Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF137218, Joseph A. Kalashian, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Roger Saesee was convicted of murder, shooting at an inhabited dwelling and permitting another to shoot from a vehicle. On appeal, he contends (1) the trial court erred by failing to give a limiting instruction on the use of a codefendant’s guilty plea; (2) the trial court erred by failing to instruct on provocation and the degree of murder; (3) the trial court erred by instructing the jury with two different definitions of malice and failing to explain which definition applied to which crime; (4) defense counsel was ineffective because he failed to produce a promised witness; and (5) the trial court erred by applying the wrong standard to the motion for new trial. Finding no merit in any of defendant’s contentions, we will affirm.
PROCEDURAL SUMMARY
On June 30, 2005, the Tulare County District Attorney charged defendant with murder (Pen. Code, § 187; count 1); shooting at an inhabited dwelling (§ 246; count 2); and permitting another to shoot from a vehicle (§ 12034, subd. (b); count 3).
All statutory references are to the Penal Code unless otherwise noted.
In connection with count 1, the information alleged that defendant personally used a firearm (§ 12022.5, subd. (a)(1)); intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); committed the crime for the benefit of a gang (§ 186.22, subd. (b)(1); and committed a gang murder (§ 190.2, subd. (a)(22)).
A jury found defendant guilty of all counts and found all the special allegations true. The trial court sentenced him to life without the possibility of parole on count 1, plus 25 years to be served consecutively for the section 12022.53, subdivision (d) enhancement. The court ordered five- and two-year terms on counts 2 and 3, respectively, to be served concurrently to the term on count 1. Defendant unsuccessfully moved for a new trial.
FACTS
The Murder
Joe Fernandez, known as Lolo, lived in an apartment with his fiancée and their two children. Lolo associated with a Norteño gang and affiliated with the Mexican Gangster Boys (MGB) subset. From the time Lolo and his family moved in, Lolo had problems in the neighborhood, particularly with defendant. People would pound on Lolo’s door at night, threatening to come inside. On one occasion, someone attempted to kick open the door.
Defendant was an active member of the Oriental Troop (OT) gang, a vicious Asian Crip gang whose members commonly carried guns and identified themselves with the color blue. OT members had a long-standing rivalry with MGB members. OT members were known to despise MGB members, refusing to refer to them as anything but “fleas.” Defendant would drive by Lolo’s apartment two or three times a day in a white Honda hatchback and say, “Cripcuz,” and flash a “C” with his hand. Lolo and his fiancée wanted to move out of the neighborhood, but they did not have enough money.
On the evening of November 15, 2004, about six months after Lolo and his family moved into the neighborhood, Lolo was murdered. The evening began as Lolo and his sister’s boyfriend, Fernando, were preparing to barbeque with a neighbor outside the apartment. At the same time, Benny was in the neighborhood, walking to the Wittman Center. He saw Lolo and Fernando across the street barbequing. Benny wanted to meet Lolo because Lolo and Benny’s stepson had been involved in a confrontation. Benny felt he had unfinished business with Lolo.
On an adjacent corner, Benny saw Anthony, an acquaintance, walking with his sister and two friends. Benny crossed the street and approached Anthony. Benny asked Anthony if he knew Lolo. Anthony was a Norteño gang member and he knew Lolo from around the neighborhood. When Anthony told Benny he knew Lolo, Benny asked if he would introduce him to Lolo. Anthony did not immediately agree; he asked Benny why he wanted to meet Lolo. Benny responded that Lolo had pulled a shotgun on his stepson and Benny wanted to talk to Lolo personally, as a gentleman, to see if he could resolve the problem. He said they had unfinished business and Benny was prepared to fight Lolo one-on-one, if necessary.
While this discussion was taking place, Benny’s wife drove by to pick up another son from the Wittman Center. She saw Benny and asked him what he was doing there. He told her Lolo was the man who had pulled a gun on their son and Benny was going to confront him. She tried to convince Benny to go home, but he refused. She left, but returned a short time later. At that time, Benny could see Lolo talking on the telephone and Benny assumed he was calling for backup. Benny asked his wife to call her brother and son to come help him confront Lolo. Again, she urged Benny to go home and again he refused. She left and tried to find her brother and son, but when she could not, she called defendant, who was her cousin, and another Asian man to come help Benny.
Benny had known defendant for several years and saw him almost every day.
While Benny and Anthony were standing on the corner with the other people, defendant and another Asian man rode up on bicycles. Defendant was wearing a blue sweat suit. He was tall and thin and the other Asian man was shorter. Defendant asked Benny what was going on. Benny told him, “That’s the dude, Lolo, who pulled the gun on [my stepson].” Benny told defendant that Anthony was going to take him to confront Lolo. Benny asked defendant if he was “heated,” meaning armed with a gun. Benny knew defendant was a gang member who usually carried a gun. Defendant answered affirmatively. Benny asked if he could take defendant’s gun in case Lolo pulled out his shotgun. Although Benny was willing to die for his stepson, he would attempt to defend himself with the weapon. Defendant did not give Benny his gun. Instead, he said, “Don’t trip.” Benny told defendant he was not obligated to stay, but it was up to him. Defendant said, “Don’t trip. I’ll stay here.”
Benny and Anthony walked across the street toward Lolo’s corner. Lolo, who had been watching them, approached as they reached the corner. Anthony said to Lolo, “Hey, it’s me. What’s up?” They shook hands and Lolo responded, “Oh, what’s up, homie? What’s up, homie?” Benny introduced himself to Lolo as an “OG,” which Benny intended to mean an older guy, and they shook hands. Lolo, however, was distracted by the group behind Benny and Anthony. Benny said, “I have a question for you. I come here out of respect as a gentleman.” Benny asked if there were any “fleas” in the area. Lolo was focused over Benny’s shoulder on the people behind him. Defendant moved forward and stopped about two feet to Benny’s left and the other Asian man, who was still on his bicycle, stopped about four feet to Benny’s right.
Lolo recognized defendant immediately. As Benny attempted to engage Lolo in a conversation about the incident with Benny’s stepson, Lolo angrily said, “Hey, that’s the fool that shot at my house.” Defendant responded, “Yeah, what’s up.” Lolo gestured with his hands and responded, “[W]hat’s up guys? What do you want? … [W]hat do you guys want to do? You guys want to jump me? You want to fight?” Lolo took off his shirt to fight and told them, “Let’s go in the parking lot and handle it.” Benny tried to redirect the conversation, but Lolo was focused on defendant. Lolo said he owned the block and this was his neighborhood. He said it was a Northern block. Defendant and the other Asian man countered that it was a Crip neighborhood and an Asian neighborhood. Lolo said, “Nah, you guys ain’t -- you ain’t gonna do nothing. Get off my fuckin’ block[.]” Defendant said, “This ain’t your fuckin’ block.” Lolo turned to Benny and said, referring to him, “[W]hy is a northerner backing up OT’s?” Benny told Lolo defendant was related to his wife. Lolo was angry and “started [a] little drunk talk.” Then he said, “[F]uck OT, fuck [Crips].” At that moment, the Asian man on Benny’s right, dropped the bicycle and cocked his gun. Within seconds, defendant also drew and cocked his gun, which Benny believed was a nine-millimeter weapon. Defendant and the other Asian man said, “[W]hat’s up nigga, what’s up nigga?” Lolo said, “[W]hat, you gonna shoot me? What, you guys gonna shoot[?]”
At that point, defendant shot twice at the ground in front of Lolo. Lolo turned around and ran, trying to dodge the bullets. Defendant shot at him at least seven times until he fell to the ground. Everyone except Benny ran from the scene. Benny did not feel he had to run because he “was there to do that.” But when he realized some neighbors were going to jump the fence, he ran too.
A police officer was dispatched to the scene. As he approached, he observed Lolo lying face down on the sidewalk and grass. He had been shot in the back of his head and there was a large pool of blood under his head and torso. The officer spoke to Fernando, who described the perpetrators as two Asian and four Hispanic males. The officer broadcast the descriptions over the radio.
Lolo’s neighbor had not gotten a good look at the shooter, but her daughter identified defendant from a photographic lineup two days after the crime. Four days after the crime, Fernando identified defendant and another Asian male from a photographic lineup. At trial, the neighbor testified the tallest man was the shooter. The neighbor’s daughter testified the shooter was Asian, tall, thin and bald.
A criminalist examined five nine-millimeter cartridge cases and some bullet fragments. She concluded that all five cartridges were fired from the same gun.
The pathologist who performed the autopsy on Lolo testified Lolo had been shot seven times. The wound to the back of his head was fatal. Lolo had a blood alcohol concentration of 0.12 percent and his blood tested positive for a low level of methamphetamine.
In January 2005, the police contacted Benny. At first, Benny denied being involved or knowing anything about the crime because he was afraid for his life. After spending an hour in a holding cell, however, Benny decided to tell the truth so he asked to speak to the detective again.
Benny was arrested and charged with Lolo’s murder. In February 2005, the district attorney offered him a deal. Ultimately, Benny agreed to a six-year maximum sentence for voluntary manslaughter in return for his truthful testimony. At the time of trial, Benny was in custody for Lolo’s murder.
Benny testified he was a former gang member, affiliated with the South Side Locs of Hanford, but he had not been involved in a gang for eight years. According to the police, Benny was a validated Norteño gang member and an associate of the OT. In Benny’s opinion, defendant’s killing of Lolo was gang related because of the words Lolo and defendant exchanged that night. Lolo was a Norteño (Benny heard Lolo so claim that night) and defendant was affiliated with the Crips, a predominantly Black gang. Benny testified he was still afraid for his life and the lives of his wife and children because his being a “snitch” put their lives in danger.
The Drive-by Shooting
A witness testified that late one night, about three months before Lolo’s murder, she witnessed a drive-by shooting. Defendant was driving a white hatchback car with three passengers. Defendant stopped the car abruptly in front of an apartment complex. The witness was driving right behind defendant and was forced to stop abruptly also. The witness saw someone in the front of defendant’s car hand something to a passenger in the back, who then put a gun out the window and shot five times at the apartment building. The witness recognized defendant because he lived nearby and the witness saw him regularly in the neighborhood. The witness could see defendant’s face in the rearview mirror and knew it was him. The witness reported the license plate number to the police.
The witness looked at a series of photos but did not see defendant. The next day, the witness attended a live line-up. The witness claimed to be able to identify the driver of the white vehicle. Defendant kept moving around, trying to make it difficult for the witness to identify him. The witness, however, knew it was him and told the officer that defendant was the driver of the white vehicle. The witness described “confusion” between the officers. One officer told the witness to be sure. The witness became irritated and told the officers to “just forget it.”
In January 2005, an officer came to the witness’s house and the witness immediately identified defendant from photographic lineups.
Defense Evidence
A detective testified that on the night of the murder, Fernando identified Benny from a photographic lineup as the third suspect, the unknown Hispanic male adult. However, from a stack of about 50 photographs, Fernando thought someone named Jack Noi looked similar to the taller Asian suspect and Peter Saesee looked like the shorter Asian suspect. A young girl who was a witness to the murder identified someone other than defendant as the shooter from a photographic lineup and she failed to identify Benny from another photographic lineup.
About one week after the murder, at 2:00 a.m., a detective went to speak with a 13-year-old girl named Breanna. The detective asked about defendant and showed Breanna a photograph of him. Breanna told the detective she did not know who defendant was.
Defense Private Investigator Hallum read the police report stating that Breanna denied any involvement with defendant. Defendant, however, told Hallum he was with Breanna on the night of the murder. Hallum asked defendant to give him proof he was involved with Breanna by demonstrating he was familiar with her home. Hallum asked defendant to draw a diagram of Breanna’s house. Hallum took defendant’s diagram to Breanna’s house, where he met Cindy, Breanna’s cousin, who did not want to get involved. But when Hallum showed her the diagram and told her he was there to prove or disprove defendant’s alibi, Cindy verified that the diagram was correct. Cindy showed Hallum Breanna’s room and the notebook she had left behind.
Before the murder, Breanna had been living with her grandparents and Cindy. Breanna had her own bedroom, which she kept locked. Breanna testified she had been defendant’s girlfriend for a couple of months before the murder. She was then 13 years old. Defendant would come to the house a few times every day when Breanna’s grandparents were not at home. Defendant was not allowed in the house because Breanna’s grandparents did not know him. Defendant would also sneak in the window and come into Breanna’s bedroom. Breanna testified that she wrote, “RLOC was here, 11/10/04 RPC for life” on her furniture because she wanted to. She also wrote, “Breanna was here … loving RLOC.” She wrote, “RLOC was here” in her notebook. “RLOC” referred to defendant. She felt close to him at that time and was almost in love with him. Breanna said defendant drove a white 1998 Honda Civic.
Breanna testified that she and defendant were together the entire day of the murder. They were at her house in the evening, went to defendant’s house around 7:00 p.m. to eat, then returned to her house after her grandparents had gone to bed. Defendant stayed overnight at her house and they both left the house together the next afternoon. The only reason she lied to the police about knowing defendant was because she was half-asleep and she did not want to talk to them at that hour.
Breanna had since moved to Indiana. When she moved, she left her notebook behind. Cindy discovered writing on the headboard in Breanna’s room. It said, “RLOC,” which Cindy believed identified defendant. There was similar writing on the footboard of the bed. On a nightstand drawer was the writing, “Breanna was here 12/2/04, loving RLOC Saesee.”
At the time of trial, Breanna was 15 years old and pregnant by someone other than defendant.
Rebuttal Evidence
The police gang expert, who was familiar with the local gang members, assisted the detectives with possible suspects on the night of the murder. She was given a description of a Hispanic male, possibly a Norteño, who identified himself as an “[O]G” from Hanford. The officer immediately thought of Benny. The second description she was given was of an Asian male, who was tall with a thin to medium build, who said, “this is [a] Crip block” during a turf argument with Lolo. The officer believed the suspect was an OT member, the tallest of whom was defendant. On the other hand, both Jack Noi and Peter Saesee were quite short.
The person identified from the photographic lineup by the young girl was only five feet one inches tall.
DISCUSSION
I. Limiting Instruction on Evidence of Codefendant’s Guilty Plea
Defendant contends the trial court erred by failing to instruct the jury on the limited use of Benny’s guilty plea. Defendant acknowledges that evidence of the guilty plea was relevant to Benny’s credibility as a witness and was admitted to explain his motive for testifying, but defendant argues the trial court was obligated to give a rigorous limiting instruction to ensure the jurors did not consider the plea as evidence of defendant’s guilt. We conclude defendant forfeited the issue, which would nevertheless fail on the merits.
In the course of the trial, the defense was first to mention Benny’s guilty plea. In defense counsel’s opening statement, he stated:
“The case can get confusing if you start looking and you try to figure who makes more sense, because a lot of people don’t. Another factor here is their key witness, [Benny], appears to be the codefendant. [Benny] made a deal a couple months ago with the prosecution to give a statement, to come and to testify. He swore it to be a truthful statement. No surprise, as Benny got a deal, he’ll be receiving a lot less time than if he were sitting next to [defendant], that he pointed the finger at [defendant].
“If you look at the statements that Benny gave in the past, he talked with police, as did [defendant]. There’s a lot of differences. You can’t help but wonder[,] what if they bought Benny? One of the ways to view and simplify it is look at it as three things. First, look at it in total as everything the prosecution presents, which essentially -- with one exception, essentially is everything the police officers will tell you, and witnesses will tell you. If you got all the reports in the stack like I do, like [the prosecutor] has, if you read that through, that’s one part, with the exception of Benny.
“Part two, different part of the puzzle or different piece, is Benny. First[,] Benny says one thing; secondly, Benny says, [‘]All right, if you gave me less [punishment] than what I would ordinarily get, if I went to trial and [was] found guilty …, I’ll point the finger at [defendant.’]
“Well, that’s good from a prosecution standpoint. They need it. They don’t have any identifying witnesses, not anything close. It’s always nice to say -- somebody say, ‘Yeah, I was right there. I swear now [I’m] telling you the truth, he did it.’”
Later, when the prosecutor called Benny to the stand, his testimony began as follows:
“[PROSECUTOR:] You’re in custody, correct?
“[BENNY:] Yes, ma’am.
“[PROSECUTOR:] What are you in custody for?
“[BENNY:] For murder.
“[PROSECUTOR:] For the incident here today?
“[BENNY:] Yes.
“[PROSECUTOR:] And did you in fact make a deal with the prosecution to testify?
“[BENNY:] Yes, I did.
“[PROSECUTOR:] And what was that deal for?
“[BENNY:] Six-year lid for voluntary manslaughter.
“[PROSECUTOR:] And you agreed to give a truthful statement, is that correct?
“[BENNY:] Yes.
“[PROSECUTOR:] And did you in fact already give one statement to the District Attorney’s Office?
“[BENNY:] Yes, I did.
“[PROSECUTOR:] And that was a truthful statement?
“[BENNY:] Yes, it was.”
On cross-examination, defense counsel questioned Benny about his truthfulness and his plea bargain. Later, defense counsel again brought up the plea bargain to point out that Benny had been arrested and charged with murder as a codefendant in the present case.
Then, during argument, the prosecutor stated:
“The primary witness in this case, no doubt, is [Benny]. A big part of your job is to determine the credibility of witnesses. [Benny] got on the stand, gave the same statement, basically, that he told [the detective] the first day he was contacted. [¶] … [¶]
“There are multiple things that corroborate [Benny’s] statement…. [¶] Remember, [Benny] is not trying to get himself out of trouble. He’s including his own involvement in this crime. He’s not trying to place somebody as the shooter instead of himself. He’s fully admitting his involvement as well. He states he’s the one that went to [Lolo]. He saw [Lolo] on the phone and he wanted backup, for lack of a better word.”
The prosecutor explained that eyewitnesses corroborated Benny’s testimony that defendant was the shooter, then said:
“Again, why would [Benny] point the finger at [defendant]? He’s his own relative. [¶] As [Benny] said, he’s been a snitch. He’s been a snitch from day one. He’s in fear of his life. He’s in fear of his family’s life. Why would he be doing that? There’s no reason, none at all, why [Benny] would be saying [defendant] committed this crime. As he said, he’s trying to do the right thing. He stated on the stand … a person was murdered and he’s telling what happened. [¶] … [¶] [Benny] gives a story -- the same facts for -- as I said, the first statement to [the detective], to the DA’s office[, and] on the stand. Consistent, corroborating many, many ways. The same sequence of events [has] been given. The facts -- the descriptions given, Hispanic, the tall Asian, again, points to [Benny] and [defendant].”
Defense counsel argued there were inconsistencies between Benny’s first statement to the police and his testimony. Counsel argued:
“And I kept asking [Benny] again and again, did you lie, did you lie? And the man’s a weasel. The man basically sold any dignity and credibility he may have had any shred left for a plea[] to involuntary [sic] manslaughter with a six-year lid. He made reference to maybe three years. He’s been in jail a long time. Benny … may be out of jail sooner than you’re done with jury service, if you think about that.”
Defense counsel argued that few witnesses could identify defendant, and cautioned the jury, “Consider you have a man who made a great trade as [the prosecution’s] key witness, the principal key witness.” Defense counsel continued:
“Think of it in threes. There are three persons arguably responsible for the death of Lolo Fernandez. First of all, our friend, … [Benny]. Benny is responsible. Why else would Benny have pled to voluntary manslaughter? [¶] That’s a criminal homicide. Benny is responsible because Benny is the one that brought the killers there. Remember Benny talked. He said he told his wife to go get [her brother]. [‘]Go get [your brother]. Go get the relatives. Go get them. Things are heating up. Something’s going to happen.[’] [¶] … [¶] Thinking in threes, the three responsible people. Benny and the two Asians.”
Regarding Benny’s testimony as an accomplice, defense counsel argued:
“You’re being told to consider or review the testimony of an accomplice with caution…. That means … we are to be suspicious of testimony of an accomplice. We are suspiciou[s] of Benny …. And that instruction also tells you don’t depend on what Benny says alone. Look for things that are independent that could corroborate aspects of the crime, that point to or link to … defendant. What else is there? After hearing what [Breanna] said, what else is there?”
In the prosecutor’s closing argument, she said:
“When looking at accomplice [testimony] -- the instruction, it says to view with caution. But it also says give the weight you think it deserves. If you believe Benny …, you can give him as much weight as you want to give him. [¶] … [¶]
“Regarding Benny …, yeah, he took a deal with our office, but prior to that he had given two consistent statements, one to the police, one to the District Attorney’s office. It was just recently, he testified, that he made that deal for six years…. [¶] … [¶]
“Ladies and gentlemen, again, I ask you to look at the totality of the evidence. Weigh the credibility of these witnesses. Remember all the things that corroborate [Benny’s] statement, every statement he’s given each and every time.”
“‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citation.]” (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10.) “However, the trial court [has] no sua sponte duty to ... instruct the jury on specific evidentiary limitations.” (People v. Montiel (1993) 5 Cal.4th 877, 918; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316 [absent a request, trial court has no duty to give limiting instruction].)Because defendant failed to request alimiting instruction on the use of evidence of Benny’s guilty plea, defendant has forfeited the claim on appeal.
Defendant cites United States v. Halbert (9th Cir. 1981) 640 F.2d 1000 for the proposition that a limiting instruction is required to prevent the jury from using a codefendant’s guilty plea as substantive evidence of the defendant’s guilt. As a California court, we are not bound by the decisions of lower federal courts, although we may find them persuasive. (People v. Williams (1997) 16 Cal.4th 153, 190; People v. Bradley (1969) 1 Cal.3d 80, 86.)
In any event, we would reject the claim on its merits. The prosecution in this case presented evidence of Benny’s guilty plea because it was relevant to his credibility as a witness. At no time did the prosecutor suggest defendant was guilty because Benny was guilty. Furthermore, defense counsel repeatedly relied on Benny’s guilty plea to defendant’s advantage by suggesting Benny had motive to lie and falsely accuse defendant. Under these circumstances, even if defense counsel had requested the instruction and the trial court had refused to give it, we would find no prejudice. It is not reasonably probable the outcome would have been more favorable to defendant had the instruction been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Instruction on Provocation in Determining Degree of Murder
Defendant argues the trial court erred by failing to instruct with CALCRIM No. 522 that the jury could consider provocation in determining whether the killing was first or second degree.
CALCRIM No. 522 provides: “Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.] [¶] [Provocation does not apply to a prosecution under a theory of felony murder.]”
Both parties recognize that People v. Rogers (2006) 39 Cal.4th 826, decided after defendant’s trial, resolved this issue against defendant. Rogers held that “CALJIC No. 8.73 [or CALCRIM No. 522] is a pinpoint instruction that need not be given on the court’s own motion.” (Id. at p. 879.) Defendant, however, claims that Rogers cannot be applied retroactively to his case. But, in our opinion, “no reason appears to depart from the general rule that judicial decisions, even those overruling prior authority, have full retroactive effect. [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1144; see People v. Clark (1993) 5 Cal.4th 950, 1022 [retroactively applying rule of People v. Saille (1991) 54 Cal.3d 1103 that trial court has no sua sponte duty to instruct that voluntary intoxication may be considered in determining the existence of premeditation and deliberation]; People v. Hughes (2002) 27 Cal.4th 287, 342 [retroactive application of the Saille rule requiring defendants to request voluntary intoxication instructions does not violate ex post facto principles].)
Furthermore, even if defendant had requested the instruction, there was insufficient evidence to support the giving of CALCRIM No. 522. (People v. Memro (1995) 11 Cal.4th 786, 868 [court has no duty, even at defendant’s request, to instruct jury on a defense that is not supported by substantial evidence].) Defendant has failed to show there was substantial evidence that he decided to kill Lolo in response to the alleged provocation, or that he “killed [Lolo] while in the grip of passion or any intense emotion” resulting from the alleged provocation (People v. Brown (1981) 119 Cal.App.3d 116, 136). Defendant’s purpose in accompanying Benny was to carry the weapon; defendant was present because he was armed. After Lolo said, “[F]uck OT, fuck [Crips],” defendant and the other Asian man pulled out their weapons, but did not immediately shoot Lolo. Instead, they said to him, “[W]hat’s up nigga, what’s up nigga?” Lolo said, “[W]hat, you gonna shoot me? What, you guys gonna shoot[?]” Defendant shot twice at the ground but waited to shoot Lolo until he turned and ran. These facts do not support the inference that defendant was overwhelmed with emotion or was provoked by Lolo’s words to kill him. Instead they support the inference that defendant already possessed the intent to kill Lolo before any alleged provocation occurred. Moreover, defendant presented an alibi defense. He argued to the jury not that he was provoked to shoot, but that he did not shoot, was not identified by witnesses and was elsewhere at the time of the murder. Thus, CALCRIM No. 522 would have been inconsistent with defendant’s defense. In light of these factors, the trial court did not err by failing to instruct with CALCRIM No. 522.
The fact that the trial court instructed on provocation/manslaughter (CALCRIM No. 570) does not change our decision. “‘If the court through an abundance of caution, or neglect or mistake, gives partial instructions ... when no such instructions are warranted, it should not be ruled as a matter of law that all inquiry into the nature of the evidence on the issue is precluded ….’” (People v. Frierson (1979) 25 Cal.3d 142, 157.)
III. Instructions on the Definition of Malice
Defendant asserts that the trial court erred by instructing the jury with two different definitions of malice (CALCRIM Nos. 520 & 965) and failing to explain which definition applied to which crime. Defendant cites People v. Shade (1986) 185 Cal.App.3d 711 for the proposition that the CALJIC No. 1.22 (or CALCRIM No. 965) definition of malice should not be given in a murder trial. He describes what occurred in this case as “identical error.” In Shade, however, both definitions of malice were given but only one crime (murder) was charged. Thus, “the jury was given two definitions of malice, one legally incorrect, and one legally correct” and had the confusing prospect of choosing which one applied to murder. (People v. Shade, supra, at p. 715.)
Here, by contrast, each of the two definitions of malice was applicable to a crime charged and each was legally correct in its context. Each definition was contained specifically within the different instructions for the two separate crimes. The written instructions were on two different pages with two different titles, separated by about 13 other instructions. When given orally, the instructions were further separated in time by the attorneys’ arguments. The two definitions could not have been more separate and distinct. There is simply no reasonable possibility the jurors were mislead by the two definitions. (People v. Roybal (1998) 19 Cal.4th 481, 526-527 [we review instructions as a whole to determine whether it is reasonably likely the jurors would have misunderstood them or been misled by them].)
The CALCRIM instructions have improved on the CALJIC instructions by including these definitions within the instructions on the crimes. (See CALCRIM Nos. 520, 965.)
Defendant obfuscates these important facts, quoting only a selected portion (the malice definition) of CALCRIM No. 965 and stating that “[t]he trial court did not instruct the jury specifically which definition it should use for what counts.”
IV. Ineffective Assistance of Counsel
Defendant contends defense counsel was ineffective because he “promised” in his opening statement to produce a witness, Breanna’s grandfather, and then failed to do so. Defendant argues this failure and the lack of any explanation for it, eviscerated his alibi defense and constituted ineffective representation. We disagree.
We assume defense counsel was referring to Breanna’s grandfather, but that assumption does not affect our decision.
During his opening statement, defense counsel explained that part one of the evidence was the police reports, excepting information about Benny, and part two was Benny’s testimony. He described Breanna as part three, noting she was not a perfect witness, or perhaps even a willing witness, and therefore counsel would attempt to corroborate her testimony with that of her grandfather. That portion of argument follows:
“The third piece is a 14- or 15-year-old girl who was talked to soon after the crime. And the reason the police went and hunted her up is because they talked to [defendant] and confronted him, arrested him, Mirandized him. He has a right to talk to him, and he talked and he said, ‘I wasn’t there.’
Miranda v. Arizona (1966) 384 U.S. 436.
“‘Where were you?’
“‘I was with this girl, this 14-year-old girl. I went over to her place the day before, spent the night there, and I left the next day.’
“There was a patch of time there when Lolo Fernandez was gunned down. [Defendant] wasn’t there. That’s what he told the police the first time he talked to [them]. [¶] So naturally, as investigator[s], they’re going to look to corroborate the statement. They hunted down the girl, Breanna …. They confronted her with all that, and she said, ‘No, that’s not true. I don’t even know the guy. He wasn’t here. I didn’t know him.’
“So [the police] kind of dropped the issue. Well, [the defense] picked up the issue. We kept dogging for more witnesses. Who else might have seen that or knew it. Where’s Breanna? Breanna is gone. Breanna is not here anymore. Breanna is in North Carolina or in Ohio, Breanna is in Indiana. She has some relatives here. We talked to them and found out where Breanna was. We talked to her. And it was a difficult thing to persuade her, and I don’t know if we did yet. She’s still in Indiana. We’re going to fly her here this weekend, but what she said basically is, [‘Y]eah, he was, and I did lie to the police.[’] Why? [‘]Well, if my family ever found out that I was sleeping with some guy older than me and that he sneaked in the house and has done this before, they’ll kill me.[’] So she lied to the police.
“She’s still scared. I don’t know what her family is going to do to her, but we expect to bring her here and have her tell you what [defendant] told the police, that he was in fact with this girl, not on the street with the gun. [¶] … [¶]
“What about the girl, is that it[?] Is that enough to plant a seed of reasonable doubt in your mind when you judge [defendant]? [¶] Well, we found out that there’s an old man …. Somebody’s grandpa was in that house the night [defendant] came over. As a matter of fact, he held [sic] him through a window. As a matter of fact, he fed him a dish of noodles. He was mad as hell that the girl told the police. He was mad as hell that she was subpoenaed to be here. I’m counting on him to tell the truth and corroborate what the girl said.” (Italics added.)
This excerpt demonstrates defense counsel’s statement that he was counting on the grandfather’s truthful corroboration in no way amounted to a promise that he would produce the grandfather as a witness. In fact, counsel stressed to the jury that the grandfather was “mad as hell” Breanna had spoken to the police and had been subpoenaed to testify. Nothing here suggested the grandfather would be a willing or cooperative defense witness who would appear and testify favorably, and nothing suggested defense counsel had any reason to count on the grandfather as a witness. Defendant mischaracterizes defense counsel’s statements.
Nevertheless, defendant could only have benefited from defense counsel’s suggestion that someone could corroborate Breanna’s testimony, although that person might be unwilling to do so. As defense counsel recognized, Breanna was not the most sympathetic witness. When she was 13 years old, she secretly slept with a gang member, sneaking him into her house every day in defiance of her grandparents; she covered the furniture in her bedroom, which she kept locked, with amorous graffiti; she told the police she did not know defendant, lying only because she was too tired to tell the truth; and, at 15 years old, she was pregnant by another man. The possibility that her grandfather could confirm her story -- even if he did not want to and ultimately did not appear -- certainly did not harm defendant’s case. Accordingly, if defense counsel’s statements were error, there was no resulting prejudice. And having found no resulting prejudice, we need not address whether the performance of counsel was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Hester (2000) 22 Cal.4th 290, 296-297 [if we conclude on review that alleged incompetence of counsel was not prejudicial, we need not address whether counsel’s actions were deficient].)
V. Motion for New Trial
Lastly, defendant argues the trial court applied an incorrect standard when it ruled on defendant’s motion for a new trial. He summarizes his argument this way: “Judging from what the trial court did, and what it said, the court applied a deferential sufficiency test rather than weighing the evidence itself.” He notes that the court stated it assessed the sufficiency of the evidence, which he claims was improper. Defendant cites People v. Robarge (1953) 41 Cal.2d 628 and People v. Sarazzawski (1945) 27 Cal.2d 7, overruled on another ground in People v. Braxton (2004) 34 Cal.4th 798, 817, to support his conclusion that “[t]he trial court’s function is not to assess the sufficiency of the evidence, but the weight of the evidence.” Not only is defendant’s contention without merit, we see absolutely no basis whatsoever for his raising it.
At the sentencing hearing, defense counsel brought an oral motion for a new trial, as follows:
“[DEFENSE COUNSEL:] I have one legal issue I want to raise orally. I don’t know if this is appropriate during this stage, but the motion for new trial.
“THE COURT: Has anything been filed?
“[DEFENSE COUNSEL]: No, I’m doing it orally.
“THE COURT: What are the grounds?
“[DEFENSE COUNSEL]: Grounds are on the counts involving [the witness to the drive-by shooting]. I believe it’s [counts] 2 and 3. It’s the counts involving the other incident, not the homicide, the other shooting at the apartment where she saw him supposedly in her rearview mirror. And she then was unable to make an identification of him, then an hour and a half or two hours after the shooting in the live lineup. [¶] … [¶]
“THE COURT: Is the motion essentially that there was a lack of evidence?
“[DEFENSE COUNSEL]: Yes. It’s predicated upon insufficiency of evidence, yes, it is to sustain a verdict on appeal. Those counts, again, are only going to those things involving the witness [to the apartment shooting]. We’re not at this point looking at the principal count.
“THE COURT: The People’s position?
“[PROSECUTOR]: Your Honor, this sentencing has been continued two times. There’s still nothing in writing by counsel. A jury found the defendant guilty of all the charges and heard all the evidence from the witness.
“THE COURT: Yeah, if that’s the sole basis for the motion for new trial, I would deny that motion, because I think there was sufficient evidence.
“[DEFENSE COUNSEL]: All right. We have a record then.” (Italics added.)
In Robarge, cited by defendant, the court explained: “While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.] This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.] [¶] In passing upon a motion for a new trial the [court] has very broad discretion and is not bound by conflicts in the evidence, and reviewing courts are reluctant to interfere with a decision granting or denying such a motion unless there is a clear showing of an abuse of discretion.” (People v. Robarge, supra, 41 Cal.2d at p. 633, italics added, citing People v. Sarazzawski, supra, 27 Cal.2d 7.)
We do not see how defendant interprets the record in this case to support his claim that the trial court did not comply with these rules. The court concluded there was sufficient evidence to support the verdicts, and stated nothing to suggest it felt bound by the jury’s decision. In Robarge, on the other hand, the trial court incorrectly stated it was not in the position to upset the jury’s verdict and was bound by the jury’s conclusion. The trial court there plainly “failed to give [the] defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict. [Citations.]” (People v. Robarge, supra, 41 Cal.2d at p. 634, citing People v. Sarazzawski, supra, 27 Cal.2d 7.) There is nothing in this case to support a similar conclusion. (See generally People v. Martin (2005) 127 Cal.App.4th 970, 977 [“judge is presumed to know and follow the law”].) The trial court stated: “I think there was sufficient evidence.” This finding fails to suggest use of an improper standard. Defendant has created an issue out of nothing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, Acting P.J. Dawson, J.
CALCRIM No. 520 (Murder With Malice Aforethought) provides in relevant part: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of (another person/ [or] a fetus); [¶] [AND] [¶] 2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.) [¶] … [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if (he/she) unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. (He/She) intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life; [¶] AND [¶] 4. (He/She) deliberately acted with conscious disregard for (human/ [or] fetal) life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.”
CALCRIM No. 965 (Shooting at Inhabited House) provides in relevant part: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully and maliciously shot a firearm; [¶] [AND] [¶] 2. The defendant shot the firearm at an (inhabited house …)(;/.) [¶] … [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.”