Opinion
C095411
08-21-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS GOMEZ-ARREOLA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CR152580
HULL, J.SUMMARY OF THE APPEAL
A jury found appellant and defendant Jose Luis Gomez-Arreola guilty of the murder of G.I.; the attempted murders of J.R., F.I., and E.M.; and the assaults with a deadly weapon as contemplated by Penal Code section 245, subdivision (a)(2) (statutory section citations that follow are found in the Penal Code unless otherwise stated), of J.R., F.I., E.M., E.S., A.O., J.V., C.M., and E.J. The jury found that in committing the murder of G.I. and the attempted murder of J.R., defendant used a firearm and caused death or great bodily injury as contemplated by section 12022.53, subdivision (d). The jury found true that in committing the attempted murders of F.I. and E.M., defendant personally used a firearm as contemplated by section 12022.53, subdivision (c). The jury also found true enhancement allegations that defendant willfully and unlawfully used a firearm as contemplated by section 12022.5, subdivision (a), in commission of the section 245, subdivision (a)(2), assault offenses. The jury found not true allegations that the murder and attempted murders were premeditated, willful, and deliberate. The court granted a retrial on the charge that defendant had attempted to murder E.M., and the charge was later dismissed.
The court sentenced defendant to an indeterminate term of 15 years to life for the murder of G.I. It imposed a determinate term of 16 years for the attempted murders of F.I. and J.R., and it stayed sentencing under section 654 on the section 245, subdivision (a)(2), assault findings as to F.I. and J.R. The court imposed concurrent terms of 3 years each for the section 245, subdivision (a)(2), guilt findings regarding E.M., E.S., A.O., J.V., C.M., and E.J. The court gave defendant a credit of 429 days for time served. The court issued protective orders under section 136.2, subdivision (i)(1), restraining defendant from certain contact with F.I. and J.R. for three years beginning on December 16, 2021.
On appeal, defendant raises seven challenges, four regarding the guilt findings by the jury and three regarding the sentence and protective orders imposed by the trial judge.
In his first argument, defendant challenges the admission of a multilevel hearsay statement and argues his entire conviction must be reversed as a result of the purported error, because the statement may have swayed the jury's belief that he was the perpetrator of the crimes against the victims.
In his second argument, defendant contends there was insufficient evidence to support a finding that he intended to kill either J.R. or F.I. and, therefore, his attempted murder convictions must be reversed.
In his third argument, defendant argues J.V. was nowhere near the area where the shooting that led to his convictions took place and, therefore, there was insufficient evidence to sustain a conviction that defendant assaulted J.V. with a firearm.
In his fourth argument, defendant argues we must reverse his murder and attempted murder convictions because the trial court did not provide sua sponte jury instructions on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter as a result of a sudden quarrel or in the heat of passion.
In his fifth argument, defendant argues this case must be remanded to the trial court in order to permit the trial court to exercise its discretion to impose a sentence under amendments made to section 654 after the trial court imposed his sentence.
In his sixth argument, defendant argues the protective orders issued for the benefit of F.I. and J.R. were unauthorized and must be stricken.
In his seventh argument, defendant argues the trial court erred in calculating his presentence custody credits.
Defendant's first through fourth arguments, regarding the guilt findings, are unpersuasive. We do, however, agree with his fifth through seventh arguments regarding his sentence and the protective orders. Accordingly, we will affirm the jury's guilt findings and remand for resentencing.
FACTS AND HISTORY OF THE PROCEEDINGS
We will provide details regarding specific witnesses' testimony and court rulings as needed in the discussion portion of this decision.
On March 6, 2011, G.I., F.I., A.O., E.S., J.R., E.M., E.J., J.V., and C.M. were at La Finca, a dancehall and bar in Woodland, California. G.I. and F.I. were brothers. G.I. and J.R. had arrived together. F.I. and A.O. and others went to the club together. E.M. is E.J.'s daughter, and the two of them went to the club together along with some friends. C.M. was A.O.'s girlfriend, and she was his wife by the time of trial.
The club closed at around 1:30 or 2 a.m. Surveillance video shows club patrons congregating near the doors of the club as they were exiting, and aerial maps and diagrams show fights and the shooting unfolding along Bush Street, which runs in front of the club, with most of the action occurring near the Bush Street entry of a parking lot on the other side of a business that stood immediately to the west of La Finca.
According to F.I., after he and some of his friends exited La Finca, they were going to their car to get their jackets when they saw some men insulting some women. A.O. confronted the men and told them to stop being offensive to women. A.O. then began fighting with one of the men. F.I. testified that a second man then hit A.O. in the back, and F.I. grabbed the second man and tried to push him away from A.O. F.I. said the second man then punched F.I. in the face, leading them to start fighting. F.I. recalls pushing the man he was fighting to the ground, where they both were for part of the fight, and that the fight between the two of them went on for a while. At some point during the fighting F.I. may have been standing above the man he was fighting, kicking him with his boots. Other men showed up who appeared to be in the same social group as the men F.I. and A.O. were fighting. At trial, A.O. had a slightly different recollection of how the fights began, recalling F.I. was the one to exchange words with men who were causing problems before the fighting began, but he also recalled that he and F.I. were each fighting different people, and he did not describe anyone else from the group they had socialized with that night as involved in the fights.
E.S. saw men, including F.I., fighting outside La Finca that night. E.J. noticed the fights as she was headed to the car she had traveled in after the club closed. She recalled seeing F.I. and A.O. in the fights, and that they were fighting with men who had earlier been part of a group of three or four men inside the bar who had caused a disruption by breaking beer bottles and spraying beer on others. E.M. also saw that F.I. and A.O. were fighting outside the bar.
C.M. also noticed the fighting as she exited the bar. She saw F.I. in one fight and A.O. in another. She tried to grab the man who was fighting A.O. She thought that as A.O. fought the man two to three other men also were hitting A.O. She believed F.I. had initially been fighting one person, but that later he fought with the man A.O. had been fighting with after A.O.'s fight had broken up.
According to J.R., he and G.I. had been in the bathroom doing cocaine when G.I. received a call informing him that his brother was in a fight outside, though video footage obtained of the crowd outside La Finca from around the time of the shooting suggests G.I. and J.R. had already gone outside and were interacting with other patrons by the time G.I. received a call about F.I. fighting.
Some witnesses believed that defendant may have been in the fights, but E.S., who saw defendant begin shooting testified defendant was not in the fights. F.I. also did not believe defendant had been in the fights.
The Shootings
According to E.S., after the fighting was underway, a truck pulled up. Defendant, who had been driving, got out and stood in front of where E.S. was standing. Someone who had been involved in the fighting ran up to defendant and yelled something to the effect of "fire at the sons of bitches, those fuckers." Defendant, who may or may not have been the only person with a gun, began shooting.
According to F.I., the fighting stopped when the shooting began. Witnesses testified that multiple shots were fired.
E.M. and E.J. heard the gunshots, and E.M. felt a bullet graze her leg. After a bullet grazed E.M., the two of them left.
J.V. was still in the crowd near the entry to La Finca when shots were first fired. But, as the shooting continued, he moved into and across the street because he was curious as to what was going on. While moving, he saw the shooter running, jumping, and shooting.
When she first heard the gun shots, C.M. was holding A.O. up against a wall. Out of the corner of her eye, she saw sparks coming from the ground. She was scared of getting shot.
G.I. went toward defendant, likely to grab the gun, and defendant shot him twice, fatally wounding him. G.I. died at the scene.
When J.R. saw G.I. lying in the street and went to help G.I., defendant shot J.R. in the leg. J.R. was taken to the hospital to treat his wounds.
When the shooting stopped, defendant and some of the men involved in the fighting ran to the truck and got in. F.I. and A.O. ran after them. A.O. testified that he pulled someone in a pink shirt out of the truck, and that he let him go when shots were fired from the truck. F.I. tried to grab defendant then defendant fired a shot or shots at him. The truck drove away.
Procedural Background
In count 1, the People charged defendant with the murder of G.I. under section 187, subdivision (a). The People alleged the murder was willful, deliberate, and premeditated withing the meaning of section 189, subdivision (a). Count 1 included an enhancement allegation for the willful, unlawful, intentional and personal use of a firearm causing great bodily injury as defined in section 12022.7 and within the meaning of section 12022.53, subdivision (d).
In count 2, the People charged defendant with the attempted murder of J.R. under sections 21a, 664, subdivision (a), and 187, subdivision (a). The People alleged the attempted murder was willful, deliberate, and premeditated within the meaning of sections 664, subdivision (a), and 189. Count 2 included an enhancement allegation for the willful, unlawful, intentional and personal use of a firearm causing great bodily injury as defined in section 12022.7 and within the meaning of section 12022.53, subdivision (d).
In count 3, the People charged defendant with the assault of J.R. with a firearm under section 245, subdivision (a)(2). Count 3 included an enhancement allegation for the willful and unlawful use of a firearm under section 12022.5, subdivision (a).
In counts 4, 6, 8, 10, 12, 14, and 16 the People charged defendant with the attempted murder of F.I., E.M., E.S., A.O., J.V., C.M., and E.J., respectively, under sections 21a, 664, subdivision (a), and 187, subdivision (a). The People alleged the attempted murders were willful, deliberate, and premeditated within the meaning of sections 664, subdivision (a), and 189. These attempted murder counts included enhancement allegations for the willful, unlawful, intentional and personal use of a firearm within the meaning of section 12022.53, subdivision (c).
In counts 5, 7, 9, 11, 13, 15, and 17, the People charged defendant with the assault of F.I., E.M., E.S., A.O., J.V., C.M., and E.J., respectively, with a firearm under section 245, subdivision (a)(2). These counts included an enhancement allegation for the willful and unlawful use of a firearm under section 12022.5, subdivision (a).
On April 30, 2021, the court granted a section 1118.1 motion by the defense to dismiss attempted murder counts as to five alleged victims E.S., A.O., J.V., C.M., and E.J., which were in counts 8, 10, 12, 14, and 16.
The jury's guilt-phase verdicts were entered on May 13, 2021. The court pronounced its sentence on November 4, 2021.
The court sentenced defendant to an indeterminate term of 15 years to life on count 1, for the murder of G.I.
The court sentenced defendant to a total determinate term of 9 years and 4 months for the attempted murders of J.R. and F.I., this consisted of the middle-term of seven years on count 2, for the attempted murder of J.R., and one-third of the middle base term on count 4, for the attempted murder of F.I., for two years and four months. Pursuant to section 654, the court stayed the sentences on the section 245, subdivision (a)(2) assault findings on counts 3 and 5, which were the assault findings regarding J.R. and F.I. The court imposed an enhancement of six years and eight months for the section 12022.53, subdivision (c), enhancement to count 4, the attempted murder of F.I., which was one-third the middle base term for that enhancement. The court imposed concurrent terms of 3 years each for the section 245, subdivision (a)(2), findings on counts 7, 9, 11, 13, 15, and 17, regarding E.M., E.S., A.O., J.V., C.M., and E.J., respectively. The court stayed sentences on the firearms enhancements under section 12022.5, subdivision (a), for counts 3, 5, and 7 under section 1385, with count 7 being the count regarding E.M. This brought the total determinate term to 16 years.
Under section 1385, the court struck the section 12022.5, subdivision (a), arming enhancements to the section 245, subdivision (a)(2), verdicts for the assaults of E.S. in count 9, A.O. in count 11, J.V. in count 13, C.M. in count 15, and E.J. in count 17.
The court gave defendant a credit of 429 days for time served.
The court issued protective orders under section 136.2, subdivision (i)(1), restraining defendant from certain contact with F.I. and J.R. for a period of three years beginning on December 16, 2021.
Defendant filed a notice of appeal on December 20, 2021.
DISCUSSION
I
Admission of Multiple Hearsay Statement
Defendant argues that testimony by Officer Richard Towle that P.D. told Officer Towle that, I.G. told P.D., that defendant told I.G. he had been in a shooting in Woodland and went to Mexico was inadmissible multiple hearsay. At trial, the court allowed this testimony, in part, on the grounds that I.G.'s purported prior statement to P.D. was inconsistent with I.G.'s testimony at trial. Defendant argues that because P.D. testified that I.G. "made no such statement," there was no basis to find that I.G.'s testimony that defendant never made the purported statement to him was contrary to his purported out-of-court statement to P.D.
Defendant argues that the admission of the statement was prejudicially harmful, because it is reasonably probable one or more jurors would have possessed reasonable doubt as to his identity as the gunman if the statement had not been admitted.
The People counter that Officer Towle's testimony is admissible under similar reasoning to that employed in People v. Zapien (1993) 4 Cal.4th 929, 952-954 (Zapien). We agree with the People that the court properly admitted the statement as a statement of a party opponent that was embedded within two prior inconsistent statements and that the reasoning in Zapien provides an apt analysis for assessing defendant's argument here. Defendant has failed to make a persuasive argument that the court's admission of Officer Towle's testimony regarding what P.D. told him was error.
A. Additional Background
At trial, the prosecutor told the court he wanted to present testimony that I.G. told P.D. that defendant had told I.G. that defendant was going to Mexico because he got into a fight in Woodland in 2011. Defense counsel objected that the statement was "levels of hearsay."
The court asked if there was a police officer report or testimony about I.G. telling investigators defendant made the proffered statement to him. The prosecutor stated there was a report by an officer in which the officer wrote about the officer's conversations with P.D., and in that report the officer wrote about I.G. telling P.D. about speaking with defendant. The prosecutor stated his approach would be to begin by asking I.G. about his conversations with defendant, and if I.G. did not testify about the conversation, that would lay the foundation to begin asking P.D. about the statement.
In other words, if I.G. denied or would not testify to a conversation he had with defendant, evidence that he had earlier said to P.D. that he had had a conversation with defendant would constitute a prior inconsistent statement of I.G.'s admissible as such. If P.D. denied or would not testify to a conversation with I.G., that would be a prior inconsistent statement of P.D. made to law enforcement officers and admissible as such as to him. Therefore, the officer who received the report from P.D. could testify to P.D.'s prior inconsistent statement, embedded in which was a prior inconsistent statement of I.G. and an admission of a party opponent as to defendant.
The court ruled that the prosecutor could ask I.G. if defendant told him he was going to Mexico because of something that happened in Woodland, and that they could "fill in the details . . . to match up with what you think he said from the police report." The court said the prosecutor could ask I.G. if defendant made the statement about going to Mexico and why he was going to I.G. and that, regardless of the answer, the prosecutor could ask I.G. if he told P.D. defendant had told him he was going to Mexico because of something that happened in Woodland. The court added that if I.G. said "no," that would be the end of that questioning with I.G. The court observed that I.G. had not "backed off" of his position during the preliminary hearing that he had not told P.D. about defendant saying something to him about going to Mexico because something happened in Woodland.
With respect to questioning P.D. at trial, the court ruled, "you can ask him did [I.G.] talk to you about talking with [defendant]. If he says yes, you can ask him did he tell you that [defendant] told him he was going to Mexico because of this incident in Woodland, because that would create a foundation for an inconsistent prior statement."
As to an officer's possible testimony, the court ruled, "if you have a police officer that's going to say [I.G.] or [P.D.] told me this which is inconsistent with what they've testified to, it comes in for that."
The court allowed that defense could object along the way to create a record, and that the court would rule on those objections as appropriate.
At trial, the prosecutor asked I.G. if he recalled speaking to defendant about going to Mexico sometime in 2011. I.G. responded, "[n]o. I never talked to him about that." The prosecutor followed up and asked, "[h]ad [defendant] ever told you in any way he was going to Mexico?" I.G. responded, "[n]o." When asked about conversations with P.D., I.G. acknowledged that he and P.D. would talk about defendant, but he denied ever telling P.D. that defendant had spoken with him about going to Mexico because of a fight or shooting. I.G. stated that he would, in fact, be surprised to learn P.D. told police that he had told P.D. that defendant had spoken with him about going to Mexico because of a fight or shooting in Woodland. I.G. testified that he had never spoken to anyone about the shooting in Woodland in 2011, but he had heard about it on the internet and general talk on the street by people and friends. When pressed, he could not identify one specific person he had heard talk about the incident.
After I.G.'s testimony, outside the presence of the jury, the parties and the court revisited the issue of asking P.D. questions about P.D.'s conversations with I.G. Specifically, the court identified the possible statement as follows, "I believe it's the People's belief that [P.D.] made a statement to law enforcement saying that [I.G.] told him that [defendant] told [I.G.] that he was going to Mexico because of the incident in Woodland." The court asked if it was the People's position that if "[P.D.], were to say yes, that's true, then that would be a prior inconsistent statement relating to [I.G.], and if the jury believes that he said that, the statement of [defendant] to [I.G.] would be a statement of a party opponent or admission of a party opponent," and the prosecutor said that was correct. The defense objected to the questioning on hearsay grounds. The court said it would allow the prosecutor to ask P.D. if I.G. had told P.D. that defendant had told I.G. he was going to Mexico because of an incident in Woodland. The court added, "if he says yes, then it's a prior inconsistent statement related to [I.G.], and it's admissible as a party opponent. If he says no, he didn't say that, then depending on what the officer says, it may or may not be admissible, and depending on what comes out, upon request, I may instruct the jury not to consider that for any reason because there's no foundation for it, that it's inadmissible hearsay. But because there's a good faith belief that admissible hearsay will come out of this, I will allow it."
P.D. testified that defendant regularly came into P.D.'s business to use P.D.'s check cashing services. P.D. testified that at some point, possibly in 2011, defendant came into the store and told P.D. he was going to Mexico, and defendant introduced P.D. to the person who would oversee his work crew while he was away. P.D. said the last time defendant used P.D.'s business was when he brought in a check for $3,500 dated August 22, 2011, for which there were insufficient funds. He tried to contact defendant through friends and family, but he could not locate defendant until he saw defendant at the bank where P.D. told defendant the check did not have funds and asked when defendant would pay him back.
P.D. testified that I.G. was also one of his check-cashing customers. He recalled speaking to I.G. after defendant's check bounced and asking I.G. if he knew anything about defendant. P.D. testified I.G. told him defendant had gone to Mexico or otherwise disappeared. P.D. testified he did not believe I.G. had ever heard about defendant going to Mexico from defendant, because at the time, defendant and I.G. were not getting along. P.D. said he might have told the police that I.G. heard the information about going to Mexico from defendant, but that he could not remember saying that to the police, and that it seemed unlikely defendant had ever spoken with I.G. about the trip. P.D. postulated that maybe I.G. had gotten his information from friends.
At trial Officer Towle testified that P.D. told him about speaking with I.G. Officer Towle testified that (1) P.D. said (2) I.G. told P.D. that (3) defendant told I.G. he had been in a shooting in Woodland and went to Mexico. Specifically, Officer Towle testified P.D. told Towle that defendant told I.G. that he had been at a party in Woodland and shot someone, and that he was leaving to go to Mexico. In cross-examination, Officer Towle agreed that his report actually said, "[I.G.] told [P.D.] that [defendant] had gone to Mexico because he'd been at a party in Woodland." The report did not say that I.G. had said defendant said, "he left for a particular reason." Regarding his conversations with I.G., Officer Towle had written in his report, "[I.G.] said he heard that [defendant] had gotten in a fight in Woodland." The report does not say defendant told I.G. he had gotten into a fight.
B. Analysis
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Absent an exception under the law, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).) "Multiple hearsay, or hearsay-within-hearsay, is admissible only when each level of hearsay 'meets the requirements of an exception to the hearsay rule.' (Evid. Code, § 1201; see [People v. ]Sanchez[ (2016) 63 Cal.4th 665,] 675.)" (People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1010.)
A trial court usually makes a two-step determination when determining if a hearsay statement is admissible under an exception to the hearsay rule. (People v. Rios (1985) 163 Cal.App.3d 852, 863.) First, it asks, "does the statement come in under some exception to the hearsay rule," and then it asks, "does the statement or circumstances surrounding the making of the statement have sufficient guarantees of reliability so as not to violate the defendant's right of confrontation?" (Ibid.) With respect to the first question, which is the question defendant has put at issue here in arguing I.G.'s statements do not meet the prior-inconsistent-statement exception, "[t]he initial decision of whether the required facts exist to permit admission of statements under an established hearsay exception is vested in the trial court's discretion. Its ruling will not be disturbed unless those facts are not supported by a preponderance of the evidence." (Ibid.)
Two exceptions to the hearsay rule are at issue here. First, Evidence Code section 1220 contains an exception to the hearsay rule for statements made by a party that are being offered against that party. The parties agree this exception applies to defendant's purported statement to I.G. Second, Evidence Code section 1235 contains an exception for statements made by a witness that are inconsistent with statements made by the witness at trial. (See People v. Rios, supra, 163 Cal.App.3d at p. 863.) This is the exception we are concerned with in considering whether a hearsay exception applies to I.G.'s out of court statement to P.D.
" 'The "fundamental requirement" of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony.' ([People v. Johnson (1992) 3 Cal.4th 1183, 1219].)' "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement ...."' (Ibid., quoting People v. Green (1971) 3 Cal.3d 981, 988 [].)" (People v. Cowan (2010) 50 Cal.4th 401, 462.)
Here I.G.'s purported statement as related in Towle's testimony-that defendant told I.G. that he had been at a party in Woodland and shot someone, and that he was leaving to go to Mexico-was inconsistent with I.G.'s testimony that he had never spoken with defendant about defendant going to Mexico. Moreover, the court could have easily interpreted I.G.'s responses as to how he may have learned about the incident in Woodland as an effort to evade recounting his conversations with defendant. Additionally, I.G.'s testimony that he never told P.D. defendant told him about going to Mexico was also an inconsistent statement as related by Towle. Accordingly, the trial court properly admitted I.G.'s prior statement as related by Towle, because that statement was inconsistent with I.G.'s trial testimony.
In Zapien, supra, 4 Cal.4th at page 950, a witness, I.B., testified that on the morning a victim was murdered: the defendant, her uncle, did not come to her house. In court she also denied telling her sister, J.B., that (1) the defendant came to the house the day of the murder with blood on his hands and clothing; (2) the defendant admitted to killing the victim; and (3) the defendant received car keys from their mother. (Ibid.)
J.B. testified I.B. never told her (1) defendant came to their house the morning of the murder with blood on his hands and clothing; (2) defendant admitted to killing the victim; and (3) defendant received keys to the car from their mother. (Zapien, supra, 4 Cal.4th at p. 950 .) She also denied telling her friend M.P. that I.B. had said those three things. (Ibid.)
M.P. also testified at trial. (Zapien, supra, 4 Cal.4th at p. 950 .) She testified that J.B. told her that I.B. had told J.B. that defendant came to the house the morning of the murder with blood on his shirt-i.e., M.P. testified I.B. had said the first thing both I.B. and J.B. had denied I.B. said. (Ibid.) However, M.P. testified she did not recall J.B. saying that defendant admitted the killing, or that I.B.'s and J.B.'s mother gave defendant keys to the car-i.e., M.P.'s testimony was consistent with I.B. and J.B.'s testimony on the second and third points. (Ibid.)
An investigator then testified that M.P. told him J.B. told M.P. that her mother had given defendant keys to the car. (Zapien, supra, 4 Cal.4th at at p. 951.) The prosecutor also played tape recordings from interviews with M.P. (Ibid.) In one, M.P. recounted that J.B. had said I.B. saw their mother give defendant the keys to the car. (Ibid.) In the recordings, M.P. said J.B. told her I.B. had seen defendant at their house with blood all over him on the day of the murder and asked," '[w]hat am I going to do?,'" and the mother gave him the car keys, and he left. (Ibid.)
Our Supreme Court considered whether the rule for prior inconsistent statements allowed for the admission of multiple hearsay and concluded that, read together, Evidence Code sections 1201 and 1235, "permit admission of multiple hearsay where each hearsay level constitutes a prior inconsistent statement." (Zapien, supra, 4 Cal.4th at p. 952.) In concluding the hearsay evidence at issue was admissible, the court looked at the various levels of hearsay embedded in M.P.'s testimony and in the recordings of the interviews M.P. gave. (See id. at pp. 951-952.) First, it considered the out-of-court statement of I.B. that the defendant had come to her home with blood on him and obtained car keys from I.B. and J.B.'s mother, and it observed this statement was inconsistent with I.B.'s in-court denial that she had ever reported such an incident. (Id. at p. 952.) Second, it noted that J.B.'s out-of-court recounting of her sister's statement was inconsistent with J.B.'s in-court denial that she made such a statement. (Ibid.) Finally, the court noted M.P.'s out-of-court statement that J.B. had told her that J.B.'s mother gave the defendant the car keys was inconsistent with her statement at trial that she did not recall J.B. telling her about J.B.'s mother giving defendant keys to the car. (See Ibid.)
Notably, in looking at each component of embedded hearsay in the statements at issue in Zapien, the Court looked at how each witness's purported out-of-court statement compared to their in-court testimony. (Zapien, supra, 4 Cal.4th at p. 952.) The Court did not compare the witness's in-court testimony to the in-court testimony of another witness whose out-of-court statement was embedded in the evidence at issue.
Here, if we follow the path of analysis our Supreme Court followed in Zapien, we can see that no error arose when the court allowed Officer Towle's testimony even though I.G. and P.D. both denied I.G. told P.D. that defendant said something to I.G. about going to Mexico. What matters is whether I.G.'s testimony was inconsistent with the portion of Towle's statement that described I.G. recounting what defendant said to I.G. to P.D. (See Zapien, supra, 4 Cal.4th at p. 952 [finding J.B.'s in-court testimony that her sister ever made the statements about her uncle on the day of the murder or that J.B. ever repeated this information to M.P. was inconsistent with her out-of-court recounting of what I.B. witnessed].) "It is settled that the declarant's denial of the prior inconsistent statement does not render that statement inadmissible. [Citations.]" (Id. at pp. 953-954.)
The fact that I.G.'s testimony was not inconsistent with P.D.'s testimony does not make I.G.'s out-of-court statements inadmissible. (See Zapien, supra, 4 Cal.4th at p. 950 [I.B. and J.B. both denied I.B. made statements to J.B. about the defendant being covered in blood, admitting to the crime, and receiving keys from their mother-i.e., I.B.'s incourt denial was consistent with J.B.'s in-court denial].)
Because defendant has failed to persuade us that the admission of the multiple hearsay statement at issue was erroneous, we do not consider his argument that the erroneous admission caused him harm.
II
Sufficiency of Evidence to Support the Attempted Murder Convictions
Defendant contends insufficient evidence supports his convictions for the attempted murders of J.R. and F.I. Though he does not dispute that there was sufficient evidence to establish he was the shooter, even conceding for purposes of this appeal that there was sufficient evidence to convict him of assault of J.R. and F.I. with a firearm, he argues there was insufficient evidence to establish that he possessed the requisite intent to kill J.R. and F.I. when he fired his gun. He argues all that the testimony shows is that defendant fired multiple rounds into the air and at the ground, in a likely attempt to break up the fights that proceeded the gunshots and disperse the crowd. We conclude substantial evidence supports the verdict.
A. Additional Facts
1. Testimony Related to the Shooting on the Street
J.R. testified that he estimated that he heard between six and eight gunshots as he and G.I. were going outside on the night of the shootings. He recalled informing officers that the shooter had been shooting towards the ground and testifying at a preliminary hearing that the first five to seven shots had been towards the ground. He testified he saw shots hitting the ground and bouncing upwards. J.R. did not see G.I. fall or who shot G.I., but he saw G.I. lying on the street after G.I. had run to try to get the gun from the shooter. When J.R. ran towards G.I. to help him, he felt a shot in his leg. He testified the muzzle fire was only a few steps away from him.
Officer Richard Wright, who interviewed J.R. in the hospital testified on cross-examination that J.R. had reported to him that the shooter had been shooting towards the ground. However, on redirect examination, Officer Wright agreed that, according to a statement taken by an officer who interviewed J.R. later, J.R. had said that the shooter was shooting towards the ground and then towards the crowd of people.
F.I. testified that the gunman fired the first shots into the air, though F.I. later clarified he meant the shots were fired upwards, with the shooter pointing ahead but upwards at about a 20-to-30 degree upwards angle.
A.O., who believed he saw two shooters outside the truck, testified that a shooter was shooting into the ground and another was pointing shots up. He agreed on cross examination that he did not know where the shooter was aiming, and it could have been at anyone. He also responded "[n]o" when asked if he believed any shooters were aiming towards the crowd. Sergeant Francisco DeLeon, who obtained a statement from A.O. on March 7, 2011, testified that A.O. reported to him that he had heard-but not seen- approximately four shots fired toward the ground. DeLeon said A.O. reported the shots began while he had been arguing with the two other men outside.
E.M. estimated she heard approximately 10 gunshots and described the shots as "all over the place." She recalled seeing the shooter shoot down and around at an angle of 20 to 30 degrees, wildly, and in all directions, and that she did not see that the gunman appeared to have an intention to hit a certain person. She testified she did not see G.I. get shot and believes she left before that happened.
C.M., who thought there were two shooters, testified she saw shots hitting the cement. She stated that about the time G.I. showed up, which was around when the shooting began, her view became blocked, and she could not see what happened. However, she also stated that she could see shots hitting the ground out of the corner of her eye as she held A.O. against a wall for a time.
J.V. testified he was at La Finca with G.I. and there was fighting. He testified someone handed the shooter something from the truck and yelled, "Shoot 'em. Shoot 'em." G.I. then took off running, and J.V. heard about five shots fired at the ground. He testified the shooter was shooting at the street, "down towards the people." He heard at least five shots.
E.S. testified someone had yelled to the gunman, "fire at the sons of bitches, those fuckers" and the shooting started. He testified the gunman fired several shots. He believed G.I. was shot when trying to grab the gun from the gunman.
2. Testimony Related to the Shots Fired from the Truck Window
F.I. testified that when he went up to the truck to try to grab the driver, someone on the driver's side fired one shot that stunned him. He testified he saw the shot in front of him, and when it went out the window it went to the side of him, and the sound hurt his ears.
Officer Towle related a statement he obtained from E.S. in which E.S. described seeing F.I. go up to the driver's side door and punch the window. E.S. told Officer Towle the driver then fired two shots from inside the truck, and, as F.I. was standing right next to the driver's window, the shots were fired right next to F.I.'s head.
A.O. testified he believed he heard three shots fired from inside the truck. He said he did not know if the shots fired from the truck were meant to hit him and F.I. Sergeant DeLeon testified that when he took a statement from A.O. the day after the shooting, A.O. had reported trying to hold a man he had extracted from the truck on the ground when he saw flashes coming from the driver's window of the truck.
C.M. testified she heard about three shots after F.I. and A.O. ran after the shooters in the truck.
B. Standard of Review
This court's role in reviewing a challenge to the sufficiency of evidence is limited. (People v. Smith (2005) 37 Cal.4th 733, 738 (Smith).) When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, "we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (Ibid.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623 [].)" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
C. Attempted Murder and Intent
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. ([Smith, supra, 37 Cal.4th at p. 739 [].)" (People v. Ramos (2011) 193 Cal.App.4th 43, 47 (Ramos).) To satisfy the intent there must be a finding, which is often referred to as an express malice requirement, "that the defendant harbored express malice toward the victim, i.e., the defendant either desired the victim's death or knew to a 'substantial certainty' that the victim's death would occur." (People v. Anzalone (2006) 141 Cal.App.4th 380, 389.)
"[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. (See People v. Lee (1987) 43 Cal.3d 666, 679 [].) 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. (People v. Lashley [(1991)] 1 Cal.App.4th [938,] 946 [].) The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill ...." (Id. at p. 945.)' (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 []; see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225 [].)" (Smith, supra, 37 Cal.4th at p. 741; accord Ramos, supra, 193 Cal.App.4th at p. 48.) In Ramos, supra, 193 Cal.App.4th at page 48, our Second District Court of Appeal found sufficient evidence supported a finding the defendant intended to kill his victim and the trier of fact reasonably drew the inference of an intent to kill when the victim "testified that he heard gunshots 'whistling past [him], so [he] ran the other way.' Ramos fired seven times at Hoffman as he ran. Although Ramos may have been a distance away, the gunshots 'whistled' past Hoffman and could have inflicted a mortal wound had Ramos's marksmanship been better."
In general,"' "[t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else." [Citation.] Whether the defendant acted with specific intent to kill "must be judged separately as to each alleged victim." [Citation.]' ([]Smith[, supra, ] 37 Cal.4th [at p. 740 [].) 'Someone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder-due to transferred intent-if the person were killed.' (People v. Bland (2002) 28 Cal.4th 313, 328 [].)" (People v. Leon (2010) 181 Cal.App.4th 452, 464.) However, a person who intends to kill can still be guilty of attempted murder "even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person." (People v. Stone (2009) 46 Cal.4th 131, 140.)
D. Application to Shots Fired at J.R. and F.I.
In attempting to persuade this court that sufficient evidence does not support a finding that defendant acted with the requisite intent to be found guilty of the attempted murder of J.R., defendant makes much ado about testimony that witnesses observed the shooter fire shots into the air and at the ground, and postulates all this really shows is that defendant intended to break up the fight when he was firing his gun. But this ignores the full "circumstances of the attempt" to wound J.R. as described in the witnesses' testimony. (Smith, supra, 37 Cal.4th at p. 741.)
Defendant shot at J.R. after defendant had already mortally wounded G.I.- causing G.I. to fall to the ground-and as J.R. was moving towards G.I. to assist him. J.R. saw muzzle shots near him. These facts, taken together, could cause a reasonable jury to believe that when he shot J.R. defendant knew he could inflict a mortal wound and intended to fell the person coming to support G.I. (See Smith, supra, 37 Cal.4th at p. 741.) Moreover, there was sufficient evidence that even if the shooter may have begun his shooting spree by aiming at the ground or in the air, as things progressed, he shifted his aim and shot towards people instead.
Sufficient evidence also supports a finding that defendant intended to kill F.I. The testimony supports that defendant fired shots out of the truck window as F.I. was standing by it to prevent defendant from leaving. Multiple witnesses suggested two or three shots were fired. Officer Towle reported E.S. had told him the shots were right next to F.I.'s head. F.I. testified the sound of the gun hurt his ears. Together, this evidence suggests that defendant "could have inflicted a mortal wound had [his] marksmanship been better," (see Ramos, supra, 193 Cal.App.4th at p. 48), and provides sufficient circumstantial evidence to support a jury finding that defendant intended to kill F.I. when he shot out of the window.
III
Sufficiency of Evidence to Support the Assault with a Deadly Weapon of J.V.
Defendant contends insufficient evidence supports his conviction for the assault with a firearm of J.V. under section 245, subdivision (a)(2). Though he does not dispute that there was sufficient evidence to convict him of the other section 245, subdivision (a)(2), counts, he argues the evidence shows J.V. was nowhere near the area where the gunman was firing his gun or where G.I., J.R., and E.M. were shot. The People counter that while, initially, when the shooting began J.V. was not standing in the direction where the bullets were being fired, he later moved into the area where defendant had the ability to shoot him. We conclude substantial evidence supports this finding.
We apply the same standard of review in this section as we describe in section
II.A., ante.
A. Additional Facts
La Finca is located on the southwest corner of Bush and First Streets in Woodland, California. Bush Street runs east and west along La Finca's northern edge, and First Street runs north and south along its eastern edge. Immediately to the west of La Finca is All Action Awards. There is a parking lot to the west of All Action Awards that can be accessed from Bush Street, and on the west side of the parking lot is an Elks Lodge. College Avenue runs north and south along the west side of the Elks Lodge.
Using a map, F.I. testified that the fight he was in and the fight A.O. was in began on Bush Street, near the front of All Action Awards, with his fight being closer to the parking lot entrance and A.O.'s closer to La Finca. F.I. testified the fights moved into Bush Street, in the direction of the parking area but not into the parking lot because there were too many people standing in the way of the lot. He testified the fighting stopped when the gunman started firing.
C.M., who believed there were two people with weapons testified that she possibly heard six to eight shots before G.I. fell. She also reviewed a map of the area in recounting her recollection of events. She described G.I. as winding up near the northwest corner of All Action Awards, near the entrance to the parking lot. She testified that when the gun shots began, she held A.O. up against a wall and could see sparks coming from the ground. Looking over her shoulder, she saw what she believed to be two gunmen standing four to five feet apart from each other on the sidewalk.
While looking at map of the area E.S. testified about how he perceived some of the events unfold. E.S. had been standing towards the northeast corner of the Elks Lodge, at the entrance off Bush Street to the parking lot. The truck that the gunman and his companions rode in parked in front of where E.S. was standing, in an angled parking space on Bush Street. E.S. testified that after the gunman got out of the truck, the gunman fired shots in the direction of the parking lot between All Action Awards and the Elks Lodge. G.I. then came from the direction of La Finca, and G.I. was shot and fell at the entrance off of Bush Street to the parking lot, close to the northwest corner of the All Action Awards building. E.S. believed the gunman was near G.I. at that time, because G.I. nearly grabbed the gunman's hand. E.S. said that when F.I. and another man went after the shooter, the shooter ran back to his truck and fired shots in F.I. and the other man's direction.
E.M., who had told the police she saw two people with guns testified that the shooting was "all over the place" and that she saw a shooter shooting "to the ground and around." She characterized the shooters as shooting "wildly" and "in all directions." When demonstrating the shooting, she held her hand forward in a downward angle of 20 to 30 degrees and moved her arm side to side. Her mother, E.J., testified she and E.M. were close to their car, which was parked in the lot when she realized E.M. had been grazed by a bullet.
A.O., who at the time of trial believed there were two men with guns, did not think the shooters were aiming towards the crowds.
When he testified, J.V. agreed that during the shooting he was about 40 feet away from the shooter. He characterized his location as "not that far" from the shooter. J.V. was near the door of La Finca when shooting began. He said he saw the shooter shoot towards the ground. He recalled the shooter grabbing the gun from the truck and then starting to shoot. He described the shooter as shooting down the street, towards people. J.V. believed when the gunman started shooting he was not firing towards La Finca, where J.V. was, but towards the fighting, down and straight. J.V. estimated the time the shooting incident occurred lasted at least one minute, possibly longer.
J.V. watched surveillance video footage from around the time he believed the shooting happened and testified about his observations. The video has three frames. All three frames appear to show crowds milling around outside the entry of La Finca. J.V. identified himself and G.I. in the footage.
When asked about the video footage, J.V. agreed that at around the 10:07:07 mark, everyone in the video turned their heads and looked down the sidewalk. J.V. testified that he believes this is when people heard the first gunshot.
J.V. agreed that at the 10:07:20 mark, some people in the footage look spooked, scared, or shocked, and that people were "just standing still and almost walking" towards another area. He agreed that at the 10:07:43 mark, it looks like there were more shots, and that after the 10:07:49 mark, people were running from the scene. J.V. agreed this change in the crowd members' movements-where at the 10:07:20 mark some people are standing still or walking and after the 10:07:49 mark people start running-could reflect the fact that there was an initial shot, a "boom," and then later more shots, that sounded more like "boom, boom, boom, boom." J.V. testified that as others began running, he did not run but stood and watched everything.
J.V. testified that at the 10:07:45 mark in the video, he appears to be standing in the street, but not in the middle of it. He testified that at the 10:07:50 mark, where you see people running, the shooter was "shooting in the street, by the street." J.V. agreed that at around the 10:08:11 mark, he was walking to the other side of the sidewalk. When asked why it looked like he was "kind of walking towards the gunfire, towards the shooter, the area where the shooter was shooting," he responded, "I was just curious. I was just watching that way to see what was going on." He testified that when he saw the shooter, the shooter was running, jumping, and shooting.
J.V. agreed that by the 10:08:15 mark he had more or less crossed the street. J.V. testified that at the 10:08:18 mark, he was walking towards where the truck he had traveled in was parked. J.V. could not recall if the shooter had left the scene at that point. Watching the video footage, keeping in mind what the area maps show about the club's location and identifications of himself and G.I. that J.V. provided, we can fill in some additional details about the footage. At around the 10:05:55 mark, G.I., who had previously been mingling with the crowd, began walking west along the sidewalk in front of La Finca, disappearing from the video frames around the 10:06:02 mark. At the 10:07:07 mark, where J.V. had agreed some people turned their heads, the people turned their heads west, in the same direction G.I. had walked. When some other people are beginning to walk away from the front of the club at the 10:07:20 mark and forward, J.V. remained on the sidewalk area in front of the entry to La Finca, near the edge of the sidewalk abutting the street. However, around the 10:07:45-10:07:52 marks, when you see other people starting to move east along the sidewalk at a fast pace, J.V. walked into a slanted parking space along Bush Street and looked west. Between 10:08:03 and 10:08:13, J.V. crossed to the other side of the street. In the 10:08:06-10:08:11 marks, as he was crossing to the north side of the street, it looks like J.V. started by heading in a westerly direction, took a few steps in an easterly direction, then reversed again and proceeded west when he reached the sidewalk on the north side.
Shell casings and a copper jacket were found along the sidewalk and in the street along Bush Street near the entrance to the parking lot between All Action Awards and the Elks Lodge. A lab director for the California Department of Justice Bureau of Forensic Services, California Criminalists Institute testified that the casings were consistent with .45 auto caliber ammunition. Investigator Aaron Moe testified that when a bullet strikes the ground, it will usually ricochet and remain 24 to 36 inches from the ground. Investigator Moe also testified that 40 yards is within the lethal range of a shot with a .45-caliber bullet.
B. Assault and Present Ability
Section 245, subdivision (a)(2), prescribes the punishment to be imposed on a person who commits assault with a firearm on another person. Under section 240 "[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
The "present ability" requirement for assault "is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.] In this context, however, 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (People v. Chance (2008) 44 Cal.4th 1164, 1168, fn. omitted.)
When a gunman fires a single shot into a group of people, he may be convicted of assault against each member of the group. (See People v. Perez (2010) 50 Cal.4th 222, 225 ["There is no doubt that defendant endangered the lives of every individual in the group into which he fired the single shot. His assault with a firearm against each victim in the group led to his conviction of seven counts of assault with a semiautomatic firearm on a peace officer and one count of assault with a firearm on a civilian victim, for which offenses he could properly be separately punished"].)
C. Application
Substantial evidence supports the jury's finding that defendant assaulted J.V. with a deadly weapon as contemplated by section 245, subdivision (a)(2).
In trying to characterize J.V.'s position as out of the line of gunshots, defendant relies heavily on video footage and testimony that shows J.V. began observing the shooting from the front of La Finca, while the bulk of the shooting happened from Bush Street, west of La Finca at the entrance of the parking lot between All Action Awards and the Elks Lodge. However, this characterization of events is incomplete.
There is testimony that defendant shot "wildly" and "in all directions" and at one point was as close as 40 feet from J.V. Investigator Moe's testimony put 40 yards well within a lethal range of the gun shots. Moreover, witnesses who described where G.I. fell after suffering a mortal gunshot wound place him in relative proximity to the front of La Finca, one business down from where J.V. stood towards the edge of the sidewalk as he watched the shooting unfold. Shell casings were found on the sidewalk. Thus, even if J.V. never moved from the front of La Finca while the gunman continued to fire shots, it was not unreasonable for the jury to conclude that in firing wildly from side to side, at a distance of as close as 40 feet from J.V., defendant was placing J.V. at risk of immediate harm from a direct or ricocheting bullet. Additionally, while J.V. may have begun observing the shooting near the entry to La Finca, the evidence shows he did not stay there, and instead he moved into the street where the bulk of the shooting occurred. Sufficient evidence puts J.V. in a location where defendant had the present ability to injure J.V. as he fired his gun.
IV
Instructions on Lesser Included Offenses Due to Sudden Quarrel or Heat of Passion
Defendant claims reversal of his murder and attempted murder convictions is required because the trial court did not sua sponte instruct the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter based on a sudden quarrel or heat of passion. He argues that the trial court's failure to instruct sua sponte on these lesser included offenses was prejudicial and requires reversal. He continues that the failure to include these instructions precluded the defense from being able to argue-and to have the jury consider-its best theory for a conviction on lesser offenses, in violation of his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Thus, he argues we must apply the standard in Chapman v. California (1967) 386 U.S. 18, and ask whether the purported error was harmless beyond a reasonable doubt. He argues that even if this court were to, instead, apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818, and ask if it was reasonably probable that he would have received a more favorable outcome absent the purported error, reversal would still be required.
The People argue no error occurred because there was not substantial evidence that the events that led to the shootings would have aroused the passion of an ordinarily, reasonable person in the same situation, and because nothing in the record suggests defendant was subjectively affected by passion when he killed G.I. and shot at J.R. and F.I. They argue that if there was an error, it was harmless under both the Chapman and Watson standards.
We find that the trial court was not obligated to give sua sponte instructions on the lesser included offenses. Because we find no error, we do not address the parties' harmless error arguments.
A. Additional Procedural Background
In addition to providing the jury with instructions describing first and second degree murder, the trial court also instructed the jury with CALCRIM No. 505, which describes the defense of justifiable homicide when acting in defense of one's self or another; CALCRIM No. 571, which describes the lesser included offense of voluntary manslaughter when acting in imperfect self-defense or the imperfect defense of others; and CALCRIM No. 522, which states provocation might reduce first degree murder to second degree murder and murder to manslaughter. Similarly, in addition to providing the jury with CALCRIM Nos. 600 and 601, which, as provided, outlined the elements of attempted murder, the trial court also instructed the jury with CALCRIM No. 604, which describes the lesser included offense of voluntary manslaughter when acting in imperfect self-defense or defense of another. CALCRIM No. 505, as given by the court, describes the use of self-defense or defense of another as defenses to both murder and attempted murder charges.
In deciding to include CALCRIM No. 571, the court stated, "[m]y belief is that there is sufficient evidence to instruct.... [T]here's some evidence that [G.I.] was approaching or charging [defendant] before he was shot, there's some evidence that he even had ahold of the gun. There's evidence that he was a significantly larger person than [defendant], and in my belief, that's substantial evidence that would support at least instructing [the jury] on imperfect self-defense. [¶] I'm not sure about imperfect defense of others, but I think there is sufficient evidence to include that as an option to Count 1," the murder charge. "But there are facts that if interpreted in a way favorable to the defense, could support . . . either a reasonable or unreasonable belief that he was in imminent danger. There's ample evidence that a person could be in imminent danger when you have a much bigger person charging you, even if you have a handgun. [¶] So I will give 571."
In a discussion regarding the instruction on provocation-CALCRIM No. 522- the People argued against it. The prosecutor noted if defendant had been unaware of what was going on, there would be no provocation, while if he knew, there could be. The People noted the only evidence that defendant knew what was going on is someone told him to "fuck up" the guys in the cowboy hats, and then he went and got his gun to shoot, and, therefore, there was nothing to support he went and got his gun out of provocation. The defense countered that the issue was not when he grabbed the gun, but when he fired it at individuals, and that there were a series of facts, including the relative sizes of the parties, that would support provocation. The court decided to give the instruction, explaining, "[i]t doesn't require the jury to assume anything, but if they believe that the conduct of G.I. amounted to provocation, they'll consider this, and if they don't believe that, then they'll ignore it."
Defendant acknowledges that the defense did not request the jury be instructed with CALCRIM No. 570 or CALCRIM No. 603.
B. CALCRIM Nos. 570 and 603
CALCRIM No. 570 explains how murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion under section 192, subdivision (a). CALCRIM No. 603 describes how an attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion as contemplated under sections 21a, 192, and 664.
CALCRIM No. 570 states, "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." It explains, "[t]he defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.) It also explains, "[h]eat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (Ibid.) It also states, "[t]he People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." (Ibid.) It includes additional optional language that says, "[i]f enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis." (Ibid.)
CALCRIM No. 603 states, "[a]n attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion." It explains, "[t]he defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted the killing because (he/she) was provoked; [¶] 4. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment; [¶] AND [¶] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment." (CALCRIM No. 603.) It continues, "[h]eat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment." (Ibid.) The instruction provides, "[t]he People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder." (Ibid.) It includes additional optional language that says, "[t]he People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder." (Ibid.)
C. Duty to Instruct on Lesser Included Offenses and Standards of Review
Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. (People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman (1998) 19 Cal.4th 142, 155, 162.) "The rule that juries must be instructed on lesser included offenses' "prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither 'harsher [n]or more lenient than the evidence merits.'"' (People v. Smith (2013) 57 Cal.4th 232, 239-240 [].) Because instructing on lesser included offenses serves to increase the accuracy of verdicts, the requirement to do so applies' "even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." [Citation.]' ([People v. ]Valdez (2004) 32 Cal.4th [73,] 115.)" (People v. Banks (2014) 59 Cal.4th 1113, 1159-1160, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
Under the substantial evidence standard, "[t]he trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence; however, 'instructions are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury. [Citations.] "Substantial evidence" in this context is" 'evidence from which a jury composed of reasonable [persons] could . . . conclude[]'" that the lesser offense, but not the greater, was committed. [Citations.]' ([People v. Breverman, supra, 19 Cal.4th at p.] 162.)" (People v. Reeves (2001) 91 Cal.App.4th 14, 51; accord People v. Moye (2009) 47 Cal.4th 537, 553; see also People v. Benavides (2005) 35 Cal.4th 69, 102 [substantial evidence is evidence that a reasonable jury could find persuasive].)" 'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.' (People v. Wilson (1967) 66 Cal. 2d 749, 763 []; see also People v. Rodriguez (1969) 274 Cal.App. 2d 487, 497 [].)" (People v. Flannel (1979) 25 Cal.3d 668, 685, superseded by statute on other grounds as stated in People v. Elmore (2014) 59 Cal.4th 121, 138.)
" 'On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.' (People v. Souza (2012) 54 Cal.4th 90, 113 [].)" (People v. Banks, supra, 59 Cal.4th at p. 1160; People v. Licas (2007) 41 Cal.4th 362, 366; People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Cole (2004) 33 Cal.4th 1158, 1215.) We make the determination whether sufficient evidence supports the instruction without reference to the credibility of that evidence and construing it in the light most favorable to the defendant. (People v. Marshall (1996) 13 Cal.4th 799, 847; see also People v. Breverman, supra, 19 Cal.4th at p. 162 ["In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury"]; People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5 ["In considering whether the trial court had a sua sponte duty to instruct the jury on the lesser included offense of involuntary manslaughter, we construe the evidence of Turk's intoxication, as cited in his brief, in the light most favorable to Turk"].)
D. Murder and Attempted Murder and the Lesser Included Crimes of Manslaughter and Attempted Manslaughter
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Manslaughter is the unlawful killing of a human being without malice. (§ 192.) Voluntary manslaughter occurs when someone kills a human being upon a sudden quarrel or in the heat of passion. (§192, subd. (a).) "Because heat of passion . . . reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide ([People v. Barton (1995) 12 Cal.4th 186, 199]), voluntary manslaughter of [this form] is considered a lesser necessarily included offense of intentional murder (id. at pp. 201-202)" (People v. Breverman, supra, 19 Cal.4th at p. 154, fn. omitted; see also People v. Lee (1999) 20 Cal.4th 47, 59 ["Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation (§ 192, subd. (a))"].)
"[F]or voluntary manslaughter, 'provocation and heat of passion must be affirmatively demonstrated.' (People v. Sedeno (1974) 10 Cal.3d 703, 719 []; see also People v. Breverman[, supra, ] 19 Cal.4th [at p.] 163 [].)" (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The heat of passion requirement for manslaughter has both an objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327 [].) The defendant must actually, subjectively, kill under the heat of passion. (Id. at p. 327.)" (Ibid.; People v. Beltran (2013) 56 Cal.4th 935, 949; see also People v. Logan (1917) 175 Cal. 45, 50 ["The . . . proposition for the jury's determination is whether the existence of the provocative cause arousing passion being shown, the defendant in fact did act under it"].)
With respect to the objective components, as our Supreme Court "explained long ago in interpreting the same language of section 192, 'this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' (People v. Logan[, supra, ] 175 Cal. [at p.] 49 [].)" (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253; People v. Enraca (2012) 53 Cal.4th 735, 759 ["Heat of passion has both objective and subjective components. Objectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection"].) To satisfy this standard, "the anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene." (People v. Beltran, supra, 56 Cal.4th at p. 949, italics added.) "[T]he fundamental inquiry" is whether the passion aroused is "sufficient to obscure reason and render the average man liable to act rashly," and it need not be connected to a fear of personal injury. (People v. Logan, supra, 175 Cal. at pp. 4950.)
"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Lee, supra, 20 Cal.4th at p. 59.)
As a killing committed in a heat of passion may be a lesser offense of voluntary manslaughter, using similar reasoning, an attempted killing made in the heat of passion may be the lesser offense to attempted murder of attempted voluntary manslaughter. (See People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825 ["It is true that a person cannot plot in advance to kill in the heat of passion. Such a calculated plan is logically inconsistent with a spontaneous act committed in a moment of passion. But an assailant can form an intent to kill even under a paroxysm of passion. And this is true regardless of whether he is successful or unsuccessful in carrying out his intent. There is nothing illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill which was formed in a heat of passion .... Under those circumstances, the less culpable person is guilty of attempted voluntary manslaughter rather than attempted murder"]; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 ["Thus, the offense of attempted murder is reduced to the lesser included offense of attempted voluntary manslaughter when the defendant acted upon a sudden quarrel or in the heat of passion"].)
E. Application
In arguing that the trial court should have instructed on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter under a sudden quarrel or heat of passion defendant highlights the following evidence: There was conflicting evidence as to whether defendant was involved in the fighting that preceded the gunshots. At some point, F.I. appeared to be winning his fight, kicking the man he was fighting with his boots. Witnesses testified that defendant began shooting by firing shots at the ground. Then G.I., who was bigger than defendant, ran towards defendant and tried to grab his gun, at which point defendant fatally shot G.I. Defendant then shot J.R. as he ran towards G.I. Finally, after getting into his truck, defendant shot at F.I. as F.I. tried to pull the driver from the truck.
The most obvious flaw with defendant's argument, as the People observe, is there was no substantial evidence that appellant was feeling any "violent or intense" emotion that caused him to act rashly at the time he fired at G.I., J.R., or F.I.
The caselaw defendant relies on to support his argument that "the evidence in the record, viewed in the light most favorable to appellant, was sufficient to trigger the trial court's obligation to instruct on voluntary manslaughter and attempted voluntary manslaughter based on sudden quarrel or heat of passion" is of no help to him on this point because the cases are factually distinguishable.
In People v. Millbrook, supra, 222 Cal.App.4th at page 1139, in finding there was sufficient evidence to support a heat of passion instruction, the court noted the defendant had testified about being "scared" and "panicking" and to trying to not be a victim again. The court, among other things, also pointed to testimony that the defendant had been "angered" by the defendant's behavior. (Id. at p. 1140.) The published portion of People v. Ramirez (2010) 189 Cal.App.4th 1483 does not include the portion of the opinion in which the court explains why it concluded the trial court erred in failing to instruct the jury on voluntary manslaughter in the heat of passion, and the published portion containing background facts suggest that the victim had punched the defendant before defendant shot him; after the victim had punched the defendant, the defendant perceived the victim as" 'get[ting] crazy' "; and shortly after the defendant had shot the victim, he arrived at a friend's house and was "shivering." (See id. at pp. 1483, fn. *, 1486, &1487.) In People v. Elmore (1914) 167 Cal. 205, 208, 209, 211-212, in which our Supreme Court concluded evidence supported, at most, a conviction for manslaughter, the defendant was heard saying, "[y]ou are a much younger man than I am" and "I want you to let me alone" before fatally wounding his victim with a knife, and "you see what you made me do" after he killed his victim. In short, in each of the three cited cases, there was at least some evidence regarding the defendant's mental state and that the defendant actually experienced heat of passion when wounding his victim. Here, there is no evidence that defendant was actually feeling anything, let alone an intense passion that may have caused him to kill one man and attempt to kill two others.
V
Resentencing Under Amended Section 654
At the sentencing hearing, the trial court identified factors in mitigation and aggravation that might inform which sentence it would impose for crimes for which there are three possible sentencing terms and found they were "qualitatively similar in weight." On the basis of this conclusion, the trial court imposed the midterm when three different terms were an option.
Of note here are the sentences the court imposed on the crimes committed against J.R. and F.I., where the jury had found defendant guilty of both attempted murder and section 245, subdivision (a)(2), assault against those victims. With respect to the crimes committed against J.R., the court sentenced defendant to the middle base term of seven years for the attempted murder conviction, and struck the section 12022.53, subdivision (d), sentencing enhancement of 25 years to life, exercising its discretion under section 1385. The court then sentenced defendant to a middle term of three years on the section 245, subdivision (a)(2), assault charge with a four-year enhanced term for the section 12022.5, subdivision (a), finding. The court stayed the sentence on the section 245, subdivision (a)(2), conviction and its enhancement under sections 654 and 1385. Thus, for the convictions stemming from shots defendant fired at J.R., the court imposed a sentence on the attempted murder charge and stayed a sentence on the assault charge.
With respect to the crimes committed against F.I., the court sentenced defendant to one-third of the middle term on the attempted murder conviction, which it calculated at two years and four months; and then it added an enhancement of the middle base term for the section 12022.53, subdivision (c), finding, for a total of nine years on that attempted murder charge. The court then sentenced defendant to the middle base term of three years on the conviction for section 245, subdivision (a)(2), against F.I., with a middle base term enhancement of four years for the section 12022.5, subdivision (a), enhancement. As it did with respect to the section 245, subdivision (a)(2), assault conviction and enhancement related to J.R., the court stayed the sentence and enhancement it imposed on defendant for the assault findings related to F.I. under section 654.
At the time the trial court sentenced defendant, section 654, subdivision (a) (2021), required trial courts to impose a sentence under the provision of law providing for the longest sentence when an act was punishable under more than one provision. Trial courts would then stay punishments available under other provisions to punish the same act. (See § 654, subd. (a) (2021).)
On October 1, 2021, the Governor approved Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518), amending section 654, which became effective on January 1, 2022. (See Stats. 2021, ch. 441, § 1; see also Cal. Const., art. IV, § 8, subd. (c) [generally, laws adopted in a regular session go into effect on January 1 following a 90-day period from the date of the statute's enactment]; Gov. Code § 9600 [same].) Section 654 now grants trial courts the discretion to choose which sentencing provision to apply when the courts sentence defendants who commit criminal acts that are punishable under more than one criminal provision-i.e., trial courts are no longer obligated to impose the sentence under the provision that contains the longest sentence and may, instead, stay the term of the longer sentence and apply an applicable provision that contains a shorter term. Assembly Bill 518's amendments to section 654 took effect after defendant filed this appeal.
Defendant argues that the amended version of section 654 applies to his sentence, and this matter should be remanded for the trial court to exercise its discretion under the amended section 654. The People agree. We also agree and remand for resentencing to allow the trial court to exercise its new discretion.
"Because Assembly Bill 518 was enacted while defendant's appeal was not yet final and it provides the trial court new discretion to impose a lower sentence, defendant is entitled to its ameliorative benefit." (People v. Mani (2022) 74 Cal.App.5th 343, 379.) Under these circumstances, remand is required "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) On this record, we cannot say that the trial court would have still imposed the sentences it did with respect to the crimes committed against J.R. and F.I. if it had been able to exercise the discretion currently afforded to it by section 654.
VI
Protective Orders
On appeal, defendant argues the protective orders the trial court entered restraining him from certain contact with J.R. and F.I. for three years were unauthorized and must be stricken. The People agree that the orders must be stricken. We also agree.
Section 136.2, subdivision (a), authorizes courts to issue protective orders restraining parties from communicating with victims or witnesses other than through counsel "[u]pon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur."" '[O]nce the defendant is found guilty and sentenced, the court's authority to issue a protective order under section 136.2, subdivision (a) generally ceases.'" (People v. Lopez (2022) 75 Cal.App.5th 227, 236.)
Section 136.2, subdivision (i)(1), permits a court to issue an order of up to 10 years restraining a defendant from contacting a victim when the defendant "has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of subdivision (a), (b), or (c) of Section 236.1 prohibiting human trafficking, Section 261, 261.5, former Section 262, subdivision (a) of Section 266h, or subdivision (a) of Section 266i, a violation of Section 186.22, or a crime that requires the defendant to register pursuant to subdivision (c) of Section 290 ...." Defendant's convictions with respect to J.R. and F.I. were not for any of the crimes enumerated in section 136.2, subdivision (i)(1), and, therefore, the protective orders issued to protect J.R. and F.I. were not authorized by section 136.2, subdivision (i)(1), and those protective orders are invalid. (See People v. Ponce (2009) 173 Cal.App.4th 378, 383 [finding protective orders issued during sentencing under section 136.2 to be not authorized and invalid].) Accordingly, the protective orders must be stricken. (Id. at p. 386.)
VII
Presentence Credits
Defendant was arrested in Idaho on August 13, 2020, and he remained in the U.S. Marshals Service's custody for 21 days, to September 2, 2020. He was then transported to Yolo County Jail in Woodland, where he was taken into custody on September 3, 2020. He was sentenced 428 days later, on November 4, 2021. Thus, in total, defendant was in custody for a total of 449 days between the date of his arrest in Idaho and the date the court sentenced him.
At sentencing, the trial court awarded defendant 429 days credit for time served. Defendant argues he was entitled to 449 days of presentence custody credit, covering all the days he was in custody in both with the U.S. Marshals and in the Yolo County Jail. The People agree. And we agree.
"In all felony . . . convictions, . . . when the defendant has been in custody . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment." (§ 2900.5, subd. (a).) Credit awarded, "shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (§ 2900.5, subd. (b).) A defendant is entitled to credit for time spent awaiting extradition in another state. (See In re Watson (1977) 19 Cal.3d 646, 648 ["The central question which we face is whether petitioner is entitled to have such time credited upon his sentence where it was spent in jail in a foreign jurisdiction while he was resisting extradition to California for trial upon charges of which he was ultimately convicted. As will appear, we conclude that he is entitled to the credit"].)
At resentencing, the trial court's amended abstract of judgment shall calculate defendant's presentence credits in accordance with this holding.
DISPOSITION
We affirm the jury's verdicts, but remand for resentencing so the trial court can exercise its discretion under the amended version of section 654. We also direct the trial court to vacate the protective orders that restrain defendant from contacting J.R. and F.I., and direct the trial court to account for all the days defendant was in custody, including the days he was in Idaho, when calculating defendant's presentence credits.
We concur: EARL, P. J. DUARTE, J.