P. v. Kamnoi

Filed 9/4/07 P. v. Kamnoi CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Jimmy Kamnoi appeals the judgment entered after a jury convicted him of first degree murder (Pen. Code^[1],  187, subd. (a), 189) and three counts of attempted murder ( 664/187, subd. (a)). The jury also found true allegations that the murder was committed by discharging a firearm from a vehicle ( 190.2, subd. (a)(21)), that the attempted murders were committed willfully, deliberately, and with premeditation

( 664, subd. (a)), and that a principal was armed in the commission of all of the offenses ( 12022, subd. (a)(1)). He was sentenced to life in state prison without the possibility of parole on the murder count, an additional three life sentences with the possibility of parole on the attempted murder counts, plus an additional two years for the section 12022, subdivision (a)(1) enhancements. He was also ordered to pay a $10,000 restitution fine ( 1202.4, subd. (b)), and a $10,000 parole revocation fine ( 1202.45) was imposed and suspended. He contends the trial court violated its sua sponte duty to instruct the jury on implied malice murder, second degree murder, and assault with a firearm. He also contends that the parole revocation fine should not have been imposed. We modify the judgment by striking the parole revocation fine. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 1:00 a.m. on June 13, 2004, Juan Robles, Richard Alvarez, Jesus Young, and Jose Corona were standing outside of Alvarez's house on Cerritos Avenue in Long Beach when a gold Lexus SUV slowly drove by. Robles saw the driver of the Lexus give the men a "mean" look. About 10 minutes later, the Lexus returned and the driver turned off the headlights. As the vehicle traveled at a speed of less than five miles an hour, an Asian male seated in the front passenger seat hung out the window with a gun in his extended arm and shot at the men approximately three times. All four of the men dove to the ground. After the Lexus passed a van parked in front of Alvarez's house, another round of shots was fired. Corona was shot in the chest and later died from his injuries. An expended bullet and several shell casings were recovered from the scene.

After receiving a report that a gold Lexus SUV occupied by male Asians had been involved in a shooting, Long Beach Police Officer Michael Barth drove to an area where he knew several Asian gang members lived. At about 2:30 a.m., Officer Barth observed a white Jeep Wrangler driven by an Asian man with two passengers as it came out of an alley. A few minutes later, the officer drove down another alley and saw a parked gold Lexus SUV. He got out, touched the hood, and felt that it was warm. He shined a flashlight into the vehicle's interior and saw three shell casings on the back seat.

Officer Barth set up a surveillance point nearby. At 3:35 a.m., the Lexus drove by and the officer followed it. After "backup" arrived, the officer conducted a traffic stop of the Lexus. Kamnoi was the driver and sole occupant.

Kamnoi was transported to the police station where he agreed to be interviewed by Detective Mark McGuire after waiving his Miranda rights.^[2]Kamnoi stated that although the Lexus belonged to his parents, he was the only person who ever drove it and he had not given anyone else permission to drive it that night. He claimed he had been at his aunt's house prior to being stopped, but was unable to provide her last name or address. He also stated that he had been at a house party at 10th and Olive earlier that night.

After Detective McGuire told Kamnoi that his vehicle matched the description of a vehicle that had been involved in a murder, he wanted to know where it had happened and the race of the victims. The detective said that the victims were Hispanic and that the shooting had taken place on Olive and Anaheim, to which Kamnoi responded, "Hell no. That wasn't it." When the detective told him that the location was Cherry and Anaheim, he responded, "that wasn't it either." Detective McGuire then told Kamnoi that he believed he was involved in the shooting. Kamnoi did not respond.

Detective McGuire asked Kamnoi if he knew Sambath Horn, who lived in the house directly in front of the alley where Officer Barth had discovered Kamnoi's parked Lexus. Kamnoi responded that Horn was his "homeboy" whose brother, Bobby, had been killed on Christmas in 2001.

Larry Chhat testified that he had seen his friends Kamnoi and Horn at a party on Olive Street on the night of the shooting. At about 1:00 a.m., Kamnoi asked Chhat if he wanted "to go shoot some essays [sic]," which Chhat understood to mean Mexican gang members. According to Chhat, Kamnoi "was never the same" after Horn's brother Bobby was killed by Mexican gang members in 2001, and that he "had a problem with Mexicans" ever since. After Chhat declined the invitation, Kamnoi and Horn left together in the Lexus.

Sometime later than morning, Kamnoi called Chhat and asked him to pick him up because he had just shot some "essays" [sic] on Cerritos Avenue. In his police interview, Chhat said Kamnoi had told him, "I was driving by 10th and Cerritos and seen [sic] a group of essays [sic]. And then I was about to go pick up a friend of mine, and then it was too late, so he just shot right through." Kamnoi also said he had discarded the gun in a gutter near his house. Chhat then drove a white Jeep Wrangler to the alley behind Horn's house, where he encountered Kamnoi, Horn, and another individual named Dara. Chhat picked up Horn and drove him back to the party. Kamnoi and Dara stayed behind.

Testing subsequently revealed that the shell casings recovered from the Lexus and the scene of the shooting were fired from the same gun, and that the expended bullet recovered from the scene had been fired from the same type of weapon. Horn was determined to be the source of a fingerprint lifted from the Lexus's outside rear passenger door. It was also discovered that Horn had been driving the Lexus when it was impounded several months earlier.

DISCUSSION

I.

Alleged Instructional Error

A.

Implied Malice Murder

Kamnoi contends the trial court violated its sua sponte duty to instruct the jury on second degree implied malice murder ( 187 189) as a lesser included offense of first degree murder. He argues that the court was required to give the instruction because there was evidence from which the jury could have found that he lacked the specific intent to kill his victim, but rather merely intended to inflict great bodily injury. We need not decide whether the evidence warranted the giving of the instruction because any error was both invited and harmless. (See People v. Beames (2007) 40 Cal.4th 907, 926.)

Trial courts have a sua sponte duty to give jury instructions on a lesser included offense when there is a legitimate dispute whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) However, "'[a] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.' [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 905; People v. Beames, supra, 40 Cal.4th at p. 926.)

The record reflects that Kamnoi's attorney made a tactical decision to resist instructions on implied malice. Counsel told the court, "[l]et's just go with express malice," and expressly agreed that the court should "black out" the portions of the instructions that referred to implied malice. This tactic was consistent with Kamnoi's defense theory that the prosecution had failed to meet its burden of proving that he was involved in the crime at all. Because Kamnoi invited any error in failing to instruct on implied malice, he is barred from invoking that error as a ground for reversal of his conviction. (People v. Beames, supra, 40 Cal.4th at pp. 927-928.)

In any event, any error in failing to instruct on implied malice was harmless. In noncapital cases, the error in failing to sua sponte instruct on lesser included offenses is reviewed for prejudice under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.) Accordingly, the error is harmless where there is no reasonable probability that the jury would have rendered a more favorable verdict had the instructions been given. (Ibid.) Moreover, "'[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.' [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 392.)

Murder is an unlawful killing with malice aforethought. ( 187, subd. (a).) "Malice may be either express or implied. It is express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.' ( 188.) It is implied . . . 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life'. . . ." (People v. Lasko (2000) 23 Cal.4th 101, 107.)

Here, the trial court instructed the jury on willful, deliberate and premeditated first degree murder (CALJIC No. 8.20) as well as first degree drive-by murder, which is a killing perpetrated by discharging a firearm from a motor vehicle "intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death." (CALJIC No. 8.25.1; 189.)The trial court also instructed the jury that Kamnoi was guilty only of second degree murder if he "intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation." (CALJIC No. 8.30.) In addition to these instructions, the court instructed on the special circumstance of discharging a firearm from a motor vehicle with the intent to kill (CALJIC No. 8.81.21).

Based on these instructions, the jury found Kamnoi guilty of first degree murder and found true the special circumstance allegation. Because the jury necessarily found that Kamnoi intended to kill his victim, any error in failing to instruct on implied malice murder was plainly harmless. (People v. Beames, supra, 40 Cal.4th at p. 928.)

Kamnoi also claims that the court deprived him of his constitutional right to present a complete defense by failing to instruct the jury on implied malice because it embodied a potential defense theory. He fails to acknowledge, however, that our Supreme Court has already rejected that claim. (People v. Rogers(2006) 39 Cal.4th 826, 871-872.) We are bound to follow that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

B.

Second Degree Drive-By Murder

As we have already noted, in convicting Kamnoi of first degree murder the jury also found true the special circumstance of discharging a firearm from a motor vehicle with the intent to kill ( 190.2, subd. (a)(21)). Based on the special circumstance finding, Kamnoi received a mandatory sentence of life in prison without the possibility of parole. (Ibid.) Kamnoi argues that the court erred in failing to instruct the jury sua sponte on section 190, subdivision (d), which provides for a sentence of 20 years to life "if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside the vehicle with the intent to inflict great bodily injury." This claim fails for the same reasons as the previous claim. Although the trial court must sua sponte instruct on general principles of law that are closely connected to the facts and necessary for the jury's understanding of the case, the failure to so instruct does not require reversal unless it is reasonably probable that a more favorable result would have been obtained absent the error. (People v. Garcia (1998) 63 Cal.App.4th 820, 833-834.) Because the jury found that Kamnoi specifically intended to kill his victim, any error in failing to instruct the jury that he may have only intended to inflict great bodily injury is harmless.

Kamnoi also contends that the court violated Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey(2000) 530 U.S. 466, by failing to instruct the jury on second degree drive-by murder. According to Kamnoi, the court violated those cases "by imposing a term based on the verdict rendered, when the jury had not been asked to decide if a less onerous sentence was appropriatei.e., 20 years to life, under Penal Code section 190." We disagree. Blakely and Apprendi merely establish that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, at p. 490; Blakely, supra, at p. 301.) Kamnoi's sentence was based on the jury's finding that the section 190.2, subdivision (a)(21) special circumstance was true, which encompassed a finding of intent to kill. Because the court in sentencing Kamnoi did not rely on any facts that were not submitted to the jury and proved beyond a reasonable doubt, the rule stated in Blakely and Apprendi was not violated.

C.

Assault with a Deadly Weapon

Kamnoi also contends the court violated its sua sponte duty to instruct the jury on assault with a firearm as a lesser included offense on the attempted murder counts. He acknowledges, however, that firearm enhancements may not be considered in determining whether a lesser offense is necessarily included within a charged offense. (People v. Wolcott (1983) 34 Cal.3d 92, 101.) Accordingly, assault with a firearm is not a lesser included offense of attempted murder with a firearm use allegation. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) He also recognizes that we are bound to follow that decision, and indicates that he has merely raised the issue in order to preserve his right to further review.

II.

Parole Revocation Fine

Kamnoi also contends the court erred in imposing a parole revocation fine pursuant to section 1202.45 because he was sentenced to life without the possibility of parole. The People concede the error. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185-1186.) Accordingly, the fine shall be stricken.

DISPOSITION

We modify the judgment by striking the $10,000 parole revocation fine. The trial court shall correct the abstract of judgment and forward the amended abstract to

the Department of Corrections. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Joan Comparet-Cassani, Judge

Superior Court County of Los Angeles

______________________________

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Penal Code.

^[2]Miranda v. Arizona (1966) 384 U.S. 436.