Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. INF037945 Randall D. White, Judge.
McDONALD, J.
Ezequiel Bojorquez Espinoza (Espinoza) appeals a judgment following his jury conviction on one count of first degree, premeditated and deliberate murder (Pen. Code, § 187, subd. (a)), one count of attempted premeditated and deliberate murder (§§ 664, subd. (a), 187, subd. (a)), and three counts of discharging a firearm at an occupied motor vehicle (§ 246). On appeal, he contends: (1) his attempted premeditated and deliberate murder conviction must be reversed because the verdict form for attempted murder without premeditation and deliberation was not given to the jury; (2) the trial court erred by not instructing on involuntary manslaughter as a lesser included offense of murder; (3) the trial court erred by instructing with CALCRIM No. 601 on attempted murder; (4) the evidence is insufficient to support his section 246 convictions because he did not intend to strike the motor vehicle; and (5) the abstract of judgment must be amended to reflect the number of days of presentence custody credits awarded him by the trial court.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At about 5:00 p.m. on July 5, 2001, Israel Espinoza (Israel) picked up Jesus Espinoza (Jesus), and Jaime Soto (Jaime), and drove them to a Thermal mobile home park where Aracelia Bojorquez lived. Jesus was Espinoza's cousin and Bojorquez was their aunt. The three men planned to spend the evening drinking beer. At about 7:30 p.m., Israel and Jaime began throwing empty beer bottles on the ground, breaking them. Espinoza approached them and told them to stop because children might cut themselves on the broken glass. They told Espinoza they did not care. Bojorquez came out of her home and told them she did not want to have problems. Espinoza was angry, walked to a nearby mobile home, and began drinking outside it with two or three other men. Israel, Jesus, and Jaime left in Israel's car to drink beer and cruise the park. Jaime was in the front passenger's seat and Jesus was in the back seat. At about 8:30 p.m., they drove past Espinoza, who held out his hand and stopped them. He told Israel he should not drive so fast. Espinoza and Israel conversed for about five minutes in a calm and nonaggressive manner. Israel then drove the car away and the three men continued to drink and cruise the park. At about 9:30 p.m., Israel stopped the car again and conversed with Espinoza for five to 10 minutes in a calm and nonaggressive manner. Israel drove away and later parked the car on the street, and the three men continued drinking in the car.
At about 10:00 p.m., Israel spoke with a girl and then left with her. Jaime took the keys to Israel's car and began driving it around the park with Jesus. They bought and drank more beer. They returned to Bojorquez's home and continued drinking in front of it. Espinoza approached them, seeking to speak with Israel to "patch things up." Jaime responded that Israel was not there, but that he (Jaime) was "there for whatever." Espinoza and Jaime got into a fistfight and struck each other. Jesus and a friend broke up the fight. Jaime and Jesus began cruising the park again.
At about 11:00 p.m., Jaime stopped the car to speak with the driver of an oncoming car. Espinoza, a passenger in the car, got out and struck Israel's car with a baseball bat, telling Jaime and Jesus to get out of the mobile home park. Jaime and Jesus left and soon found Israel and picked him up. Israel began driving the car back to Coachella. However, after Jaime told him that Espinoza had been looking for him, Israel turned the car around and returned to the mobile home park to find Espinoza. Jaime and Jesus told Israel they had already taken care of things, but he told them not to get involved. They found Espinoza drinking with four or five friends. Israel parked the car nearby, approached Espinoza, and asked him why he had been looking for him. Espinoza told Israel to leave, that he did not want any problems, and that the matter was over. Israel and Espinoza began "exchanging words." Israel told Espinoza: "If you're going to be aggressive, why don't you get a gun and shoot me." Espinoza replied: "I don't have a gun, but if I did, I would probably shoot you." Israel then stated: "I'm going to go look for a gun."
Israel drove to a mobile home in the park where he found a man named Omar and asked him for a pistol, explaining he wanted to practice shooting. Omar handed Israel a semiautomatic pistol. After Israel returned to his car, he loaded the pistol with a bullet and drove back to Espinoza's location. Sitting in the driver's seat with his window lowered, Israel asked Espinoza to come over to the car. Espinoza approached and stood about two feet from the driver's side door. Using his left hand, Israel held the pistol out of his window with its barrel pointed down and its grip pointed toward Espinoza. Israel told Espinoza to grab the pistol and pull its trigger if he was "man enough" or otherwise he (Israel) would shoot him. After about one to two minutes, Espinoza took the pistol and then Israel told him to pull its trigger. Espinoza pulled the pistol's slide back and a bullet flew out of it. He looked surprised. Espinoza then put the bullet back into the pistol's chamber, released its slide, and looked at Jesus as if he (Espinoza) were wondering what was going on. Jesus shrugged and raised his hands, indicating he did not know and/or that Espinoza should think about it. Espinoza then lifted the pistol up and pointed it at Israel. Israel told Espinoza to pull the trigger or he would pull it. Remaining silent, Espinoza calmly pulled the trigger and shot Israel. He fired four or five shots. Four bullets struck Israel, injuring his left and right arms. Espinoza then pointed the pistol at Jaime and shot him in the neck. As Jaime turned to open his door, Espinoza shot him again, striking him in the left side of his back. Jaime opened the door and fell to the ground. Espinoza walked around the car to the front passenger's side and calmly fired a third shot at Jaime, striking him in the head. As Espinoza walked away, Israel yelled at him that if Jaime died, he (Israel) would look for him and kill him. Espinoza replied that he would wait for Israel. At 2:17 a.m., Jaime was pronounced dead as a result of his gunshot wounds. On August 12, 2008, Espinoza was arrested in Mexico.
Jesus was sitting in the back seat behind Israel and also had his window lowered.
An information charged Espinoza with the premeditated and deliberate murder of Jaime, the attempted premeditated and deliberate murder of Israel, and three counts of discharging a firearm at an occupied motor vehicle. It also alleged that, in committing the first four offenses, Espinoza had personally and intentionally discharged a firearm causing serious bodily injury or death (§ 12022.53, subd. (d)) and that, in committing the fifth offense, he had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). Regarding the attempted murder charge, the information alleged Espinoza had personally inflicted great bodily injury (§ 12022.7, subd. (a)).
At trial, the prosecution presented witness testimony substantially as described above. In his defense, Espinoza presented the testimony of Riverside County Sheriff's Department Lieutenant Jorge Pinon, who stated that when he, as a detective, interviewed Jesus shortly after the incident, Jesus told him Espinoza fired six shots at Israel and Jaime from the driver's side of the car. Jesus did not tell him Espinoza had walked around the car and fired another shot at Jaime while Jaime was lying on the ground.
Bojorquez testified that on July 5, 2001, she saw Jaime break some bottles on the ground outside her mobile home. After she told Espinoza something about the broken bottles, he argued with Jaime about them. Jaime seemed angry, but Espinoza did not. Later that evening, she saw both Espinoza and Jaime had injuries to their head or face.
Espinoza also presented Israel's preliminary hearing testimony during which Israel stated that when Espinoza first stopped his (Israel's) car, he (Espinoza) threatened to kill all three of them if they did not leave the park. Israel testified that he borrowed the gun from one of his friends that evening. Jaime was holding the gun when they drove up to Espinoza. Espinoza approached the car and stated he was going to kill them if they did not leave. Jaime handed the gun to Israel and urged him to give it to Espinoza, "because he [Espinoza] wasn't going to do anything [with it]." Israel handed the gun to Espinoza, who asked: "You think I won't do it?" Israel replied: "Go ahead. Pull it. Pull it." That exchange between Espinoza and Israel was repeated and then Espinoza began shooting at Israel. After Espinoza shot Israel, Jaime got out of the car holding a two-foot long stick and told Espinoza he "wasn't worth shit." Espinoza then shot Jaime.
In rebuttal, the prosecution presented the testimony of its investigator, Mr. Garcia, who interviewed Israel on February 10, 2009. Israel substantially confirmed Jesus's version of events. Israel confirmed that he got the gun from a friend and then drove back to Espinoza's location. He confirmed that Espinoza fired several shots at Israel and then started shooting at Jaime while he was still in the car. He confirmed that after Jaime opened the door and fell to the ground, Espinoza walked around the car and fired a shot into Jaime's head. Israel also confirmed that Jaime did not have a stick in his hand when he got out of the car.
The jury found Espinoza guilty on all five charged offenses and found true all the enhancement allegations. Espinoza moved for a new trial. The trial court denied the motion and dismissed the section 12022.53 enhancement relating to count 5. The court sentenced Espinoza to aggregate term of 82 years to life in prison, consisting of 25 years to life for his first degree murder conviction, a consecutive term of seven years to life for attempted premeditated and deliberate murder, consecutive section 12022.53 enhancements on both offenses of 25 years to life each, and a concurrent term of five years for count 5. Espinoza timely filed a notice of appeal.
The court imposed, but stayed pursuant to section 654, consecutive terms of one year eight months each for counts 3 and 4 and a consecutive three-year section 12022.7 enhancement on count 2. The court struck the section 12022.53 enhancements on counts 3 and 4.
DISCUSSION
I
Omission of Attempted "Second Degree" Murder Verdict Form
Espinoza contends his attempted premeditated and deliberate murder conviction must be reversed because the verdict form for attempted murder without premeditation and deliberation was not given to the jury.
A
Section 664, subdivision (a), provides that the punishment for attempted murder generally shall be five, seven, or nine years, but that if the murder attempted was willful, premeditated and deliberate, the punishment shall be life with the possibility of parole. (People v. Lee (2003) 31 Cal.4th 613, 616.) In People v. Bright (1996) 12 Cal.4th 652, the court "conclude[d] that the provision in section 664, subdivision (a), imposing a greater punishment for an attempt to commit a murder that is 'willful, deliberate, and premeditated' does not create a greater degree of attempted murder but, rather, constitutes a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder." (Id. at pp. 656-657.)
"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, supra, 31 Cal.4th at p. 623.) Because attempted murder requires the specific intent to kill, any malice the defendant may have must be express, not implied, malice. (People v. Swain (1996) 12 Cal.4th 593, 604.) In general, the intent to unlawfully kill constitutes express malice. (§ 188; People v. Saille (1991) 54 Cal.3d 1103, 1114; In re Christian S. (1994) 7 Cal.4th 768, 778.) In particular, "the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice [and intent to kill]." (People v. Smith (2005) 37 Cal.4th 733, 742; People v. Arias (1996) 13 Cal.4th 92, 162.)
For the greater punishment of life with the possibility of parole to apply to an attempted murder conviction, the trier of fact must find the attempted murder was willful, premeditated, and deliberate. (§ 664, subd. (a); People v. Lee, supra, 31 Cal.4th at p. 616; People v. Bright, supra, 12 Cal.4th at pp. 656-657.) "[D]eliberate and premeditated" in this context does not require that the defendant "maturely and meaningfully reflected upon the gravity of his or her act." (§ 189 [regarding premeditated and deliberate murder].) "[P]remeditation and deliberation can occur in a very short period of time. [Citation.] The test is not time, but reflection." (People v. Bloyd (1987) 43 Cal.3d 333, 348.)
B
The trial court instructed on the elements of attempted murder that:
"To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing [Israel]; [¶] And 2. The defendant intended to kill [Israel]."
The court also instructed on the additional allegation in count 2 of the information that the murder attempted was willful, premeditated, and deliberate:
"If you find the defendant guilty of attempted murder under Count 2, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.
"The defendant... acted willfully if he intended to kill when he acted. [¶]... [¶]
"The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved."
The court also instructed on the lesser included offense of attempted voluntary manslaughter.
The court described the verdict forms that it would provide the jury for its deliberations, including:
"In connection with Count 2, I have given you [six] verdict forms as stated as follows: [¶] Guilty or not guilty of attempted first degree murder with premeditation and deliberation; [¶] Guilty or not guilty of attempted second degree murder or guilty or not guilty of attempted voluntary manslaughter."
The court later read the alternative verdict forms regarding count 2 that would be given to the jury:
"We, the jury in the above-entitled action, find the defendant [Espinoza] guilty of a violation of [s]ection[s] 664/187, subdivision (a) of the Penal Code, attempted premeditated and deliberate murder as charged under Count 2 of the information[.]
"We, the jury in the above-entitled action[, ] find the defendant [Espinoza] guilty of a violation of [sections] 664/187, [s]ubdivision (a) of the Penal Code, attempted murder in the second degree, as charged under Count 2 of the information[.]
"Or, We, the jury in the above-entitled action[, ] find the defendant [Espinoza] not guilty under Count 2 of the information[.]
"Or, We, the jury in the above-entitled action[, ] find the defendant [Espinoza] guilty of a violation of [s]ection[s] 664/192 of the Penal Code, attempted voluntary manslaughter, a lesser offense necessarily included in the offense charged under Count 2 of the information.
"Or, We, the jury in the above-entitled action[, ] find the defendant [Espinoza] not guilty of a violation of [s]ection[s] 664/192 of the Penal Code, attempted voluntary manslaughter, a lesser offense necessarily included in the offense charged in Count 2 of the information[.]"
Finally, the court instructed the jury: "You will be given verdict forms.... [¶] If you are able to reach a unanimous decision on only one or only some of the charges, fill in those verdict forms only[, ] and notify the bailiff. [¶] Return any unsigned verdict forms."
During deliberations, the jury sent the following note to the trial court:
"The charge of Attempted Murder in the second degree does not have a specific section of law that states 'Attempted Murder in the second degree, ' that is available to [the] jury to use to delineate the difference between [second] degree and [first degree] (premeditated and deliberate). The law is implied in 601 and 603, but there is no specific mention of 'Murder in the second degree' in either section."
Addressing the jury, the court stated: "Correct me if I'm wrong: This is the question you're asking: 'Is there something in Count 2 to distinguish between attempted first degree murder and attempted second degree murder, ' is that the question you're asking? [¶] Okay. If that is the question that you're asking, the answer is in the instructions that you have been given. You are correct that [CALCRIM No.] 601 does not specifically say 'second degree murder.' " The court explained how "the law of murder works"; that if the jury finds a killing is murder, then it must decide whether that killing was "first degree murder; that is [with] premeditation and deliberation; or second degree murder, which is without premeditation and deliberation." When a juror inquired whether "the same criteria" applied to attempted murder, the court explained: "You analyze it in pretty much the same way that you do a murder. There are degrees of attempted murder...." That juror asked: "For premeditation and deliberation result, is it still taken into consideration for attempted murder, two separate findings between first and second?" The court answered: "Correct." The juror stated: "I think that's where the confusion is." Another juror commented in part: "[T]he way we interpreted [instructions 600 and 601] is the [attempted] second degree [murder] is considered first. Then you decide if it was premeditated...." The court restated its explanation of the law of homicide, stating that if the jury finds a killing was unlawful, then it must determine whether that killing was murder and, if so, whether the murder was of the first or second degree. When the prosecutor clarified that the court was addressing the attempted murder alleged in count 2 of the information, the court explained: "Attempted [murder] has the same analysis. Just substitute the word 'attempted' in the front."
Following deliberations, the jury returned its signed verdicts, including a verdict finding Espinoza "guilty of a violation of section[s] 664/187, subdivision (a) of the Penal Code, ATTEMPTED PREMEDITATED AND DELIBERATE MURDER, as charged under Count 2 of the information." The jury also returned the unsigned verdict forms, which included an unsigned verdict form for finding Espinoza not guilty of "ATTEMPTED MURDER IN THE SECOND DEGREE, as charged under Count 2 of the information, " as well as unsigned verdict forms for finding Espinoza not guilty under count 2, guilty of attempted voluntary manslaughter, a lesser offense necessarily included in the offense charged in count 2, and not guilty of attempted voluntary manslaughter, a lesser offense necessarily included in the offense charged in count 2. However, the jury apparently did not return any unsigned verdict form for finding Espinoza guilty of attempted "second degree" murder as charged in count 2.
C
Espinoza asserts the trial court prejudicially erred by not giving the jury the verdict form for finding him guilty of attempted murder without premeditation and deliberation (i.e., attempted "second degree" murder). The People apparently concede, and we agree, that the trial court erred by not giving the jury that verdict form. However, contrary to Espinoza's assertion, we conclude that error was not prejudicial and therefore does not require reversal of his conviction of attempted murder with premeditation and deliberation.
Article VI, section 13, of the California Constitution provides:
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Italics added.)
Interpreting that constitutional provision, the California Supreme Court concluded a " 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence, ' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Although Espinoza does not cite, and we are unaware of, any case that has addressed the instant issue of what standard of prejudice applies in a noncapital case to an error in omitting a verdict form for attempted murder without premeditation and deliberation, we conclude the applicable standard of prejudice is the Watson standard and not, as he asserts, the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18. Our conclusion is based on the reasoning and holding in the analogous case of People v. Breverman (1998) 19 Cal.4th 142 (Breverman). Breverman concluded: "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (Id. at p. 162.) In the circumstances of that case, Breverman held the trial court erred by not instructing sua sponte on the heat of passion theory of voluntary manslaughter as a lesser necessarily included offense of the charged murder. (Id. at pp. 149, 164.) Regarding the standard of prejudice for determining whether that error required reversal of the defendant's murder conviction, Breverman further concluded: "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.... [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d 818, 836.)" (Breverman, supra, at p. 165, italics added.) Because the Court of Appeal in that case did not apply the appropriate standard of prejudice, Breverman reversed the judgment and remanded the matter for a determination whether the trial court's error constituted reversible error under the Watson standard. (Breverman, at pp. 178-179.)
Breverman alternatively stated its conclusion: "[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson." (Breverman, supra, 19 Cal.4th at p. 178.)
Although Breverman involved the failure to instruct on a theory of a lesser included offense rather than, as in this case, the failure to give the jury a verdict form for a finding (i.e., attempted murder without premeditation and deliberation) that would have provided the defendant with lesser punishment than the attempted premeditated and deliberate murder offense charged in count 2, its reasoning regarding the applicable standard of prejudice should apply to this case. When the jury finds a defendant is guilty of attempted murder, the greater punishment of life with the possibility of parole will apply if the jury further finds that the attempted murder was willful, premeditated, and deliberate. (§ 664, subd. (a); People v. Lee, supra, 31 Cal.4th at p. 616; People v. Bright, supra, 12 Cal.4th at pp. 656-657.) If that additional finding is not made (i.e., attempted murder without premeditation and deliberation), then the usual, or lesser, punishment applies (i.e., generally, five, seven, or nine years in prison). Although the offense of attempted murder is not divided into separate "degrees" or the separate "offenses" of attempted first degree murder (with premeditation and deliberation) and attempted second degree murder (without premeditation and deliberation), the punishment for the offense of attempted murder will be greater or lesser depending on the jury's finding whether that offense was committed with premeditation and deliberation. Accordingly, in the context of reversible error, we conclude Breverman's holding that the Watson standard applies in a noncapital case to a trial court's failure to instruct on a lesser included offense should logically apply to a trial court's failure to instruct on, and/or failure to give a verdict form for, a finding that would result in lesser punishment for an offense. Therefore, we conclude the Watson standard of prejudice applies to the trial court's error by not giving the jury a verdict form for a finding that the charged attempted murder was without premeditation and deliberation.
There does not appear to be any persuasive reason to apply a different standard of prejudice based on whether the trial court's error was in omitting an instruction or omitting a verdict form. In most cases in which a trial court errs in omitting an instruction on a lesser included offense, we presume that court ordinarily will also have omitted a verdict form for that lesser included offense. Under Breverman's reasoning, we believe the same Watson standard of prejudice would apply to an erroneous omission of a verdict form for a lesser included offense. Applying that reasoning to offenses that provide for greater or lesser punishment based on certain factual findings, we believe the Watson standard of prejudice should likewise apply to the erroneous omission of a verdict form for a finding that would result in lesser punishment for an offense (e.g., attempted murder without premeditation and deliberation).
To the extent Espinoza cites and relies on People v. Marshall (1996) 13 Cal.4th 799 as support for his assertion that the Chapman standard of prejudice should apply to the trial court's error, Marshall is inapposite because it was a capital case and was issued before Breverman, which we believe, at a minimum, implicitly limited Marshall's reasoning to capital cases. Accordingly, we reject Espinoza's assertion that the Chapman standard of prejudice should apply to a trial court's error in not giving a verdict form for a finding that a charged attempted murder was without prejudice and deliberation.
D
Applying the Watson standard of prejudice to the evidence and other circumstances in this case, we conclude it is not reasonably probable Espinoza would have obtained a more favorable outcome had the trial court given the jury a verdict form for a finding that the charged attempted murder was without prejudice and deliberation. In applying the Watson standard of prejudice, we follow Breverman's guidance:
"Appellate review under Watson... focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177.)
Based on our review of the record and quantitative weighing of the evidence, we conclude the trial court's error was harmless under the Watson standard. Most importantly, the evidence supporting Espinoza's guilt of attempted murder with premeditation and deliberation was very strong in comparison to the evidence that would have supported his guilt of attempted murder without premeditation and deliberation. As described above, Jesus (Espinoza's cousin) testified Israel and Jaime began throwing empty beer bottles that evening, breaking them on the ground. Espinoza approached them and told them to stop because children might cut themselves on the broken glass, but they replied they did not care. Espinoza was angry, walked to a nearby mobile home, and began drinking outside it with two or three other men. Later, Espinoza held out his hand and stopped Israel's car, telling him he should not drive so fast. After Israel left with a girl, Espinoza and Jaime got into a fistfight and struck each other. At about 11:00 p.m., Jaime, while driving Israel's car, stopped to speak with the driver of an oncoming car. Espinoza got out of the other car and struck Israel's car with a baseball bat, telling Jaime and Jesus to get out of the mobile home park. Jaime and Jesus picked Israel up and he (Israel) began driving the car back to Coachella. However, when Jaime told Israel that Espinoza had been looking for him, Israel turned the car around and returned to the mobile home park to find Espinoza. Israel found Espinoza and asked him why he had been looking for him. Israel and Espinoza began "exchanging words." Israel told Espinoza: "If you're going to be aggressive, why don't you get a gun and shoot me." Espinoza replied: "I don't have a gun, but if I did, I would probably shoot you." (Italics added.) Israel then stated: "I'm going to go look for a gun."
Returning with a pistol, Israel held the pistol out of his window with its barrel pointed down and its grip pointed toward Espinoza. Israel told Espinoza to grab the pistol and pull its trigger if he was "man enough" or otherwise he (Israel) would shoot him. After about one to two minutes, Espinoza took the pistol and then Israel told him to pull its trigger. Espinoza pulled the pistol's slide back and a bullet flew out of it. He looked surprised. Espinoza then put the bullet back into the pistol's chamber and released its slide. After looking at Jesus who shrugged and raised his hands, Espinoza lifted the pistol up and pointed it at Israel. Israel told Espinoza to pull the trigger or he would pull it. Remaining silent, Espinoza calmly pulled the trigger and fired four or five shots at Israel, striking Israel's left and right arms. Espinoza then pointed the pistol at Jaime and shot him first in the neck and then in the left side of his back as he tried to open his door. Espinoza fled the scene after shooting Israel and Jaime.
Considering the above evidence, it strongly supports Espinoza's guilt of attempted murder with premeditation and deliberation. It supports reasonable inferences that Espinoza had substantial time to consider, and actually reflected on, whether he would point the gun at Israel and fire shots at him with the intent to kill him. For one to two minutes, he deliberated before taking the gun from Israel. He then acted with premeditation and deliberation in reloading the gun with the bullet ejected when he pulled its slide back. In response to Israel's goading, Espinoza deliberately raised the gun and pointed it at him. Espinoza had additional time for reflection while Israel challenged him to pull the gun's trigger. After all of that time and reflection, Espinoza ultimately fired the gun at Israel not just once, but four or five times. Therefore, there was overwhelming evidence showing that Espinoza premeditated and deliberated in attempting to murder Israel.
The evidence that would have supported a contrary finding that Espinoza committed the attempted murder without premeditation and deliberation was comparatively weak. Espinoza argues on appeal that "[a] likely interpretation of the evidence—arguably, the most likely interpretation" was that he was angry only at Jaime, and not Israel, and shot Israel without any intent to kill him in the course of shooting at and intending to kill Jaime in the passenger's seat. Contrary to Espinoza's assertion, that interpretation of the evidence is not a "likely, " much less the "most likely, " interpretation. Rather, the interpretation of the evidence, discussed above, that Espinoza attempted the murder of Israel with premeditation and deliberation is by far the most likely, if not the only reasonable, interpretation of the evidence.
Furthermore, we conclude it is unlikely the omission of a verdict form for attempted murder without premeditation and deliberation confused the jury or caused it to misapply the court's instructions on attempted murder. The trial court instructed the jury on the count 2 charge of attempted murder and the additional allegation that the attempted murder was willful, premeditated, and deliberate. In response to questions from the jurors, the court further clarified the difference between "first degree" and "second degree" attempted murder, explaining the former requires that the attempted murder be committed with premeditation and deliberation while the latter does not require premeditation and deliberation. The court also instructed it would give the jury alternative verdict forms on the count 2 attempted murder charge and premeditation allegation, stating: "In connection with Count 2, I have given you [six] verdict forms as stated as follows: [¶] Guilty or not guilty of attempted first degree murder with premeditation and deliberation; [¶] Guilty or not guilty of attempted second degree murder or guilty or not guilty of attempted voluntary manslaughter." The court also read the specific language of those alternative verdict forms. We presume the jury understood and properly applied the trial court's instructions, including those on the count 2 charge of attempted murder and on the additional allegation that the attempted murder was committed with premeditation and deliberation. Had the jury been confused by, or had any questions regarding, the omission of the verdict form for attempted "second degree" murder without premeditation and deliberation, we assume it would have inquired of the court regarding that omission. Based on the record, there is no indication the jurors would have hesitated to ask the court about that omission, particularly considering the questions they freely posed to the court about the difference between "first degree, " premeditated and deliberate attempted murder and "second degree" attempted murder. One juror appeared to confirm the jury's understanding of that difference, commenting: "[T]he way we interpreted [instructions 600 and 601] is the [attempted] second degree [murder] is considered first. Then you decide if it was premeditated...." We conclude the jury was not confused or misled by the omission of the verdict form for a finding that Espinoza committed the attempted murder without premeditation and deliberation.
Espinoza has not carried his burden on appeal to persuade us it is reasonably probable he would have obtained a more favorable verdict had the trial court given the jury a verdict form for finding him guilty of attempted murder without premeditation and deliberation. By arguing there is a "real-world possibility" the jury's finding that Espinoza committed attempted murder with premeditation and deliberation was the result of the trial court's error and not conscious decision-making by the jury, he misconstrues and/or misapplies the applicable Watson standard of prejudice. That standard requires a showing of more than a real-world possibility; it requires him to show that, absent the error, it is reasonably probable he would have obtained a more favorable result. That standard "must necessarily be based upon reasonable probabilities rather than upon mere possibilities." (Watson, supra, 46 Cal.2d at p. 837, italics added.) Even applying alternative phrasing of the Watson standard, we conclude there is no "reasonable chance" Espinoza would have obtained a more favorable verdict had the trial court given the jury a verdict form for a finding that his attempted murder was committed without premeditation and deliberation. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918 [a reasonable probability under Watson " 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility' "].) Furthermore, the trial court's error does not undermine our confidence in the outcome of Espinoza's trial. (Cal. Const., art. VI, § 13.) We conclude the court's error was harmless and does not require reversal of Espinoza's conviction of attempted murder with premeditation and deliberation.
II
Instruction on Involuntary Manslaughter
Espinoza contends the trial court erred by not instructing on involuntary manslaughter as a lesser included offense of the murder of Jaime charged in count 1. He argues there was substantial evidence to support an involuntary manslaughter instruction based on the theory that he accidently shot and killed Jaime while he committed only an assault on Israel and/or on the theory that he believed the gun Israel handed him was not loaded.
A
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) The required malice may be express when a defendant manifests "a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) Malice may be implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows his or her conduct endangers the life of another and who acts with conscious disregard for life. (People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Dellinger (1989) 49 Cal.3d 1212, 1215.)
Manslaughter is the unlawful killing of a human being without malice. (§ 192.) "A defendant lacks malice and is guilty of voluntary manslaughter in 'limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" (§ 192, subd. (a)), or when the defendant kills in "unreasonable self-defense"—the unreasonable but good faith belief in having to act in self-defense [citations].' " (People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) Furthermore, "when a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary... manslaughter." (Id. at p. 91.)
Involuntary manslaughter generally is the unlawful killing of a human being without malice, without an intent to kill, and without a conscious disregard for life. (§ 192; CALCRIM No. 580.) In addition to certain statutory forms of committing involuntary manslaughter (e.g., killing during the commission of a misdemeanor dangerous under the circumstances of its commission), a nonstatutory form of committing involuntary manslaughter is based on a predicate act of a noninherently dangerous felony committed without due caution and circumspection. (People v. Butler (2010) 187 Cal.App.4th 998, 1007.) All forms of involuntary manslaughter require the mens rea of criminal negligence, which is a disregard for human life judged by an objective, or reasonable person, standard. (Id. at pp. 1007-1009.) Alternatively stated, a defendant acts with criminal negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury and a reasonable person would have known that acting that way would create such a risk. (CALCRIM No. 580.) However, if that person unlawfully kills another with an intent to kill or a conscious disregard for human life, the offense is either murder or voluntary manslaughter. (CALCRIM No. 580.)
A trial court must instruct sua sponte on a lesser included offense if there is substantial evidence to support a finding that the defendant is guilty only of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 118; Breverman, supra, 19 Cal.4th at p. 162.) In this context, "substantial evidence" means evidence from which a jury composed of reasonable persons could conclude the lesser, but not the greater, offense was committed. (Breverman, at p. 162.)
B
Assuming arguendo the trial court erred by not instructing on involuntary manslaughter as a lesser included offense of the murder of Jaime as charged in count 1, we nevertheless conclude that error was harmless under the Watson standard. As we noted above, "the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.... [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d 818, 836.)" (Breverman, supra, 19 Cal.4th at p. 165, italics added.)
Based on the evidence and other circumstances in this case, we conclude it is not reasonably probable Espinoza would have obtained a more favorable outcome had the trial court instructed on involuntary manslaughter as a lesser included offense. We incorporate our discussion in part I.D., above, regarding Jesus's testimony at trial. We note the jury could reasonably infer therefrom that Espinoza was angry at Jaime for breaking bottles on the ground. Espinoza's subsequent fistfight with Jaime reflected, and likely increased, his animosity toward Jaime. While Jaime was driving Israel's car, Espinoza struck it with a baseball bat and told Jaime and Jesus to leave the park. Finally, the actions of Espinoza in killing Jaime show he had an intent to kill him. After firing four or five shots at Israel, Espinoza pointed the pistol at Jaime and shot him in the neck. As Jaime turned to open his door, Espinoza shot him again, striking him in the left side of his back. Jaime opened the door and fell to the ground. Espinoza walked around the car to the front passenger's side and calmly fired a third shot at Jaime, striking him in the head. Espinoza then fled the scene and was apprehended almost seven years later in Mexico.
The above evidence strongly supports the finding that Espinoza not only acted with a conscious disregard for Jaime's life (and Israel's life), but also acted with the intent to kill Jaime and also with premeditation and deliberation. Contrary to Espinoza's apparent assertion, the evidence that he "accidentally" shot Jaime, either while assaulting Israel or because of his purported ignorance that the gun was loaded, was weak at best. The jury reasonably inferred that Espinoza intended to shoot and kill Jaime. Espinoza loaded a bullet into the gun. Espinoza fired at least seven shots. To the extent Espinoza was "surprised" the gun was loaded, that surprise would have quickly disappeared after the first or second shot. He fired four or five shots at Israel before pointing the gun at Jaime. Espinoza first shot Jaime in the neck and then in the back as Jaime tried to open the door. More importantly, Espinoza then walked around the car and fired a final shot into Jaime's head as he lay on the ground. The evidence was strong, if not overwhelming, that Espinoza acted with the intent to kill Jaime and did so with premeditation and deliberation. Furthermore, because the jury found Espinoza not only intentionally killed Jaime (committed murder) but also acted with premeditation and deliberation (committed first degree murder), it is not reasonably probable the jury in this case would have found him guilty of only involuntary manslaughter had it been instructed on that offense. Therefore, we conclude it is not reasonably probable Espinoza would have obtained a more favorable verdict had the trial court instructed on involuntary manslaughter as a lesser included offense of the murder of Jaime as charged in count 1. (Watson, supra, 46 Cal.2d at p. 836; Breverman, supra, 19 Cal.4th at p. 165.) Espinoza's argument to the contrary is conclusory and fails to specifically discuss how the jury in this case would have considered and weighed the evidence had it been instructed on the lesser included offense of involuntary manslaughter.
III
Instruction on Attempted Murder
Espinoza contends the trial court erred by instructing with CALCRIM No. 601 on the attempted murder of Israel as charged in count 2. He asserts the court should have modified that instruction to clarify that any intent he had to kill Jaime could not be transferred or otherwise used to show he had the intent to kill Israel. Espinoza apparently argues that had the court so clarified its instruction, the jury would likely have found he did not intend to kill Israel and only accidentally shot him while shooting Jaime.
A
The trial court instructed the jury on the offense of attempted murder as charged in count 2 in pertinent part:
"If you find the defendant guilty of attempted murder under Count 2, you must then decide whether the People have proved the additional allegation that the murder was done willfully, and with deliberation and premeditation.
"The defendant [Espinoza] acted willfully if he intended to kill when he acted. [¶] The defendant [Espinoza] deliberated if he carefully weighed the considerations for and against his choice, and[, ] knowing the consequences, decided to kill. The defendant [Espinoza] premeditated if he decided to kill before acting."
B
A trial court has a duty to instruct on the general principles of law applicable to the case. (People v. Young (2005) 34 Cal.4th 1149, 1200.) "The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case." (Ibid.) However, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024.) A "defendant's failure to request a clarification instruction forfeits that claim on appeal." (Young, at p. 1202.)
C
As the People assert, Espinoza forfeited on appeal the claimed instructional error by not requesting the trial court modify CALCRIM No. 601 to clarify that instruction in the manner he now suggests. Espinoza does not assert CALCRIM No. 601, as given by the trial court, incorrectly stated general principles of law applicable to his case and the law of attempted murder as charged in count 2. Rather, he argues the court's correct statement of law should have been clarified to avoid any possibility the jury may have interpreted it as allowing his intent to kill Jaime (count 1) to satisfy the intent to kill element of the attempted murder of Israel as charged in count 2. However, by not requesting the trial court modify, clarify, or amplify that standard instruction on the offense of attempted murder, Espinoza forfeited or waived that contention and may not now raise it on appeal. (People v. Lang, supra, 49 Cal.3d at p. 1024; People v.Young, supra, 34 Cal.4th at p. 1202.)
In any event, assuming arguendo Espinoza did not forfeit or waive that contention, we nevertheless would conclude the purported instructional error was harmless because it is not reasonably probable he would have obtained a more favorable result had the court clarified its attempted murder instruction as he suggests. Incorporating our discussion in part I.D. above, we conclude, based on our review of the evidence and other circumstances in this case, the evidence was very strong, if not overwhelming, that Espinoza intended to kill Israel and acted with premeditation and deliberation in pointing the gun and shooting at him four or five times. There is no reasonable possibility the jury based its verdict on count 2 on a finding that Espinoza accidentally shot Israel while intending to kill only Jaime. Accordingly, the purported error is harmless.
IV
Section 246 Offenses
Espinoza contends the evidence is insufficient to support his section 246 convictions because he did not intend to strike the motor vehicle when he fired the pistol. His contention is premised on his underlying assertion, unsupported by any case law, that a section 246 offense of shooting at an occupied vehicle is a specific intent crime, requiring a defendant to have specifically intended to shoot at and strikethe vehicle and not just an occupant in that vehicle.
However, the premise of Espinoza's contention is faulty. Section 246 provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling [or] occupied motor vehicle... is guilty of a felony." The California courts are in agreement that a section 246 offense is a general intent crime. (People v. Overman (2005) 126 Cal.App.4th 1344, 1356; People v. Watie (2002) 100 Cal.App.4th 866, 879; People v. Jischke (1996) 51 Cal.App.4th 552, 556; People v. Froom (1980) 108 Cal.App.3d 820, 826; People v. Williams (1980) 102 Cal.App.3d 1018, 1029.) Accordingly, "[t]here is no requirement that the defendant intend to strike the building [or vehicle]." (Jischke, at p. 556; see also People v. Cruz (1995) 38 Cal.App.4th 427, 433 [§ 246 does not require an intent to strike the building].) "As for all general intent crimes, the question is whether the defendant intended to do the proscribed act." (Jischke, at p, 556.) The term "maliciously" in section 246 includes " 'an intent to do a wrongful act.' " (Watie, at p. 879.) The terms "maliciously" and "willfully" in section 246 "are expressions of the statute's general intent requirements [citation]... [and] do not suggest that the statute requires a specific intent." (Overman, at p. 1357, fn. 5.) Accordingly, section 246 is violated when a defendant intentionally discharges a firearm at an inhabited dwelling or occupied motor vehicle. (Id., at p. 1356.) Section 246 does not require that the defendant have the specific intent to strike his or her target (e.g., inhabited dwelling or occupied motor vehicle) or that the defendant shoot directly at and strike that target (e.g., inhabited dwelling or occupied motor vehicle). (Id. at p. 1357.) Rather, section 246 "only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of these results will occur [i.e., strike an inhabited dwelling or occupied motor vehicle or kill or injure a person therein]." (Overman, at p. 1357, fn. omitted.)
We are not persuaded by Espinoza's argument that Overman and the other section 246 cases cited above were wrongly decided and that a section 246 offense is, instead, a specific intent crime that requires an intent to strike the occupied motor vehicle with a bullet. None of the cases cited by Espinoza are factually apposite, support his position, or persuade us to conclude section 246 is a specific intent crime. (See, e.g., People v. Stepney (1981) 120 Cal.App.3d 1016; People v. Dollar (1991) 228 Cal.App.3d 1335.) Furthermore, we reject his assertion that section 246 is, at least, ambiguous whether it is a general or specific intent crime and therefore the rule of lenity requires we interpret it as a specific intent crime.
Because the evidence clearly shows Espinoza shot at persons inside Israel's car (i.e., Israel and Jaime), there necessarily is substantial evidence that he discharged a firearm with conscious disregard for the probability that the bullets fired would strike the occupied motor vehicle and the three occupants therein. Accordingly, there is substantial evidence to support the finding that Espinoza had the general intent required for his section 246 offenses (i.e., counts 3, 4, and 5). (People v. Overman, supra, 126 Cal.App.4th at pp. 1356-1357.)
V
Presentence Custody Credits
Espinoza contends, and the People concede, the abstract of judgment must be amended to reflect the number of days of presentence custody credits earned by him and/or awarded him by the trial court (i.e., 343 days). The record shows he was in presentence custody from August 12, 2008, through July 20, 2009. As Espinoza asserts, the abstract of judgment does not reflect those presentence custody credits. Accordingly, it must be amended to reflect an award to Espinoza of 343 days of presentence custody credits.
VI
Term for Attempted Murder Offense
The People assert, and Espinoza does not refute, the proper sentence for attempted premeditated and deliberate murder (§§ 664, subd. (a), 187, subd. (a)) is life with the possibility of parole. Section 664, subdivision (a), provides that the punishment for attempted murder generally shall be five, seven, or nine years, but that if the murder attempted was willful, premeditated and deliberate, the punishment shall be life with the possibility of parole. (People v. Lee, supra, 31 Cal.4th at p. 616.) "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a), italics added.) By sentencing Espinoza to a term of seven years to life for his conviction on count 2 (attempted premeditated and deliberate murder), the trial court erred. The court should have imposed a consecutive, indeterminate term of life with the possibility of parole for that conviction. Because the court's sentence was unauthorized, we may correct it by modifying the judgment without remanding the matter to the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Menius (1994) 25 Cal.App.4th 1290, 1295.)
DISPOSITION
The judgment is modified to impose a consecutive, indeterminate term of life with the possibility of parole for Espinoza's conviction on count 2 (attempted premeditated and deliberate murder). In all other respects, the judgment is affirmed. The clerk of the Riverside County Superior Court is directed to prepare an amended abstract of judgment reflecting: (1) a consecutive, indeterminate term of life with the possibility of parole for Espinoza's conviction on count 2 for attempted premeditated and deliberate murder (§§ 664, 187, subd. (a)), for a total term of 75 years to life; and (2) an award to Espinoza of 343 days of presentence custody credits. The court clerk shall then forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.