Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07904816, Wayne R. Ellison, Judge.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Gomes, J.
A jury found appellant guilty of second degree murder (Pen. Code, § 187, subd. (a); count 1) of Jamaul Hassan Johnson and of assault with a firearm (§ 245, subd. (a)(2)) on Roy Nelson. The jury also found true an allegation that appellant personally discharged a firearm causing death. (§ 12022.5, subd. (a)(1).) The court sentenced appellant to a prison term of 15 years to life for the murder, plus a consecutive 25 years to life on the section 12022.5, subdivision (a)(1) finding, plus a concurrent upper term of four years on the section 245, subdivision (a)(2) conviction, for a total prison term of 40 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
APPELLANT’S CONTENTION
The jury rejected appellant’s argument that appellant’s fatal shooting of Johnson was done in the heat of passion and was voluntary manslaughter, not murder. Appellant’s contention on this appeal is that the court had a sua sponte duty to give an unrequested instruction, above and beyond the standard CALCRIM No. 570 “sudden quarrel or... heat of passion” voluntary manslaughter instruction, expressly directing the jury to consider a prior threat allegedly made by victim Johnson to appellant’s brother Corey. Appellant contends that the absence of this additional unrequested instruction made it more likely that appellant would be convicted of murder rather than manslaughter. As we shall explain, however, the court had no sua sponte duty to give the unrequested instruction.
FACTS
On June 17, 2007 at about 12:30 a.m., Roy Nelson gave Jamaul “Bullet” Johnson a ride to Calaveras Street in Nelson’s girlfriend’s Ford Focus automobile. There, Johnson became involved in a physical altercation with appellant Joseph “Awol” Jynes, III. Johnson had a gun in his pocket. Appellant grabbed the gun out of Johnson’s pocket and repeatedly struck Johnson in the face with the gun. Johnson fled and got back into the passenger seat of the car and told Nelson to drive. Appellant struck Nelson in the face, dragged Nelson out of the driver’s seat and told Nelson “something to the effect of ‘[g]et the F out of here.’” Nelson ran away. Johnson tried to get into the driver’s seat as appellant struck him with the gun. Johnson attempted to drive away but crashed the Ford Focus into a parked white Honda Civic. Appellant shot Johnson in the head. The bullet entered the left side of the back of Johnson’s head and exited the right side of Johnson’s forehead. The cause of Johnson’s death was perforation of his brain due to the gunshot.
THERE WAS NO ERROR IN THE COURT’S INSTRUCTIONS ON MANSLAUGHTER
“Murder is the unlawful killing of a human being... with malice aforethought.” (§ 187, subd. (a).) “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. Lasko (2000) 23 Cal.4th 101, 108; see also People v. Barton (1995) 12 Cal.4th 186, 199.) The trial court instructed the jury on both of these forms of voluntary manslaughter. At issue here is the instruction on the form of manslaughter committed when a defendant acts in a sudden quarrel or heat of passion. The trial court instructed appellant’s jury with CALCRIM 570 as follows:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if one, the defendant was provoked; two, as a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
“Heat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
“It’s not enough that the defendant was simply provoked. The defendant is not allowed to set u his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
“If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his clear reasoning and judgment then the killing is not reduced to voluntary manslaughter on this basis.
“The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden then you must find the defendant not guilty of murder.”
This instruction accurately defines “sudden quarrel or heat of passion” manslaughter. (See, e.g., People v. Lasko, supra, 23 Cal.4th at p. 108; People v. Breverman (1998) 19 Cal.4th 142, 163; People v. Wickersham (1982) 32 Cal.3d 307, 326-327 (disapproved on another ground in People v. Barton, supra, 12 Cal.4th at p. 201); People v. Berry (1976) 18 Cal.3d 509, 514-515.) Appellant does not contend otherwise. Rather, he contends that an additional, unrequested instruction should have been given.
Appellant’s argument goes like this. During his trial a witness, Detective Todd Fraizer, testified about a recorded interview Fraizer had conducted with appellant shortly after appellant’s June 20, 2007 arrest. Fraizer testified that appellant told him appellant had met Johnson (“Bullet”) three to four years ago, that appellant saw Johnson “all the damn time at the store” and that Johnson was a “cool kid” and “like a brother.” Appellant’s older brother, Corey, told appellant that Johnson had pointed a gun at Corey’s head or face. Appellant described Corey as “not being all there” and told Fraizer that “[w]hat he [Corey] has to say sometimes gets twisted, ” so appellant “went over there and made contact to see what was actually going on between Bullet [Johnson] and his [appellant’s] brother Corey.” This contact between appellant and Johnson occurred only hours before the incident at which appellant fatally shot Johnson. At this meeting Johnson told appellant it was not Johnson who had pointed a gun at Corey and that “[i]t was somebody else.” Fraizer further testified that appellant told him this meeting between appellant and Johnson had ended with “[n]o conflict.” Appellant’s jury was instructed on both “imperfect self defense” manslaughter and “sudden quarrel or heat of passion” manslaughter. The instruction given to appellant’s jury on imperfect self-defense manslaughter (CALCRIM No. 571) was as follows:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. If you conclude that the defendant acted in complete self-defense then his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends upon whether the defendant’s belief in the need to use deadly force was reasonable.
“The defendant acted in imperfect self-defense if one, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but three, at least one of those beliefs was unreasonable.
“Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. In evaluating the defendant’s beliefs consider all of the circumstances as they were known or appeared to the defendant – and appeared to the defendant.
“If you find that the victim threatened or harmed others in the past, then you may consider that information in evaluating the defendant’s beliefs. If you find that the defendant knew that the victim had harmed others in the past then you may consider that information in evaluating the defendant’s beliefs.
“Great bodily harm means significant or substantial physical injury. It’s an injury that’s greater than minor or moderate harm.
“The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden then you must find the defendant not guilty of murder.”
Appellant focuses on the sentence in the imperfect-self defense manslaughter instruction stating: “If you find that the victim threatened or harmed others in the past, you may consider that in evaluating the defendant’s beliefs.” He argues that “an antecedent threats instruction should have been given in connection with heat of passion.” He contends that because the imperfect self-defense manslaughter instruction told the jurors they could consider evidence of the victim’s threats to others in evaluating the reasonableness of the defendant’s beliefs, and because the ordinary self-defense instruction also told the jurors they could consider the defendant’s knowledge of past threats, if any, by the victim to other persons, the jury “would have logically concluded... that it was not free to consider [Johnson’s] prior threat in connection with heat of passion.”
The argument fails. A trial court has no duty to give an unrequested instruction on antecedent threats or assaults. (People v. Garvin (2003) 110 Cal.App.4th 484.) In Garvin this court, using the phrase “antecedent assaults” (id. at p. 489) for as shorthand for “antecedent threats or assaults” (id. at p. 488), stated: “An instruction on the topic of antecedent assaults is analogous to a clarifying instruction. It is axiomatic that ‘[a] defendant who believes that an instruction requires clarification must request it.’ (People v. Coddington (2000) 23 Cal.4th 529, 584 [citation].) Therefore, we conclude that this is a ‘specific point’ and is not a general principle of law; the trial court was not obligated to instruct on this issue absent request.” (People v. Garvin, supra, 110 Cal.App.4th at p. 489; see also People v. Marks (2003) 31 Cal.4th 197, 237: “The instruction is a correct statement of the law, however, and if defendant favored further clarification, he needed to request it. His failure to do so waives this claim.”)
Also, as we noted in Garvin, the refusal of the defense to request such a clarifying instruction can be an objectively reasonable tactical decision. A reason for not requesting such an instruction readily appears here. Appellant did not contend that his provocation was Johnson pointing a gun in appellant’s brother’s face sometime earlier. Appellant’s contention was that appellant was provoked by Johnson bringing a gun to appellant’s turf and picking a fight with appellant just before appellant’s fatal shooting of Johnson. Appellant’s trial counsel argued to the jury: “Provocation may reduce a murder to manslaughter. The weight and significance of the provocation is something for you to decide. Provocation. What provoked it? Okay. Well the guy bringing the gun to the party certainly provoked it. [¶] Of course, a person does not have a right to self-defense if he provokes a fight. But, again, who provoked the fight? Did Mr. Jynes provoke the fight? He’s in his own turf. Did Mr. Jynes bring a gun to the party? No. The person that brought the gun to the party was Bullet [Johnson]. He provoked the fight. He came over to let Mr. Jynes know whose [sic] boss. And he brought a gun to prove it.”
Now on appeal appellant argues that his trial counsel “emphasized the incident earlier in the day when Bullet had threatened Jyne’s brother.” Appellant’s trial counsel never contended, however, that the incident or alleged incident involving Johnson and appellant’s brother was part of appellant’s purported provocation. What appellant’s trial counsel actually said was: “I think probably the best way to begin my presentation to you, ladies and gentlemen, is to kind of visit the facts to start with. And this -- this started earlier on the day in question when Awol, who is Joseph Jynes, went over to Bullet’s [Johnson’s] territory to talk to Bullet about having stuck a gun in Awol’s brother’s face, realizing that Awol’s brother might be a little slow, maybe got it wrong. And they had this discussion in Bullet’s hood so to speak. And everything seemed to be just hunky-dory. They all parted their way friends.” The significance of this event to appellant was not that he had been provoked by whatever had occurred between Johnson and appellant’s brother Corey. The significance of the earlier meeting between appellant and Johnson was that this earlier meeting prompted or provoked Johnson because Johnson did not like appellant having come over to Johnson’s turf. Johnson therefore returned the favor by later going over, armed, to appellant’s turf. As appellant’s trial counsel argued to the jury, in an attempt to explain Johnson’s motive for arriving armed at appellant’s turf just before the fatal shooting: “I’m sure Bullet’s over there wanting to know who in the hell are you to come to my hood and talk to me about sticking a gun in your brother’s face? Something to that effect.”
Although appellant’s appellate counsel is apparently of the view that appellant’s trial counsel should have contended appellant had been provoked by an earlier incident involving appellant’s brother and Johnson, appellant’s trial counsel may well have been of the view that a jury would not deem such an incident to be one which would cause a person of average disposition to rashly and without due deliberation shoot a fleeing man in the back of the head several hours later. Trial counsel may well have been of the view that making such an argument might weaken rather than strengthen appellant’s defense. Trial counsel’s refusal to request an antecedent threats instruction in connection with the sudden quarrel or heat of passion manslaughter instruction is therefore understandable, and the lack of any trial court error in not giving such an instruction on the court’s own initiative in this case seems clear.
DISPOSITION
The judgment is affirmed.