Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028037
BLEASE, Acting P. J.
A jury convicted defendant William Robert Dye of attempted murder (Pen. Code, §§ 187, subd. (a), 664), and found that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court found that he committed the offense while released on bail or his own recognizance (§ 12022.1), and that he had served four prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for a determinate term of 15 years plus a consecutive indeterminate term of 25 years to life. He was also sentenced to two consecutive terms in the case underlying the on-bail enhancement.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the jury instructions on attempted murder were erroneous as a matter of law, (2) the trial court erroneously denied his request for a jury instruction on attempted voluntary manslaughter, and (3) he is entitled to an additional day of presentence custody credit; the Attorney General concedes this last point. We shall modify the judgment.
FACTS
Prosecution Case-in-Chief
On the evening of August 31, 2007, a party was held at a Chico motel. Present were defendant, Christopher Johns, Johns’s girlfriend Christy Scarbrough, Lena Forbes, Chris Smith, and Smith’s girlfriend Antonia Taylor. Alcohol and methamphetamine were consumed.
When the methamphetamine began to run out, Forbes suggested that they buy more from victim Donnie Powell, Jr. (Powell Jr.), who lived nearby. Forbes and Taylor went to Powell Jr.’s apartment where Forbes purchased a quarter ounce of methamphetamine for about $300. After about 45 minutes, Forbes and Taylor returned to the party and shared methamphetamine with defendant, Johns, Scarbrough, and Smith. Then the methamphetamine ran out.
Forbes believed that Powell Jr. had access to a large amount of methamphetamine and could furnish more to the group. Johns suggested to defendant that Powell Jr. could furnish more methamphetamine.
Defendant asked to borrow Forbes’s car. She watched as defendant, Johns, and Scarbrough left together in her (Forbes’s) car. Defendant was driving.
On the evening of the party, Donnie Powell III was staying with his father, Powell Jr., at his Chico apartment. Powell III was on the living room couch. Powell Jr. and his girlfriend, Teresa Spohr, were in the bedroom watching television, talking, and dozing off. The bedroom door was closed.
Late in the evening, Scarbrough arrived at Powell Jr.’s apartment and knocked on the door. Powell III looked through the peephole and saw Scarbrough, whom he recognized as a family friend. Powell III opened the door and saw that she was accompanied by defendant and Johns, whom he did not know. The trio entered the apartment. Scarbrough wanted to see Powell Jr. Powell III knocked on Powell Jr.’s door and told him that Scarbrough was there. Powell Jr. said, “[w]e’re busy, ” so Powell III returned to the living room.
According to Powell III, the trio went to Powell Jr.’s bedroom door and knocked on it; Scarbrough believed that only defendant and Johns approached the door. Scarbrough sat next to Powell III on the couch and talked to him while defendant and Johns sought entry to the bedroom.
Powell III told Scarbrough that the men were going to make his dad mad; Scarbrough replied, “[w]ell, they’re mad, ” which prompted Powell III to observe the two men. In an ensuing police interview, Scarbrough said her words had been, “Doesn’t matter, they’re pissed already.” However, she had not known that anything was about to happen.
Johns testified that he was not angry at Powell Jr., and had no ill feelings toward Powell Jr., who essentially was helping him out; they were not on bad terms. Johns was not aware of any hard feelings defendant may have had toward Powell Jr.
Spohr testified that someone kept knocking on the bedroom door approximately every two seconds, causing Spohr to become irritated and upset. After 45 to 90 seconds, she got up and opened the door, revealing two men she had never seen before. When Powell Jr. saw the two men, he jumped out of the bed and stood next to it. Johns testified that Powell Jr. and Spohr were acting nervous, as if they had been caught having an affair. Johns entered the room, nicely put his hand on Spohr’s chest, pushed her back almost to her side of the bed, and told her that she needed to leave. Johns explained that he wanted Spohr to leave because he did not know her and did not want to talk about drugs in front of her; however, she did not leave.
Powell III saw Johns walk to the bedroom doorway and stand there while defendant stood behind Johns in the hallway. After hearing the sound of a punch, Powell III ran down the hall and glanced between defendant and Johns to check on his father. Powell III made eye contact with Powell Jr., whose expression suggested that things were okay. Then Powell III returned to the living room and sat with Scarbrough on the couch. He continued to look down the hall to make sure his father was okay.
Spohr testified that the other man (defendant) entered the bedroom, almost immediately pulled a black eight-inch revolver from his waistband, and shot Powell Jr. in the face as Powell Jr. tried to duck. Powell III similarly testified that the shorter, thinner man (defendant) reached into his waistband and pulled out a gun; then Powell III heard a pop. Powell III ran toward his father as the two men fled out the front door. Spohr telephoned 911.
Scarbrough testified that she heard the loud pop, so she panicked and left with defendant and Johns. Eventually, they returned to the motel.
Ninety to 120 minutes after seeing them depart, Forbes saw defendant, Johns, and Scarbrough return to the motel and enter the party room, one after another. Defendant returned the car keys to Forbes. She did not recall anything unusual about how defendant was acting; he was quiet and his usual, easygoing self.
Johns and Scarbrough left the motel alone and walked to Scarbrough’s nearby home, where others were present. The police showed up and arrested them. At an in-field showup, Spohr identified Johns as the unarmed man who had pushed her backward. Spohr testified that Scarbrough, whom she knew, was next to Johns.
Scarbrough identified defendant as the third person who had been with her and Johns. Johns selected defendant’s photograph from an array. At trial, Johns identified defendant as the person depicted in the photograph he had selected.
Following the shooting, Smith and Taylor drove defendant and his “wife, ” Rachel Gale, from Chico to the Paradise residence of Thomas Devlin, who was a friend of Smith. Officers detained Smith and Taylor as they were leaving Devlin’s residence. At the officers’ request, defendant eventually stepped out of the Devlin residence.
Defense
Defendant presented a defense of alibi and third party culpability. Jody Mattis, a friend of Johns, testified that Powell Jr. was shot by a member of Johns’s family and not by defendant.
Connie Swanson, defendant’s estranged wife, testified that she had attended the party and had talked with defendant outside the motel for 20 minutes after Johns and Scarbrough drove away. Afterward, Swanson reentered the party room and defendant walked toward the parking lot. He returned to the motel room approximately one hour later, which was “way before” Johns and Scarbrough returned.
Taylor testified that she and Smith, her then friend and now husband, rented the motel room for the night and invited defendant, Johns, Scarbrough, and Forbes for a party. Swanson was present. Johns and Scarbrough left the party when Forbes lent them her car. Thereafter, Taylor and defendant took Smith to a hospital emergency room because Smith had an infection in his chin. Hours later, defendant drove Taylor from the hospital back to the motel. About that time, Johns and Scarbrough arrived back at the motel; then Johns and Scarbrough left. Defendant remained at the party a few more hours, until he and Smith left together.
Smith confirmed that defendant and Taylor took him to the hospital. When Smith left the hospital, he saw defendant and assumed that defendant had been there the entire time waiting for him.
DISCUSSION
I
Defendant contends, and the Attorney General concedes, the trial court erred when it instructed the jury on implied malice, which is not an element of attempted murder. The Attorney General claims the court rendered the error harmless when it admonished the jury to disregard that instruction, had the written instruction withdrawn from the instructions packet and returned to the court, orally instructed the jury with the correct instruction, furnished a correct written instruction for the instructions packet, and orally reiterated that attempted murder requires specific intent to kill. Defendant replies that these efforts were not curative because they occurred slightly more than half way into the jurors’ deliberations. The Attorney General has the better argument.
Background
The prosecutor submitted a modified version of CALCRIM No. 600 (Attempted Murder). To the pattern instruction’s two elements, “[t]he defendant took at least one direct but ineffective step toward killing another person” and “[t]he defendant intended to kill that person, ” the prosecutor added a redundant and unnecessary third element, “[w]hen the defendant acted, he had a state of mind called malice aforethought.” Then, to define “malice aforethought, ” the prosecutor added the definitions of express and implied malice found in CALCRIM No. 520 (Murder With Malice Aforethought). The trial court reviewed the instruction and said it “looks fine.” Later, in discussing the proposed instruction, the court noted that it incorporated malice aforethought. Defense counsel said the instruction was acceptable. With the prosecutor’s permission, the court inserted the phrase “second degree” so the title and a succeeding reference read “attempted second degree murder.” The court confirmed that the prosecutor had included all language from the murder instructions dealing with the definition of malice, express and implied. The court then said that it would give the instruction in the form submitted. The jury was orally instructed as set forth below and received a written copy of the instructions for use during deliberations.
The jury was instructed: “The defendant is charged in Count 1 with attempted second-degree murder. To prove the defendant guilty of attempted second-degree murder, the People must prove that, number one, the defendant took a direct but ineffective step toward killing another person; number two, the defendant intended to kill that person; number three, when the defendant acted he had a state of mind called malice aforethought.
Jury deliberations began on September 28, 2009, at 11:28 a.m.; they were suspended for lunch at 11:45 a.m., and ended for the day at 4:10 p.m. Before being released for the day, the jury submitted Jury Inquiry No. 3, seeking clarification of the instruction’s phrase “intent to kill.”
Jury Inquiry No. 3 stated: “Re [instruction] #600--we want clarification of ‘intent to kill’--for instance examples [sic]--Is drawing a loaded gun intent? Is there a definition, precise or otherwise?”
Jury deliberations resumed the next morning at 8:35 a.m. The trial court met with all counsel off the record regarding the jury’s inquiry.
The inquiry caused the trial court to review the modified CALCRIM No. 600. The court and prosecutor discussed whether it was appropriate to have instructed on malice aforethought. Ultimately, the court concluded that the implied malice instruction was improper and that it would correct its error by instructing the jury with an unmodified version of CALCRIM No. 600.
Defense counsel objected that the jury already had been instructed with the modified version, that they had been deliberating for hours, and that “we don’t know what is exactly their focus.” He requested a mistrial, asserting damage may have been done that the correct instruction cannot remedy. The court denied the request without prejudice to a motion for new trial.
At 9:37 a.m., the trial court addressed the jury as follows: “I reviewed your question regarding instruction number 600. Before I address your question, with respect to an instruction 600 that you had in your original packet, which has been returned to the Court, I will state to you as follows: In instructing upon the crime of attempt to commit murder that there should never [have] been any reference whatsoever to implied malice. Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder. [¶] I have redrafted 600 CALCRIM to reflect that requirement. And I will read the correct instruction to you at this time and will admonish you to disregard the previous instruction, which you were given, which included a discussion of the concept of implied malice....” The court then instructed the jury in language that substantially conformed to the unitalicized portion of footnote 3, ante. The court added, “And I will pass this instruction back to you to include in your packet as CALCRIM No. 600.”
Then, after reading aloud the jury’s written inquiry about “intent to kill” (fn. 4, ante), the trial court answered, “This is one of those uses of language which I’ve instructed you about where there is no specific legal definition to give and you’re allowed to interpret the meaning of the words using their ordinary, everyday meaning in language. [¶]... [¶] [S]o the final answer to your question, ladies and gentlemen, is that an element required to convict of attempted second-degree murder is a specific intent to kill and you may analyze and interpret the phrase ‘intent to kill’ using your common sense and understanding of the everyday meaning of those words.”
Defendant correctly notes that attempted murder is not divided into degrees. (People v. Smith (2005) 37 Cal.4th 733, 740; People v. Bright (1996) 12 Cal.4th 652, 669, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.)
At 9:43 a.m., the jury retired to continue its deliberations. Thereafter, the trial court addressed defense counsel as follows: “And to return to your discussion of a mistrial[], I think that the Court’s correction of the error with the comments draws enough attention to it to remedy any possible prejudice that may have been caused and there were no questions raised about the meaning of implied malice. I don’t even think they reached that point. I think it was removed from their consideration in time before they even got to a discussion of implied malice. So I think that the retraction of the original language and the institution of the correct language is enough to cure the problem, but I would give you an opportunity to place any further comments on the record regarding the mistrial motion.” Defense counsel was comfortable with the record as it was.
At 11:44 a.m., the jury took a short break. The bailiff advised the trial court that, during the break, four jurors had commented to him about tension in the jury room and had inquired whether there was a lesser included offense to the charge. The court responded by note that there were no lesser included offenses. At 12:02 p.m., the court allowed the jury to deliberate during lunch. At 1:32 p.m., the jury reported that it was unable to reach a verdict and were divided 11 to one. At 1:36 p.m., the jury resumed deliberations. At 1:41 p.m., at the court’s request, the jury clarified that there were 11 votes for conviction and one for acquittal. At 2:56 p.m., the jury reached a verdict.
Analysis
Specific intent to kill is a requisite element of attempted murder, and implied malice is insufficient to sustain such a charge. (People v. Smith, supra, 37 Cal.4th at p. 739; People v. Lee (1987) 43 Cal.3d 666, 670, and cases cited therein.) “In instructing upon the crime of attempt to commit murder, there should never be any reference whatsoever to implied malice.” (People v. Santascoy (1984) 153 Cal.App.3d 909, 918.) An erroneous reference to implied malice in an attempted murder case is federal constitutional error, which we assess pursuant to the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. (People v. Lee, supra, 43 Cal.3d at pp. 669, 674-675.)
As noted, the Attorney General claims the trial court’s error was harmless beyond a reasonable doubt in light of its admonishment to the jury to disregard the erroneous instruction; its having that written instruction withdrawn from the packet of instructions and returned to the court; its instructing the jury with the correct instruction; its furnishing the correct instruction for inclusion in the packet of instructions; and its reiteration that, in order to convict defendant of attempted murder, the jury must find that he acted with specific intent to kill.
Defendant replies that the error is not harmless, first, because the prosecutor “unambiguously told the jury” that he “could be convicted of attempted murder based on implied malice.” In one passage, the prosecutor argued, “[t]here’s also implied malice, which is an intentional act with the knowledge of a natural consequence dangerous to human life and that this act had conscious disregard for human life.” In a later passage, the prosecutor remarked, “[e]ven if you were to apply implied malice, the intentional act of shooting someone in the head is certainly an act that has a natural consequence to human life.”
The Attorney General responds that the instructions as a whole required the jurors to disregard both of these passages; we agree. At the outset, the trial court told the jury, “[i]f you believe that the attorneys’ comments on the law conflict with the instructions, you must follow the instructions.” During the reinstruction, the court told the jurors, “there should never [have] been any reference whatsoever to implied malice. Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder.” Thus, the jury was required to disregard both of the prosecutor’s comments.
“Jurors are, of course, presumed to follow the instructions given by the court. [Citation.]” (People v. McLain (1988) 46 Cal.3d 97, 119-120 (McLain).) In McLain, the court instructed the jury with former CALJIC No. 8.84.2, the “so-called Briggs Instruction, ” which was later held unconstitutional. (McLain, supra, at p. 118; see People v. Ramos (1984) 37 Cal.3d 136.) The Attorney General “argue[d] in substance that a supplementary charge, delivered by the court immediately after the Briggs Instruction, made that instruction nonerroneous or in any event nonprejudicial.” (McLain, supra, at p. 119.) The court agreed with only the latter argument, holding the erroneous use of the Briggs Instruction was harmless because, in the supplementary charge, “[t]he court thus directed the jurors to make no use of the Briggs Instruction in choosing the penalty.” (Ibid.)
Unlike McLain, where the curative instruction followed immediately upon the heels of the erroneous instruction, the curative instruction in this case was delivered slightly more than halfway through the deliberative process (five hours 44 minutes versus four hours 41 minutes). (McLain, supra, 46 Cal.3d at p. 119.) Defendant argues this delay rendered the error prejudicial. However, he cites no authority suggesting a curative instruction is effective only if delivered reasonably contemporaneously with the erroneous instruction. Jurors routinely are instructed, following deliberations of any length, to discard all their prior discussions and to start over whenever a juror is replaced by an alternate. In this case, there is no reasonable doubt about the jurors’ ability to apply the curative instruction and to disregard any prior discussion of implied malice following nearly six hours of deliberation. The guilty verdict was surely unattributable to comments by the prosecutor that merely reiterated the definition of implied malice (“[t]here’s also implied malice, which is an intentional act with the knowledge of a natural consequence dangerous to human life and that this act had conscious disregard for human life”) and voiced the tautological proposition that “the intentional act of shooting someone in the head is certainly an act that has a natural consequence to human life.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189].)
Defendant claims the implied malice instruction was prejudicial in light of Scarbrough’s statement to police that defendant “was telling [her] to calm down, and, uh, uh, it slipped, just thinking that, um, he wasn’t expecting it himself either....” (Italics added.) We construe this passage as an assertion that the gun “slipped” in defendant’s hand and he “wasn’t expecting” it to slip or to fire.
Contrary to defendant’s contention, his failure to expect that the gun would slip or fire does not tend to prove that he “acted with conscious disregard for human life” within the meaning of the implied malice instruction. (See fn. 3, ante; italics added.) Rather, it tends to prove the opposite--that he was not conscious that the gun would slip or fire. No juror who believed that defendant did not intend to kill would have convicted him, nevertheless, on the theory that his statement to Scarbrough established conscious disregard under the erroneous instruction.
Defendant claims the error was prejudicial because, following its correction, four jurors inquired about lesser included offenses and one juror later held out for an acquittal. The trial court opined that the jurors inquired because “anybody that has common sense has heard of an offense, ... assault with a firearm. Assault. They’re wondering why assault is not charged.”
If, as defendant suggests, the inquiry shows that four jurors believed that he “lacked the intent to kill, ” then their inquiry about lesser included offenses suggests that they were adhering to the court’s admonition to disregard implied malice, which they otherwise might have considered and applied even without evidence of intent to kill. The unanimous verdict hours later suggests, not that the jurors abandoned the admonition and resorted to implied malice, but that they followed the subsequent admonition that there were no lesser included offenses. In sum, the instructional error was harmless beyond a reasonable doubt.
II
Defendant contends the trial court erred when it refused his request to instruct the jury on attempted voluntary manslaughter (CALCRIM No. 602 [Attempted Voluntary Manslaughter: Heat of Passion--Lesser Included Offense]) on the ground of insufficient evidence to support that theory. Defendant further contends his trial counsel rendered ineffective assistance when he conceded, “[n]o, there is no heat of passion, nothing like that.” Neither contention has merit.
“‘“It is settled that in criminal cases, ... the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]...’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
“Malice is presumptively absent when a defendant kills ‘upon a sudden quarrel or heat of passion’ (§ 192, subd. (a)), provided that provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1086.)
Defendant claims three pieces of evidence supported an attempted voluntary manslaughter instruction. First, Spohr testified that the knocking on the bedroom door was very insistent and the men had refused to leave when Powell Jr. told Powell III to tell them he was busy. Second, Scarbrough said the two men knocking on Powell Jr.’s bedroom door were mad. Third, prosecution rebuttal evidence indicated that defendant could be aggressive and could become agitated quickly.
Whether viewed separately or in combination, this evidence simply suggested that defendant was mad and that, in this condition, he could become agitated and aggressive. The evidence did not suggest that Powell Jr. had caused defendant’s anger, or that Powell Jr. had committed provocative acts “sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [Citation.]” (People v. Koontz, supra, 27 Cal.4th at p. 1086; see People v. Steele (2002) 27 Cal.4th 1230, 1254.) Defendant effectively concedes as much when he argues, in another context, that “the best inference from the record is that [defendant] shot [Powell Jr.] suddenly, without warning, and without rhyme or reason.” (Italics added.) Admittedly, the acts leading up to the shooting lacked sufficient “rhyme or reason” to “cause an ordinarily reasonable person to act rashly and without deliberation....” (People v. Koontz, supra, 27 Cal.4th at p. 1086.)
Finally, no evidence suggested that defendant shot Powell Jr. in unreasonable or imperfect self-defense. (E.g., People v. Moye (2009) 47 Cal.4th 537, 540.)
Because no evidence supported a voluntary manslaughter instruction, its refusal was not error. (People v. Steele, supra, 27 Cal.4th at p. 1254; People v. Breverman, supra, 19 Cal.4th at p. 154.) Defendant’s trial counsel was not ineffective for having candidly acknowledged that the requested instruction lacked evidentiary support. “‘Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel. [Citation.]’” (Peoplev.Stratton (1988) 205 Cal.App.3d 87, 97, quoting Peoplev.Jones (1979) 96 Cal.App.3d 820, 827.)
III
Defendant contends, and the Attorney General concedes, he is entitled to one additional day of custody credit. We accept the Attorney General’s concession. Defendant was in presentence custody from September 2, 2007, through November 10, 2009, a period of 801 days. We shall modify the judgment accordingly. Our modification does not affect defendant’s entitlement to conduct credit.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a violent felony. (Pen. Code, §§ 667.5, subd. (c)(12), 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is modified to award defendant 801 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: HULL, J., MAURO, J.
“A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted.
“There are two kinds of malice aforethought. Express malice and implied malice. Proof of either is sufficient to establish the state of mind required for attempted second-degree murder.
“The defendant acted with express malice if he unlawfully intended to kill.
“The defendant acted with implied malice, number one, if he intentionally committed an act; number two, the natural consequence of the act was dangerous to human life; number three, at the time he acted he knew this act was dangerous to human life; number four, he deliberately acted with conscious disregard for human life.
“Malice aforethought doesn’t require hatred or ill will toward the victim. It is a mental state that must be formed before the act is committed. Does not require deliberation or the passage of any particular period of time.” (Italics added.)