P. v. Bocanegra

Filed 9/29/06 P. v. Bocanegra CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean Jr., Judge. Affirmed.

John A. Colucci for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Javier Bocanegra, convicted of attempted murder and possession of a firearm by a felon, contends that the trial court erred in failing to give attempted manslaughter and assault with a deadly weapon instructions sua sponte and in imposing an upper term sentence based on judicial findings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged with attempted murder of Quennie Reyna (Pen. Code, § 664/187(a))^[1] in count one of a two-count information, and of possession of a firearm by a felon (§ 12021, subd. (a)(1)) in count two. It was further alleged that appellant personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivisions (b), (c), and (d). The information also charged that appellant had suffered two prior convictions within the meaning of sections 667.5, subdivision (b), and 1203, subdivision (e)(4). Appellant admitted the priors and was found guilty of all charges and enhancements by the jury. After finding aggravating factors of appellant being on parole at the time the crime was committed and performing poorly on parole, the trial court imposed a sentence of nine years for attempted murder, the upper term, and 25 years to life for the section 12022.53, subdivision (d) enhancement. A concurrent two-year sentence on count two was also imposed.

Evidence at Trial

Shanta Lucero, a friend of the victim, Quennie Reyna, testified that appellant and Reyna were dating and living together in an apartment on Canal Avenue in Long Beach at the time of the crime.^[2] On September 24, 2004, Lucero and another friend drove by the apartment at around 8:00 p.m. to pick up Reyna. According to Lucero, they were planning to go “cruising” to “look[] for guys.” When Lucero arrived, Reyna came out barefoot and got into the car. A few minutes later, Reyna went back into the house and came out, followed by appellant. They were arguing. Appellant told Reyna she was not going to leave, and Reyna said she was. Reyna started to get back into the car. Appellant went back into the house. He came out, pulled out a shotgun, and pointed it at Reyna’s head.

Lucero went to stand between Reyna and appellant and told appellant to put the gun away. Reyna told him to stop playing around. Appellant said to Reyna: “You are not going to fucking go anywhere.” He then shot Reyna. After Reyna fell to the ground, appellant took off running.^[3]

On cross-examination, Lucero admitted she had a methamphetamine problem at the time and had taken enough methamphetamine that day to get high.

Reyna testified that in September 2004 she was living with appellant and his family in an apartment on Canal Avenue in Long Beach. They had been together for a couple of months. Around the time of the shooting, they were constantly arguing because Reyna was “always leaving” to “go hang around other guys.” Just before she went out to meet Lucero on the night in question, appellant had come home and they had begun to argue about her never being home. Appellant pushed her. She told him “not to be pushing [her]” and said she was walking out so the fight would not “turn into something bigger.” Appellant followed her and told her to get out of the car and go back inside. He started arguing with the woman in the passenger seat. Reyna got out of the car to “tell him off.” She saw that he had a gun in his hand. He did not point it at her. She asked “what the hell he was doing with that” and said “if [you are] going to shoot me, to shoot me.” Reyna was angry. She did not observe appellant pointing the gun directly at her at any time. Lucero was standing between them. Reyna received no injuries to the front of her body.

When interviewed by police and a social worker in the hospital, Reyna said she did not know who shot her. She had taken methamphetamine just prior to appellant’s coming home. Appellant had been drinking.

Officer Roque Olatonji Foster, who examined Reyna at the hospital, testified that Reyna had a hole in her head that went from one side of the back of her neck to the other side. The base of her skull was missing and her brain was visible.

Detective Louie Galvan, who interviewed Reyna both at the hospital and several days later, testified that she told him appellant had raised the shotgun and pointed it at her face just before it went off. She further told the detective that appellant had the gun pointed at her chest at all times prior to that. Reyna reported to the detective that appellant said he was “not playing” anymore.

Robert Arguello, an investigator for the prosecution, testified that Reyna had told him that on the day of the shooting, appellant accused her of either “being with” men from neighboring gangs or of “seeing one particular gentleman.”

Prior to instructing the jury, the court stated: “I’ve considered lesser included offenses. I don’t think there are any.” Counsel for both sides agreed. Defense counsel moved for an acquittal on the ground that the prosecution had not proved “intent to kill.” In closing, defense counsel argued that there was no evidence of intent to kill because appellant was intoxicated and because the wounds Reyna suffered could have been the result of projectiles ricocheting off the car into the back of her neck.

DISCUSSION

I

Appellant contends that the trial court erred in failing to give, sua sponte, the instruction on attempted voluntary manslaughter and the related instructions defining provocation and heat of passion.

It is clear that a trial court must instruct the jury on lesser included offenses whenever the evidence is substantial enough to support the instruction and merit consideration of the lesser offense by the jury. (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.) “‘The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.” (Id. at p. 195, quoting People v. Sedeno (1974) 10 Cal.3d 703, 716, fn. omitted.) “‘When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory[,] even if it is inconsistent with the defense elected by the defendant under the rule obliging the court to instruct on lesser included offenses . . . .’” (People v. Barton, supra, at p. 195, quoting People v. Sedeno, supra, at p. 717, fn. 7, italics omitted.)

The question here is whether substantial evidence supported giving the attempted voluntary manslaughter instruction. Voluntary manslaughter is the unlawful killing of a human being with intent, but without malice. (People v. Barton, supra, 12 Cal.4th at p. 199.) “Generally, an intent to unlawfully kill reflects malice. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59.) But “an intentional killing is reduced to voluntary manslaughter if other evidence negates malice.” (Ibid.) Malice is absent “when the defendant acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a))” or “when the defendant kills in . . . the unreasonable but good faith belief in having to act in self-defense.” (People v. Barton, supra, 12 Cal.4th at p. 199.) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinary reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’” (Id. at p. 201, quoting CALJIC No. 8.42 (5th ed. 1995 supp.).) “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.)

In People v. Barton, the court found the following evidence warranted instructions on voluntary manslaughter despite the defendant’s objection: “Defendant testified that shortly before the killing of Sanchez, his daughter Andrea had come to him, extremely upset, and told him that [Sanchez] had threatened her with serious injury by trying to run her car off the road, and that he had spat on the window of her car. When defendant and his daughter confronted Sanchez about his conduct, Sanchez called defendant’s daughter a ‘bitch’ and he acted as if he was ‘berserk.’ Defendant and Sanchez angrily confronted each other and Sanchez assumed a ‘fighting stance,’ challenging defendant. After defendant asked his daughter to call the police, Sanchez started to get into his car; when defendant asked Sanchez where he was going, Sanchez replied, ‘none of your fucking business,’ and taunted defendant by saying, ‘Do you think you can keep me here?’ Screaming and swearing, defendant, before firing, ordered Sanchez to ‘drop the knife’ and to get out of his car, threatening to shoot if Sanchez did not do so.” (People v. Barton, supra, 12 Cal.4th at p. 202.)

As summarized above, the evidence in Barton justified the voluntary manslaughter instructions. The victim provoked the defendant by threatening injury to his daughter, by challenging the defendant physically, by taunting the defendant, and by swearing at and arguing with the defendant while holding a knife. These actions supported a finding that the victim had acted in a way that would have provoked a reasonable person to act rashly or without deliberation under the circumstances. The evidence also supported a finding that the defendant was, in fact, goaded into a state of rage or extreme passion. The defendant testified that he was “screaming and swearing” when he fired the fatal shot.

Here, in contrast, the evidence demonstrates neither legal provocation by Reyna nor that appellant was in a state of rage or extreme passion. Reyna testified to a brief argument with appellant over her “never [being] home.” This was followed by appellant’s pushing Reyna and her decision to leave the apartment so the argument “wouldn’t turn into something bigger.” Lucero testified that the three women planned to go “cruising” to “look[] for guys” and Arguello testified that Reyna had said she and appellant argued about her seeing someone else or being with other men. This evidence did not, however, demonstrate that Reyna taunted appellant with other lovers in general or anyone in particular.

Nor does the testimony concerning appellant’s actions up to and after he obtained a gun and followed Reyna outside demonstrate that appellant was in an impassioned state. Reyna testified that she was angry and got out of the car to “tell [appellant] off.” Lucero testified that appellant said Reyna was not going anywhere just before he shot her, but not that he showed evidence of rage or other emotion. Nothing in the evidence suggests that appellant was in an extreme emotional state, and nothing suggests he was enraged by tales of his girlfriend’s infidelity, rather than simply upset that she would not do as she was told.

Appellant asks us to find analogous the situations in People v. Borchers (1958) 50 Cal.2d 321 and People v. Berry (1976) 18 Cal.3d 509. As appellant concedes, both cases involved provocation generated by “a series of events over a considerable period of time.” (People v. Borchers, supra, at p. 328.) In Berry, the victim, the defendant’s wife, engaged in a “two-week period of provacatory conduct,” including taunting the defendant with her infidelity while they were engaged in sexual activity. (People v. Berry, supra, at p. 509.) A psychiatrist gave expert testimony that the effect of the victim’s conduct was to provoke the defendant to a state of “uncontrollable rage,” rendering him “completely under the sway of passion.” (Id. at p. 514.) In Borchers, the appellate court upheld the trial court’s reduction of a jury’s verdict from second degree murder to voluntary manslaughter where the evidence included the victim’s admitted infidelity and transfers of defendant’s money to her lover. The killing occurred immediately after the victim solicited the defendant to shoot her, her child, and himself, and pointed a gun at the defendant and herself.

The record below reveals facts substantially dissimilar from those in Berry or Borchers. At most, the underlying evidence indicates that Reyna went out with her girlfriends on occasion to “look for guys.” Nothing suggests that she embarked on a series of deliberate actions designed to provoke a passionate response. Such evidence as there was suggests that, to the contrary, she attempted to avoid antagonizing appellant by staying away from him and, on the day in question, leaving the apartment when their argument was in its early stages, before it could get out of hand. Moreover, in both Borchers and Berry, the defendants testified to their mental state, and the Berry court found it “significant that both defendant and [the psychiatrist] testified that the former was in the heat of passion under an uncontrollable rage when he killed [his wife].” (People v. Berry, supra, 18 Cal.3d at pp. 515-516.) Here, in contrast, appellant neither testified nor presented expert psychiatric testimony as to his mental state.

The situation in People v. Cole (2004) 33 Cal.4th 1158 is more to the point. There, the defendant and the victim, Mary Ann, “had a tumultuous relationship” in which “[t]hey bickered and argued, and their regular screaming matches, punctuated by profanities, were often heard by family and neighbors.” (Id. at p. 1171.) On the day of the homicide, the defendant testified that he had been drinking heavily. He came home late and they argued about where he had been and where he would sleep. Mary Ann threatened to cut or stab him with a knife if he remained. While Mary Ann was sitting on the bed, the defendant threw a plastic container of gasoline on her, and lit her on fire with a cigarette lighter. Before she died, Mary Ann told investigators “that she and defendant had argued earlier that evening, that defendant was extremely jealous of her, that he had followed her around all day, and that he thought she was cheating on him.” (Id. at p. 1172.)

On these facts, the defense did not ask for a voluntary manslaughter instruction, and the Supreme Court held that none was necessary because there was insufficient evidence of provocation by the victim. “While defendant and Mary Ann had argued, Mary Ann was in bed when defendant began his physical assault by pouring gasoline on her. Furthermore, between defendant and Mary Ann, bickering, yelling, and cursing were the norm. Their conduct that evening apparently was no different than on the many other occasions on which they had argued in their five-year relationship. Neither was defendant’s drinking on the day of the fire different than on any other day. Accordingly, the trial court did not err in failing to instruct on voluntary manslaughter based on heat of passion.” (People v. Cole, supra, 33 Cal.4th at p. 1216.) Distinguishing People v. Berry, the court said: “[i]n contrast to the facts of Berry, defendant and Mary Ann’s five-year relationship was filled with excessive drinking and fighting, sometimes violently, and their argument on the night of the fire was nothing out of ordinary.” (Id. at pp. 1216-1217.)

As the Supreme Court makes clear, a defendant cannot claim provocation when the evidence points to an everyday quarrel or ordinary bickering. Whatever the nature of Reyna’s contacts with other men, the couple’s argument on the day of the shooting was not indicative of provocative conduct on her part or escalating rage on his. As the court and trial counsel agreed, there was no basis for giving voluntary manslaughter instructions.

II

Appellant next argues that the trial court should have instructed the jury on assault with a deadly weapon, which, he claims, was also a lesser included offense if the enhancement for use of a firearm is included as part of the attempted murder charge. He concedes that the Supreme Court decided this issue unfavorably to his position in People v. Wolcott (1983) 34 Cal.3d 92, holding that the determination whether one offense is necessarily included in another must be made on the basis of the elements of the offenses charged, without considering any accompanying enhancements. He contends, however, that the holding must be reexamined in light of recent United States Supreme Court decisions such as Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296 and the California Supreme Court decision in People v. Seel (2004) 34 Cal.4th 535.

The United States Supreme Court held in Blakely and Apprendi that facts, other than a prior conviction, that increase the maximum penalty for a crime must, if not admitted by the defendant, be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. In Seel, where the defendant had been convicted of attempted first degree murder and the Court of Appeal had reversed on the ground that there was no substantial evidence of premeditation and deliberation, the California Supreme Court addressed whether the premeditation and deliberation allegations could be retried. In People v. Bright (1996) 12 Cal.4th 652, the court had held that double jeopardy did not apply to a finding that the defendant committed attempted murder “‘willfully, deliberately, and premeditatedly’” within the meaning of section 664, subdivision (a), because the statute was a penalty provision to which jeopardy protections did not apply.^[4] The court concluded in Seel that Apprendi‘s expansion of the definition of elements of a crime required reversal of Bright: “By ‘expos[ing] the defendant to a greater punishment than that authorized by the jury’s guilty verdict’ [citation], section 664(a) is ‘the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (People v. Seel, 34 Cal.4th at p. 548, quoting Apprendi, supra, 530 U.S. at p. 494.) Appellant contends that Apprendi (and Blakely) similarly undermine the California Supreme Court’s decision in Wolcott to treat sentence enhancing factors as qualitatively different than the elements of the underlying offense.

As appellant informs us, the issue is before the Supreme Court in People v. Sloan, review granted June 8, 2005, S132605. Until the court issues a contrary opinion, we are bound by Wolcott and will continue to follow it.

III

Citing Blakely v. Washington, supra, 542 U.S. 296 appellant contends the trial court’s decision to impose the upper term sentence based on judicial findings violated his Sixth Amendment and due process rights to have all facts that increase the penalty for his crimes be decided by the jury. As appellant concedes, the issue of the constitutionality of upper term sentencing has been addressed by our Supreme Court in People v. Black (2005) 35 Cal.4th 1238, which held that Apprendi and Blakely do not impinge on California’s sentencing law with respect to imposition of upper terms based on judicial findings concerning aggravating and mitigating factors, and that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) As with appellant’s prior argument, we are bound to follow existing California Supreme Court precedent.

DISPOSTION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P.J.

SUZUKAWA, J.

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^[1] Statutory references herein are to the Penal Code.

^[2] Lucero was sometimes called “Carina.”

^[3] The following month, appellant was arrested in Texas and extradited to California.

^[4] Section 664, subdivision (a) provides in pertinent part: “[I]f the crime attempted is willful, deliberate, and premeditated murder, . . . the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.”