Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F05893.
RAYE, J.
On June 8, 2007, defendant Steven Duran, a drug addict associated with the Norteños criminal street gang, pursued a blue BMW; pulled up next to it; asked the occupants, Bernardo Alonso and his younger brother, Abel, if they were “scraps”; picked up the.38-caliber revolver he had poised on his lap; and shot and killed Abel. A jury convicted him of murder with special circumstances, attempted murder, and various enhancements.
Defendant contends the trial court erred and his lawyer was inadequate for failing to give or seek an instruction on voluntary manslaughter based on evidence that he believed someone had shot at his house a month earlier. We conclude that evidence of a gang-related shooting a month before a killing does not constitute substantial evidence to trigger a trial court’s sua sponte duty to instruct on heat of passion voluntary manslaughter based on adequate provocation. Thus defendant’s lawyer did not fail to pursue a viable defense. We also reject defendant’s remaining evidentiary and instructional arguments. Although the probation report fee must be stricken because the trial court did not orally order defendant to pay the fee, the judgment is affirmed in all other respects.
FACTS
Few facts are necessary to the resolution of the issues before us. Even defendant does not dispute that he shot at the Alonso brothers and killed Abel. The percipient witnesses, including Bernardo and defendant’s passenger, “Filthy, ” told the same story: that defendant began driving erratically as soon as he spotted the blue BMW and that he chased it, pulled alongside it, taunted the brothers with gang challenges, picked up the loaded revolver he had on his lap, reached out of the window, and fired one shot into their car. Magdalena Gutierrez, under a grant of use immunity, corroborated Filthy’s testimony that they went to her house after the shooting, and defendant asked her to take the shotgun out of the trunk of his car and give it to his younger brother. She overheard defendant ask Filthy “if he got him.”
Defendant himself made a series of damning admissions during taped conversations from the jail. In one call he told a female that he would “probably never” get out of jail and that he “did it this time.” He stated, “I got tired of the mother-fuckers, man.” He proudly admitted, “Pssh -- only thing, I didn’t go out like no fucking punk.” He acknowledged that it was his own fault he was in jail and, in a moment of self-reflection, stated: “Maybe I needed this, maybe I ain’t fucking supposed to be out on the street. [¶]... [¶]... Maybe I need to be up in here forever.”
In a second call to a male, he also acknowledged that he would not be getting out ever. He admitted he committed a “187” with a “straight 8” (.38-caliber revolver) that morning.
Moreover, Filthy corroborated Bernardo’s testimony that neither he nor his brother had a gun, and they did nothing to provoke defendant. In fact, according to Filthy, the brothers looked surprised and baffled, like they had no idea what was going on. Filthy testified that defendant had his hand on the gun before he pulled alongside the BMW. Filthy believed defendant was more of a drug addict than a gangster; in fact, defendant had agreed to help Filthy acquire some Ecstasy pills just before the fatal shooting. Defendant, Filthy opined, was high on both methamphetamine and Ecstasy at the time of the shooting.
Defendant points to evidence of provocation that, in his view, triggered the trial court’s sua sponte obligation to instruct on heat of passion voluntary manslaughter. Filthy testified that, either at the time of the shooting or sometime later, defendant had said something like, “Those [are the] mother fuckers that shoot up my house, fucking scraps.” Bernardo was forthright with the police about the problems he had with people living on the same street as defendant, and he reported about eight or nine incidents where he had had problems with Norteños. Although Bernardo was not a validated member of a gang and the gang expert did not believe Bernardo was a gang member, he had many friends who belonged to the Sureño criminal street gang, and he dressed with some of the accoutrements common to Sureños. He too described an incident that had occurred about a month before his brother was killed, when five or six people at a house on Steiner Street challenged him to a fight. He, Abel, and another carload of friends got out of their vehicles. Then a car drove by and an occupant fired shots. Bernardo testified that defendant was not there.
Defendant also contends there was substantial evidence that he was acting under the heat of passion when he shot into the BMW. That evidence included Filthy’s testimony that as soon as defendant saw the BMW he began driving “kind of erratic” and “kind of wild, ” and Bernardo’s testimony that defendant’s car was “going from side to side constantly, real fast.” Defendant accentuates the speed at which the whole encounter escalated. Filthy testified they stopped by the blue BMW within a “matter of seconds” or “really quick” after turning. Filthy also testified that defendant “yelled out to them fucking scrap or something, that term, and the same motion, he shot at the same time, just one whole motion.” The whole affair took a mere “five seconds.”
DISCUSSION
I
Defendant understands the straightforward principles of law on sua sponte instructions and voluntary manslaughter, but he misapplies those principles to the scintilla of evidence he unearths of provocation and heat of passion. At its core, defendant confuses the objective and subjective elements of voluntary manslaughter and mistakes an agitated gangster’s subjective misperceptions while high on crystal methamphetamine and Ecstasy for the perceptions of an objectively reasonable person.
It is certainly true that the court has a sua sponte obligation to instruct on a lesser included offense even when, as here, the defense fails to request one if there is substantial evidence from which a reasonable jury could find that the lesser, but not the greater, offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.) Voluntary manslaughter is a lesser included offense of murder; attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Lasko (2000) 23 Cal.4th 101, 111; People v. Lewis (1993) 21 Cal.App.4th 243, 251.) To trigger a trial court’s sua sponte duty to instruct on voluntary manslaughter under a heat of passion theory, there must be substantial evidence of both provocation and heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1252; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
There is an objective and a subjective component to heat of passion voluntary manslaughter. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) The killer’s heat of passion must arise from sufficient provocation; that is, objectively the provocation must be such 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.) Put another way, “an average, sober person would be so inflamed that he or she would lose reason and judgment.” (People v. Lee (1999) 20 Cal.4th 47, 60.) Moreover, “‘[t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.’” (People v. Manriquez (2005) 37 Cal.4th 547, 583.)
The subjective component of heat of passion voluntary manslaughter is satisfied if there is substantial evidence the killer was “under ‘the actual influence of a strong passion’ induced by [adequate] provocation.” (Moye, supra, 47 Cal.4th at p. 550.) “‘[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.’ [Citation.]” (People v. Daniels (1991) 52 Cal.3d 815, 868; see People v. Avila (2009) 46 Cal.4th 680, 708.)
The question here is not whether defendant was acting under the influence of a strong passion, for we can presume he was. The question is whether an ordinary, reasonable, and sober person would have been so inflamed by a shooting at a house on his street more than a month earlier that he would act rashly, without deliberation or reflection, and shoot into a car at the occupants at close range. Defendant insists there is substantial evidence to support the inference that he had snapped at the sight of the two brothers and had acted without circumspection or reflection. But that begs the dispositive question whether objectively an ordinarily reasonable person would have been so enraged and impassioned. He analogizes his delayed reaction to jilted spouses. The analogies fail.
In People v. Berry (1976) 18 Cal.3d 509 (Berry), soon after they were married the defendant’s wife announced she was in love with another man. She teased and taunted him for two weeks of on-again, off-again provocation before, in a fit of passion, he killed her. (Id. at pp. 512-514.) In an even older case, People v. Bridgehouse (1956) 47 Cal.2d 406 (Bridgehouse), the defendant’s wife was involved in a long-term sexual relationship with another man but would not agree to a divorce. The defendant shot and killed the lover during a chance encounter at his mother-in-law’s house. (Id. at p. 413.)
Defendant would have us believe that the provocative conduct of these unfaithful wives was objectively equivalent to the Alonso brothers’ conduct. Not so, for reasons almost too obvious to explain. First, defendant’s inferences are speculative at best. There was no direct evidence that he was home during the alleged shooting at his house on Steiner Street or that he knew who the shooters were. While Bernardo told the investigating police officers that he had been in the vicinity when someone fired a shot on Steiner Street a month before his brother was killed, there was no evidence either he or his brother was the shooter. To accept defendant’s argument would be to impose a sua sponte duty to instruct on voluntary manslaughter any time a gang member witnessed a prior shooting in the neighborhood and weeks, if not months, later killed any member of the rival gang. We agree with the Attorney General that such retaliation constitutes revenge, not the impassioned response of an ordinarily reasonable person.
Second, in Berry and Bridgehouse, there was uncontroverted evidence that the victim had incited the killer with provocation sufficient to enrage an ordinary and reasonable person. Lack of fidelity often, if not always, triggers an intense passion that clouds judgment and deliberation. Here, however, there was absolutely no evidence either of the brothers had incited defendant on the morning of the shooting. No gun was found in their car. Filthy testified he did not see or hear them threaten defendant, challenge him, or in any way make a furtive gesture. The two occupants in the blue BMW, according to Filthy, had done absolutely nothing to defendant. Filthy did not see any weapons. In fact, it appeared to Filthy that the occupants in the BMW did not even know what was going on when defendant pulled up next to them. It was defendant who pursued them and initiated the conflict.
Nevertheless, defendant engages in raw speculation from very thin evidence. He maintains that Bernardo did not follow the route he described to the authorities from the time of the shooting until he met his friend’s family at a gas station. Moreover, he points out that there were about 10 to 15 minutes unaccounted for. In this time period, he speculates Bernardo discarded a weapon that he or his brother could have brandished before the shooting. Of course, no one saw such a gun and no gun was ever recovered. But because a neighbor reported that he had heard two shots, defendant suggests there was substantial evidence of provocation. He simply discounts the neighbor’s testimony that he did not see a blue BMW but described an entirely different kind and color of car. These inferences are nothing more than bare speculation and far from the substantial evidence needed to trigger a sua sponte instruction.
We also conclude that trial counsel was not ineffective for failing to request an instruction based on nothing more than raw speculation. “Counsel’s failure to make a futile or unmeritorious motion or request is not ineffective assistance.” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
II
Defendant asserts evidence that he had a loaded shotgun in his trunk was irrelevant and prejudicial. We find no abuse of discretion in admitting the evidence.
If the only relevance of possession of a weapon unrelated to the underlying charges is to show a propensity or disposition toward violence, then it is error to admit the evidence of another weapon. (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) The Attorney General suggests three bases for the admission of the evidence that defendant had a loaded shotgun in the trunk of his car, any one of which establishes the probative value of the evidence and justifies its admission. First, the shotgun is circumstantial evidence of defendant’s state of mind at the time of the murder. Indeed, the trial court found the evidence was relevant to whether he had the intent to kill and to counter his claim of self-defense. It demonstrated to the trial court “the intent to actually kill, that he is out armed to the teeth, ready and intending to do evil.” Second, Gutierrez’s testimony that defendant asked her to remove the shotgun from the trunk was relevant to his consciousness of guilt in that he did not want to be traced to the car through his gun, nor did he want to have anything in his possession that would be as potentially incriminating as a shotgun. And finally, the shotgun evidence was admitted as proof that the shooting was committed for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b).)
Defendant attacks the sufficiency of the evidence to support each of these inferences. He argues a loaded shotgun in the trunk of the car is not relevant to his intent to shoot at the BMW because the shotgun was inaccessible at the time. He argues the inference of consciousness of guilt is “too strained and unsupported” because there is no evidence to connect him to the gun “such that he needed to remove it from the car for that purposes [sic].” And he argues the gang expert tied “being heavily armed, ” not possession of a shotgun in the trunk, to the gang benefit; nor did the expert testify that “shotguns in trunks were uniquely possessed by Norte[ñ]os or that Norte[ñ]os commonly had shotguns in their trunks.”
Defendant’s objections are nothing more than argument about the strength of the inferences. We agree with the Attorney General that the loaded shotgun was relevant because it was probative of his mental state, his consciousness of guilt, and whether he was acting for the benefit of the Norteños. That is not to say the evidence provided conclusive proof of any of these factors, but the inferences the evidence allows are not as speculative and far-fetched as defendant suggests. Rather, possession of the loaded shotgun at the time of the murder did possess a tendency in reason to prove or disprove disputed material facts. (People v. Morrison (2004) 34 Cal.4th 698, 711.) It was therefore relevant because it tends “‘“logically, naturally, and by reasonable inference”’” (ibid.) to establish that defendant intended to kill at the time of the shooting, he exhibited a consciousness of guilt by asking his friend to remove the weapon from his car, and that by shooting perceived Sureños he thereby enhanced the visibility and credibility of the Norteños.
A trial court has broad discretion to admit relevant evidence. (People v. Anderson (2001) 25 Cal.4th 543, 591.) Nevertheless, the court must engage in a careful weighing process, particularly in assessing the admissibility of other crimes evidence, to assure that the probative value substantially outweighs any undue prejudice or confusion. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Defendant accuses the trial court of making the precise kind of arbitrary and capricious ruling that resulted in a manifest miscarriage of justice. He insists the evidence showed nothing more than his propensity toward violence and was “highly prejudicial in nature.” (People v. Henderson (1976) 58 Cal.App.3d 349, 360.) In a reiteration of his relevancy argument, he stresses that the shotgun was not the murder weapon; in fact, as he points out repeatedly, it was in the trunk of the car at the time of the shooting. Thus, in defendant’s view, the evidence involved a high degree of prejudice, particularly when coupled with the gang evidence, and was certain to inflame a jury even though it was of minimal probative value. We disagree.
As we explained above, we conclude the evidence that defendant not only was in possession of the loaded shotgun at the time of the shooting, but also that he asked his friend to remove it from his car, gave rise to reasonable inferences that he was prepared to shoot, he intended to kill, he was conscious of his guilt, and he acted to benefit his gang. Individually or cumulatively, these inferences were neither speculative nor weak.
Moreover, defendant overstates the potential for undue prejudice. He insists the evidence of the other weapon encouraged or incited the jury to convict based on his criminal proclivities rather than on evidence probative of his mental state at the time of the shooting. But the jury heard evidence that he initiated pursuit of the BMW without provocation, pulled up alongside it, and within seconds shot the occupants at close range. The fact that he also had a shotgun in the trunk was not likely to rankle or shock jurors who had heard the same callous and riveting account from both Bernardo and Filthy, the only percipient witnesses to the shooting. Finally, the evidence consisted of a few sentences from Gutierrez describing what defendant asked her to do. Thus, there was no undue consumption of time or danger of confusing the issues. In sum, we cannot say the trial court abused its discretion by allowing admission of highly relevant testimony that, in contrast to the undisputed testimony of a grisly shooting, was somewhat benign.
III
Defendant next attacks the constitutionality of CALCRIM No. 362, one of several of the standardized consciousness of guilt instructions. Based on evidence that defendant lied to the police during an interview following the shooting, the trial court instructed the jury: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it’s up to you to decide the meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Defendant acknowledges the Supreme Court has rejected similar challenges to the constitutionality of CALCRIM No. 362’s predecessor, CALJIC No. 2.03 (People v. Crandell (1988) 46 Cal.3d 833, 871 (Crandell), overruled on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365), as well as other consciousness of guilt instructions (People v. Bolin (1998) 18 Cal.4th 297, 327). Nevertheless, he contends that the slight difference in the phraseology between CALCRIM No. 362 and CALJIC No. 2.03 renders the former constitutionally deficient. We disagree.
CALJIC No. 2.03 allows a jury to consider a defendant’s false statement “as a circumstance tending to prove a consciousness of guilt.” According to defendant, even if, as the Supreme Court held, CALJIC No. 2.03’s language does not run afoul of the constitutional proscription against directing or compelling a jury to draw an impermissible inference (Crandell, supra, 46 Cal.3d at p. 871), CALCRIM No. 362 does. The vice in the offending phrase in CALCRIM No. 362, “aware of his guilt of the crime, ” in defendant’s view, is that it allows the jury to infer consciousness of guilt of the specific crimes charged, including a defendant’s mental state at the time of the offenses. We rejected a similar attack on CALCRIM No. 362 in People v. McGowan (2008) 160 Cal.App.4th 1099 (McGowan): “Although there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362..., none is sufficient to undermine our Supreme Court’s approval of the language of these instructions.” (McGowan, at p. 1104.)
Defendant gives us no reason to reevaluate our findings in McGowan. He reads too much into one phrase, ignores the rest of the instruction, and attributes a directive about his mental state that does not exist within the instruction. There is no material difference between the language used in CALCRIM No. 362 and that used in CALJIC No. 2.03. As the Attorney General argues, both phrases refer to a defendant’s psychological, not legal, guilt, something a reasonable jury would have understood. Moreover, the instruction expressly directs the jury that if it concludes defendant made the false statement, “it’s up to you to decide the meaning and importance.” Evidence is not pinpointed, nor are the jurors directed to draw impermissible inferences. Based on persuasive authority from the Supreme Court, as well as our own, we reject defendant’s constitutional challenge to CALCRIM No. 362.
IV
For the express purpose of preserving the issue for further review, defendant claims that the imposition of the firearm enhancement on the murder count violated principles of double jeopardy since the firearm enhancement was tantamount to a lesser included offense of murder. Defendant recognizes that the California Supreme Court has rejected this argument. (People v. Izaguirre (2007) 42 Cal.4th 126, 128-129; People v. Sloan (2007) 42 Cal.4th 110, 113, 120-121.) We are not at liberty to challenge the court’s wisdom. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V
The Attorney General concedes the $702 probation report fee should be stricken because at the time of sentencing the trial court did not orally order him to pay the fee. (People v. Mesa (1975) 14 Cal.3d 466, 471.) We agree. There was only a passing reference to such a fee at the end of the report, conditioned upon a finding that defendant had the ability to pay. No determination of the ability to pay was made.
DISPOSITION
The probation report fee is stricken. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.