Opinion
E064648
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO DELACRUZ, Defendant and Appellant.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1401416) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed with directions. Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted defendant Francisco Delacruz of willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a),/664, and189) and found true the personal gun use enhancement. (§ 12022.53, subds. (b) and (c).) The trial court sentenced defendant to an indeterminate prison term of seven years to life, and a determinate term of 20 years. On appeal, defendant argues the evidence was insufficient to support his attempted murder conviction and the court erred by not giving a sua sponte instruction on the lesser included offense of attempted voluntary manslaughter based on sudden quarrel or heat of passion. Defendant also asserts various issues related to his sentence. With some modifications, we affirm the judgment.
All statutory references are to the Penal Code.
II
FACTUAL BACKGROUND
The shooting incident
Defendant is a drug dealer who supplied drugs to the victim, Juan Cruz. On April 16, 2014, Cruz was alone at home, watching television when defendant, armed with a concealed shotgun, visited him around 7:00 a.m. Cruz lay on the couch while defendant sat on the adjacent loveseat. Cruz was half asleep when he heard a gunshot. Cruz realized his head was "gushing blood," and he saw that defendant had left. Cruz grabbed a towel for his head, and ran out the door, yelling at defendant. Neighbors called 911. Cruz testified that 21 stitches and 7 staples were needed to close his wound.
At trial, Cruz testified that he and defendant smoked methamphetamine whenever defendant provided it. Cruz denied asking for drugs, arguing, or physically fighting with defendant about drugs before the shooting. Cruz admitted telling police that they had argued another time about defendant's problem with some neighbors. Cruz did not understand why defendant shot him.
Deputy Debois responded to the shooting scene at 9:36 a.m. Other deputies were already present. Blood droplets were on the walkway leading up to the front door. The front door was open and Cruz was sitting on a loveseat, wearing a bloody shirt, and holding a towel to his head.
Debois concluded a shotgun had been used—based on his personal knowledge of firearms and the corresponding size of the holes in the pillow and sofa cushion. To create a one-inch round hole, the gun would have been fired from close range—inches away.
Defendant's Post-Arrest Statement
Defendant was arrested after he was found hiding inside an abandoned house in the neighborhood. In his recorded interview, defendant admitted going to Cruz's house—something he did frequently—to use Cruz's laptop. Defendant and Cruz often smoked dope together and, when Cruz answered the door, he asked for drugs. Defendant replied, "I don't know, fool." Defendant described Cruz as a freeloader, who was always hustling for drugs. Defendant was the person who supplied Cruz with drugs.
That morning, Cruz let defendant inside and offered him some juice. Defendant sat on a couch. Meanwhile, Cruz was lying down on the adjacent couch and continuing to hustle him for dope.
After an hour, defendant called Cruz a "Puto or whatever," and leaned over to pick up his lighter from the floor. Cruz stood over him, demanding, "Where's the fucking dope at? What's up? What's up," and trying to swing at him. Defendant had a loaded black sawed-off 12-gauge shotgun beside him on the couch. Defendant "went BOOM" and started running towards the door. Cruz yelled, "Oh you fucking bitch! You bitch."
Defendant did not see anything in Cruz's hands. He did not know why the gun fired. He did not aim and he was glad he did not kill Cruz.
Defendant described Cruz as tall - about six feet - but thought he could "probably" match Cruz in a fight. He denied asking a neighbor to help him rob and kill Cruz.
Additional Trial Evidence
David B., a neighbor, told police that defendant was at his house around 3:30 or 4:30 a.m. the day of the shooting. Defendant had a small sawed-off shotgun and talking about robbing Cruz. Defendant asked David to come with him. Defendant said he was not worried if Cruz decided to call the police because he would kill Cruz and he and David would be the only two witnesses. David declined to be involved.
At trial, David testified under immunity that he "vaguely" remembered telling a detective that defendant had come to his house and asked for help robbing Cruz. David claimed he makes up stories when he has been drinking. Because defendant owed him for some unpaid drugs, he was "pissed off." David claimed he was drunk when he was interviewed and defendant never displayed a shotgun or asked him to help rob Cruz. David resisted testifying. The prosecution recalled Debois to testify David did not appear drunk when he interviewed him.
Defendant did not testify or present any evidence in his own defense.
III
INSUFFICIENCY OF EVIDENCE
Defendant argues his conviction for willful, premeditated and deliberate attempted murder must be reversed because no rational jury could have found substantial evidence that the shooting was the product of a "preexisting reflection and weighing of considerations rather than [a] mere unconsidered or rash impulse." (People v. Cole (2004) 33 Cal.4th 1158, 1224.)
Standard of Review
On appeal, this court must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) "By definition, 'substantial evidence' requires evidence and not mere speculation about any number of scenarios that may have occurred." (People v. Thomas (1992) 2 Cal.4th 489, 545; People v. Morris (1988) 46 Cal.3d 1, 21, overruled on another point in In re Sassounian (1995) 9 Cal.4th 535, 551, fn. 5.) "A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." (Morris, at p. 21.)
A conviction should not be reversed on the ground of insufficient evidence "'unless it appears "that upon no hypothesis whatsoever is there sufficient substantial evidence to support [it]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.) The appellate court reviews the whole record in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Catlin (2001) 26 Cal.4th 81, 139.) Although circumstances might also be reasonably reconciled with a contrary finding, it does not warrant a reversal of the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Attempted Murder
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Smith (2005) 37 Cal.4th 733, 739.) A defendant's intent is rarely susceptible of direct proof so the specific intent to kill must usually be derived from all the circumstances of the attempt, including the defendant's actions. (Smith, at p. 741.) While motive is not an element of attempted murder, it can be evidence of intent to kill. (Id. at p. 735.)
Attempted murder is not divided into degrees but "[t]he prosecutor may seek a jury finding that an attempted murder was 'willful, deliberate, and premeditated.'" (People v. Smith, supra, 37 Cal.4th at p. 740; §§ 189 and 664, subd.(a).) The test for determining if there is sufficient evidence of premeditation is the same whether the crime is murder or attempted murder. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.)
Willful, deliberate and premeditated murder requires "substantially more reflection than may be involved in the mere formation of a specific intent to kill." (People v. Thomas (1945) 25 Cal.2d 880, 900; People v. Young (2005) 34 Cal.4th 1149, 1182; People v. Boatman (2013) 221 Cal.App.4th 1253, 1264.) Premeditation "encompasses the idea that a defendant thought about or considered the act beforehand." (People v. Pearson (2013) 56 Cal.4th 393, 443.) Deliberation "'"'refers to careful weighing of considerations in forming a course of action.'"'" (Ibid.) "The word 'deliberate' is an antonym of 'Hasty, impetuous, rash, impulsive' [citation] and no act or intent can truly be said to be 'premeditated' unless it has been the subject of actual deliberation or forethought." (Thomas, at p. 901.)
To find a person guilty of deliberate premeditated murder the evidence must show the defendant's acts were the result of careful thought and weighing of considerations rather than an unconsidered or rash impulse. (People v. Banks (2014) 59 Cal.4th 1113, 1153.) While "'"'[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'"'" (People v. Mendoza (2011) 52 Cal.4th 1056, 1069), the focus is ultimately on "'the extent of the reflection,'" not the time it took before deciding to act. (People v. Solomon (2010) 49 Cal.4th 792, 813; People v. Jackson (1989) 49 Cal.3d 1170, 1200.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, the Supreme Court provided guidelines for the kind of evidence which would sustain a finding of premeditation and deliberation. They are: "(1) planning activity (i.e., facts about what the defendant did prior to the killing that show he was engaged in activity directed toward killing); (2) motive (i.e., facts about the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill the victim); and (3) method (i.e., facts about the manner of the killing from which the jury could reasonably infer that defendant had a preconceived design to take the victim's life in a particular way." (People v. Shamblin (2015) 236 Cal.App.4th 1, 10.)
The Anderson court also noted that "[a]nalysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) [planning] or evidence of (2) [motive] in conjunction with either (1) or (3) [planning or manner]." (People v. Anderson, supra, 70 Cal.2d at p. 27.) The evidence need not be present in any particular combination or given a particular weight. Nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247.) Rather, these factors serve as a guide to assess whether the attempted killing was the result of preexisting reflection. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Defendant argues that he impulsively fired a shotgun without any planning, motive, or method. Defendant's arguments rest entirely upon this court reweighing the evidence and construing it in light more favorable to defendant—which an appellate court cannot do. However, applying the Anderson factors to the evidence amply supports the jury's finding that the attempted murder of Cruz was willful, premeditated, and deliberate.
The evidence of planning and method showed that defendant armed himself with a shotgun, plotted to rob and shoot Cruz, and fired without provocation upon Cruz at close range as he dozed on a couch. A conscious decision to arm oneself is evidence of planning. (People v. Elliot (2005) 37 Cal.4th 453, 471.) The manner of shooting Cruz in the head at close range while he was sleeping also supports a finding of premeditation and deliberation. (People v. Burney (2009) 47 Cal.4th 203, 235.)
Defendant improperly attempts to argue the facts in the light most favorable to him, as opposed to the judgment. Although defendant acknowledges that a loaded gun may suggest a defendant has considered the possibility of a violent encounter (People v. Lee (2011) 51 Cal.4th 620, 636), he argues that this inference should not apply because it is "unknown" whether defendant had a habit of carrying a gun. Defendant's "habit" is irrelevant when defendant elected to bring a gun to Cruz's home and it may be reasonably inferred he planned to use it. Where circumstances reasonably justify the trier of fact's findings, those findings are binding on this court. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.) Even if defendant regularly carried a gun, it would not negate evidence that defendant told David about his plan to rob Cruz and then to kill him to keep him from calling the police.
Defendant's contentions do not contradict the reasonableness of the contrary findings that support the verdict: "Of course, the appellate court does not substitute its judgment for that of the jury but affirms the verdict if a rational trier of fact could find premeditation and deliberation beyond a reasonable doubt." (People v. Pride (1992) 3 Cal.4th 195, 247; see People v. Wharton (1991) 53 Cal.3d 522, 548.) Accordingly, substantial evidence supports the jury's verdicts that defendant committed first degree attempted murder.
III
INSTRUCTION ON VOLUNTARY MANSLAUGHTER
Defendant next contends that the trial court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter based on heat of passion or sudden quarrel. We conclude the trial court had no duty to so instruct as there was insufficient evidence of either heat of passion or sudden quarrel. Any error was also harmless given other instructions and the weight of evidence supporting willful, premeditated and deliberate murder.
A trial court must instruct the jury on all general principles of law relevant to the issues of the case, including defenses and lesser included offenses when they are supported by substantial evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866-867.) "[S]ubstantial evidence means evidence . . . from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist." (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) The appellate court reviews independently the question whether the trial court erroneously failed to instruct on defenses and lesser included offenses. (Ibid.)
Attempted voluntary manslaughter due to a sudden quarrel or in the heat of passion is a lesser included offense of attempted murder. (People v. Beltran (2013) 56 Cal.4th 935, 942.) It has both an objective and a subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549; CALCRIM No. 570.) To satisfy the objective or reasonable person element of this form of voluntary manslaughter, the accused's heat of passion must be due to sufficient provocation, either caused by the victim or by conduct reasonably believed by the defendant to have been engaged in by the victim. The victim's conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (Moye, at pp. 549-550.) To satisfy the subjective element of voluntary manslaughter, the accused must be shown to have killed while under the actual influence of a strong passion induced by such provocation. (Id. at p. 550.)
CALCRIM NO. 570 provides: "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. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] 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. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.
First, Cruz's conduct was not "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Moye, supra, 47 Cal.4th at p. 550.) Under defendant's version of the events, Cruz pestered him for methamphetamine and defendant responded by calling Cruz a name. Then, believing Cruz was going to "do something," defendant fired the gun at him. Such behavior would not cause an ordinary person to act so rashly.
In People v. Gutierrez (2009) 45 Cal.4th 789, the defendant claimed there was sufficient provocation because the victim kicked him, scratched him, and pulled on his shirt, while cursing him during an argument. (Id. at pp. 826-827.) The California Supreme Court reasoned "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." (Id. at p. 826.) Here, the conduct involved a far more mild confrontation, if any. (See, People v. Manriquez (2005) 37 Cal.4th 547, [taunting is "plainly . . . insufficient to cause an average person to become so inflamed as to lose reason and judgment."].)
Defendant relies on People v. Millbrook (2014) 222 Cal.App.4th 1122, 1141, which is distinguishable. In Millbrook, the Court of Appeal found the trial court erred in failing to instruct on heat of passion where the victim insulted and "had a serious argument" with the defendant's girlfriend, engaged in "belligerent and threatening behavior," and "had been aggressive throughout the night." (Ibid. In spite of defendant's characterization of the encounter as involving a highly charged verbal confrontation, the actual evidence only demonstrates defendant's irritation with Cruz—who took a swing at defendant. At most, defendant asserted self-defense and imperfect self-defense, upon which the trial court did instruct the jury.
Defendant's case is similar to Moye. In Moye, the trial court instructed the jury on both perfect and imperfect self-defense but not heat of passion as a basis for voluntary manslaughter. (People v. Moye, supra, 47 Cal.4th at p. 548.) The defendant admitted killing the victim with a baseball bat during mutual combat. (Id. at pp. 551-552.) The court reasoned that the thrust of the defendant's testimony was self-defense. (Id. at pp. 554-555.) As in Moye, here defendant's statements to police revealed that he was not overcome by passion, but was responding to a perceived threat by Cruz and acted in self-defense: "In the face of defendant's own testimony, no reasonable juror could conclude defendant acted '"' rashly or without due deliberation and reflection, and from this passion rather than from judgment.'"'" (Id. at p. 553.)
Furthermore, any error was harmless as a more favorable result is not reasonably probable even had the instruction been given. (People v. Moye, supra, 47 Cal.4th at p. 554.) It is recognized that the failure to instruct sua sponte on voluntary manslaughter based on heat of passion or sudden quarrel is one of state law error. (People v. Thomas (2013) 218 Cal.App.4th 630, 644.) The California Supreme Court also holds a failure to instruct on unreasonable self-defense, which likewise negates malice, is an error of state law. (People v. Blakeley (2000) 23 Cal.4th 82, 93-94; People v. Randle (2005) 35 Cal.4th 987, 1003.)
Any error in failing to instruct on heat of passion or sudden quarrel would be harmless given the absence of evidence to support the defense, the strong evidence of guilt, other instructions, and the verdicts. Defendant armed himself with a loaded shotgun, confided his plan to rob and kill Cruz, and then proceeded to visit Cruz, waiting to shoot him in the head until he was dozing on the couch. Defendant also fled the scene and hid from police, evidencing a consciousness of guilt. (See People v. Abilez (2007) 41 Cal.4th 472, 522.) Although defendant bungled the shooting, panicked, and fled, it does not change the strong evidence of defendant's intent that preceded his failed execution of his plan.
Further, the court properly instructed the jury on defendant's self-defense and imperfect self-defense claims. Once the jury rejected defendant's claims of self-defense and imperfect self-defense, no independent evidence supported a further claim that he shot in the heat of passion, and no direct testimonial evidence from defendant supported an inference that he subjectively harbored such strong passion, or acted rashly or impulsively while under its influence, for reasons unrelated to his perceived need for self-defense: "Moreover, the jury having rejected the factual basis for the claims of reasonable and unreasonable self-defense, it is not reasonably probable the jury would have found the requisite objective component of a heat of passion defense (legally sufficient provocation) even had it been instructed on that theory of voluntary manslaughter." (People v. Moye, supra, 47 Cal.4th at p. 557.)
Additionally, the verdict shows the jury refused to find defendant acted "rashly, impulsively, or without careful consideration of the choice and its consequences." (See CALCRIM No. 601.) The jury specifically found that defendant intended to kill when he acted, carefully weighed his decision and, knowing the consequences, decided to kill before completing the act of attempted murder. (Ibid.) "'Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to [the] defendant under other properly given instructions.'" (People v. Peau (2015) 236 Cal.App.4th 823, 830, quoting People v. Lewis (2001) 25 Cal.4th 610, 646.)
In People v. Berry (1976) 18 Cal.3d 509, the court held that a first degree murder verdict did not render the failure to give a requested heat-of-passion instruction harmless. (Id. at pp. 512, 518.) However, as pointed out in Peau, supra, the court in Berry only considered "whether the error was harmless because the jury received some instruction on the concepts of heat of passion and provocation, not whether the error was harmless because the jury found the murder was willful, deliberate, and premeditated and such a finding was inconsistent with a finding that the defendant acted in a heat of passion." (People v. Peau, supra, 236 Cal.App.4th at pp. 831-832.) The jury's verdict is entirely inconsistent with a finding that defendant acted in a heat of passion. Any error in failing to instruct sua sponte on heat of passion or sudden quarrel is harmless under any standard.
IV
SENTENCING MODIFICATION
Several technical errors in defendant's sentence and the abstract of judgment need correction.
Defendant's convictions and the jury's true finding on the personal gun use enhancement under section 12022.53, subdivision (c) resulted in a mandatory indeterminate life term with the possibility of parole after seven years, plus a determinate term of 20 years. (§§ 664, 12022.53, subd. (c).) At the sentencing hearing, the trial court correctly imposed the 20-year determinate term for the gun use enhancement and the indeterminate term for first degree attempted murder. The court, in pronouncing the indeterminate term, added "seven years to life," presumably including the parole eligibility term: "An inmate imprisoned under a life sentence shall not be paroled until he or she has served . . . . [¶] (1) A term of at least seven calendar years." (§ 3046, subd. (a)(1).)
Including the minimum sentence before eligibility for parole is not inaccurate or prejudicial: "By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of Prison Terms regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole." (People v. Jefferson (1999) 21 Cal.4th 86, 101, fn. 3.) In Jefferson, the California Supreme Court found the seven-year minimum period of confinement for parole eligibility of a defendant convicted of premeditated and deliberate attempted murder constituted a minimum term for an indeterminate sentence. (Id. at pp. 95-100.)
In this case, the abstract of judgment should be corrected to reflect the 20-year determinate term for the gun use enhancement and the indeterminate term for first degree attempted murder, not an indeterminate term of 27 years to life. Lastly, the abstract of judgment also erroneously includes findings and stayed sentences for two special allegations not actually found by the jury, Special Allegation Nos. 2 and 5 regarding the infliction of great bodily injury. (§ 12022.53, subd. (d), and § 12022.7, subd. (a).) After the jury was unable to reach a verdict on these two allegations, the trial court discharged the jury and the prosecutor indicated that he would be dismissing those allegations. These errors should also be corrected.
V
DISPOSITION
Substantial evidence supports defendant's conviction for attempted first degree murder and we hold there was no prejudicial instructional error. We direct the trial court to make the corrections to the abstract of judgment as described above and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. Otherwise, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.