P. v. Marshall

Filed 8/28/06 P. v. Marshall CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

Martha McGill, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of two counts of attempted murder (Pen. Code §§ 664/187, subd. (a)),^[1] during which he discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)) and committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The jury further convicted defendant of actively participating in a criminal street gang. (§ 186.22, subd. (a).) He was sentenced to prison for 29 years and four months, plus two terms of 25 years to life. He appeals claiming the jury was misinstructed and the prosecutor committed prejudicial misconduct. We reject his contentions and affirm.

Facts

Defendant was a member of the Georgia Street Mob, a criminal street gang. In the parking lot of a discount store on April 21, 2004, he, in the company of a companion, shot the first victim four times as the latter was in the driver's seat of his car and the second victim, the passenger, once. Details concerning the crimes will be mentioned as they are relevant to the issues discussed.

Issues and Discussion

1. Jury Instruction

a. Imperfect Self Defense

Defendant claims that the trial court erred by refusing to give his requested instructions on imperfect self defense as an avenue to convicting him of attempted voluntary manslaughter.^[2] The only evidence at trial that came somewhat close to providing a basis for such instructions was the testimony of defendant's companion. He testified that when he and defendant first saw the victims, the latter looked at them, so they looked back in response. The second victim then threw up a gang sign. The companion did not see defendant throw up a gang sign, but he admitted that he was not watching defendant -- he was watching the victims. The victims then drove their car to where defendant and his companion were walking towards the discount store. The victims then stopped their car when defendant was by the driver's door and his companion was by the passenger door. The second victim poked his head out of the passenger window and asked defendant and his companion if they had a problem. When the second victim brought his head back inside the car, he reached under his seat. The second victim said nothing to either defendant or to the first victim. The companion denied thinking the second victim had gotten a gun from under the seat, testifying that if the former had, he would have run, and he did not. Moreover, the companion said, when the second victim came up after reaching under the seat, he had nothing in his hand. He said he did not yell out to defendant that the second victim had a gun or to run. Defendant, who by then had come over to the passenger side of the car, began shooting. Defendant did not testify at trial and no statements made by him to the effect that he felt in danger or believed that his companion was in danger were introduced.

Contrary to the assertion of defendant on appeal, the foregoing does not constitute evidence â€