Opinion
F072424
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. EDDIE LUNA, Defendant and Appellant.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR047943)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Eddie Luna was convicted of first degree willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 189 [count 1]) and attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664, subd. (a) [count 2]). In connection with both counts, the jury found true the allegations he was a principal who personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subds. (d), (e)(1)); he was a principal who personally and intentionally discharged a firearm (id., subds. (c), (e)(1)); he was a principal who personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (e)(1)); and he committed the underlying offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(5)). Defendant was sentenced to 25 years to life on count 1, plus 25 years to life for discharging a firearm and proximately causing great bodily injury or death; and 15 years to life on count 2, plus 25 years to life for discharging a firearm and proximately causing great bodily injury or death. Pursuant to section 12022.53, subdivision (f), the trial court stayed execution of the other firearm enhancements.
Subsequent statutory citations refer to the Penal Code.
On appeal, defendant makes several contentions. First, the trial court should have granted his request for time to find a private attorney. Second, the jury should have been instructed on unconsciousness due to voluntary intoxication. Third, the court should have sentenced him to " 'straight life' " "subject to the requirements of section 186.22[, subdivision ](b)(5)" instead of 15 years to life on count 2. Fourth, the abstract of judgment erroneously specified "25 years to Life" for both counts.
We conclude: the court did not abuse its discretion when it denied defendant's request for time to find a private attorney; the court had no obligation to instruct the jury on unconsciousness due to voluntary intoxication; the court properly pronounced a sentence of 15 years to life on count 2; and the abstract of judgment must be corrected.
STATEMENT OF FACTS
I. The night of the shooting.
On the night of December 23, 2013, defendant visited the home of his cousin Serena R., where he and other family members watched a football game and drank alcohol. He was wearing a white jersey and a scarf. At some point, defendant left the house.
At approximately 9:20 p.m., down the street from Serena's residence, Fernando P. and his older brother Carlos P., both minors, were walking to a friend's house when they noticed a stranger following them. The man, who was "about a block behind" and wearing a white San Francisco 49ers jersey, shouted, "Hey what's up, ese?" Fernando implored Carlos, "Let's run. Let's go to our friend's house, we're almost there." Carlos declined. Instead, the brothers went to a nearby house that belonged to their mother's friend and knocked on the door for a few minutes. No one answered. Meanwhile, the stranger arrived in front of the house. Carlos pushed Fernando to the ground behind a porch column. Fernando then heard six gunshots in rapid succession. After the gunfire ceased, Carlos "fell to the floor and hit . . . his head . . . ." He sustained four gunshot wounds. One bullet entered through the left side of the abdomen; punctured the intestines and liver; and exited through the right side of the abdomen. Another bullet penetrated the left side of the back; fractured a rib; punctured the left lung, spleen, stomach, aorta, and right lung; and lodged in the right pectoral muscle. The third bullet passed through the right calf and the fourth bullet grazed the right posterior thigh. The stranger vanished by the time Fernando reached Carlos. Fernando spotted a red, white, and gold 49ers scarf on the front lawn.
Officer Kutz was dispatched to the scene of the shooting. He performed cardiopulmonary resuscitation on Carlos until paramedics arrived. Carlos was transported to the hospital, where he was pronounced dead. Back at the crime scene, .38-caliber bullets and bullet fragments were recovered. There were no shell casings, suggesting the gunman used a revolver. Kutz saw the 49ers scarf on the lawn. While he was speaking with Fernando, Serena appeared and said, "That's my cousin's scarf." She specified defendant was the cousin in question. Serena also told Kutz defendant was wearing a white jersey.
II. The day of defendant's arrest.
On December 27, 2013, defendant was at his apartment with Anthony Mendoza when he was taken into custody. Officers searched a hallway closet and found a box containing a white 49ers jersey.
At police headquarters, Detectives Cederquist and Chavez interviewed defendant's live-in girlfriend Monique Chavira. According to Chavira, on the night of the shooting, defendant went to Serena's residence to watch the 49ers game and drink alcohol. When he left their apartment, he was wearing a white 49ers jersey that belonged to his friend Dion King. Defendant also carried his "cowboy gun" in his pocket. At midnight, he returned home wearing a "black T" and a "dark hat." Defendant told Chavira he "was walking down the street" when he "seen [sic] those kids that were there." After he "asked those kids if they banged or whatever," he "shot [them]." The next day, defendant "broke down and started cryin' " after he learned one of the boys died. He admitted he "fucked up" but insisted he was "drunk." That same day, Chavira saw defendant's gun "in the kitchen on top of the cupboard."
The jury watched DVD recordings of the interview.
Chavira noted defendant owned a 49ers scarf. Cederquist showed her a photograph of the scarf found at the scene of the shooting. Chavira acknowledged the scarf in the photograph resembled defendant's scarf.
Cederquist and another detective, Foss, interrogated defendant after advising the latter of his Miranda rights. At first, defendant claimed he was at home on the night of December 23, 2013. Foss countered:
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The jury watched a DVD recording of the interrogation.
"[Y]ou were up there watchin' the game at a relative's house - we know that's where you were at, okay? Um, there was two kids there. Only one was hit. The other one saw somebody, all right? And I have talked to your girlfriend, obviously. She's here. She's very upset. [¶] . . . [¶] . . . So it's not in question whether you were home or not. That's not in question, okay? You also left something there that you've owned for a long time. It's covered in your DNA."Foss showed defendant a photograph of the 49ers scarf and the latter admitted he "recognize[d]" it. Foss also showed defendant a photograph of Carlos. Defendant asserted:
"I was drunk. . . . And I blacked out. . . . I don't know what I was doin' around stupidity. [¶] . . . [¶] . . . So it was out of stupidity, man. I don't know. Uh, some fuckin' stupid, you know? Like, I don't know. I don't know what to say. [¶] . . . [¶] . . . I was . . . blacked out. I was drunk. [¶] . . . [¶] . . . I don't know. I don't know nothin' about it. I don't know what happened. I'm asking myself the same question. I beat myself up for that. [¶] . . . [¶] . . . I don't even know what happened before. I just left walking. We were supposed to go to a friend's house, and, yeah. [¶] . . . [¶] . . . Well, I was just walking down the street by myself. . . . I was walkin' down . . . the street by myself then, yeah. I just blacked out, man. [¶] . . . [¶] . . . I don't remember things that I said . . . . [¶] . . . [¶] . . . I was drunk. [¶] . . . [¶] . . . I was drunk. [¶] . . . [¶] . . . I don't even know this kid. [¶] . . . [¶] . . . I don't even know why I shot him. I'm tellin' you, sir, like, honestly . . . ."Later, the following exchange took place:
"[DEFENDANT]: I was walkin' down the street and, yeah, like . . .
"CEDERQUIST: And then what happened?
"[DEFENDANT]: I don't know, and, yeah, I torched him. That happened. You know what I mean? I didn't want to but . . .
"CEDERQUIST: You just torched him? [¶] . . . [¶]
"[DEFENDANT]: No, like, I was just walking nice and I'm walking and I don't know. I - I didn't kill him - like I'm sayin', I was drunk and, I mean, I don't know what I was doin'. I left walking. . . . You know, I don't even know why I left that house for, like . . .
"FOSS: What did you say to him? You said something.
"[DEFENDANT]: Nothing. I did say nothin' to him. I didn't - I didn't even push that kid, say not word to him. That's honest to God. I didn't say not one word to that kid.
"FOSS: Nothin'?
"[DEFENDANT]: Nothin'. Like, nothin'. I don't know why I did it for. I don't even bang in this town. I'm not even associated with none of that shit. You know, like, I don't even know why I'm - I don't know why I did this. I honestly don't know why.
"FOSS: Okay. Let me ask you this, can you get us the gun? [¶] . . . [¶]
"[DEFENDANT]: No, I don't got the gun.
"FOSS: I know you don't have it anymore. Can you get it for us?
"[DEFENDANT]: I don't know. I could try to get it.
"FOSS: What did you do with it? [¶] . . . [¶]
"[DEFENDANT]: Threw it away.
"FOSS: Where did you throw it away at?
"[DEFENDANT]: Um, I just threw it. I just lost it.
"FOSS: Where at?
"[DEFENDANT]: I don't know. I just lost it. I don't . . . [¶] . . . [¶]
"FOSS: All right. Well, let's go back to the shooting itself. Do you remember how many shots you fired?
"[DEFENDANT]: Mm, like, four, five. I'm not sure. [¶] . . . [¶] . . . I wasn't gonna intentionally hit him. I just wanted to scare him, honestly. (Unintelligible), like, I just wanted, uh, to scare him and it's - wasn't intention to hit the little kid. My intention wasn't even do that. I was just . . .
"CEDERQUIST: Where were you at when you shot? [¶] . . . [¶]
"[DEFENDANT]: The street.
"FOSS: Well, his scarf was, like, on the lawn.
"[DEFENDANT]: Well, yeah, like in the - like a sidewalk street type of. [¶] . . . [¶]
"FOSS: How far were you? Do you remember?
"[DEFENDANT]: No. I just wanted to put the scare on the little kid, you know. I wasn't - that wasn't intentional.
"FOSS: What kind of gun was it?
"[DEFENDANT]: A 38. [¶] . . . [¶]
"FOSS: . . . On the gun, did it have a cylinder that you put the bullets in or did it have a clip? [¶] . . . [¶]
"[DEFENDANT]: A cylinder.
"FOSS: A cylinder? Okay. Do you know whose gun that was?
"[DEFENDANT]: No. I just got it and threw it. [¶] . . . [¶] . . . I'm tellin' you guys I don't know where it's at. I - after that happened, like, I just, got scared. I just threw it. I just started running and I just fuckin' threw it and, like I say . . .
"FOSS: . . . [W]hat were you wearing that night? Do you remember?
"[DEFENDANT]: No.
"FOSS: You don't remember what you were wearing?
"[DEFENDANT]: Nah, honestly.
"FOSS: 'Cause you did change before you went home. [¶] . . . [¶] . . . So why would you change?
"[DEFENDANT]: I don't even remember. I don't even remember what I was wearing. Probably like a white shirt or somethin'. [¶] . . . [¶]
"CEDERQUIST: How long have you owned this gun?
"[DEFENDANT]: Not even that long. [¶] . . . [¶] . . . [L]ike a month.
"CEDERQUIST: . . . Why did you take the gun out that night?
"[DEFENDANT]: I don't know. Tell you the truth, don't know, like - I don't - I don't take my cousin shit like that, you know, like - mm-hm.
"CEDERQUIST: So you just took it out with you? It was something that you don't do?
"[DEFENDANT]: No. [¶] . . . [¶] . . . I didn't - nobody - kept it at my house for my own protection. Like, just for me and my family for the house thing, you know? [¶] . . . [¶] . . . And I never take that out. That night, I don't know.
"CEDERQUIST: Where did you go after the shooting happened?
"[DEFENDANT]: I just went home.
"CEDERQUIST: How long ago after the shooting did you go home?
"[DEFENDANT]: Right away.
"CEDERQUIST: How did you get home? [¶] . . . [¶]
"[DEFENDANT]: . . . I walked home, basically. [¶] . . . [¶] . . . I just took a bunch of shortcuts walkin' home. [¶] . . . [¶]
"[FOSS]: Whose house were you at . . . just before this all went down?
"[DEFENDANT]: My cousin's house. [¶] . . . [¶]
"FOSS: What's her name? [¶] . . . [¶]
"[DEFENDANT]: [Serena]. [¶] . . . [¶]
"FOSS: . . . [Y]our story is that you have no idea, you were walkin' down the road and you started just shootin'?
"[DEFENDANT]: Yeah. I - I just left and, uh, I just wanted to put a scare in him 'cause . . .
"FOSS: But why would you (unintelligible)?
"CEDERQUIST: Why would you scare him (unintelligible)[?]
"[DEFENDANT]: I don't know, you know, 'cause . . . [¶] . . . [¶] . . . [B]ecause I just wanted to scare him because that neighborhood has Sure[ñ]os and it's going up - I don't know. It's . . .
"FOSS: Why - did you think he was a Sure[ñ]o?
"[DEFENDANT]: No, just - well, in a way, yeah, but, like - I don't know.
"FOSS: What made you think that? [¶] . . . [¶]
"[DEFENDANT]: Yeah, exact - exactly. I don't know - know what made me think that. Like, mm-hm. Like I said, I just want to put a scare on the little kid, you know? I didn't - wasn't intentionally hit him. I didn't want to hit him. I didn't want to do nothin' like that. I didn't want to torch that little kid."
Thereafter, before leaving, the detectives allowed Chavira to speak with defendant in the interview room. The following exchange took place:
The jury watched a DVD recording of the conversation.
"[DEFENDANT]: I'm done.
"CHAVIRA: I'm gonna get a lawyer. [¶] . . . [¶]
"[DEFENDANT]: (Unintelligible). They know I was there when - they . . . know I was there - they know I did it.
"CHAVIRA: (Unintelligible).
"[DEFENDANT]: I don't know, but they know I was there.
"CHAVIRA: I'm not gonna give up.
"[DEFENDANT]: (Unintelligible). [They] know . . . I'm the shooter. [¶] . . . [¶] . . . (Unintelligible) I told them it was me, what more proof do they need? My scarf [was] there and they know I'm the shooter.
"CHAVIRA: You want me to get the lawyer?
"[DEFENDANT]: They told me why'd you do it? I go I don't know. I'm like (unintelligible) I go I didn't intend to kill him. I just wanted to kill - I just wanted to fucking scare the kid. . . .
"CHAVIRA: What's at the house?
"[DEFENDANT]: Oh, nothing, I cleaned everything out.
"CHAVIRA: Are you sure?
"[DEFENDANT]: Yeah, that's what I was doing yesterday. I cleaned everything out."
III. Gang evidence.
On June 14, 2010, Officer Hill conducted a follow-up investigation of a shooting at defendant's mother's house. Defendant, who resided there at the time, told Hill he did not know who fired the gunshots but knew "Scraps" territorialized the area. At trial, Hill testified defendant's mother's house was within walking distance of Serena's residence and the residence where Carlos was shot.
On September 6, 2013, an unidentified gunman "shot up" a house on Ellis Street. Sheriff's deputies who were dispatched to the residence encountered defendant, King, Johnny Coronado, Hugo Meza, Roldan Meza, and Marcus Soliz, inter alios, inside. On December 5, 2013, a blue car stopped in front of the Ellis Street house and a "Hispanic youngster" in a beanie fired multiple gunshots. Afterward, a blue bandana was found on the driveway. Sheriff's deputies who were dispatched to the residence came across defendant, King, Mendoza, and Roldan Meza on the premises. Defendant was wearing "red San Francisco 49ers clothing," namely a beanie and a jacket or sweatshirt. On December 6, 2013, another drive-by shooting erupted at the Ellis Street house. Once again, defendant, King, Mendoza, and Roldan Meza were on site.
At trial, Detective Aguilera, the prosecution's gang expert, testified the Norteños are a criminal street gang that primarily engages in murder, attempted murder, robbery, carjacking, and drug sales. Members identify with the color red and frequently display a "northern star" tattoo. The gang's rivals include the Sureños, whose members identify with the color blue. Norteños pejoratively refer to Sureños as "scrap[s]" and often wear San Francisco 49ers apparel because the "SF" alternatively means "scrap free."
According to Aguilera, a Norteño earns "respect" "by doing things that benefit the gang," including "assaulting rival gang members." Crimes committed against rival gang members are "more valuable" because rival gang members are "number one targets" and "it's . . . taking out your competition." Such conduct "benefits the gang" in at least two ways. First, violence in general "instills fear in the community" and dissuades cooperation with law enforcement. Second, "it's a good recruiting tool for . . . younger kids" who "want to join the [gang] that's most violent . . . [and] has a better reputation" rather than "the one that is getting attacked all the time."
Based on the totality of the circumstances, Aguilera opined defendant was an active Norteño on the night of December 23, 2013. Defendant has a northern star tattooed on his right forearm. At the time of the shooting, which occurred in Sureño territory, he was dressed in 49ers apparel and asked the victims, "Hey what's up, ese?" That particular question is used by both Norteños and Sureños "to identify . . . another person as a Sure[ñ]o . . . ." During the June 14, 2010, interview with Hill, defendant insinuated "a scrap . . . shot [at his mother's] residence." On three occasions in late 2013, law enforcement encountered him at the Ellis Street house, "a secure area for [Norteños] to conduct gang business." On each occasion, defendant was in the company of validated Norteños, including Coronado, King, Mendoza, the Mezas, and Soliz. Also, on at least two occasions, the Ellis Street house was the target of a drive-by shooting. Since a blue bandana was left after one of the shootings, the Sureños were the likely culprits.
The prosecutor posed the following hypothetical:
"Assume that a gang member, wearing gang clothing, is in rival gang territory, walks up to two teenagers on a public street whom he perceives are rival gang members. The gang member then makes a gang comment towards those two teenagers. And when the teenagers keep walking away, the gang member follows them, shooting at them multiple times, killing one of the teenagers."When the prosecutor asked "whether the conduct of that gang member would benefit the criminal street gang," Aguilera responded in the affirmative. He explained:
"If you commit a violent act, such as murder, you can move up within the gang pretty quickly because you're taking out your opponents. It also boosts the reputation of the gang. This helps because it helps with recruitment for younger gang members. Someone that's wanting to join a gang, join a gang that's not deemed weak, that's violent - so it boosts their reputation, that they're known in Madera.Based on the same hypothetical, Aguilera opined the gang member "acted with the specific intent to promote, further, or assist in criminal conduct by gang members."
"Also, another one would be it instills fear in the community. This is huge because when gang members commit these violent acts in the community, the community knows that gang members are not afraid to commit these acts. So they're most likely not to cooperate with law enforcement. They're less likely, when questioned, not to identify the shooters, if they're considered gang members. [¶] . . . [¶]
"This is a big key for gangs. The benefit of the gang is that they intimidate the community. They're less likely to report these crimes. And if they're less likely to report these crimes, the gang could operate a lot easier in the community. . . . [T]hey know who did it, but they're not willing to speak with us."
DISCUSSION
I. The trial court did not abuse its discretion when it denied defendant's request for time to find a private attorney.
Defendant argues the trial court's denial of his 2015 request for a continuance of the trial to obtain private counsel was not an informed exercise of discretion. The People assert the record, which includes prior requests by defendant for continuances to obtain private counsel which were granted, establishes otherwise.
a. Background.
On January 16, 2014, the court granted a request to continue defendant's arraignment to allow his family to "attempt[] to retain [a private attorney] on the matter." On February 14, 2014, another continuance was granted for the same purpose. On February 28, 2014, the court postponed arraignment to March 7, 2014, because "[d]efendant's family [wa]s still attempting to retain private counsel on [his] behalf." At the March 7, 2014, arraignment, the court appointed defense counsel to represent defendant. On May 11, 2015, the day before trial was set to begin, defense counsel asked for a continuance to conduct further investigation. The court granted the request. At a June 19, 2015, trial confirmation hearing, defense counsel stated, "Your Honor, [defendant] has indicated that he wants time to find a private attorney." The court responded, "Denied." Trial commenced on June 23, 2015.
b. Analysis.
"[D]ue process of law, as it is expressed through the right-to-counsel provisions of the state and federal Constitutions, comprehends a right to appear and defend with retained counsel of one's own choice. . . . [T]his right is not absolute: it must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case." (People v. Byoune (1966) 65 Cal.2d 345, 346 (Byoune); accord, People v. Doebke (1969) 1 Cal.App.3d 931, 939 (Doebke).) "A defendant may not, for example, demand a continuance if he is unjustifiably dilatory in obtaining counsel [citation], or if he arbitrarily chooses to substitute counsel at the time of trial [citation]." (Byoune, supra, at pp. 346-347; accord, People v. Courts (1985) 37 Cal.3d 784, 790-791 (Courts); Doebke, supra, at p. 939.)
"It is within the discretion of the trial judge to determine whether a defendant shall be granted a continuance to obtain counsel of his own choosing." (Doebke, supra, 1 Cal.App.3d at p. 939; accord, Courts, supra, 37 Cal.3d at p. 790.) " 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' [Citation.]" (Byoune, supra, 65 Cal.2d at p. 347.) "[T]he burden is on the defendant to establish an abuse of discretion . . . in the absence of showing an abuse, the reviewing court will not disturb the ruling of the trial court." (People v. Blake (1980) 105 Cal.App.3d 619, 624.)
Here, the record demonstrates the court postponed defendant's arraignment three times in January and February 2014 to allow him to hire a private attorney. His apparent inability to do so led the court to appoint defense counsel on March 7, 2014. Over a year later, at the June 19, 2015, trial confirmation hearing, defendant made a fourth request for time to find a private attorney. (Cf. Courts, supra, 37 Cal.3d at p. 792 [the defendant requested only two continuances, the first for discovery and the second to hire another attorney].) When he made this request, he did not present any reasons to justify further delay of the proceedings. For instance, defendant never indicated he was "engaged in a good faith, diligent effort to obtain the substitution of counsel" (id. at p. 791) during the period following defense counsel's appointment and preceding commencement of trial. (See id. at p. 791, fn. 3 [citing cases in which the appellate court upheld the denial of a continuance on the ground that "participation by a particular private attorney was still quite speculative at the time the motion for continuance was made"].) Moreover, the request was made four days before trial was set to begin. (See id. at p. 792, fn. 4 [denial of a continuance warranted where said request is made on the eve of trial and there are "no compelling circumstances to the contrary"].) In view of the record, we cannot conclude the court's ruling constituted an abuse of discretion. (Cf. People v. Blake, supra, 105 Cal.App.3d at pp. 624-625 ["It is . . . well settled that where . . . the appellant has been provided a reasonable opportunity to obtain counsel of his own choice, no abuse of discretion occurs if the trial court fails to grant an additional continuance at or after the commencement of the trial."].) II. The trial court had no obligation to instruct the jury on unconsciousness due to voluntary intoxication.
We do not deem the matter waived or forfeited and so we need not address defendant's alternative claim defense counsel rendered ineffective assistance.
a. Background.
During trial, the court and the parties discussed jury instructions outside the jury's presence. Regarding possible instructions on lesser included offenses, the court remarked:
"I don't see any evidence of provocation or heat of passion, which would justify voluntary manslaughter. I don't see any evidence of involuntary manslaughter. I don't see sufficient evidence of unconsciousness to warrant the instruction on unconsciousness. Therefore, no lesser included of involuntary manslaughter, specifically the evidence we have of . . . defendant's intoxication would come from his girlfriend . . . and . . . defendant's own statements.Defense counsel stated, "I think that's accurate."
". . . [D]efendant, at one point, said he blacked out. But at another point . . . he could recollect the approximate number of shots he fired, and his thoughts regarding the boys. And therefore, [he]'s obviously, in my mind, not unconscious at the time."
b. Analysis.
" ' "It is settled that in criminal cases, even in the absence of a request, 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.' " (People v. Breverman (1998) 19 Cal.4th 142, 154; accord, People v. Ochoa (1998) 19 Cal.4th 353, 422.) "[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." (People v. Breverman, supra, at p. 162.)
"Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . is . . . predominantly legal. As such, it should be examined without deference." (People v. Waidla (2000) 22 Cal.4th 690, 733; see People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759 ["A claim of instructional error is reviewed de novo."].)
During the December 27, 2013, interrogation, after his original alibi was refuted, defendant claimed he "d[id]n't know what happened" on the night of December 23, 2013, because he was "drunk" and "blacked out." However, he subsequently detailed he left Serena's residence, walked down the street, stood on the sidewalk, and fired a .38-caliber revolver four to five times. Afterward, defendant discarded the gun and "took a bunch of shortcuts" home. He insisted he did not intend to shoot Fernando and Carlos, let alone kill the latter, but he admitted he "just wanted to scare [them]" because there was a rising number of Sureños in the neighborhood. In a subsequent conversation with Chavira, defendant stated he was the gunman and assured he "cleaned everything out" at the apartment. While "unconsciousness need not rise to the level of coma or inability to walk or perform manual movements . . . [and] can exist 'where the subject physically acts but is not, at the time, conscious of acting' " (People v. Halvorsen (2007) 42 Cal.4th 379, 417), defendant's own comments "make[] clear that he did not lack awareness of his actions during the course of the offenses" (id. at p. 418). (See People v. Rangel (2016) 62 Cal.4th 1192, 1228 ["Defendant's efforts to fabricate an alibi and to hide the murder weapon[] provide some additional indication that defendant had been aware of his actions during the course of his offenses and therefore was not unconscious during them."].)
Furthermore, the record demonstrates defendant followed Fernando and Carlos and shouted, "Hey what's up, ese?" When the brothers went to a nearby house in an attempt to elude him, he elected to pursue them. While Fernando and Carlos were still knocking on the door, defendant arrived in front of the house and discharged the revolver, successfully hitting Carlos's vital organs. Before he returned to his apartment, defendant changed his clothes. He then told Chavira about the shooting. The "complicated and purposive nature of [defendant's] conduct" (People v. Halvorsen, supra, 42 Cal.4th at p. 418), "plus the observations of witnesses who interacted with h[im] . . . reflect defendant engaged in more than mere physical movement, thereby dispelling any reliance on an unconsciousness theory" (People v. Carlson (2011) 200 Cal.App.4th 695, 704). (See People v. Nihell (1904) 144 Cal. 200, 202 ["[Individuals] are presumed to be conscious when they act as if they were conscious . . . ."].)
To the extent defendant argues an unconsciousness instruction is required because he could only recall some of the details of the shooting, we disagree. There is no "ineluctable rule" "that a defendant's inability to remember or his 'hazy' recollection supplies an evidentiary foundation for a jury instruction on unconsciousness." (People v. Heffington (1973) 32 Cal.App.3d 1, 10.)
Even assuming, arguendo, there was an instructional error, such an error was harmless under any standard. As to both counts, the prosecution proceeded on a theory of deliberation and premeditation. The court instructed the jury on the effect of voluntary intoxication on defendant's ability to act with deliberation and premeditation. By virtue of its verdict, the jury necessarily found defendant had deliberated and premeditated despite his consumption of alcohol. "These mental states are incompatible with unconsciousness." (People v. Rangel, supra, 62 Cal.4th at p. 1228.) III. We decline defendant's invitation to find his sentence of 15 years to life for attempted willful, deliberate, and premeditated murder to be error.
"Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [¶] . . . if the crime attempted is willful, deliberate, and premeditated murder, . . . 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).) "An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole." (§ 3046, subd. (a).)
"[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, . . . be punished as follows:" (§ 186.22, subd. (b)(1).) "[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (Id., subd. (b)(5); accord, People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
Regarding his sentence for attempted willful, deliberate, and premediated murder on count 2, defendant does not dispute the fact he must serve a minimum of 15 years in state prison before he is eligible for parole pursuant to section 186.22, subdivision (b)(5). Rather, he challenges the description of his sentence. Defendant asserts the court should have imposed "straight life," i.e., an indeterminate sentence that does not fix "some number of years to life," subject to section 186.22, subdivision (b)(5).
The correct sentence is life in prison with the possibility of parole with a 15-year minimum term for parole eligibility. Including the minimum term of imprisonment established by sections 186.22 and 3046 in an oral pronouncement of sentence is not, however, error. (People v. Jefferson (1999) 21 Cal.4th 86, 102, fn. 3 (Jefferson).) In Jefferson, the question was whether doubling under section 667, subdivision (e)(1) of the Three Strikes law, applied to the 15-calendar-year imprisonment before parole requirement of section 186.22, subdivision (b)(4). Section 667, subdivision (e)(1) requires doubling the "minimum term" if the current felony is punished by an indeterminate term of imprisonment. "For example, a defendant who has a prior strike and who is convicted of a felony punishable by a term of 15 years to life in prison will receive a sentence of 30 years . . . to life." (Jefferson, supra, at pp. 89-90.) The California Supreme Court held the 15 years of imprisonment before parole in section 186.22, read with section 3046, established a minimum term of 15 years subject to doubling under section 667, subdivision (e)(1). (Jefferson, supra, at p. 90.) It further noted the trial court's pronouncement of sentence which included the minimum term established by sections 186.22 and 3046, was not error. "By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of [Parole Hearings] regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole." (Jefferson, supra, at p. 102, fn. 3.)
Proposition 21, passed by the voters on March 7, 2000, renumbered subdivisions in section 186.22. The 15-calendar year imprisonment before parole requirement became subdivision (b)(5). (People v. Lopez, supra, 34 Cal.4th at p. 1006.)
IV.The abstract of judgment must, however, be corrected to reflect the sentence pronounced by the trial court.
An abstract of judgment is "a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence." (People v. Delgado (2008) 43 Cal.4th 1059, 1070, italics omitted.) "Under [section 1213], 'the certified abstract of the judgment constitutes the commitment. [Citations.] It is thus the order sending the defendant to prison and "the process and authority for carrying the judgment and sentence into effect." [Citations.]' [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) However, "[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (Ibid.) "When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, [an appellate] court has the inherent power to correct such clerical error on appeal, whether on [its] own motion or upon application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.)
Here, on page 1 of the September 16, 2015, abstract of judgment, defendant's sentence on count 2 is mistakenly identified as "25 years to Life" instead of "15 years to Life." This clerical error must be corrected.
DISPOSITION
The September 16, 2015, abstract of judgment shall be amended to reflect a sentence of 15 years to life on count 2. The trial court is directed to prepare a corrected abstract of judgment and transmit copies thereof to the appropriate authorities. As so modified, the judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.