Filed 5/14/18 P. v. Hall CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW HOWARD HALL,

Defendant and Appellant.
C083104

(Super. Ct. No. 16F0015)




Defendant Andrew Howard Hall shot Eugene Walker at a marijuana farm. A jury found defendant guilty of attempted murder and other related crimes. Defendant contends the trial court committed prejudicial error by (1) not instructing the jury on the lesser included offenses of imperfect self-defense and heat of passion attempted voluntary manslaughter; and (2) not informing the jury that voluntary intoxication is a defense to attempted murder. Defendant also contends (3) the court imposed a strike sentence based on a prior conviction that did not qualify as a strike; and (4) we should remand to allow the court to resentence defendant on a firearm enhancement under Penal Code section 12022.53, subdivision (h) as amended by Senate Bill No. 620.
We conclude the trial court committed prejudicial error by not instructing the jury on imperfect self-defense attempted voluntary manslaughter, and we reverse. Because we reverse, we do not address defendant’s remaining contentions.
I. BACKGROUND
The jury heard three different versions of the shooting: one from the victim Eugene Walker, another from eyewitness James Ream, and a third from defendant. Because the appeal asks us to determine whether there was sufficient evidence to instruct on attempted voluntary manslaughter, we summarize each witness’s testimony.
A. Eugene Walker
Defendant lived in a motor home attached to a small plywood shack. About a week before the shooting, Walker and Ream went to the property to trim marijuana. During the week, Walker and defendant smoked methamphetamine and marijuana three or four times and consumed alcohol.
On July 28, 2014, defendant had been sleeping inside his shack. He opened the door and, while still lying down, asked Walker for a light for a cigarette. Walker had a knife in a sheath. The knife had a hollow cylinder in which he stored matches. After defendant asked him for a light, Walker pulled the knife out of the sheath and held it by its blade. He, too, was lying down, so he was going to throw the knife to defendant. But defendant grabbed a rifle and shot Walker in his right shoulder and left arm. Defendant yelled that Walker made him kill him, and then he ran off.
Walker stated he did not threaten defendant with the knife, brandish it, or act like he was going to throw the knife at defendant. He knew of no reason why defendant might have thought he needed to defend himself. He did not recall doing anything aggressive (he was under the influence of drugs at the time), and he did not recall pointing the knife at defendant.
On cross-examination, Walker said he might have threatened defendant with a knife, but he was under the influence of drugs at the time. Asked if it was true defendant shot him because he was threatening defendant with a knife, Walker responded, “Maybe.” Asked again if that was true, Walker said, “Yeah, I guess.” On redirect, Walker said he did not remember and did not know if he ever threatened defendant with a knife.
B. James Ream
On the morning of the shooting, Ream and Walker were outside trimming marijuana when defendant decided to go inside the shack and sleep. Defendant had been up quite a while due to the drugs he had been using. He was not inside too long, however, before Walker knocked on his door. When Ream looked back at the door, defendant was there holding a gun, “kind of like really creepy.” Defendant looked “[c]razed,” in a way Ream had never seen him before, and he was “jittering” in the door with the gun in his hand. The gun looked like an M-16, a military type firearm, with green-tipped rounds.
Defendant pointed the gun at Walker, waiving it back and forth. Walker said to defendant, “ ‘If you point that gun at me, you better shoot me’ ” or else, he said, “I’m going to kill you.” Ream watched Walker grab the knife from the sheath on his back, but before Walker could get the knife out, defendant shot him. Then defendant pointed the gun at Ream, but Ream put his hands up and defendant let him leave. Later, Ream told a police officer that when Walker woke defendant up, defendant was coming down from a three-day methamphetamine bender and he became enraged.
C. Defendant
Defendant testified that on the day of the shooting, he arrived at the property around 12:30 p.m. to check on a pack of chihuahuas he was maintaining for a friend and to inspect the property’s water system. He was growing marijuana on the property, but the processed marijuana officers found after the shooting belonged to the friend.
As he came onto the property at its lower end, he saw Walker and Ream coming down the hill from the property’s upper end. One was carrying a plastic storage tote, and the other had a backpack and sleeping bag. Defendant asked them if they were lost. They said they were just breaking camp and going down the road. Defendant thought they were removing items from the property’s upper landing, and he told them they had no right to be on the property.
As defendant turned to walk up the property, something hit him in his back. He turned around and saw a short-handled throwing ax lying on the ground. The handle hit him in the back and the blade cut his right forearm. He kicked the ax off the road, charged at the men, and told them to get out.
Defendant then walked up to the property’s upper pad. There, he noticed someone had vandalized his friend’s truck, broken into the shack, and ransacked the property. He intended to secure the door on the shack when Walker and Ream approached him. Walker carried the ax in one hand and had his other hand on the hilt of a very large “survival-type” knife.
Defendant spun around, trying not to trip on all of the chihuahuas that were there. He went inside the shack and tried to pull the door closed behind him. Walker rushed the door and kicked it open. Defendant tripped and fell against an arm chair. A black .22 rifle was leaning against the chair. He grabbed the rifle and saw it was loaded. Walker said, “ ‘If you point that gun at me, you better kill me.’ ” He pulled the knife out of its sheath and lunged up onto the threshold and inside the shack. Defendant pointed the rifle at him and yelled at him to get out. Walker raised the knife, and defendant shot Walker in the arm. He shot Walker twice. Walker stumbled back outside and fell down. Terrified, defendant threw the gun against the wall, ran outside and kept going.
D. Investigation
Police arrived and found Walker with a gaping wound on the front of his right shoulder. About 10 feet outside the open door to the shack, they found an area of blood and a couple of knives on the ground. They found two 5.56 expended casings inside the doorway in a location consistent with someone standing in the doorway facing out and shooting outside the doorway. They found several hundred rounds of 5.56 x 45 ammunition, a type that matched the casings they found. The green tip on the bullet indicated the bullet was a 62 grain, steel alloy bullet used by the military. It is consistent with what is used in an AR-15-type rifle. Police also found a 20-round box of ammunition that also matched the expended casings found on the floor.
Police found processed marijuana and marijuana plants. The RV unit appeared to be a processing station. There was marijuana in various stages of processing—packaged, not packaged, bulk—and there were clippers, trimmings and packaging. Police also found a couple dozen marijuana plants.
The lead detective on the case, Detective Jayme Bayley, testified for defendant. He found a .22 rifle on the shack’s east wall. The rifle, however, required a magazine to hold more than one shell. Without a magazine, the shooter would have to manually reload a bullet after each shot, a process that would take time, effort, and training to do quickly. Police did not find a magazine at the scene. Police did not perform any ballistics testing on the rifle because it did not match the description of the gun used in the shooting and there was no indication the rifle had been used. Police found no .22 caliber rounds or casings at the scene.
The trauma surgeon who first saw Walker after the shooting testified he had worked as a surgeon on gunshot cases for years and on as many as three or four such cases a day. Based on that experience, he was able to distinguish between gunshot wounds caused by low velocity guns and high velocity guns. He stated Walker’s wound was a high velocity wound.
E. Instructions and Verdict
The trial court instructed the jury on, among other matters, attempted murder; willful, deliberate and premeditated attempted murder; and reasonable self-defense. It did not instruct on imperfect self-defense or heat of passion voluntary manslaughter.
The jury found defendant guilty of attempted murder, assault with a firearm, and being a felon in possession of a firearm and ammunition. It also found true various firearm and great bodily injury allegations. It could not reach a verdict on an allegation that defendant committed the attempted murder willfully, deliberately, and with premeditation. The trial court found defendant had one prior strike.
II. DISCUSSION
Defendant contends there was substantial evidence to require the trial court to instruct sua sponte on imperfect self-defense and heat of passion involuntary manslaughter. We agree in part. Substantial evidence supported an instruction on imperfect self-defense but not on heat of passion.
“A trial court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed. [Citations.] Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense. [Citations.]” (People v. Simon (2016) 1 Cal.5th 98, 132.)
“An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense.” (People v. Waidla (2000) 22 Cal.4th 690, 733.) We apply this standard to the evidence as it relates to the two theories of involuntary manslaughter.
A. Imperfect Self-Defense
“An instance of imperfect self-defense occurs when a defendant acts in the actual but unreasonable belief that he or she is in imminent danger of great bodily injury or death. [Citation.] Imperfect self-defense differs from complete self-defense, which requires not only an honest but also a reasonable belief of the need to defend oneself. [Citation.]” (People v. Simon, supra, 1 Cal.5th at p. 132.)
Generally, the trial court is required to instruct on imperfect self-defense if it instructs on perfect self-defense. “If there was substantial evidence of [the defendant’s] ‘honest belief’ for self-defense purposes, there was substantial evidence of his ‘honest belief’ for imperfect self-defense purposes.” (People v. De Leon (1992) 10 Cal.App.4th 815, 824.) The trial court here instructed on perfect self-defense but did not instruct on imperfect self-defense. It should have, as there was evidence defendant actually but unreasonably believed he had to defend himself.
There was substantial evidence defendant honestly believed he had to defend himself. Walker testified that after defendant shot him, defendant said Walker made defendant kill him. Ream stated defendant shot Walker after Walker told defendant he had better shoot him or he was going to kill defendant and after Walker began pulling out his knife. Defendant stated he shot Walker after Walker pulled out his knife as he came into the shack, refused to leave when defendant told him to, and raised his arm with the knife at defendant. This testimony was substantial evidence defendant actually believed he had to defend himself.
There is also substantial evidence defendant’s belief was unreasonable. Walker testified he was going to throw the knife to defendant for an innocent purpose. Defendant had asked for a light for a cigarette, and Walker was going to give defendant his knife that held his matches. Walker pulled out the knife and held it by its blade to throw it to defendant when defendant shot him. Defendant said Walker made him kill him and he ran away. Walker testified he did not brandish the knife, point the knife at defendant, or do anything aggressive toward defendant. From this evidence, the jury could find defendant’s actual belief in the need to defend himself was unreasonable because he was not in danger of imminent harm. These findings that defendant actually but unreasonably believed he had to defend himself would support a verdict of imperfect self-defense attempted voluntary manslaughter.
The People contend a trial court is not required to instruct on imperfect self-defense merely because it instructs on reasonable self-defense. Some courts have held an instruction on imperfect self-defense is not required where “the defendant’s version of events, if believed, establish actual self-defense, while the prosecution’s version, if believed, negates both actual and imperfect self-defense.” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834, citing People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269, 1275-1276.) The People claim that is the case here. It is not. As just explained, the prosecution’s evidence in the form of Walker’s testimony did not negate imperfect self-defense.
B. Heat of Passion
Under the heat of passion theory of voluntary manslaughter, a murder may be reduced to voluntary manslaughter “ ‘if the victim engaged in provocative conduct that would cause an ordinary person with an average disposition to act rashly or without due deliberation and reflection.’ [Citation.]
“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. [Citation.] The standard is not the reaction of a ‘reasonable gang member. [Citation.]
“Subjectively, ‘the accused must be shown to have killed while under “the actual influence of a strong passion” induced by such provocation. [Citation.] “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 ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ ” ’ ” (People v. Enraca (2012) 53 Cal.4th 735, 758-759.)
There was insufficient evidence here to support instructing the jury on heat of passion involuntary manslaughter. No reasonable juror could conclude defendant was so provoked that he acted without due deliberation rather than with judgment and reasoning. Walker’s testimony may have shown defendant acted rashly, but it did not establish that Walker’s conduct was sufficient to provoke a reasonable person. Walker said defendant shot him because he was in the process of drawing his knife and throwing it to him by the blade to give him some matches, as defendant had requested. Walker’s behavior would likely not have caused an ordinary person of average disposition to act rashly or without due deliberation.
While Ream’s and defendant’s testimony may have shown Walker sufficiently provoked defendant by threatening to kill defendant and either reaching for or pulling out his knife to attack defendant, neither witness established that defendant shot Walker without due deliberation and reflection. Rather, they established defendant acted in reasonable self-defense. Ream testified that after defendant pointed the gun at Walker, Walker told defendant he had better shoot him or he was going to kill defendant. Walker went to grab his knife, and then defendant shot him. This evidence shows either defendant was the aggressor and not entitled to claim self-defense, or he deliberately acted to defend himself in the face of Walker’s imminent threat.
Defendant testified that Walker or Ream threw an ax at defendant’s back. Then, after defendant saw the property had been ransacked, the two men reappeared. Walker was holding the ax and had his other hand on a large knife. Defendant tried to barricade himself inside the shack, but Walker kicked the door in. Defendant grabbed a nearby .22 rifle. Seeing defendant grab the rifle, Walker pulled out his knife and lunged into the shack. He told defendant to shoot him or he was going to kill defendant. Defendant yelled at him to get out, but he did not. Approaching defendant, Walker raised his knife, and then defendant shot him. This evidence, if believed, shows defendant acted deliberately to defend himself in response to the threats against him, not out of any obscured or disturbed reasoning. No reasonable juror who believed defendant or Ream could have concluded otherwise. (See People v. Moye (2009) 47 Cal.4th 537, 553-555 [trial court did not err when it declined to instruct on heat of passion involuntary manslaughter where the defendant’s testimony established he acted only out of reasonable self-defense].)
Defendant relies on People v. Millbrook (2014) 222 Cal.App.4th 1122 (Millbrook) to contend a heat of passion instruction was required here even though the evidence established reasonable self-defense. Millbrook is distinguishable. There, the victim, who was physically intimidating and much bigger in size than the defendant, acted belligerently throughout a party after he was asked not to be in the hostess’s house, engaged in intense arguments with the defendant’s girlfriend who tried to enforce the hostess’s request, announced he had his “thing,” warned the defendant to “ ‘check your bitch,’ ” and escalated a fight with the defendant and lunged at him with clenched fists right before the defendant panicked and shot him. (Id. at pp. 1127-1130, 1139, 1141.) That evidence justified an instruction based on the defendant’s rash decision in a panic to shoot the victim. Here, defendant’s own testimony shows he acted deliberately to defend himself. Millbrook does not aid defendant.
C. Prejudicial Error
The question remains whether the failure to instruct on imperfect self-defense was prejudicial. “[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. . . . [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (People v. Breverman (1998) 19 Cal.4th 142, 165, citing Cal. Const., art. VI, § 13 and People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellate review under Watson “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. Accordingly, a determination that a duty arose to give instructions on a lesser included offense, and that the omission of such instructions in whole or in part was error, does not resolve the question whether the error was prejudicial. Application of the Watson standard of appellate review may disclose that, though error occurred, it was harmless.” (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.)
We cannot conclude on this record whether the jury would likely still have convicted defendant of attempted murder had it been instructed on imperfect self-defense. The jury rejected any argument that defendant acted in perfect self-defense. However, it did not find that defendant attempted to kill Walker willfully, deliberately, and with premeditation. Thus, the jury could have believed defendant intended to kill Walker because he honestly but unreasonably believed Walker was going to kill him if he did not act. Under the facts related by Walker, defendant had asked Walker for a light, but, in response, Walker, who was lying down, pulled out his knife and was going to throw it at defendant. Defendant shot Walker and said Walker made him kill Walker. Defendant’s comment indicates he felt imminently threatened.
There was also substantial evidence defendant’s perception of imminent threat was unreasonable. Walker testified he did not threaten defendant with the knife, brandish it, or act like he was going to throw the knife at defendant. He did not recall pointing the knife at defendant or doing anything aggressive. Under this scenario, a reasonable person might not have believed he was in imminent danger of death or injury when he asked Walker for a light and Walker went to toss him a knife by the blade that contained matches.
A jury could conclude on this evidence defendant subjectively but unreasonably perceived he was at imminent risk of death or injury when Walker acted to throw the knife at him. In short, the evidence supporting the judgment is not so relatively strong and the evidence supporting a lesser verdict not so comparatively weak that we could find no reasonable probability the jury would have reached a different verdict had it been instructed on imperfect self-defense.
III. DISPOSITION
The judgment is reversed.

/S/

RENNER, J.



We concur:


/S/

BLEASE, Acting P. J.


/S/

MAURO, J.