there is substantial evidence from which the jury reasonably could conclude the defendant is guilty of the lesser offense, rather than the charged (greater) offense. (People v. Moye (2009) 47 Cal.4th 537, 556.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Ibid.) "The 'substantial evidence requirement is not satisfied by" 'any evidence ... no matter how weak.'" '" (People v. Nelson (2016) 1 Cal.5th 513, 538.) "Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (People v. Simon (2016) 1 Cal.5th 98, 132.) On appeal, we review de novo whether the trial court improperly failed to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
Manslaughter, defined as" 'the unlawful killing of a human being without malice'" (§ 192), is a lesser included offense of murder. (People v. Nelson, supra, 1 Cal.5th at p. 538; People v. Breverman (1998) 19 Cal.4th 142, 154, disapproved on other grounds by People v. Schuller (15 Cal.5th 237, Aug. 17, 2023, No. S272237).)" 'The offense is voluntary manslaughter when the killing is "upon a sudden quarrel or heat of passion." '" (People v. Manriquez (2005) 37 Cal.4th 547, 583 (Manriquez), quoting § 192, subd. (a).) The" 'sudden quarrel or heat of passion'" theory has both an objective and subjective component: objectively," '[t]he provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment'" (People v. Gutierrez (2009) 45 Cal.4th 789, 825, 826 (Gutierrez)); and, subjectively, the defendant "must actually ... kill under the heat of passion" (People v. Steele (2002) 27 Cal.4th 1230, 1252). (See Manriquez, at pp. 583-584; People v. Waidla (2000) 22 Cal.4th 690, 740, fn. 17 [same provocation required for both" 'sudden quarrel'" and" 'heat of passion' "].) "Adequate provocation as an element of voluntary manslaughter must be affirmatively demonstrated; it cannot be left to speculation." (People v. Williams (1969) 71 Cal.2d 614, 624; see Gutierrez, at p. 826 [" 'Adequate provocation and heat of passion must be affirmatively demonstrated.' "].)
B. Analysis
No voluntary manslaughter instruction was required in this case because there was insufficient evidence to satisfy either the objective or subjective components of the sudden quarrel/heat of passion theory of that lesser offense.
Taking the subjective component first, even viewed in the light most favorable to defendant, there was no evidence from which the jury could infer that defendant's reason was in fact obscured by passion when he shot Lowe. Ricks, the only trial witness to actually see the encounter between defendant and Lowe, offered no testimony regarding defendant's outward emotional reaction to Lowe's insulting greeting nor his emotional state at any other time during the incident except that defendant smiled after shooting Lowe. As in Manriquez, to which the People direct us, "[t]here was no showing that [defendant] exhibited anger, fury, or rage; thus, there was no evidence that defendant 'actually, subjectively, kill[ed] under the heat of passion.'" (Manriquez, supra, 37 Cal.4th at p. 585; see People v. Johnson (1993) 6 Cal.4th 1, 43-44 [rejecting the defendant's contention that the trial court erred in failing to instruct on provocation for purposes of second degree murder when the trial evidence did not indicate whether the victim's statements and conduct had any effect on the defendant's state of mind], abrogated on another ground by People v. Rogers (2006) 39 Cal.4th 826, 879.)
Defendant chose not to testify and provide direct evidence of his emotional state. (See People v. Williams, supra, 71 Cal.2d at p. 624 [noting the defendant's failure to testify in affirming refusal to instruct on voluntary manslaughter].) And there also was no circumstantial evidence to support an inference that defendant fired while inflamed by a sudden quarrel or heat of passion, as opposed to firing with deliberation. Defendant attempts to distinguish this case from Manriquez by pointing to the ballplayers' testimony that they heard an argument and loud voices before the gunshot. But neither player ascribed the loud voices or "bickering" to defendant in particular, out of the five or six people gathered near him by the bleachers; and even assuming defendant was raising his voice, the players also could not describe what he might have been saying. A loss of reason and judgment cannot reasonably be inferred from volume alone.
Defendant describes the players as having testified that they heard "an altercation between the two men." But neither player used the word "altercation," and there was no indication that either player could identify the participants in the argument they heard.
Moving to the objective component, there also was insufficient evidence that Lowe's conduct rose to the level of provocation that would "cause an average person to become so inflamed as to lose reason and judgment." (Manriquez, supra, 37 Cal.4th at p. 586.) Our high court has held "a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching." (Gutierrez, supra, 45 Cal.4th at p. 826, citing Manriquez, supra, 37 Cal.4th at p. 586.) In Manriquez, "the victim approached [the] defendant and 'started offending him,' called [the] defendant 'a mother fucker,' asking [him] whether he had a gun and daring him to use it." (Manriquez, at p. 585.) The Supreme Court found this conduct "plainly ... insufficient" to satisfy the objective standard. (Id. at p. 586; see id. at pp. 585-586.)
We see no meaningful distinction between the victim's conduct in Manriquez, supra, 37 Cal.4th 547 and Lowe's conduct toward defendant here. Taken in the light most favorable to defendant, the evidence was that Lowe walked up to defendant in a hurry-with purpose, or even in anger-and called him a "bitch ass nigger"; when defendant then partly displayed his firearm, an inferable threat, Lowe responded that he was" 'not worried about that,'" which could be construed (generously) as daring defendant to use it. As discussed above, there was insufficient evidence that it was defendant and Lowe (as opposed to others around them) who were arguing in loud voices; but even assuming that, in between the two statements described by Ricks, the men argued for up to 45 seconds before the gunshot, again there was no evidence of what was said that would so inflame an average person. Likewise, there was no evidence of any physical aggression or threats of aggression by Lowe to otherwise distinguish this case from Manriquez. We are not convinced of the importance of all the circumstantial evidence from which it could be surmised that Lowe came to the park in order to confront defendant-hearing beforehand that defendant was at the park, leaving his car running upon arrival, walking right up to defendant-given that the evidence of the actual ensuing confrontation was virtually identical to that adduced in Manriquez. Since the victim's conduct in Manriquez did not satisfy the objective requirement for provocation, we must conclude that Lowe's conduct here also was "insufficient to cause an average person to become so inflamed as to lose reason and judgment." (Manriquez, at p. 586.)
Defendant relies on the rule from People v. Tufunga (1999) 21 Cal.4th 935, 944 that"' "[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." '" But this is not a particularly close case, and" '[a] party is not entitled to an instruction on a theory for which there is no supporting evidence.'" (Ibid.; c.f. People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410 [no duty to instruct when the evidence is "minimal and insubstantial"].) The evidence did not affirmatively demonstrate adequate provocation, as required to warrant a voluntary manslaughter instruction. (See Gutierrez, supra, 45 Cal.4th at p. 826; People v. Williams, supra, 71 Cal.2d at p. 624.)
Accordingly, the trial court properly denied defendant's request for an instruction on voluntary manslaughter based upon the sudden quarrel/heat of passion theory.
This conclusion makes it unnecessary to consider the parties' additional arguments as to whether the refusal to give the instruction was prejudicial.
II. Record Corrections
Defendant argues two errors in the trial court's records should be corrected, and the People agree, as do we.
First, during the sentencing hearing, the trial court verbally confirmed with the prosecutor that the firearm enhancement was alleged under section 12022.53, subdivision (d); and as requested by the People the court sentenced defendant to an additional 25 years to life in prison for the firearm enhancement, consecutive to the 25 years to life for the murder offense. However, in pronouncing this sentence, the trial court incorrectly referred to section "12022.53(b)" as grounds for imposing the firearm enhancement. Section 12022.53, subdivision (b) authorizes only a 10-year additional prison term for simple use of a firearm (without discharge or resulting great bodily injury) and was not alleged in the information; whereas subdivision (d) of that same section was alleged in the information, was listed as the grounds for the firearm enhancement found true by the jury, and in fact authorizes the 25-year indeterminate consecutive sentence imposed for the enhancement. The abstract of judgment correctly lists the enhancement under section 12022.53, subdivision (d), but the November 2, 2022 minute order of the sentencing hearing incorporated the trial court's mistake.
Second, despite correctly listing the firearm enhancement provision, the abstract of judgment incorrectly includes checkmarks in item 8 indicating defendant was sentenced pursuant to "[§] 667 [subdivisions] (b)-(i) or [§] 1170.12," also known as the "Three Strikes law." The information did not allege a prior strike, and the record contains no true finding for any strike allegation.
Courts have inherent power to correct clerical, as opposed to judicial, errors in their records at any time. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [recognizing importance of appellate courts ordering correction of abstracts of judgment that do not accurately reflect the judgment of the sentencing court]; Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204 ["A correctable clerical error includes one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion."].) We agree with the parties that both documents require the requested corrections, as they constitute clerical errors subject to amendment. As to the sentencing minute order, the trial court simply miscited the subdivision of the applicable statute; this was not the product of judicial consideration or discretion. As to the abstract of judgment, it does not accurately reflect the sentence imposed. Therefore, we will order the trial court to correct the minute order and abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court shall correct the minute order of November 2, 2022, to reflect that the firearm enhancement was imposed under Penal Code section 12022.53, subdivision (d), and not under "[§] 12022.53 [subdivision] (B)"; and the trial court shall amend the abstract of judgment to omit any checkmarks in item 8. A certified copy of the amended abstract of judgment shall be forwarded to the appropriate entities.
[*] Before Hill, P. J., Franson, J. and Snauffer, J.