Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD198929, Kerry Wells, Judge.
NARES, J.
A jury convicted Darryl Randolph of one count of first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true enhancement allegations that (1) Randolph personally and intentionally discharged a firearm proximately causing death to a person within the meaning of section 12022.53, subdivision (d); (2) he personally used a firearm within the meaning of section 12022.5, subdivision (a); and (3) he committed the murder while he was released from custody on bail within the meaning of section 12022.1, subdivision (b). The court sentenced Randolph to an indeterminate prison term of 50 years to life, consisting of 25 years to life, plus a consecutive indeterminate term of 25 years to life for the true finding on the section 12022.53, subdivision (d) allegation, plus a stayed consecutive upper term of 10 years for the true finding on the personal use of a firearm allegation (§ 12022.5, subd. (a)), and a stayed consecutive two-year term for the true finding on the section 12022.1, subdivision (b) allegation.
All further statutory references are to the Penal Code unless otherwise specified.
Randolph appeals, contending (1) the court committed reversible error when it failed to sua sponte instruct the jury on the law of voluntary manslaughter as a lesser included offense of murder; (2) the invited error doctrine does not apply, but if this court concludes that defense counsel invited the instructional error, Randolph is entitled to relief under the ineffective assistance of counsel doctrine; and (3) Randolph's first degree murder conviction must be reversed because there is insufficient evidence of premeditation and deliberation.
Assuming without deciding that the court committed instructional error by not sua sponte giving an instruction on voluntary manslaughter, we conclude that Randolph's claim of instructional error is barred by the doctrine of invited error. Furthermore, we reject his claim of ineffective assistance of counsel because such an instruction was inconsistent with his defense that he was not present at the scene of the shooting and that he was arrested as a result of witness misidentification. We also conclude that substantial evidence supports the jury's finding that Randolph acted with premeditation and deliberation. Accordingly, we affirm the judgment.
BACKGROUND
A. The People's Case
On April 25, 2006, shortly before 3:00 p.m., Bobby Ford, the victim in this case, drove his car to Bel Air Market on Logan Avenue in the City of San Diego. At that time, Lemore Long, Sr. (Lemore Sr.) was detailing a car in the Bel Air Market parking lot across the street from his house (the Long residence).
Lemore Sr. testified that after he spoke with Ford, he (Lemore Sr.) continued working on the car, and Ford drove his car across the street close to the curb in an alleyway to visit with Lemore Sr.'s parents, who also lived at the Long residence. Ford visited them almost every day. Lemore Sr.'s son, Lemore Jr., and several other people were outside the Long residence.
Lemore Sr.'s attention was drawn to the front of his house because he heard Lemore Jr. loudly arguing with Ford there. Lemore Sr. crossed the street and walked up to Lemore Jr. and Ford, who were behind a brown truck that belonged to Lemore Sr.'s father. Lemore Sr. heard Lemore Jr. ask Ford why Ford was bothering Lemore Jr.'s friend. Lemore Sr. then broke up the argument, telling Lemore Jr. to "get [his] butt in the yard." Lemore Jr. obeyed and everything calmed down. Lemore Sr. told Ford it was not necessary for Ford to be yelling in front of his parents' house.
Lemore Sr. also testified that Ford started to leave as he (Lemore Sr.) was walking back across the street. Lemore Sr. walked past someone wearing a black hooded sweatshirt with the hood over his head who was standing behind the brown pickup truck parked in front of the house. As he was crossing the street, Lemore Sr. heard three gunshots that came from the direction of the person standing behind the truck. Ford was shot as he was standing next to his car. Lemore Sr. saw the shooter walk up to Ford firing the gun at him. He was able to see the side of the shooter's face because the hood fell off his head.
Lemore Sr. stated he then tackled the shooter and wrestled with him on the ground until Lemore Jr. pulled him off the shooter, who went up Logan Avenue. The nine-millimeter gun stayed in the shooter's hand during the struggle.
Although Lemore Sr. stated he had a history of seizures that can affect his memory, he did not have a seizure that day. He later identified Randolph as the shooter by picking his photograph in a photo lineup and told the detective he was "one thousand percent sure" that Randolph was the shooter. He told the detective that the shooter he tackled had gold in his mouth. At trial, Lemore Sr. again identified Randolph as the shooter, stating he was positive Randolph shot Ford on April 25, 2006.
During Ford's autopsy, a deputy medical examiner for San Diego County found that Ford died from 10 gunshot wounds to his head, neck, back, chest, hip, and right arm.
Francisco Ramirez, the police forensic investigator that showed the photo lineup to Lemore Sr., testified that Randolph instantaneously identified Randolph as the person who shot Ford. Lemore Sr. said he was "one thousand percent sure." Ramirez testified that a forensic specialist took a photograph of Randolph's mouth after he was extradited from Las Vegas. Ramirez noticed that most of Randolph's upper teeth and some of his lower teeth were gold. When Ramirez talked to Lemore Sr. during the evening of April 25, 2006, Lemore Sr. was "[n]ot confused at all."
Lemore Sr.'s girlfriend, Charity Pinkney, who also lived at the Long residence on the day of the shooting, testified that she did not see the shooting. She indicated that she was inside the house at the time of the shooting, and she heard seven or eight gunshots "not long after" Lemore Sr. broke up the argument between Lemore Jr. and Ford. She did not know who was involved in the argument until Lemore Sr. later told her. She did not hear another argument. After she heard the gunshots, Pinkney ran outside, saw Ford's body on the ground, and saw a man in a black hooded sweatshirt running from the area toward 47th Street. She did not see the front of the man. According to Pinkney, a week or two before the shooting Ford told her that Randolph owed him money and he was not happy about the debt. Pinkney recognized Randolph, who was also known as "D-Brownie" or "DB," as someone who visited the Long residence regularly during the four-month period before the shooting.
Charles Stallion was one of the people in front of the Long residence at the time of the shooting. He saw Ford talking to Randolph, and noticed there was "a little bit of tension" at the tail end of a conversation between the two men. Stallion stated he heard Ford say something to Randolph "about if there was going to be some kind of gunplay, so be it." Stallion guessed that about 20 or 30 minutes later, as he was sitting in the yard at the Long residence, he heard gunshots coming from behind the truck parked in front of the Long residence. He saw Ford walk up to a man near the brown pickup truck. He heard the gunshots within a couple of seconds after Ford started to walk away toward his car. Stallion saw an arm and a gun sticking out from behind the truck. He saw Lemore Sr. tackle the shooter. Stallion also saw Lemore Jr. run toward Lemore Sr., but he did not see what Lemore Jr. did. At trial, Stallion identified Randolph as the shooter. He acknowledged he had been drinking, but he was not intoxicated at the time of the shooting.
Stanley King was also among the people who were in front of the Long residence at the time of the shooting. King knew Randolph and identified him at trial. When Randolph arrived at the Long residence on the day of the shooting, King saw him by the gate. Randolph wore a black "hoodie." King also saw Ford across the street at the Bel Air Market talking to Lemore Sr. He saw Ford hop into his car, pull into the alleyway, and hop out of his car. Ford then walked up to Randolph and started arguing heatedly with him. Randolph was walking backwards by the truck while Ford was yelling at him. Ford then started walking back to his car. King thought that Ford "had a couple of words" with Lemore Jr. for a couple of seconds after Ford argued with Randolph, and then Ford started walking back to his car. King heard Ford say, "Somebody better not be here when the sun go [sic] down." King did not report this to the police. As Ford was walking back to his car, King heard several gunshots coming from close behind him somewhere in the alley. When he turned around, King saw Ford falling to the ground, holding his side.
The next day, King told the police he thought the gunshots came from where the truck was parked. At trial, King stated he heard the gunshots about two minutes after he saw Randolph go into the street. However, when the prosecutor showed him the police report, King acknowledged he told the police he heard the gunshots about five seconds after he saw Randolph go into the street. During the police interview, he participated in a photo lineup. King identified Randolph during the photo lineup. King denied he got nervous after completing his statement to the police and denied telling an officer that he did not see the shooting.
Lamont Long, another son of Lemore Sr., indicated he did not want to testify in this case, but testified that he lived at the Long residence and was at home on the day of shooting. At around 3:00 p.m., Lamont, who was inside the house, heard an argument between two people, and recognized Ford's voice. He heard loud voices and the word "blood" being yelled out. During a tape-recorded interview with the police, he later told Detective Ramirez he heard the argument was over money, but at trial he stated he "wasn't really sure."
On cross-examination, Lamont testified that although he recognized Ford's voice, he did not pay attention to the other voice. Lamont heard gunshots "instantly" after he heard the argument about "'blood' this and 'blood' that." The yelling and gunshots were "almost simultaneous." He went outside about a minute after he heard the gunshots. He saw Ford dead on the ground. He also saw his father, Lemore Sr., but did not see his brother, Lemore Jr. Lamont stated that Lemore Sr. did not have a seizure that day.
B. The Defense
The defense called no witnesses. Although Randolph's girlfriend, Lakeesha Lomas, was called as a prosecution witness, defense counsel elicited alibi testimony from her. On cross-examination, Lomas testified that Randolph's mother called her at 3:05 p.m. on the day of the shooting to tell her that Randolph left his cell phone at his bail bondsman's office. According to Lomas, Randolph was with her when she received the call, and he left five or ten minutes later to retrieve his cell phone.
Lomas also testified that within five or 10 minutes after Randolph left, she received a threatening phone call from an unidentified female who said the word on the street was that Randolph had shot someone and it was in Lomas's best interest to leave the area. Lomas called Randolph's mother, who had heard about the shooting. According to Lomas, Randolph's mother advised her to leave.
Later, however, Lomas admitted on redirect examination that she may have told the police in her initial interview that Randolph left her apartment about an hour before Lomas received the phone calls from Randolph's mother and the unidentified woman. She also testified that a couple of days before the shooting, Randolph told her that Ford had walked up to him with a bat and had swung it at him, which, according to Lomas, left him "kind of scared."
On direct examination, Lomas testified she was scared after she received the phone call from the unidentified woman, and Martin, who was one of her friends but whose last name she did not know, happened to come by her apartment that night and drove her to her home state of Louisiana. She stated that Randolph joined her in Louisiana about three weeks later.
Lomas also testified that she and Randolph are "still together" and admitted she lied to the police when they initially contacted her about this case. Lomas also admitted she was convicted of forgery in 2005, and in 2006 she was convicted of a crime of moral turpitude.
Randolph's bail bondsman, Stanley Breaux, testified that Randolph left his cell phone at Breaux's office at around 3:00 p.m. on April 25, 2006, and Randolph's mother picked it up in the evening.
Defense counsel also elicited testimony from police investigator Ramirez that Randolph's father made a recorded statement, which was played to the jury, in which Randolph's father referred to Ford as someone who was "'runnin' around, beatin' people up with bats, shootin' people, cuttin' people, [and] threatenin' people....'"
DISCUSSION
I. INSTRUCTIONAL ERROR CLAIM
Randolph contends the court committed reversible error when it failed to sua sponte instruct the jury on the law of voluntary manslaughter as a lesser included offense of murder. He also contends the invited error doctrine does not apply, but if this court concludes defense counsel invited the instructional error, he is entitled to relief under the ineffective assistance of counsel doctrine. These contentions are unavailing.
A. Background
During in limine motion proceedings, Randolph's trial counsel, Pam Lacher, repeatedly advised the court that the defense theory in this case was that someone else nicknamed "D-Brownie" shot Ford, and Randolph was not even at the scene when Ford was killed.
After all the evidence was presented and both sides rested, the following exchange occurred among the court, Lacher, and the prosecutor, Melissa Vasel, in which Lacher declined a jury instruction on voluntary manslaughter as a lesser included offense of murder:
"THE COURT:... And then on [CALCRIM No.] 570 as [a lesser included offense]. The defense requesting [lesser included offenses] of voluntary manslaughter?
"MS. LACHER: Just give me a minute to think about it. [¶] No, Your Honor. I think even if I had an alternative theory, I don't think there's any evidence of heat of passion anyway.
"THE COURT: There's two potential theories, heat of passion and imperfect self-defense. And my view is there is not any evidence that would support either one of those. [¶] Do you agree?
"MS. LACHER: I would agree.
"THE COURT: You also agree, Ms. Vasel?
"MS. VASEL: Yes, Your Honor.
"THE COURT: Whether it's requested or not, the court is requested to give [lesser included offenses] if there is some evidence to support them. But sounds like we're all in agreement that there isn't in this particular case, so we'll take those out." (Italics added.)
The court instructed the jury under CALCRIM No. 520 on murder and under CALCRIM No. 521 regarding the different degrees of murder.
The court also gave CALCRIM No. 3400 regarding Randolph's alibi defense:
"The People must prove that the defendant committed murder. The defendant contends he did not commit this crime and that he was somewhere else when the crime was committed. The People must prove that the defendant was present and committed the crime with which he is charged. The defendant does not need to prove he was elsewhere at the time of the crime. [¶] If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find him not guilty." (Italics added.)
During closing arguments, Lacher repeatedly argued that Lemore Sr. misidentified Randolph as the shooter, and the testimony of various witnesses proved he was somewhere else at the time of the shooting.
B. Analysis
"A court must generally instruct the jury on lesser included offenses whenever the evidence warrants the instructions, whether or not the parties want it to do so." (People v. Horning (2004) 34 Cal.4th 871, 904-905 (Horning).)
Here, we need not decide whether the evidence warranted an instruction on voluntary manslaughter as a lesser included offense of murder because we find any instructional error invited.
See Horning, supra, 34 Cal.4th at page 905 ("We need not decide whether the evidence warranted an instruction on second degree murder in this case because we find any error... invited"]; see also People v. Cooper (1991) 53 Cal.3d 771, 827 [no need to decide whether the trial court had a sua sponte duty to instruct on a lesser included offense "because even if there was error, defendant is barred from asserting it under the invited error doctrine]".)
In People v. Barton (1995) 12 Cal.4th 186, 198, the Supreme Court explained that "a defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction." The doctrine of invited error bars such a challenge even if the court had a duty to sua sponte instruct on a lesser included offense supported by the evidence. (People v. Hardy (1992) 2 Cal.4th 86, 184 [trial court need not sua sponte deliver the instruction "where a defendant expresses a deliberate tactical purpose for objecting to the instruction"].)
In Horning, supra, 34 Cal.4th 871, which involved an appeal from a conviction for first degree murder, the Supreme Court found the defendant was barred under the invited error doctrine from challenging the trial court's failure to give instructions on second degree murder because the record showed the defendant's lack of objection to the instructions was more than mere unconsidered acquiescence; rather, the record showed that "defendant did not want the instructions because they were inconsistent with his defense that he did not commit the crime at all." (Id. at p. 905.) The Horning court indicated that for the invited error doctrine to apply, "it was not required" that trial court obtain "defendant's personal agreement that he did not want the instructions." (Id. at pp. 905-906, citing People v. Cooper, supra, 53 Cal.3d at pp. 827-828 ["we have never required a personal waiver before applying the invited error doctrine"].)
Here, as already discussed, Randolph's counsel did not request that the court instruct the jury on the lesser included offense of voluntary manslaughter, even after the court gave him the opportunity to do so. Throughout the trial, the defense relied on an alibi and mistaken eyewitness misidentification defense. Defense counsel informed the court that the defense theory was that Randolph was not even at the scene when Ford was shot. Furthermore, defense counsel specifically requested that the court give the jury a modified CALCRIM instruction on his alibi defense, which stated, "The defendant contends he did not commit this crime and that he was somewhere else when the crime was committed." During her closing arguments, defense counsel told the jury that Lemore Sr. misidentified Randolph, who "was probably somewhere else at the time of the crime." The record abundantly demonstrates the defense made a deliberate, tactical decision to not request voluntary manslaughter instructions because the theory of the defense was that Randolph was not at the scene when Ford was shot, and such instructions would have been inconsistent with his defense.
We also reject Randolph's contention he is entitled to relief under the ineffective assistance of counsel doctrine. "'"Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission."'" (People v. Bradford (1997) 14 Cal.4th 1005, 1052, quoting People v. Zapien (1993) 4 Cal.4th 929, 980.) Because we have concluded that defense counsel made a deliberate, tactical decision to not request voluntary manslaughter instructions, we also conclude Randolph's claim that his trial counsel provided ineffective assistance of counsel is unavailing. (Bradford, supra, 14 Cal.4th at p. 1052; Zapien, supra, 4 Cal.4th at p. 980.)
II. INSUFFICIENCY OF THE EVIDENCE CLAIM
Randolph also contends his first degree murder conviction must be reversed because there is insufficient evidence of premeditation and deliberation. We reject this contention.
A. Applicable Legal Principles
Murder that is perpetrated by "willful, deliberate, and premeditated killing" is murder in the first degree. (§ 189.) The California Supreme Court has explained that "[a] verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly...." [Citations.]' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
"Generally, there are three categories of evidence sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, 'we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1224.)
These three categories of evidence are "'descriptive, not normative'" and "are simply an 'aid [for]reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.'" (People v. Cole, supra, 33 Cal.4th at p. 1224, quoting People v. Perez (1992) 2 Cal.4th 1117, 1125.)
When assessing a challenge to the sufficiency of the evidence, we must view the evidence most favorably to the prosecution and determine whether any rational trier of fact could have found the elements proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
B. Analysis
Randolph asserts there is no evidence he had any plan to kill or harm Ford. He also asserts he had no motive to kill Ford, and the facts about the manner or method of the killing do not show a preconceived plan. These assertions are unavailing.
Our review of the record discloses strong evidence of planning in conjunction with a deliberate manner of killing. The evidence showed that Randolph armed himself with a loaded nine-millimeter handgun and went to the Long residence wearing a black hooded sweatshirt to wait for Ford, who was known to visit the Longs almost every day. The evidence that Randolph was wearing a sweatshirt with a hood indicated he was planning on concealing his identity. Lemore Sr. testified he saw Randolph, with the hood up over his head, holding a gun and shooting at Ford while Randolph was walking up to Ford. Lemore Sr. was able to identify Randolph at both the photo lineup and in open court at trial because the hood came off Randolph's head during the shooting, and Lemore Sr. was able to see the front and side of Randolph's face. Although Lemore Sr. stated he had a history of seizures that could affect his memory, he testified he did not have a seizure that day. Lamont also testified that Lemore Sr. did not have a seizure that day. A rational jury could find beyond a reasonable doubt that Randolph had planned to kill Ford, and his shooting of Ford was the result of preexisting reflection rather than mere unconsidered impulse.
With respect to motive, substantial evidence shows a dispute existed between Randolph and Ford regarding a debt Randolph allegedly owed Ford. Lemore Sr.'s girlfriend, Pinkney, testified that Ford told her a week or two before the shooting that Randolph owed him money and he was not happy about the debt.
The jury's finding of premeditation and deliberation is also supported by the testimony of various witnesses regarding the manner in which Randolph killed Ford. Lemore Sr. testified that Randolph shot Ford after everything had calmed down and Ford had started to leave. Stallion testified he had heard Ford say something to Randolph "about if there was going to be some kind of gunplay, so be it." Stallion also testified he heard the gunshots within a couple of seconds after Ford started to walk toward his car, away from the man standing near the pickup truck (Randolph). Stallion identified Randolph as the shooter, stating he first saw an arm and a nine-millimeter gun sticking out from behind the truck, and then he saw Randolph when he came out from behind the truck. Detective Ron Newquist of the San Diego Police Department, who was given the assignment of investigating the crime scene and collecting the evidence, testified that he collected 11 nine-millimeter shell casings at the scene. Forensic evidence established that Ford was shot 10 times.
King testified he heard gunshots as Ford was walking back to his car. King, like Lemore Sr., identified Randolph as the shooter during a photo lineup. From all of the foregoing evidence, we conclude a rational jury could reasonably find the manner in which Randolph killed Ford showed both premeditation and deliberation beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. IRION, J.