Opinion
H030750.
1-14-2010
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL MARVIN MARTINEZ, Defendant and Appellant.
Not to be Published in Official Reports
I. Statement of the Case
After a trial, the jury found defendant Russell Marvin Martinez guilty of second degree murder and attempted premeditated murder and further found true enhancement allegations that in committing those offenses, he personally and intentionally used and discharged a firearm and caused death. On appeal, this court reversed the judgment due to various instructional errors involving the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter, provocation and heat of passion, and provocation as it relates to the determination of premeditation and deliberation. (People v. Martinez (July 18, 2005, H025896) [nonpub. opn.].)
After a retrial, the jury again found defendant guilty of second degree murder and attempted premeditated murder and further found the enhancement allegations true. (Pen. Code, §§ 187, 664, 12022.5, subd. (a)(2), 12022.53, subds. (b) & (c).) The court imposed identical, concurrent sentences for the offenses, each comprising a 15-year-to-life term with a consecutive 20-year enhancement term.
On appeal from the judgment, defendant claims the courts instructions on voluntary manslaughter and attempted voluntary manslaughter, heat of passion, and provocation were flawed. He claims the court erred in giving an instruction on transferred intent. He also claims defense counsel rendered ineffective assistance in failing to request certain instructions. Last, he claims the abstract of judgment reflects a legally unauthorized sentence for attempted premeditated murder.
We affirm the judgment but direct the trial court to correct the abstract of judgment to reflect the correct sentence for attempted premeditated murder.
II. Facts
On December 21, 2000, defendant spoke to Immer Mendoza at the toy store where he worked and said he wanted to change jobs and liked to paint cars. When Ms. Mendoza suggested he check out the nearby Autorella Paint and Body Shop, defendant said he did not want to go there because he had a long-standing feud with an employee. He said he hated this person, and his friends were urging him to take revenge against him. Defendant said that if he saw the person, he would kill him. Ms. Mendoza recommended that he seek psychological help at Barrios Unidos. However, defendant said that there were too many gang members there.
On January 12, 2001, Mario Cerna, Angel Ayala, Michael Amaya, Larry Montanez, Roberto Molasco, and Edith Hayes were at work at Autorella. After lunch, Cerna and Ayala were out front working on a car when Cerna noticed defendant about 50 feet away mad-dogging them—i.e., staring at them in an unfriendly way. After a while, defendant left. Later, that afternoon, as they continued to work on the car, Cerna saw defendant running toward them with a gun. He pointed it at them and fired, hitting Ayala. Cerna and Ayala ran into the office. They told Hayes to call the police. Defendant continued toward the shop with his arm raised, and the other employee started to run. Cerna fled into the back, and defendant chased and shot at him a couple of times. Defendant also fired at Amaya. Within moments, Ayala went into the back and tackled defendant. They fell and struggled on the ground. Cerna returned to assist Ayala. There was another shot. Ayala and defendant got up, and defendant fired at Cerna. Ayala and Cerna both grabbed him and struggled for the gun, which fired again. Around this time, Detective Jarrod Patrick of the Santa Cruz Sheriffs Department arrived. He ordered that the gun be dropped and then joined the struggle for it. Defendant kept trying to fire it, but Amaya was finally able to grab it away from him. Defendant then broke free and fled. Detective Patrick chased and later arrested him.
Ayala was shot three times and died from severe internal bleeding at the scene.
At trial, Cerna testified that he and defendant had been in high school at the same time, although he was older than defendant. They were in different Sureño gangs that did not get along. Cerna dated defendants sister for a few months, and when Cerna would call her, defendant would threaten to "kick his ass." In 1998, Cerna and defendant attended a quinceanera party, at which members of a third gang beat defendant. Although Cerna was not involved, defendant later challenged him to a fight. As a result, defendant and two of his friends fought Cerna and two of his friends. They did not use weapons, and no one got hurt. After graduating, Cerna saw defendant on the street a few times, and they would mad-dog each other. In 1999, Cerna left Santa Cruz for a year to get technical training, and when he returned, he worked at Autorella. He did not resume his gang participation. He said that once, he was driving his car and saw defendant, and they mad-dogged each other. On Halloween 2000, Cerna learned that defendant had been in a fight, but he was not involved and did not witness it. At the time of the defendants retrial, Cerna was serving in the Coast Guard.
The Defense
Defendant testified that when he was in middle school, other kids would pick on him and beat him up, and sometimes Cerna would watch. Cerna dated his sister, which angered and disappointed defendant, and so he and Cerna would mad-dog each other when Cerna came to pick her up.
One evening, defendant attended a quinceanera party, where he and Cerna mad-dogged each other. When defendant left the party, Cerna and a group of his friends assaulted and beat him. At that point, defendant learned that Cerna was a gang member. A few days later, defendant challenged Cerna to a fight. Defendant showed up with two friends, and they were accosted by Cerna and some of his friends. Cerna called him a derogatory name and threw a hammer at him. Both of these assaults enraged defendant. During this time, Cerna would throw gang signs at defendant and his friends. One day, Cerna and his group approached and then attacked them. Cerna had a hammer and others wielded a butcher knife, a baseball bat, and a frying pan. Defendant and his friends ran.
Sometime after March 2000, defendant was walking in Downtown Santa Cruz when Cerna and his friends rushed and assaulted him. Cerna broke a bottle over his head. As defendant fled, Cerna taunted him. This incident further enraged defendant. Around this time, a girl told defendant that Cerna had a gun and was looking to shoot him..
Around Halloween 2000, a group of Cernas friends confronted defendant. One threatened to stab defendant with scissors and fought defendant one-on-one for a while until the persons friends joined in and broke a beer bottle over defendants head. At Christmas time, defendant and Cerna drove by each other, and Cerna mad-dogged him. Defendant was fed up with Cernas attitude and belligerence but was afraid of him so he bought a gun from someone on the street for protection and then hid it in bushes near his house.
On January 11, 2001, around 11:00 p.m., defendant noticed a car drive by his house. He suspected Cerna and ran inside to get a baseball bat. However, he did not see the car again.
The next afternoon, defendant was walking home from the courthouse and feeling good. As he walked by Autorella, he turned away, hoping that Cerna would not see him. However, someone whistled at him, and when he turned, he saw Cerna and another man smiling at him. The other man walked up and asked what was happening. Cerna, who was holding a water hose with a spray gun, pointed it at defendant as if he were shooting him. Defendant became extremely alarmed. The other man then drew a hammer at him. Both of them laughed, and defendant continued on his way home. As he walked, he felt certain that Cerna was going to shoot him. He had a vision of Cerna attacking him and his family and he saw himself in a coffin. He became increasingly stressed out and fearful. When he got home, he retrieved his gun from the bushes, loaded it with copper hollow point bullets from a bag that also contained regular bullets, and immediately headed back to Autorella. He put the gun in his waistband and concealed it to avoid being stopped. He testified that he was not going to tolerate Cernas conduct anymore, he wanted to be left alone, and so he intended to scare Cerna. He also thought about whether he should shoot him.
When he got near Autorella, he thought he saw Cerna walking toward a car. He charged at him firing his gun. However, he soon realized that he had shot someone else. He then stopped, turned around, and saw Cerna. His anger reignited, he pointed his gun at Cerna, and started chasing after him. The next thing he remembered was that he was wrestling with someone, and his gun fired. Later, he was arrested.
Defendant denied telling Ms. Mendoza at the toy store that he could not work at Autorella because of a feud with an employee. He also denied saying that he would kill that person and that his friends were pressuring him to take revenge.
III. DESCRIPTION OF THE SUBJECTIVE AND OBJECTIVE COMPONENTS OF HEAT OF PASSION
Defendant contends that the courts instructions misdescribed components of heat of passion as they relate to voluntary and attempted voluntary manslaughter.
A defendant commits voluntary manslaughter, not murder, when he or she unlawfully kills another person "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . `[T] his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because `no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253, italics added.)
Concerning voluntary manslaughter, the court instructed the jury, in relevant part, "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone in 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[,] and 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 is not enough that the defendant was simply provoked. The defendant is not allowed to set up his own standard of conduct. You must find whether the defendant was provoked and whether the provocation was sufficient."
The court instructed the jury on attempted voluntary manslaughter using virtually identical language. Since defendants claims concerning both instructions are the same, our discussion concerning voluntary manslaughter applies with equal force to the instructions on attempted voluntary manslaughter.
Defendant claims the instruction erroneously describes the subjective and objective components of heat of passion. He asserts that the subjective component is "whether defendant acted rashly or without due deliberation and reflection, and from such passion rather than from judgment." (Italics added.) Thus, he argues that the instruction unduly restricted the subjective component to only whether the defendant acted rashly and thereby erroneously excluded situations in which the defendant did not act rashly but did act without due deliberation. He similarly asserts that the objective component is "whether under the given facts and circumstances[,] an ordinarily reasonable person of average disposition could have acted rashly or without deliberation and reflection, and from such passion rather than from judgment." (Italics added.) Thus, he argues that the courts instruction erroneously expanded the requirements of provocation to include not just acting rashly but also acting without due deliberation.
In support of his claim, defendant relies on cases that quote or paraphrase language from People v. Logan (1917) 175 Cal. 45 (Logan). There, the court explained that, "heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and . . ., consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. Thus no man of extremely violent passion could so justify or excuse himself if the exciting cause be not adequate, nor could an excessively cowardly man justify himself unless the circumstances were such as to arouse the fears of the ordinarily courageous man. Still further, while the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, the jury is properly to be told that the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man. But as to the nature of the passion itself, our law leaves that to the jury, under these proper admonitions from the court. For the fundamental of the inquiry is whether or not the defendants reason was, at the time of his act, so disturbed or obscured by some passion—not necessarily fear and never of course the passion for revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [Citation.]" (Id. at p. 49, italics added.)
Defendant cites People v. Lee (1999) 20 Cal.4th 47 at page 59; People v. Barton (1995) 12 Cal.4th 186 at page 201; People v. Berry (1976) 18 Cal.3d 509 at page 515; People v. Wickersham (1982) 32 Cal.3d 307 at page 321 (overruled on another point in People v. Barton, supra, 12 Cal.4th at p. 201); and People v. Valentine (1946) 28 Cal.2d 121 at pages 138-139.
We note that the California Supreme Court has quoted the Logan passage in numerous other cases. (E.g., People v. Danielly (1949) 33 Cal.2d 362, 377-378; People v. Borchers (1958) 50 Cal.2d 321, 329; People v. Brubaker (1959) 53 Cal.2d 37, 44, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Morse (1969) 70 Cal.2d 711, 734-735; People v. Spencer (1969) 71 Cal.2d 933, 950; People v. Rich (1988) 45 Cal.3d 1036, 1112; People v. Breverman (1998) 19 Cal.4th 142, 163.)
Defendant argues that in using the disjunctive or between "rashly" and "without due deliberation," the court established two separate, distinct, and alternative elements of the subjective and objective components of heat of passion. We disagree.
The word "or" has numerous meanings. Although it can have a disjunctive meaning that indicates an alternative or a choice between different or unlike things—the meaning defendant attributes to it—"or" also can signify the "synonymous, equivalent, or substitutive character of two words or phrases" and offer "a correction or greater exactness of phrasing or meaning." (Websters 3d New Internat. Dict. (1993) p. 1585.) In our view, the context of "or" makes it more reasonable to ascribe the latter meanings.
Initially, we note that Logan did not involve the issues of what the elements of the subjective and objective components are and whether "rashly" and "without due deliberation" are separate and alternative elements, and the court did not address them. Nor were those issues raised or addressed in any of the cases that reiterated the language from Logan italicized above. " `It is axiomatic, of course, `that cases are not authority for propositions not considered. " (People v. Jones (1995) 11 Cal.4th 118, 123, fn. 2, quoting People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7.)
Next, we note that in Logan, supra, 175 Cal. 45, the pertinent issue was the propriety of an instruction limiting the nature of provocation to a serious or highly provoking injury or an attempt to inflict such an injury. The court rejected that limitation. (Id. at pp. 48-50.) As the entire passage quoted above reveals, the nature of the provocative conduct is not determinative; the determinative issue is whether that conduct, whatever it is, would arouse the passion of a person of average disposition enough to disturb or obscure his or her reason. Thus, when the court said that the provocation must be such as to render an average person liable "to act rashly or without due deliberation and reflection" (italics added), the court was not distinguishing between acting rashly and acting without due deliberation and reflection. What it was saying was that the provocation must cause a person to act "rashly," that is, "without due deliberation and reflection"; or provocation must be such as would cause an average person to act "rashly" and therefore, "without due deliberation and reflection"; or, as the court itself rephrased it, "from this passion rather than from judgment." (Id. at p. 49.)
This point becomes clear in the discussion immediately after the passage quoted above. The Logan court cited a number cases where the provocative conduct was not limited to injury or the threat of injury. It then opined, "These cases serve to illustrate that it is not alone the fear of great bodily injury which will reduce a homicide to the grade of manslaughter. The passion aroused may be one entirely disconnected with any fear of personal injury, the fundamental inquiry being, we repeat, whether it be sufficient to obscure reason and render the average man liable to act rashly [citation]." (People v. Logan, supra, 175 Cal. 49-50, italics added.) This reiteration indicates that the determinative factor is simply whether the provocation would cause one to act rashly, that is, from passion rather than judgment.
Indeed, a "rash" act is one "characterized by or proceeding from lack of deliberation or caution: acting, done or expressed, with undue haste or disregard for consequences: imprudently involving or incurring risk . . . ." (Websters 3d New Internat. Dict., supra, p. 1883.) Accordingly, the notion of acting rashly naturally includes and conveys the sense of acting without due deliberation.
Given the issue and discussion in Logan, we consider it unreasonable to infer from the often quoted phrase "rashly or without due deliberation and reflection" that the court intended to establish acting "rashly" and acting "without due deliberation and reflection" as separate and alternative elements for the subjective and objective components of heat of passion.
Moreover, we note that in People v. Barton, supra, 12 Cal.4th 186, the court stated, "Heat of passion arises when `at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. [Citations.]" (Id. at p. 201, quoting CALJIC No. 8.42 (5th ed. 1995 supp.), italics added.) As support, however, the court also cited People v. Wickersham, supra, 32 Cal.3d at page 326, where the court quoted the language from Logan, which, as noted, uses "or" rather than "and."
In People v. Lee, supra, 20 Cal.4th 47, the court reiterated both articulations. "The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] `Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." [Citation.]" (Id. at p. 59, italics added.)
More recently, in People v. Moye (2009) 47 Cal.4th 537, the court again used both articulations, citing People v. Barton, supra, 12 Cal.4th 186 and People v. Lee, supra, 20 Cal.4th 47, as well as People v. Wickersham, supra, 32 Cal.3d 307 and People v. Berry, supra, 18 Cal.3d 509. (People v. Moye, supra, 47 Cal.4th at pp. 549-550.)
In using "or" and "and" interchangeably between the terms "rashly" and "without due deliberation" to explain the effect that provocation must have on an ordinary person of average disposition, the court has, in effect, equated acting rashly and without due deliberation with acting rashly or without due deliberation. The equivalence of the two phrases makes sense only if, as discussed above, "rashly" and "without due deliberation" and "acting rashly" and "acting without due deliberation" are merely different ways of saying the same thing.
Thus, Moye, Lee, and Barton confirm our view that the Supreme Court never intended to make "rashly" and "without due deliberation" separate, different, and alternative elements of either the subjective or objective component of heat of passion.
IV. The Definition of Provocation
Defendant contends that the court erred in failing to define provocation. He notes that the court instructed the jury that "[i]n 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." (Italics added.) He argues, however, that the court never provided a definition. He asserts that the court had a duty to instruct the jury that "[p]rovocation is conduct by the victim, or conduct reasonably believed by the defendant to have been engaged in by the victim, which may be physical and/or verbal, that arouses in the defendant, and in a reasonable person, any violent, intense, high-wrought or enthusiastic emotion."
Defendants understanding of provocation is correct. In People v. Lee, supra, 20 Cal.4th 47, the court explained that "[t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal . . . ." (Id. at p. 59.) In People v. Lasko, supra, 23 Cal.4th 101, the court explained, "No specific type of provocation is required, and `the passion aroused need not be anger or rage, but can be any " ` "[v]iolent, intense, high-wrought or enthusiastic emotion" " [citations] other than revenge [citation]. [Citation.]" (Id. at p. 108.)
The trial court has a duty to instruct jurors on all general principles of law that are " ` "closely and openly connected to the facts and that are necessary for the jurys understanding of the case." [Citation.] " (People v. Hovarter (2008) 44 Cal.4th 983, 1021.) The court also has a duty to define for the jury any term having a technical meaning peculiar to the law. (People v. Howard (1988) 44 Cal.3d 375, 408; People v. Pruett (1997) 57 Cal.App.4th 77, 81.) A word or phrase has a technical, legal meaning that requires clarification only if it "has a definition that differs from its nonlegal meaning." (People v. Estrada (1995) 11 Cal.4th 568, 574.) Where the courts instructions adequately convey the general principles of law and define technical terms but the defendant believes that further amplification or clarification is necessary, the defendant must request it. (People v. Johnson (1993) 6 Cal.4th 1, 53, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 878-879; People v. Saille (1991) 54 Cal.3d 1103, 1117.)
Here, the court instructed that provocation can arise from a sudden quarrel or heat of passion, and provocation must be such as would cause a person of average disposition to act rashly and without due deliberation. In our view, the jury would have understood that explanation to be what the court meant by "provocation as I have defined it."
The court further instructed that "[h]eat 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." The court instructed that provocation may occur over a short or a long period of time. And although the court did not expressly tell jurors that provocation could be conduct or words, the instructions did not exclude verbal or oral provocation or suggest that provocation had to be physical conduct. Moreover, given the common understanding of "to provoke"—i.e., "to stir to a desired feeling or action: move deeply: arouse" and "to incite to anger: incense" (Websters 3d New Internat. Dict., supra, p. 1828)—we believe jurors would naturally have understood "provocation" to encompass conduct and/or words, especially given defense counsels argument, without objection, that defendant was provoked over a long period of time by what Cerna and his friends did and said to him.
However, "provocation," as used in the instruction, may have a technical meaning that is not part of a common understanding of the term insofar as it includes a requirement that the provocateur be the victim or a person reasonably believed by the defendant to be victim. Nevertheless, even if we assume that the court should have explained this aspect, we find the courts omission to be harmless. As given, the instructions did not in any way restrict who must cause the provocation or otherwise preclude a finding of provocation based on conduct or words by persons other than victims or persons defendant thought were the victims, including previous provocation by members of Cernas gang, who were not even present. Moreover, the prosecutor did not argue that provocation was restricted to the victims or persons defendant thought were the victims. On the contrary, defense counsel argued, without objection, that defendant acted in the heat of passion due to years of provocation by Cerna and his friends and fellow gang members. Consequently, it is not reasonably probable that defendant would have obtained a more favorable result in the absent the instructional omission. (People v. Watson (1956) 46 Cal.2d 818, 836; cf. People v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145 [instructional omission harmless where instruction did not preclude a finding in accordance with the omitted material].)
Heat-of-passion voluntary manslaughter is a lesser included offense of second degree murder, and it is settled that failing to instruct, failing to give adequate instructions, and giving erroneous instructions on a lesser included offense constitute errors of state, not federal, law. (People v. Lasko, supra, 23 Cal.4th at pp. 111-113; People v. Blakeley (2000) 23 Cal.4th 82, 93; People v. Lee, supra, 20 Cal.4th at p. 62; People v. Breverman, supra, 19 Cal.4th at pp. 164-179.) Thus, we reject defendants claim that the instructional omission constitutes federal constitutional error reviewable under Chapman v. California (1967) 386 U.S. 18. Rather, the state standard set forth in People v. Watson, supra, 46 Cal.2d 818 applies.
V. Consideration of Evidence of Provocation
Defendant contends the court erroneously instructed jurors concerning when they could consider evidence of provocation.
The court gave a modified version of CALCRIM No. 522, the standard instruction advising jurors that provocation may reduce murder from first degree to second degree and may reduce murder to manslaughter. Because defendant could not be convicted of first degree murder, the court modified the instruction. As given, it provided as follows: "Provocation may reduce a murder to manslaughter and an attempted murder to attempted manslaughter. The weight and significance of the provocation, if any, is for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in [deciding] whether the defendant committed murder or manslaughter. . . . [¶] . . . [¶] If you conclude that the defendant committed attempted murder but was provoked[,] consider the provocation in deciding whether the defendant committed attempted murder or manslaughter." (Italics added.)
Defendant claims the instructions erroneously told jurors that they could not consider evidence of provocation unless they first concluded that defendant committed murder and/or attempted murder. He argues that the error "improperly shifted the jurys consideration of the evidence of provocation," and, in effect, told jurors that the evidence of provocation would "only become important for its consideration if it already concluded that defendant was guilty" of murder or attempted murder.
Again, our discussion focuses on murder and manslaughter but applies equally to attempted murder and attempted manslaughter.
We do not really understand what harm defendant claims the instructional language caused—i.e., that the jury could have found him guilty of murder without considering whether he was provoked? This is unlikely because the initial clause "[i]f you conclude that the defendant committed murder but was provoked" (italics added), presupposes the jury considered the evidence of provocation.
In any event, defendants claim is flawed because he interprets the instructional language in isolation. When we review a claim of instructional error, however, "we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276, italics added.) In determining whether there was instructional error, we ask whether "there is a `reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]" (Id. at pp. 276-277; People v. Fiu (2008) 165 Cal.App.4th 360, 370-371; see Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381.)
In instructing the jury, the court first directed them to consider the instructions as a whole. (See CALCRIM No. 200.) Thereafter, the court explained that murder and manslaughter are forms of homicide, defendant was charged with murder, and manslaughter is a lesser included offense. The court explained that to prove murder, the prosecutor had to prove malice. It then defined express and implied malice. Immediately following that instruction, the court gave the modified version of CALCRIM No. 522. It then instructed on voluntary manslaughter, informing the jury that murder is reduced to manslaughter if defendant killed in the heat of passion, that is, if he was provoked, he acted rashly under the influence of intense emotion, and the provocation would have caused an average person to act rashly and without due deliberation and reflection. The court also instructed the jury that the prosecution had the burden to prove that defendant committed murder rather than a lesser offense, and to this end, the prosecution had to prove that defendant did not kill as a result of a sudden quarrel or in the heat of passion; if the prosecution did not meet that burden, "you must find the defendant not guilty of murder."
When we read these instructions together, we find no reasonable likelihood that jurors would have thought that the evidence of provocation was not relevant in determining whether defendant committed murder; or that they could not consider such evidence unless and until they decided that defendant had committed murder; and/or that they could find him guilty of murder without considering the evidence of provocation. On the contrary, the instructions made it necessary for jurors to consider the evidence in determining whether defendant acted with malice or in the heat of passion and required that they find beyond a reasonable doubt that defendant did not act in the heat of passion in order to convict him of murder.
VI. Instruction on Legal Principles Connected to the Facts
Defendant contends that the court erred in failing to instruct on three legal principles closely and openly connected with the facts of the case: (1) provocation can be the result of a "series of events" occurring over a considerable period of time; (2) where provocation occurs over a long period, the jury may, but is not required to, take such period of time into account in determining whether there was a sufficient cooling off period for passion to subside and reason to return; and (3) verbal provocation may be sufficient.
As discussed above, the instructions did not limit or restrict the nature of provocation in any way, and jurors would naturally understand that the instructions encompassed both provocative conduct and provocative words. Thus, if defendant wanted amplification, he had a duty to request it.
Next, as defendant acknowledges, the court instructed jurors that "[s]ufficient provocation may occur over a short or a long period of time." Under the circumstances, the instruction adequately, albeit implicitly, conveyed the idea that provocation can result from a series of events. Indeed, what else could provocation over a long period of time mean? Defendants testimony and defense counsels argument made this clear. Thus, again, if defendant wanted amplification on this point, he should have requested it.
Last, the court instructed jurors that "[i]f enough time passed between the provocation and the killing for a person of average disposition to, quote, cool off, unquote, and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on that basis." In our view, further explanation that jurors could consider a lengthy period of provocation in determining whether there was a sufficient cooling off period constitutes a pinpoint instruction that, if defendant considered necessary, he had a duty to request.
VII. Reducing Attempted Premeditated Murder to Attempted Murder
In his opening brief, defendant contended that the court erred in failing to give an instruction akin to CALCRIM No. 522, which explained that provocation may reduce premeditated murder to second degree murder, that provocation can reduce attempted premeditated murder to attempted murder. However, in his reply brief defendant "grudgingly" concedes binding precedent holding that the court had no sua sponte duty to give such an instruction, and, therefore, if he wanted it, he needed to request it. (People v. Rogers, supra, 39 Cal.4th at pp. 878-880 [no duty to give the CALJIC version of CALCRIM No. 522 absent a request because it is a pinpoint instruction].)
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that if the court had no sua sponte duty to instruct on the legal principles discussed above in parts VI and VII, then counsel rendered ineffective assistance in failing to request such instructions.
To obtain reversal due to ineffective assistance, a defendant must first show "that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney . . . ." (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal "does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Because the defendant bears this burden, "[a] reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Second, a defendant must show that there is "a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings." (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
The record on appeal does not reveal the reasons why counsel did not request pinpoint or amplifying instructions, and we do not find that counsels failure to do so was unreasonable as a matter of law. In our view, counsel reasonably could have concluded that together, the instructions the court intended to give and his closing argument would adequately inform jurors that (1) provocation can be verbal, (2) it can involve a series of events over a long period of time, and (3) because the provocation had lasted so long, defendant did not cool down during the time it took to retrieve his gun and return—points that counsel ultimately made during closing argument. (E.g., People v. Webster (1991) 54 Cal.3d 411, 444 [counsel not ineffective for not requesting pinpoint instructions where instructions given were adequate].)
Similarly, we do not find counsels failure to request an instruction that provocation could reduce attempted premeditated murder to attempted murder to be unreasonable as a matter of law. The court instructed the jury that it had to decide whether defendant committed attempted murder. (See CALCRIM No. 600.) The court further instructed that if the jury found attempted murder, then it had to decide whether the prosecutor proved that defendant acted willfully and with premeditation and deliberation. The court then explained, "The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting. [¶] 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 [that] the allegation has not been proved." (Italics added.)
Counsel reasonably could have thought that the courts instruction adequately informed jurors that they could not, and must not, find the special allegation of premeditation true if they concluded that defendant was acting rashly and without due deliberation and reflection. Accordingly, counsel could have found it unnecessary to request an instruction that informed jurors more generally and indirectly that provocation can reduce attempted premeditated murder to attempted murder.
Under the circumstances, defendant has failed to show, and the record does not establish as a matter of law, that counsels performance fell below a standard of objective reasonableness.
IX. Instruction on Transferred Intent
Defendant contends that the court erred in instructing the jury on transferred intent
At the prosecutors request, the court instructed the jury that "[i]f defendant intended to kill one person but, by mistake or [accident] killed someone else instead, then the crime, if any, is the same as if the intended person had been killed." (See CALCRIM No. 562.)
Defendant claims there was no evidence to support giving that instruction. According to defendant, the theory of transferred intent applies in two situations: (1) when one shoots at A, intending to kill A, but inadvertently kills B, an innocent bystander; and (2) when one intends to kill A, mistakes B for A, and shoots B. Defendant notes that although he first shot Ayala thinking he was Cerna, it is undisputed that that shot did not kill Ayala; rather, the fatal shot occurred during the struggle for the gun. He did not shoot at Cerna and hit Ayala by accident; nor did he shoot Ayala thinking he was Cerna. Under the circumstances, he claims his murder conviction must be reversed because the record does not reveal whether the jury relied on transferred intent, which he calls an "improper legal theory."
It is error to instruct on a legal theory that is not supported by the evidence. (People v. Risenhoover (1968) 70 Cal.2d 39, 51; People v. Singleton (1987) 196 Cal.App.3d 488, 492-493.) However, here, even if we assume that it was error to instruct on transferred intent, the error does not compel reversal.
Where the prosecution presents its case on alternative theories, one of which is legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand. (People v. Guiton (1993) 4 Cal.4th 1116, 1129; People v. Green (1980) 27 Cal.3d 1, 69.) However, this standard of review does not apply here. Contrary to defendants claim, transferred intent did not represent a legally incorrect theory. It properly would have applied if defendant had shot and killed Ayala thinking he was Cerna, or if he had shot at Cerna to kill him but inadvertently hit and killed Ayala. As defendant claims, the error is that the instruction was factually unsupported. We review this type of error under a much different standard. Where, as here, the jury is presented with two alternative theories, one supported by the evidence but the other not supported, reversal is required only if the record affirmatively shows a reasonable probability that the jury relied on the factually unsupported theory. (People v. Guiton, supra, 4 Cal.4th 1116, 1129; People v. Vargas (2001) 91 Cal.App.4th 506, 564.)
Here, the jury was told that, depending on how they determine the facts, some of the instruction may not apply. (See CALCRIM No. 200.) As defendant notes, there was little, if any evidence, to support the theory of transferred intent reflected in the instruction. Moreover, the prosecutor did not argue that theory; and defense counsel did not even mention it.
Instead, the prosecutor noted evidence that when Ayala was shot, the gun was between 10 and 12 inches away. He argued that either defendant intentionally shot Ayala to kill him or he fired the fatal shot during the struggle for the gun. In the latter scenario, the jury could find implied malice, in that defendant acted with deliberate and conscious disregard for life when he brought the gun into the shop and started shooting it. Defense counsel, on the other hand, argued that the fatal shot was unintentional and accidental.
We presume the jury followed the courts instruction concerning factually inapplicable instructions. (See People v. Hovarter, supra, 44 Cal.4th at p. 1005.) Moreover, the record does not affirmatively suggest that the jury based the murder conviction on transferred intent, a theory for which there was no factual support and which the prosecutor did not argue or urge the jury to apply. Finally, there was ample evidence to support the jurys verdict of second degree murder on theories of express and implied malice. Under the circumstances, we do not find it reasonably probable that defendant would have obtained a more favorable result had the instruction on transferred intent not been given. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Given our analysis and discussion of defendants various claims of instructional error, we reject his additional claim that the cumulative effect of the errors compels reversal even if no one error did.
X. Correction of the Abstract of Judgment
Defendant notes that the abstract of judgment erroneously indicates that his sentence for attempted premeditated murder (Pen. Code, §§ 664, 187, 189) is 15 years to life with the possibility of parole. Defendant points out, and the Attorney General agrees, that the legally correct sentence for that offense is life with the possibility of parole after seven years. (Pen. Code, §§ 664, subd. (a), 3046, subd. (a)(1).)
The record does not contain a reporters transcript of the sentencing hearing. However, the clerks minutes reflect that the court imposed the legally incorrect term. Under the circumstances, we agree that the abstract of judgment must be corrected.
XI. Disposition
Insofar as the judgment reflects a term of 15 years to life for attempted premeditated murder, the judgment is modified to reflect a term of seven years to life with the possibility of parole. As modified the judgment is affirmed. The trial court is directed to correct the minute order and abstract of judgment to reflect the correct sentence.
WE CONCUR:
MIHARA, J.
McADAMS, J.