Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. NA077732 Charles D. Sheldon, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Erika D. Jackson, for Plaintiff and Respondent.
RUBIN, J.
Martin Peoples appeals from the judgment entered after a jury convicted him of attempted second degree murder. We hold that there was sufficient evidence to support a conviction for attempted murder. However, because there was evidence to warrant an attempted voluntary manslaughter instruction under a theory of imperfect self-defense, but such an instruction was not given, we reverse the judgment and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
Shortly after 9:00 a.m. on March 11, 2008, Martin Peoples shot and wounded rival gang member Cameron Mitchell near a bus stop at Artesia and Long Beach Boulevards in Long Beach. Peoples belonged to the Insane Crips, a large gang that claims most of Long Beach as its territory. The shooting took place at a location claimed by the Original Hood Crips (O-Hood), which had formed an alliance of gangs known as MOB in order to defend against the Insane Crips. Peoples was charged with attempted first-degree murder, along with various firearms use allegations, and an allegation that he committed his crime for the benefit of his street gang. (Pen. Code, § 186.22.)
According to eyewitness Elijah Fudge, Peoples got off a bus and walked up to a bus stop, where several people were waiting. Peoples was wearing gang-related clothing. He approached Fudge and asked him where he was from. Fudge said he came from nowhere. Peoples then approached someone Fudge knew as Joe, an O-Hood member. Peoples shouted out “Fuck Onion Heads, ” a derogatory reference to O-Hood. He lifted his shirt, pulled out a gun from his waistband, and showed it to Joe, who then walked away out of sight.
Fudge said that a blue SUV pulled up to the bus stop a few minutes later. Joe and two other men “hopped out [of the SUV] to try and jump” Peoples. One of these men was Mitchell, who was a member of MOB. Fudge believed the third man was also a member of the MOB alliance. Peoples already had his gun out. Joe and the other man asked Peoples, “What’s up?” According to Fudge, Peoples “wanted to go one on one, ” but Mitchell “wasn’t going for that, ” threw up his hands and said “What’s up, holmie? Let me holler at you.” Joe, Mitchell, and the third man then walked toward Peoples, who fired his gun, striking Mitchell from about 30 feet away. Mitchell had a cell phone clipped to his belt, but no weapons. He did not make any swinging or punching gestures. The third man in the SUV group, described only as a black man, started to pull out a gun, but stopped. Joe and the black man drove off after they tried unsuccessfully to put Mitchell in the SUV. Peoples also fled the scene.
The reporter’s transcript is somewhat unclear on this point. Asked what it meant when the men asked Peoples, “what’s up”, Fudge said: “What is going on. He wanted to see what is up with them. He wanted to go one on one, but he wasn’t going for that.” Asked to clarify who was not “going for that, ” Fudge replied it was Mitchell. Given the syntax and the context, we read this to mean that Mitchell did not want to fight Peoples alone.
A single bullet hit Mitchell in the chest, and fragments exited through his back. He suffered significant blood loss and was hospitalized for five days.
Mitchell, Joe, and their companion did not testify at trial. Mitchell’s father testified Mitchell had gone into hiding due to threats on his life.
Peoples testified that he went to the bus stop because he had to use that bus route to get to school. He carried the gun because he had been in prison recently, where MOB members told him they were going to get him. His sister testified that she also told him about the rival gang’s threats on his life. There was a war between his gang and the others, and he believed they would kill him if they saw him.
Peoples testified that as he approached the bus stop, he saw someone he once fought with at school six years earlier. As Peoples passed the other man, the other man asked Peoples where he was from. Peoples replied that the man already knew where he was from, and asked if he wanted to fight again. The man said no, and Peoples walked on by. Peoples said he then began talking with someone else he knew from high school. After a few minutes, an SUV pulled up in front of a nearby church. Three men got out, including Mitchell, who pointed a finger at Peoples and said, “Bust, bust, bust.” According to Peoples, “bust” meant to shoot. A man wearing a green shirt then started shooting at him. Peoples said he ran backwards and hid behind a trashcan. When Mitchell tried to pull out a gun, Peoples fired three times, then ran away. He recalled four shots being fired at him before he ran, and heard perhaps five more shots as he fled.
Peoples testified that he shot back because he was scared and feared for his life. He believed he was justified in doing so and acted out of self-defense. He went into hiding and did not go to the police because he was afraid his gang rivals were looking for him.
Long Beach Police Officer Daisy Ortiz arrived at the scene soon after the shooting. She took a statement from Britianey Shantice Watson, who worked at a daycare center in a church down the street from the bus stop. According to Ortiz, Watson said she saw two men around Mitchell as he lay in the street after being shot. One man was trying to put Mitchell inside the SUV. The other took a pistol from Mitchell’s waistband. Watson testified and denied that she saw someone take a gun off of Mitchell, or that she had told that to Ortiz. Long Beach Police Officer Elaine Gomez also arrived at the scene soon after the shooting occurred. Gomez took a statement from a young girl named Roxie Leflore. Leflore told Gomez she was in the back seat of a car driving by the shooting scene when she saw two teenaged black males carrying handguns, one of whom was firing. Leflore, who was in the third grade when the shooting took place, did not want to testify. She denied seeing anything or telling a police officer that she saw two armed men moving down the street.
Shell casings from Peoples’ gun were found at the scene. A Long Beach police detective who investigated the crime scene for signs that someone other than Peoples fired a gun found no shell casings from other guns and saw no strike marks from bullets hitting objects.
The jury was instructed on the theory of self-defense. Peoples’ trial counsel said he did not want instructions on attempted voluntary or involuntary manslaughter. The jury found People guilty of attempted second degree murder after finding that he did not act with willful, deliberate premeditation. The jury deadlocked on the allegation that Peoples committed the crime for the benefit of his gang, but found various firearm use allegations were true. On appeal, Peoples contends the court had a duty to instruct on attempted voluntary manslaughter under theories of both sudden quarrel and imperfect self-defense because there was substantial evidence to support a conviction on either theory. He also contends, among other points, that there was insufficient evidence he committed attempted murder.
The gang benefit allegation was dismissed due to the jury deadlock.
DISCUSSION
1. Sufficient Evidence Supported the Attempted Murder Charge
Peoples contends there was insufficient evidence that he committed attempted murder, and that the jury should have found he acted in self-defense. When a defendant challenges the sufficiency of the evidence to sustain a judgment, we review the whole record in the light most favorable to the judgment to determine whether there was substantial evidence upon which a trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence is substantial when it is reasonable, credible, and of solid value. (People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, whether it was direct or circumstantial. (Ibid.)
According to Peoples, Fudge’s testimony was so incredible and unreliable that it should have been disregarded. In particular, he contends it was incredible that Joe would return with Mitchell and the other man unarmed after Peoples showed Joe his gun. He also points to conflicting evidence that Mitchell and the third man were armed, including Leflore’s statement to the police – which she recanted – that she saw two armed men running down the street. At bottom, Peoples asks us to reweigh conflicting evidence and determine witness credibility. We cannot. (People v. Maury (2003) 30 Cal.4th 342, 403.) Nor is Fudge’s testimony inherently incredible. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Fudge testified that Joe returned with Mitchell and another man, and that Peoples pulled out his gun and began firing even though they only asked Peoples what was up, and made no threatening or assaultive gestures, and pulled out no weapons. Furthermore, the police testified that no shell casings or bullet strikes from weapons other than Peoples’ were found. There is nothing inherently incredible about this evidence, which we hold a rational trier of fact could believe, and which supports a finding that Peoples acted with malice and tried to kill Mitchell.
2. The Court Erred by Failing to Instruct on Imperfect Self-defense
The jury was instructed on the following theory of self-defense: that Peoples lacked malice and therefore did not commit attempted murder because he acted reasonably and with justification in response to an apparent and immediate threat on his life. This doctrine of “perfect” self-defense is a complete defense to a murder charge. A defendant who kills in the actual, but unreasonable, belief that he is killing his victim in order to save his own life from a perceived attack also lacks malice. Instead of serving as a complete defense, however, a defendant with that state of mind is guilty of voluntary manslaughter, which is a lesser included offense of murder. (People v. Barton (1995) 12 Cal.4th 186, 199-200 (Barton).) The same theory applies to attempted murder: if the defendant acted with the unreasonable belief in the need to defend himself, he is guilty of attempted voluntary manslaughter. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.)
The trial court has a duty to instruct on all lesser included offenses supported by substantial evidence, even if it is inconsistent with the defendant’s theory of the case, or, as happened here, unless invited error is applicable, because the defendant expressly declines the instruction. (Barton, supra, 12 Cal.4th at pp. 194-196.) The dissent contends Peoples invited the error, and would have us affirm on that ground had respondent only raised it. Even though the argument was not made by respondent, we do not believe the doctrine applies here for any event.
In People v. Hardy (1992) 2 Cal.4th 86, the court said that the sua sponte duty to instruct on lesser included offenses does not arise “where a defendant expresses a deliberate tactical purpose for objecting to the instruction.” (Id. at p. 184.) In People v. Duncan (1991) 53 Cal.3d 955, the court held that the doctrine will not apply unless it is “clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it must also be clear that counsel acted for tactical reasons and not out of ignorance or mistake.” (Id. at p. 969, citation and internal quotation marks omitted.)
In People v. Horning (2004) 34 Cal.4th 871, invited error was held to apply where defense counsel and the defendant himself stated several times for the record that lesser included offense instructions to a murder charge were not wanted because it was inconsistent with the defendant’s all-or-nothing defense that he did not commit the killing. The record showed that the defendant’s lack of objection to the missing instruction was more than mere unconsidered acquiescence. Instead, the defendant did not want the instructions because they were inconsistent with his defense that he did not commit the crime at all, and the trial court even obtained the defendant’s personal agreement that he did not want the instructions. (Id. at pp. 904-906.)
In Prince, supra, 40 Cal.4th 1179, the defendant was charged with murder and his trial lawyer agreed that the jury should be instructed on the lesser included offense of second-degree murder. The defendant himself vigorously opposed the instruction, and after some discussions with the defendant, the court did not give it. On appeal, the Supreme Court noted the existence of the invited error doctrine, but decided not to reach it because there was insufficient evidence to warrant the instruction. (Id. at pp. 1264-1266.)
As the above-cited cases show, there is an inherent tension between the concepts of a trial court’s sua sponte duty to instruct on lesser included offenses supported by substantial evidence, and invited error, which may relieve the court of that duty. The tension is resolved by looking at the record to determine what was said about the omitted instructions. In our case, the only discussion concerning this matter came while the court discussed jury instructions with counsel. The court mentioned CALJIC 5.17, which concerns the concept of imperfect self defense. The court did not describe the instruction in that way, however, stating instead that “517 has to do with voluntary and involuntary manslaughter. I do not think it’s applicable, unless you’re asking for some sort of lesser.” Defense counsel replied, “We’re not. We’re not asking for it.”~(RT 450-451)~ Peoples said nothing during the entire lengthy discussion about the proposed instructions.
A voluntary manslaughter instruction could also include the concepts of sudden quarrel and heat of passion. From this record, it is not clear that defense counsel knew the precise nature of the instruction the court was asking about. And, contrary to People v. Duncan, supra, 53 Cal.3d at page 969, it does not appear that an express objection was made to giving such an instruction. Instead, defense counsel simply said he was not asking for the instruction after the trial court said it did not appear applicable. Neither is it clear that defense counsel had a tactical reason for rejecting an instruction on the lesser included offense, and one was certainly never articulated.
The facts here also fall far short of those present in People v. Horning, supra, 34 Cal.4th at pages 904-906, where both defense counsel and the defendant expressly refused a lesser included offense instruction because it was inconsistent with their theory that the defendant was not the killer. Here, Peoples contended he acted out of justifiable self-defense, but an imperfect self-defense instruction was not inconsistent with that theory. In fact, it is hard to imagine a tactical reason for not having requested such an instruction here. This was not a case that lent itself to an all-or-nothing strategy. There was no doubt Peoples was the shooter. In any gang member-on-gang member confrontation, there is always the real possibility that someone will overreact to a threatening situation. Given Peoples’s unlikely story that multiple shots were fired at him first before he ever returned fire, a true self-defense acquittal was a doubtful proposition, to which imperfect self-defense was a reasonable alternative, if supported by the evidence.
Peoples contends there was substantial evidence he acted out of unreasonable self-defense, meaning the trial court was obligated to instruct on that theory. We agree. In rejecting actual self-defense, the jury necessarily disbelieved Peoples’ testimony that Mitchell and his two companions opened fire on Peoples almost as soon as they stepped out of the SUV, and that Peoples only fired back in response. Instead, the jury appears to have accepted Fudge’s testimony that Peoples challenged Joe at the bus stop and showed Joe his gun. Joe returned within minutes, accompanied by Mitchell and one other man. All three belonged to gangs that were rivals of Peoples’ gang. According to Fudge, the three men “hopped out” of the SUV “to try and jump” Peoples. Mitchell did not want to go one on one, implying he preferred a group attack.
Peoples testified that he had been threatened by members of the rival gangs while he was in prison, and his sister testified that she had conveyed similar threats to him. Peoples testified that he was afraid for his life when he fired his gun, and that he believed he had acted in self-defense.
In short, a version of events the jury may have believed even in rejecting actual self-defense could have supported an attempted involuntary manslaughter instruction. Based on Fudge’s testimony, it appeared that after Peoples challenged and threatened Joe, a lone member of a rival gang, and allowed Joe to walk off unharmed, Joe returned minutes later with two other members of his gang. The three men began walking toward Peoples, and even though none of the other men pulled a gun on him at that moment, he could have honestly, but unreasonably, believed they would not have come back for him unarmed after learning from Joe that Peoples had a gun. According to Fudge, the three men hopped out of the SUV and tried to “jump” Peoples. Although Fudge testified that no attempt to draw guns was made until after Peoples started shooting, given the ongoing violent dispute between the rival gangs, the threats to Peoples’ life from the rival gang, and Peoples’ testimony that he was afraid for his life when he fired his gun and was acting out of self-defense, a jury could reasonably find that Peoples actually but unreasonably believed his life was in imminent danger, even if nobody actually pulled a gun on him.
It was undisputed that one of Mitchell’s companions was armed, and there was conflicting evidence whether Mitchell had a gun that his companions retrieved from him after the shooting when they were unable to pull him into their getaway car.
Although we conclude there was sufficient evidence to warrant the imperfect self-defense instruction, we will not reverse unless a different result was reasonably probable. (People v. Breverman (1998) 19 Cal.4th 142, 178.) Respondent contends a different result was not likely because Mitchell was unarmed and had made no threats to harm Peoples, either in the past, or as the incident unfolded. We disagree.
As analyzed above, the very nature of the encounter, including the relationship between the rival gangs, the threats conveyed to Peoples by his gang rivals, and Joe’s return with Mitchell and one other man after his armed encounter with Peoples, was sufficient to convey a threat, albeit perhaps an unreasonable one, that Mitchell and his companions posed an immediate threat to Peoples’ life. The jury obviously rejected Peoples’ claim that he was only returning fire after he was first fired upon, but it also found that he acted without premeditation and deliberation, and deadlocked on the gang benefit allegation. Due to defense counsel’s tactical decision, however, the jury was given the all-or-nothing choice of an attempted murder conviction, or an acquittal for self-defense. This is precisely the evil that the rule of sua sponte instruction on lesser included offenses is designed to prevent. (Barton, supra, 12 Cal.4th at pp. 196, 204.) We conclude that had the jury been given the option of an attempted voluntary manslaughter conviction based on imperfect self-defense, it is reasonably probable the jury would have chosen it. Accordingly, we reverse the judgment.
3. Other Issues Raised
Peoples also contends: (1) the punishment for the firearm use enhancement was unconstitutionally cruel and unusual; (2) he received ineffective assistance of counsel because his lawyer did not request, and the trial court did not give, an instruction that the prosecution bore the burden of proof on the self-defense issue; (3) there was instructional error in connection with the use of evidence that he had been threatened by the rival gang; and (4) sentencing error occurred. Because we reverse due to the failure to instruct on imperfect self-defense/attempted voluntary manslaughter, we do not reach the other issues. However, we note that should there be a retrial, and should self-defense or imperfect self-defense be raised as issues, appropriate instructions would include that the prosecution bears the burden of proof on those issues. (People v. Martinez (2003) 31 Cal.4th 673, 707; CALCRIM Nos. 505, 571.)
In connection with some of these issues, Peoples filed a motion asking us to take judicial notice of two of his proffered jury instructions that the trial court refused, and a motion to augment the record with reporter’s transcripts of hearings on August 5, 6, 21, and 27, 2008. Even though we do not reach the issues to which these motions relate, we grant both motions.
DISPOSITION
The judgment is reversed and the matter is remanded to the superior court.
I CONCUR: FLIER, J.
BIGELOW, P. J., Dissenting:
I respectfully dissent.
Although not raised by respondent, the doctrine of invited error bars Peoples from contending that the failure to instruct on the lesser included offense of attempted manslaughter constitutes reversible error. “Despite the circumstance that it is the court that is vested with authority to determine whether to instruct on a lesser included offense, the doctrine of invited error still applies if the court accedes to a defense attorney’s tactical decision to request that lesser included offense instructions not be given. Such a tactical request presents a bar to consideration of the issue on appeal.” (People v. Prince (2007) 40 Cal.4th 1179, 1265.) This principle applies even if the evidence supports instructing on lesser included offenses (People v. Horning (2004) 34 Cal.4th 871, 905; People v. Barton (1995) 12 Cal.4th 186, 198) or if defense counsel’s tactical decision is based on a misunderstanding of the law. (People v. Cooper (1991) 53 Cal.3d 771, 830-831 (Cooper).)
The following colloquy took place between the trial court and counsel:
“[The Court]:... Anything you want to say, [the prosecutor] on 5.17, whether it should be given or not?.... [¶]
[The Prosecutor]:... Are we adding a second charge – a lesser included?
[The Court]: Let me see. This one deals with the difference between a murder.
[Defense Counsel]: Right.
[The Court]: And something less, whether premeditated murder. I see what you’re saying though. Let’s jump ahead. I’m jumping ahead [Defense Counsel].
Keep in mind, I ask you these things and it doesn’t mean you don’t get to talk. You get to talk once I finish where I am at.
5.17 has to do with voluntary and involuntary manslaughter. I do not think it’s applicable, unless you’re asking for some sort of lesser.
[Defense Counsel]: We’re not. We’re not asking for it.”
Here, the trial court expressly asked defense counsel whether he wanted the jury instructed on the lesser included offenses of voluntary or involuntary manslaughter. Counsel replied that he did not and the record demonstrates why -- he was seeking to avoid a compromise verdict. Defense counsel’s strategy was to obtain a not guilty verdict and nothing less. Defense counsel’s opening and closing arguments further demonstrate that he had this in mind when he affirmatively requested that instructions on manslaughter not be given. In opening, defense counsel argued that the evidence showed Peoples “[was] not guilty of anything... ” because “this is a pure self-defense case.” In closing, defense counsel argued, “Actual danger, as you know now, is not necessary to justify self-defense. But that – you know something? I don’t know that instruction really is applicable here. Because despite the fact that [the] instruction says actual danger is not necessary to justify self-defense, I would submit to you that there was actual danger here. And the defendant could do nothing. He was stuck. He was stuck. There he is.” He then concluded: “This is a plain case of self-defense. That’s what this is. That’s what this is.”
Counsel made the tactical decision to focus on complete self defense. He specifically argued that Peoples was defending himself against a very real danger, not one which he unreasonably perceived, which would have warranted instruction on imperfect self defense. On that basis, he argued there was no attempted murder. In other words, he argued that Peoples was completely innocent of wrongdoing. If the court had instructed on attempted voluntary manslaughter, defense counsel ran the risk that the jury could compromise by finding Peoples guilty of a lesser included offense. In sum, “[a]s far as [I am] concerned, the record fairly compels the conclusion that the [request not to instruct on the lesser included offense] was a tactical decision which, unfortunately from the defense point of view, backfired.” (People v. Aguilar (1973) 32 Cal.App.3d 478, 485.)
The majority asserts “it is hard to imagine a tactical reason for not having requested such an instruction here. This was not a case that lent itself to an all-or-nothing strategy.” (Maj. Opn. at p. 8.) But that is not the standard used to determine the applicability of invited error. An appellate court does not look to what happened at trial with the benefit of hindsight and then judge what would have been counsel’s best choice. For invited error to apply, “the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice.” (Cooper, supra, 53 Cal.3d at p. 831.) The majority concedes it was “defense counsel’s tactical decision” that caused the jury to be “given the all-or-nothing choice of an attempted murder conviction, or an acquittal for self defense.” (Maj. Opn. at p. 10.) The consequence of that tactical choice is a bar to appellate review for invited error. I would find, therefore, that the doctrine of invited error prevents defendant from contending that the failure to instruct on the offense constitutes reversible error.