Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF146726 Joe O. Littlejohn, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott Taylor, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
INTRODUCTION
Defendant Ruperto Cortez Gonzalez appeals from judgment entered following jury convictions for attempted murder (Pen. Code, §§ 664/187, subd. (a) ; count 1) and assault with a firearm (§ 245, subd. (a)(2); count 3). The jury also found true, as to count 1, the allegation that, during the offense, defendant personally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)). As to count 3, the jury found true the allegation that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The jury found defendant not guilty of attempted kidnapping (§§ 664/207, subd. (a); count 2).
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant argues the trial court erred by failing to give a jury instruction on the lesser included offense of attempted voluntary manslaughter based on sudden quarrel and heat of passion (CALCRIM No. 603). We disagree and affirm.
II
FACTS
In March 2008, Shannon Piatt (Piatt) rented a house from defendant in Mira Loma, and lived there through November 17, 2008. Piatt testified at trial that, around August 2008, Piatt stopped paying the rent because there was no electricity. She called defendant multiple times, requesting defendant fix the electricity and plumbing problems, but did not hear from him. A plumber fixed the plumbing problems and said he would send the landlord his bill. By not paying the rent, Piatt was hoping defendant would contact her regarding the electrical problems.
A little after noon on November 17, 2008, Piatt came out of the bathroom to find defendant standing in the dining room. Defendant asked Piatt why she had not paid the rent and told her to leave the house immediately. Defendant put a gun to Piatt’s head, while pulling her by the arm outside. When Piatt got to the door, she broke free and started screaming, “He’s trying to kill me.” Piatt ran to a car parked in the driveway and took cover behind the car. Defendant chased her around the car several times. Piatt ran toward the street. Defendant chased after her.
When Piatt got to the street, she turned left and ran toward her neighbor’s house, where she saw a lot of people, including Piatt’s next-door neighbor, Veronica, and Veronica’s boyfriend, Victor Vasquez (Vasquez). As Piatt ran toward a large tree in Veronica’s front yard, she heard behind her three gunshots. Piatt was shot in the back of her leg, causing her to fall. Piatt also felt something in her right elbow. Then everything was quiet. Vasquez and Veronica approached Piatt on the ground, and someone called 911. Piatt thought she was going to die. Piatt did not do anything to provoke defendant to shoot her.
Piatt did not know Veronica’s last name.
Vasquez testified that, when he heard Piatt scream “Veronica, ” he went outside and saw Piatt and defendant leaving Piatt’s house. They were walking. Vasquez approached Piatt and defendant. Piatt “loudly” said, “Help me. He’s going to hurt me. Help me.” Vasquez approached the side fence, which separated Veronica’s property and the rental property, and said, “What’s going on?” Neither Piatt nor defendant responded. Piatt looked scared. Then Piatt said, “Victor, help me.” Vasquez walked towards defendant and Piatt as they headed toward the street. As Vasquez was about to pull himself over the fence, Piatt said, “Get him. He’s going to hurt me.”
Vasquez stopped at the top of the fence and got back down, because he heard Veronica say, “He has a gun.” Vasquez said, “[C]alm down.” There was no response. Piatt continued walking backwards with defendant. Piatt started running when she got to the street and screamed, “He’s going to kill me.” Vasquez saw defendant reach into his pants pocket.
Vasquez turned around and ran for cover because he did not know what defendant was going to take out of his pocket. He saw defendant pull out a gun and make a hand motion on top of it. Vasquez heard three shots and heard Piatt scream between the shots. Defendant walked away, jumped into a car, and drove off.
Alejandro Gajon (Gajon) testified he observed the shooting while collecting green waste in the area. Gajon noticed two or three people working in their yard nearby. They did not have shovels or anything else in their hands. One of them tried to jump over the fence.
As Gajon was driving his trash truck down the street, collecting trash, he saw Piatt leave her house yelling and waving her arms. Gajon saw defendant chase Piatt out to the street. A neighbor came to the fence to help her. It looked like the neighbor was trying to jump the fence but then went back to his house. As defendant was running after Piatt, defendant pointed a gun at Piatt, and shot her. He fired his gun at her three or four times. Defendant did not fire his gun up into the air. Piatt fell in the street about 50 feet from Gajon’s trash truck.
Deputy Arguello testified he responded to the scene. Piatt told Deputy Arguello that defendant shot her when she and defendant, her landlord, got into an argument over Piatt not paying her rent because defendant had failed to make electrical repairs. Defendant entered Piatt’s home, pulled out a gun and told her, “let’s go to Jack in the Box.” Defendant escorted her outside and then Piatt started yelling for help and ran away from defendant. As she was running, defendant shot her in the leg.
Investigator Johnson arrived on the scene. He and Deputy Arguello found shell casings from defendant’s gun at the scene. Four months after the shooting, defendant turned himself in, and his defense team provided the sheriff’s department with defendant’s gun.
Defendant’s wife, Esther Gonzalez, testified that, when defendant left his home in Reno, Nevada, early on November 17, 2008, he took his gun because he was planning to stay at the house and clean up the house.
Defendant’s testimony
Defendant testified that, when he rented the house to Piatt in March 2008, Piatt was with her sister, who warned defendant to be careful around Piatt. Piatt had thrown boiling water in another person’s face.
Piatt never complained about the plumbing or electricity. She never contacted him regarding electrical problems.
In November 2009, defendant realized Piatt had stopped paying the rent. Rather than call Piatt, defendant decided to go to the rental house on November 2, 2009. He did not take a gun with him. When defendant knocked on the door, someone inside knocked back even harder.
Defendant returned to the rental house on November 17, 2009. This time he took his gun and loaded it when he got out of his car. He did not know if anyone was in the house. He had his gun because often at night, transients slept in vacant homes, and defendant intended to stay at his rental property for a week. Whenever a renter moved out of defendant’s rental house, defendant stayed there a few days to make repairs. A few times, when his rental house was vacant, homeless people had stayed there without his permission and left their clothing there. On one occasion he encountered a homeless person in his house who told defendant he was armed.
Upon arriving at his rental property, defendant went to the side door and noticed the electricity was on. His gun was in his waistband, concealed by his shirt. Defendant knocked and Piatt opened the door. Defendant denied that he and Piatt argued about the rent. Defendant told Piatt that, if she could not pay the rent, she would have to live elsewhere. Defendant asked Piatt when she would vacate the house. Because Piatt seemed confused, Piatt and defendant agreed to go speak to her neighbor, Veronica. Defendant denied pulling out his gun and pointing it at Piatt’s head.
When defendant and Piatt went outside, Piatt told Vasquez to attack defendant even though defendant had not done anything wrong. Vasquez was on Veronica’s property, on the other side of the fence. Defendant’s gun was still in his waistband. Defendant decided to leave because Piatt was not being reasonable. As defendant approached his car, he heard Piatt tell Vasquez, “If you’re not going to attack him, I’m going to attack him.” Defendant claimed Piatt then came after defendant. Defendant testified that, when defendant fired his gun, Piatt was not running away, down the street. She was between three and five feet, face to face with defendant. Vasquez had just jumped the fence. There were about five people working in Veronica’s yard next door, including Vasquez and two workers in front and two workers in back. Piatt and the two workers in Veronica’s backyard were approaching defendant.
Defendant did not intend to use his gun. Defendant feared the people approaching him were going to hold him down and attack him with “the objects they were holding.” The men did not say anything. Defendant pulled out his loaded gun because Piatt told the men to attack defendant, and one worker was holding a shovel and another worker was holding a pipe. The men were on Veronica’s property, along the fence.
When defendant accidentally fired the first shot, Piatt was three to five feet away and unarmed. Defendant did not know he was pointing his gun at Piatt. After the first shot, defendant decided to fire his gun again. No one was approaching him with a weapon. The people with the shovel and pipe approached him, but they were on the other side of the fence. Defendant did not know if they were angry or what their intention was. Vasquez was close to defendant.
Defendant conceded that, when he first fired his gun, no one was attacking him, but he believed Piatt was going to. Defendant also denied pointing his gun toward Piatt when he accidentally fired it the first time. He fired his gun three times. He initially took his gun out to protect himself and accidentally fired it. He then fired his gun two more times to scare off his attackers, including Vasquez and the two workers who ran back to Veronica’s house after defendant fired his gun.
After defendant fired his gun, he did not see Piatt fall. He only saw her turning around and put her hands on her knees. Defendant got in his car and left. He was unaware he had shot anyone. He never intended to shoot anyone. Four months later he turned himself in to the sheriff’s department.
III
CALCRIM No. 603
Defendant contends the trial court erred in failing to instruct the jury on attempted voluntary manslaughter based on sudden quarrel and heat of passion (CALCRIM No. 603).
Defendant requested jury instructions, CALCRIM Nos. 603 and 604, on attempted voluntary manslaughter. CALCRIM No. 603 relates to the reduction of attempted murder to voluntary manslaughter when there is provocation that would cause a person of average disposition to react rashly. CALCRIM No. 604 requires a finding of imperfect self-defense, in which a defendant fears being killed or suffering great bodily harm. This also may reduce attempted murder to voluntary manslaughter.
During a hearing on the jury instructions, defense counsel argued that the court should give CALCRIM No. 603 on attempted voluntary manslaughter because the People were arguing that defendant became extremely upset and attempted to kill Piatt when defendant confronted Piatt about not paying her rent and Piatt refused to vacate the property voluntarily. Without further discussion, the trial court denied defendant’s request for CALCRIM No. 603. The court, however, instructed on attempted voluntary manslaughter based on imperfect self-defense as a lesser included offense to attempted murder (CALCRIM No. 604).
A. Standard of Review
“A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 584.) On appeal, “we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense... should have been given.” (Ibid.)
B. Applicable Law on Voluntary Manslaughter Instruction
“Voluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. ‘Only these circumstances negate malice when a defendant intends to kill.’ [Citation.]” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709; see also People v. Steele (2002) 27 Cal.4th 1230, 1252.)
Here, the trial court instructed on self-defense and imperfect self-defense, but denied defendant’s request for instruction on sudden quarrel and heat of passion (CALCRIM No. 603).
The sudden-quarrel or heat-of-passion theory of voluntary manslaughter includes both a subjective and an objective component. (People v. Steele, supra, 27 Cal.4th at p. 1252.) Defendant must show not only that he was actually in the heat of passion, but that a reasonable person would also be provoked by the circumstances giving rise to the heat of passion. (Id. at pp. 1252-1253.) To warrant an instruction on attempted voluntary manslaughter there must be evidence that defendant’s reason “was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citations.] ‘“[N]o specific type of provocation [is] required....”’ [Citation.] Moreover, the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citation] other than revenge [citation].” (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman).)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Breverman, supra, 19 Cal.4th at p. 162.)
C. There Was No Evidence of Provocation or Heat of Passion
Defendant argues there was sufficient evidence of provocation to require instruction on the theory of attempted voluntary manslaughter based on sudden quarrel and heat of passion (CALCRIM No. 603). Such evidence included testimony that defendant and Piatt argued over Piatt’s failure to pay the rent and her refusal to move out. Piatt ran from the house, screaming for Vasquez to attack defendant. Vasquez came to Piatt’s aid, along with two yard workers, one who held a shovel and the other, a pipe. Defendant testified he was acting in self-defense when he accidentally fired his gun and then shot his gun into the air to scare off everyone. Defendant claims these circumstances were sufficient to establish provocation, warranting instruction on sudden quarrel and heat of passion. We disagree.
There was no evidence of provocation. Defendant testified he and Piatt did not argue about the rent and they amicably went outside to discuss the matter with Piatt’s neighbor, Veronica. Defendant claimed he did not pull out his gun until he heard Piatt tell Vasquez and two workers to attack defendant, and defendant feared they were going to attack him. Defendant denied intentionally firing his gun at anyone, and claimed the first shot was accidental. The two subsequent shots were intentional, but he intended to fire the shots upwards, to scare off Vasquez and the two workers. Defendant further testified that the workers were on the other side of the fence on the property line and had not said anything. Also, Vasquez and Piatt were unarmed, and defendant conceded that, when he first fired his gun, no one was attacking him.
Defendant cannot meet either the subjective or objective elements required to establish voluntary manslaughter based on sudden quarrel and heat of passion. There was no evidence of a sudden quarrel and no evidence defendant actually acted in the heat of passion, or that a reasonable person would have been provoked to fire a gun under such circumstances. Defendant’s testimony revealed he did not act rashly; his reason was not obscured by passion.
There was no evidence that anyone was actually attacking defendant when he shot Piatt, and defendant acknowledged this. Although the two yard workers were allegedly holding a shovel and a pipe, they were on the other side of the fence. Even assuming Vasquez was approaching defendant, he was unarmed, as was Piatt. Under these circumstances, there was no evidence that would have caused a reasonable person to form the intent to kill based on sudden quarrel and heat of passion.
Furthermore, defendant testified he accidentally fired his gun when he shot Piatt in the leg. Defendant did not claim he fired at Piatt or her companions because he had been provoked. He further testified that he rationally decided to fire two additional shots into the air to scare off the men who were approaching him. In addition, third party witnesses to the incident testified they did not see any aggressive behavior by anyone, other than defendant. The evidence shows defendant did not act rashly or in the heat of passion. We thus conclude the court did not err or violate defendant’s constitutional rights by not instructing the jury on the sudden quarrel/heat-of-passion theory of voluntary manslaughter.
D. There Was No Prejudice
Even if we were we to conclude that the court erred in failing to instruct on the sudden quarrel/heat of passion theory, such error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. In a noncapital case, such as this one, error in failing to instruct on all lesser included offenses and theories which are supported by the evidence “must be reviewed for prejudice exclusively under Watson. A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
Defendant has not shown, and cannot show that, had the court given CALCRIM No. 603 on sudden quarrel and heat of passion, it is reasonably probable he would have obtained a more favorable outcome. Solid, credible evidence established that defendant intentionally fired his gun at Piatt because Piatt had not paid her rent for two months, had refused to vacate the house, and ran away from defendant after he put a gun to her head as he escorted her out of the house. Reliable witness testimony by third party witnesses corroborated these facts. Furthermore, defendant’s attempted murder conviction reflects that the jury rejected the theories of self-defense and imperfect self-defense, and necessarily found that defendant intentionally fired his gun at Piatt. This indicates the jury did not believe defendant’s testimony and thus would not have found defendant fired his gun during a sudden quarrel, in the heat of passion.
IV
DISPOSITION
The judgment is affirmed.
We concur: RICHLI Acting P.J., MILLER J.