Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF151250. Helios (Joe) Hernandez, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting, Robin Derman and Tami Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant Donyette Yvonne Clark, an admitted member of a Moreno Valley criminal street gang known as the Young Paper Chasers and also known as “Lady No-Joke,” was found guilty as charged following a jury trial of four counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a); counts 1-3 and 7) based on her participation in a drive-by shooting. The jury found the attempted murders were willful, deliberate, and premeditated (§§ 664, subd. (a), 189), were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and a principal other than defendant discharged a firearm in the commission of each crime (§ 12022.53, subds. (d), (e)(1)). Defendant was sentenced to 80 years to life, consisting of consecutive 15-year-to-life terms on counts 1 and 7, plus 25-year-to-life terms for the firearm enhancements on counts 1 and 7. Concurrent but otherwise identical terms were imposed on the attempted murder convictions and firearm enhancements in counts 2 and 3.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was also convicted of shooting a firearm from a vehicle (§ 12034, subd. (c)(2)) and actively participating in a criminal street gang (§ 186.22, subd. (a)). Additional terms were imposed but stayed on these convictions. (§ 654.)
Defendant claims the trial court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offenses of attempted voluntary manslaughter in counts 1, 2, 3, and 7, based on heat of passion and imperfect self-defense theories. We conclude the lesser included offense instructions were properly not given because insufficient evidence showed defendant acted out of heat of passion or imperfect self-defense in participating in the offenses.
Defendant further claims her 15-year-to-life sentences on each attempted murder conviction were erroneously imposed and must be reduced to seven years to life (§ 3046, subd. (a)(1)), because a principal other than herself discharged a firearm in the commission of each crime, and the 15-year minimum parole eligibility period of section 186.22, subdivision (b)(5) therefore did not apply. (§ 12022.53, subd. (e)(2).) The People agree this sentencing error occurred, and so do we.
We reduce defendant’s sentences on counts 1, 2, 3, and 7 from 15 years to life to life with a seven-year minimum parole eligibility period. We remand the matter to the trial court with directions to amend defendant’s abstract of judgment to reflect this sentencing correction and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
II. FACTUAL BACKGROUND
In April 2007, Carl Bryant, also known as “Bullet,” was a member of “Sex Cash” or “SC,” a subset of a Moreno Valley criminal street gang known as “Unknown Mafia” or “UM.” One of UM’s rivals was a Moreno Valley gang known as Dorner Blocc or “DB,” which was affiliated with two other Moreno Valley gangs, the “Edgemont Criminals” or “EC” and the “Young Paper Chasers” or “YPC.”
On April 6, 2007, Bryant drove through DB’s territory near Finley and Perham, where he saw a group of people standing outside a house. At trial, Bryant testified he did not make any hand gestures to anyone in the group and did not recognize anyone in the group. Bryant continued to drive to the house of his friend, Nafis Davis, on Cagney Court, not far from Finley and Perham and just outside DB territory.
When Bryant arrived at Davis’s house on Cagney Court, Davis was outside with Justin Thrash and Philip Lester. Davis, Thrash, and Lester were also members of the Sex Cash subset of the UM, and spoke with Bryant while Bryant stayed in his car. Minutes later, Bryant announced: “A car just bust a U-turn.” Thrash saw the car Bryant was referring to. It made a U-turn on Unity, the cross-street to Cagney Court, and was “full of people.” Thrash knew the U-turn could mean a confrontation was imminent. Bryant also knew that shootings often occurred in this manner.
After the car turned around, it stopped for about five seconds and the driver fired several shots. Before the shots were fired, Thrash saw a female sitting behind the driver, pointing in the direction of Thrash, Davis, Lester, and Bryant. During the incident, Thrash did not pull out a gun and did not see Bryant with a gun. Bryant did not see anyone in his group pull out a gun, either.
Bryant drove off. Davis tried to run back to his house but was shot. A single bullet went through Davis’s stomach and exited through his back. Davis’s father grabbed him and put him on the garage floor. His mother called 911 and an ambulance arrived. Davis required surgery and was hospitalized for nearly a week.
Detective Lance Colmer, an expert on Moreno Valley criminal street gangs, interviewed Lester at the hospital the day after the shooting while Lester was visiting Davis. Lester described the incident and the car from which the shots were fired, and said there was a female in the car pointing at the group around Bryant’s car immediately before the shooting. Lester said Kwante De Jon Williams, also known as “K-Dogg,” was the shooter. Lester also identified the female passenger as “Lady No-Joke” but did not know her real name. Later, Lester identified defendant from a photographic lineup as “Lady No-Joke” and the female passenger who pointed at Bryant, Lester, Thrash, and Davis just before the shooting. Lester also identified a photograph of the car from which the shots were fired and said it belonged to Williams.
Williams and defendant were tried together before separate juries. Williams ultimately pled guilty to two counts of attempted murder with great bodily injury and gang enhancements and received a 20-year stipulated sentence. This court dismissed Williams’s appeal from the judgment following his plea because no certificate of probable cause had been issued.
Detective Colmer testified as a gang expert for the prosecution. He knew Davis, Thrash, Lester, and Bryant to be members of the Unknown Mafia or its subset, Sex Cash. Davis’s house was a known hangout for UM members, though it was not in UM territory. The UM’s rivals included the Edgemont Criminals, Dorner Blocc, and the Young Paper Chasers-three gangs which had been affiliated with one another since 2003 and which shared the same turf. Members of the UM and its rival gangs were well known to each other because they had all grown up together. Sex Cash had been “at war” with the Edgemont Criminals, Dorner Blocc, and the Young Paper Chasers since 2002 or 2003, and prior homicides had “led up to this current shooting.” Just two months before the April 6 shooting, Dwight Webber, a UM/SC member, was killed while driving through DB’s turf and stopping at the intersection of Finley and Perham.
Several days after the shooting, Detective Colmer conducted surveillance outside a house in San Bernardino. Williams’s car was parked in the driveway. The detective prepared a search warrant for the house, but before he could serve it, Williams got into the car and drove away. The detective stopped Williams and arrested him. At the time of his arrest, Williams was wearing a shirt with a photograph of Allen White, a Dorner Blocc member who was killed by a Sex Cash member in February 2007.
On April 12, Detective Colmer served the search warrant and found clothing indicating Williams was a member of Dorner Blocc and a cell phone containing telephone numbers for DB and EC members. The detective also searched Williams’s car and found a hat in the back window with a “D” on it, consistent with hats worn by Dorner Blocc members. A photograph found in the glove box showed Williams displaying Dorner Blocc hand signs. Detective Colmer opined that Williams was an active member of Dorner Blocc on April 6, 2007, the date of the shooting.
Detective Colmer also obtained a search warrant for defendant’s home on Millsap Drive in Moreno Valley, and searched it on May 24, 2007. Defendant was present during the search. The detective found letters with content associated with YPC and addressed to defendant from incarcerated gang members. He also found notebook paper with YPC graffiti, a telephone list with gang members’ nicknames, a bandana with the YPC symbol on it, and a binder with “Lady No-Joke” written on it in defendant’s bedroom. Defendant also had a Web page on Myspace.com that contained text referencing YPC and “Mrs. No-Joke.” A tattoo on her lower back showed a $20 bill and the letters “LPC,” which stands for “Lady Paper Chasers.”
Following the search, Detective Colmer transported defendant to the sheriff’s station. After defendant waived her Miranda rights, the detective interviewed defendant and a videotape of the interview was played for the jury. Defendant admitted she was a member of the Young Paper Chasers, specifically, the “Lady Paper Chasers.” She was in the group of people at Finley and Perham when Bryant drove by on April 6. She saw Bryant make a gesture with his hand as though he was firing a gun at the group as he drove past. After Bryant made the gun gesture, defendant said, “man, he needs to get his ass whooped,” and called Bryant’s behavior “a death wish.” By making the gun gesture, defendant said Bryant was saying, “I’m gonna kill you all.” Some time before April 6, Bryant had attempted to have defendant “jumped.”
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant also told the detective that, shortly after Bryant drove by and made the gun gesture, Williams walked over to a nearby bush, retrieved something, and put it under his shirt, but defendant claimed she did not know what Williams had retrieved. Defendant “guess[ed]” that Williams retrieved a gun from the bush. Then Williams, defendant, and two other people got into Williams’s car, with Williams driving. When defendant spotted Bryant, Williams made a U-turn and started shooting. Defendant claimed that when she pointed at Bryant, she wanted to get out of the car so they could “fight.” She admitted that none of the UM/Sex Cash members, including Bryant, tried to shoot at them first.
Detective Colmer opined that defendant was an active member of the YPC at the time of the shooting. He also testified that gangs often possess a “gang gun,” which is a gun hidden in a place known to several members where it can be accessed by any member in case they need it.
Detective Colmer interviewed Bryant during his investigation. Bryant told the detective that just before the shots were fired he heard someone yell “Dorner Blocc” from Williams’s car. Bryant also said he knew the people standing in front of the house at Finley and Perham were members of Dorner Blocc when he drove by the house on April 6.
Detective Colmer opined that members of the Dorner Blocc and YPC gangs would have viewed Bryant’s drive past the Finley and Perham intersection as a sign of disrespect, and the April 6 shooting was committed for the benefit of these gangs. He also explained that hand-to-hand fights are common in high school settings but are uncommon among adult gang members; adult gang members typically shoot each other.
III. DISCUSSION
A. Instructions on Attempted Voluntary Manslaughter Were Properly Not Given
In counts 1, 2, 3, and 7, defendant was charged with and convicted at trial of the attempted murders of Davis, Thrash, Lester, and Bryant. Defendant claims the trial court prejudicially erred in failing to instruct sua sponte on the lesser included offense of attempted voluntary manslaughter in each count, based on both heat of passion and imperfect self-defense. She argues substantial evidence showed she participated in the crimes based on an actual if unreasonable belief in the need to defend herself, or in the heat of passion. We disagree that substantial evidence supported giving the lesser included offense instructions.
1. Applicable Legal Principles
A trial court has a duty to instruct sua sponte on lesser included offenses when substantial evidence shows the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) “This substantial evidence requirement is not satisfied by ‘“any evidence... no matter how weak....”’” (People v. Avila (2009) 46 Cal.4th 680, 705; People v. Breverman, supra, at p. 162.) Rather, substantial evidence in this context means “‘“‘evidence that a reasonable jury could find persuasive.’”’” (People v. Benavides (2005) 35 Cal.4th 69, 102.) On appeal, we independently determine whether substantial evidence required lesser included offense instructions to be given. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
When asked whether he was requesting any instructions on lesser included offenses, defense counsel responded he was not.
“Voluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708; People v. Lee (1999) 20 Cal.4th 47, 59.) Similarly, when a person attempts to kill in the unreasonable but good faith belief in the need for self-defense, or in a sudden quarrel or heat of passion, the crime is attempted voluntary manslaughter, not attempted murder. (People v. McCoy (2001) 25 Cal.4th 1111, 1116 [imperfect self-defense]; People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825 [sudden quarrel or heat of passion].)
The doctrine of imperfect self-defense is narrow. “‘It requires without exception that the defendant must have had an actual belief in the need for self-defense.... Fear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. “‘... An imminent peril is one that, from appearances, must be instantly dealt with.’...”...’ [Citations.]” (People v. Manriquez (2005) 37 Cal.4th 547, 581, some italics added.)
The doctrine of sudden quarrel/heat of passion is also narrow. “[T]he factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation.” (People v. Lee, supra, 20 Cal.4th at p. 59.) The provocation must be caused by the victim, or be reasonably believed by the defendant to have been caused by the victim. (Ibid.) The provocation may be physical or verbal, but it “must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (Ibid.) The “passion” aroused by the provocation need not be anger or rage, but may be any “‘[v]iolent, intense, high-wrought or enthusiastic emotion’” and may be caused by “‘a series of events over a considerable period of time....’” (People v. Berry (1976) 18 Cal.3d 509, 515.)
2. Analysis
Defendant points to several items of evidence showing she acted in imperfect self-defense or in the heat of passion when she aided and abetted the shooting.
First, defendant points out that for several years before the shooting there had been an “escalating war” between the UM/SC gang, on one side, and the DB/YPC/EC gangs, on the other, with both sides having perpetrated “murders and attempted murders” against each other. Second, she argues her statements to Detective Colmer showed she was aware of the “bloody war” between the two sides, and her YPC gang was “in the mix.” Third, she points out that only two months before the shooting, an S.C. member, Dwight Webber, was killed while driving through the same intersection of Finley and Perham that Bryant drove through on April 6, and the notebook seized from her bedroom contained a reference to Webber.
Fourth, defendant told Detective Colmer that just “a couple of days” before the shooting, Bryant and the UM/SC gang “tried to get [her] jumped.” Fifth, in defendant’s eyes, Bryant’s gun gesture, in the presence of herself, Williams, and others at the Finley/Perham intersection, signified Bryant was “basically” saying to them, “I’m gonna kill you all.” Sixth, Detective Colmer testified Bryant’s gun gesture could “provoke” a shooting. Seventh, and lastly, defendant’s and Williams’s “hot pursuit” of Bryant in Williams’s car caused them to arrive at the scene of the shooting only three to five minutes after Bryant made the gun gesture.
None of this evidence or any of the other evidence amounted to substantial evidence that defendant acted in imperfect self-defense or was reasonably provoked when she aided and abetted the April 6 shooting. The doctrine of imperfect self-defense does not apply even if the jury could have reasonably inferred that defendant viewed Bryant’s gun gesture as a “clear and imminent threat to kill” her and her fellow gang members, because the evidence indisputably showed that Bryant drove away right after he made the gun gesture. Thus, the fear defendant may have acted upon was not a fear of imminent harm, but fear of future harm. And, as indicated, “‘“[f]ear of future harm-no matter how great the fear and no matter how great the likelihood of the harm, will not suffice”’” to support an instruction on attempted voluntary manslaughter based on unreasonable self-defense. (People v. Manriquez, supra, 37 Cal.4th at p. 581, italics added.)
Additionally, Bryant’s gun gesture, even when viewed against the background of the ongoing violent rivalry between the two competing groups of gangs, was insufficient to provoke “an ordinary person of average disposition to act rashly or without due deliberation and reflection” (People v. Lee, supra, 20 Cal.4th at p. 59), and was therefore also insufficient to support an instruction on attempted voluntary manslaughter based on a sudden quarrel or heat of passion (§ 192, subd. (a)). Defendant argues Bryant’s gun gesture was akin to “waving a stick near a hornet’s nest, engendering the foreseeable self-protective reaction of hornets by way of their hot and deadly pursuit.” But ordinary persons of average disposition do not have the angry disposition of hornets.
B. Sentencing Error
Defendant claims, and the People and we agree, that her 15-year-to-life sentences on her premeditated attempted murder convictions in counts 1, 2, 3, and 7 were erroneously imposed and must be reduced to life in prison with a seven-year minimum parole eligibility period. We therefore reduce these terms to life in prison with a seven-year minimum parole eligibility period. (§ 3046, subd. (a)(1).)
The 15-year-to-life terms were authorized pursuant to section 664, subdivision (a), which provides that the penalty for attempted willful, deliberate, and premeditated murder is life in prison with the possibility of parole, and section 186.22, subdivision (b)(5), which provides that any person who commits a crime punishable by life in prison for the benefit of a criminal street gang shall not be paroled until a minimum of 15 calendar years have been served.
Defendant, however, was also sentenced to 25-year-to-life terms for the section 12022.53, subdivision (d) firearm enhancements on counts 1, 2, 3, and 7, pursuant to section 12022.53, subdivision (e)(1), though she did not personally discharge the firearm. Section 12022.53, subdivision (e)(1) authorizes the imposition of any section 12022.53 firearm enhancement on a person who is a principal in the commission of an offense if he or she both (1) violated section 186.22, subdivision (b), and (2) any principal in the offense violated subdivision (b), (c), or (d) of section 12022.53.
Section 12022.53, subdivision (e)(2) limits the effect of subdivision (e)(1), however. (People v. Brookfield (2009) 47 Cal.4th 583, 590.) In this instance, section 12022.53, subdivision (e)(2) prohibited the imposition of the 15-year minimum parole eligibility period of section 186.22, subdivision (b)(5), in addition to the section 12022.53, subdivision (d) firearm enhancements. Section 12022.53, subdivision (e)(2) provides that an enhancement for participation in a criminal street gang shall not be imposed on a person in addition to a firearm enhancement under section 12022.53, subdivision (e)(1), unless the person personally discharged a firearm in the commission of the offense.
It follows that, though the 25-year-to-life firearm enhancements were properly imposed pursuant to section 12022.53, subdivisions (d) and (e)(1), the 15-year minimum parole eligibility periods, though generally authorized by section 186.22, subdivision (b)(5), were erroneously imposed given that the firearm enhancements were also imposed pursuant to section 12022.53, subdivision (e)(1) and defendant did not personally discharge a firearm. (§ 12022.53, subd. (e)(2); People v. Brookfield, supra, 47 Cal.4th at p. 595 [“enhancement” in section 12022.53, subdivision (e)(2) refers to minimum parole eligibility period of section 186.22, subdivision (b)(5)]; People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-1427 [explaining effect of section 12022.53, subdivision (e)(2)].)
The same sentencing error that occurred here occurred in People v. Salas (2001) 89 Cal.App.4th 1275, 1280 and 1281. There, the court remedied the error by reversing that portion of the judgment which imposed a 15-year minimum parole eligibility period on the defendant’s premeditated attempted murder conviction and modifying the judgment to reflect that the defendant was subject to a seven-year minimum parole eligibility date pursuant to section 3046. We do the same here.
IV. DISPOSITION
That portion of the judgment which imposes a 15-year minimum parole eligibility period on counts 1, 2, 3, and 7 pursuant to section 186.22, subdivision (b)(5) is reversed. The judgment is modified to reflect that defendant is subject to a seven-year minimum parole eligibility period on counts 1, 2, 3, and 7, pursuant to section 3046, subdivision (a)(1). The judgment is affirmed in all other respects. The matter is remanded to the trial court with directions to prepare a corrected abstract of judgment which reflects this partial reversal and modification and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: Hollenhorst Acting P.J., McKinster J.