P. v. Samson

Filed 10/16/06 P. v. Samson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Norman Shapiro, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Suzann E. Papagoda, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant was convicted, following a jury trial, of murder in the second degree and intentional discharge of a handgun. The trial court sentenced him to a term of forty years to life in state prison.

Appellant appeals from the judgment of conviction, contending that the jury was improperly instructed as to involuntary manslaughter. Appellant also contends the prosecutor prejudiced the jury during closing arguments by referencing lying in wait first degree murder. We affirm the judgment of conviction.

Facts

Appellant met Yuri Ignatkin outside an Internet café on Sunset and La Brea in Hollywood in late November 2003. After a conversation about their common Russian heritage, appellant told Yuri he was having difficulty with housing and asked whether he could stay with Yuri. Yuri agreed and appellant accompanied him to his hotel room, room 105, at the Hollywood Hills Inn. A few days later, appellant deposited his personal belongings in the room. He returned a couple of days later to stay continuously. Three other Russian immigrants lived with Yuri in room 105. Room 107 was occupied by another group of Russian immigrants: Rauf Ganidov, Anton Melkinov, Yevgeni Kalachev and Zurab Mchedlidze. The victim, Grigori Sidenko, did not live in the hotel but was a frequent visitor, along with Dmitry Zorin, due to their friendships with most of the Russian occupants.^[1] Appellant first met Grigori on November 27, 2003.

On that day, appellant drank alcohol continuously with Dmitry, Zurab and Grigori in room 107. Between 10:00 a.m. and noon, appellant asked about Grigori's nationality, to which Grigori replied, "I am Ukrainian." Appellant responded, "Why do you call yourself a Ukrainian. Ukrainians are the same as Russians . . . Do you know history?" Grigori replied, "I don't know, I don't know why it's called so. I am a Ukrainian." Appellant and Grigori continued drinking and arguing about that subject for the majority of the evening. At around 7:00 p.m. that evening, appellant went to room 105 to get more cigarettes. Zurab left the room at about the same time in order to move some personal belongings into his car. While in room 105, appellant retrieved cigarettes and also pulled a gun which he had purchased a few days before from his luggage and placed it in his waistband. Appellant returned to room 107, pulled the gun from his waistband, said "Now you will shut up, you bitch" and fired at Grigori, fatally wounding him. Dmitry testified that, immediately after the shooting, appellant said "Don't you worry. . . . Everything will be normal. . . . If anybody asks you about what happened, just say that there was some Mexican that was in there and he was doing the shooting." Appellant left the scene without his personal belongings shortly thereafter and before the police arrived. The hotel manager called the police at 8:41 p.m. to notify them of the shooting in room 107.

Appellant testified that he did not intend to kill Grigori. Appellant stated he checked the gun before placing it in his waistband to ensure the gun would not fire, because there was no bullet in the chamber under the hammer. He believed the cylinder of the handgun would rotate clockwise because of his experience with a .38 caliber gun. He testified that he "just wanted to scare [Grigori]" and that he was sure the gun would misfire. The prosecution called Chi Kung Tam, a weapons expert, who testified that appellant's confidence that the gun would misfire was misplaced because some weapons' chambers rotate clockwise and some rotate counterclockwise, depending on the manufacturer.

Discussion

1. Involuntary Manslaughter Jury Instruction

Appellant argues that the trial court erred by augmenting the CALJIC No. 8.45 jury instruction to include the word "express" before malice. The involuntary manslaughter jury instruction given by the trial court was the following:

"The crime of involuntary manslaughter is a violation of section 192, subdivision (b) of the Penal Code, a crime. Every person who unlawfully kills a human being, without express malice aforethought and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b)." (emphasis added).

Appellant argues that the addition of the word "express" resulted in an instruction which permitted a conviction for involuntary manslaughter only if the jury found that he lacked express malice.^[2] Appellant explains: "If the jury found that appellant lacked express malice, it was allowed to convict him of involuntary manslaughter as a lesser included offense of express malice murder." Appellant's explanation is incorrect as a matter of law for there is no separate crime of lack of express malice involuntary manslaughter. Nor is there a separate crime of lack of implied malice involuntarily manslaughter. An unlawful killing of another person can be involuntary manslaughter only if the defendant acted without express malice, i.e. without intent to kill and without implied malice, i.e. without a conscious disregard of human life. That is what the instruction says and it says that without regard to whether the word "express" modifies "malice" or not. Appellant argues that "If, however, the jury did not believe appellant's conduct rose to the level of implied malice, yet found appellant guilty of some level of culpable conduct, the jury was left with no options due to the trial court's error in precluding involuntary manslaughter as a lesser included offense of implied malice." Because appellant is convinced that there are two forms of involuntary manslaughter, he fails to recognize that if the jury found that he acted without express malice and that his conduct did not rise to the level of implied malice, the jury under the instruction as given would have had no alternative but to find the him guilty of involuntary manslaughter, not second degree murder.

2. Prosecution Closing Argument

Appellant argues that the prosecutor committed reversible error by discussing lying in wait first degree murder during closing arguments. Before trial, the prosecutor moved to strike and the trial court dismissed the special circumstance of lying in wait first degree murder, but the prosecutor described lying in wait first degree murder in his closing argument. Appellant asserts that the reference was error because the special circumstance was previously dismissed. Appellant also argues that the reference prejudged him because it unduly influenced the jury to preclude a finding of guilt on manslaughter rather than murder and misstated the law.

The jury was not instructed on the lying in wait theory of first degree murder. The contested statement by the prosecutor is the following:

"Again, there are two theories when we talk about first degree murder, so you understand. The first theory of murder is unlawful killing, express or implied. That's first or second degree murder. The other theory of first degree murder is what we call lying in wait. It's immediately preceded by lying in wait, waiting and watching for an opportune time to act, together with concealment, again, waiting and watching for an opportune time to act. Concealment by ambush or secret design. Again, this is not what we are talking about, that a person is hiding behind a bush, waiting for the person to come out, which it can be, but, also is where an individual basically, by secret design, doesn't let the individual know the intent, lulls them in a sense of false security, that everything is okay, then springs it upon them, taking victim by surprise. No time requirement provided. Duration shows the state of mind equivalent to premeditation, deliberation."

Appellant did not object at trial but states he could not have done so because the prosecutor's statements were so prejudicial that objecting would only highlight the misstatements to the jury. Respondent argues that the failure of appellant to object during trial renders his contention waived. "To preserve for appellate review a claim of prosecutorial misconduct, a defendant must raise a timely objection and, if practicable, request a curative admonition; except where a timely objection would be futile, absent such an opportunity for the trial court to consider the claim of misconduct and to remedy its effect, any error is waived . . . ." (People v. Noguera (1992) 4 Cal.4th 599, 638 (quoting People v. Green (1980) 27 Cal.3d 1, 27-34).) We find appellant has waived his right to appeal this issue. If appellant had timely objected and requested an admonition, the prosecutorial error would have been cured. Objecting at the time of the prosecutor's statement would not have been futile.

Appellant next argues that, if we find his claim waived, as we do, then the failure of his trial counsel to object rendered him with ineffective assistance of counsel. Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)

We will assume for the sake of argument that the performance of appellant's counsel was deficient. We see no reasonable probability that appellant would have received a more favorable outcome if the jury had not heard the above-quoted comments by the prosecutor. The jury did not find appellant guilty of first degree murder, under any theory. The jury patently rejected the described theory of first degree murder and rather found appellant guilty of second degree murder. Had the prosecutor not made the reference, the jury would have arrived at the same conclusion.

Appellant next argues, "It is commonly known that lying in wait is a special circumstance for capital murder" and that because of this common knowledge, the jury was prejudiced against appellant due to the prosecutor's reference." We cannot agree with this statement. We do not believe the lay jury had particular outside knowledge of the lying in wait special circumstance such that one reference to lying in wait first degree murder would have convinced the jury beyond a reasonable doubt that this was a heinous crime deserving capital punishment. Any such knowledge of Section 189 of the Penal Code is beyond the scope of knowledge of a layperson.

Appellant then contends that the prosecutor's reference to lying in wait first degree murder misstated the law. Even assuming for argument's sake that the prosecutor did misstate the law, the trial court instructed the jury as to CALJIC No. 1.00 which includes the statement, "If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions." In addition, the trial court instructed the jury with CALJIC No. 1.02 which directed the jury to treat statements by the litigants as argument. Therefore we find any misstatement would have been harmless because of the curative jury instructions.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

KRIEGLER, J.

Turner, P. J.

I concur in the judgment. First, I do not believe the involuntary manslaughter instructional error contention has been waived. Issues concerning the sua sponte duty to correctly instruct are not forfeited. (People v. Rogers (2006) 39 Cal.4th 826, 884; People v. Webber (1991) 228 Cal.App.3d 1146, 1162; see People v. Ray (1975) 14 Cal.3d 20, 28-29.) In that regard, I do not agree with the Attorney General that defense counsel’s recitation to the jury of the trial court’s incorrect involuntary manslaughter instruction constituted any form of forfeiture of the right to raise the instructional error contention. (People v. Boyer (2006) 38 Cal.4th 412, 473 [because there was no evidence of a deliberate tactical decision in requesting a particular instruction, no invited error occurred]; People v. Weaver (2001) 26 Cal.4th 876, 970; People v. Turner (1990) 50 Cal.3d 668, 704 [defensive acts do not waive an objection on appeal].)

Second, I believe the instruction at issue is incorrect. It incorrectly infers that if the accused acts with implied malice, then the crime of involuntary manslaughter can be committed. In fact, the inference one can act with implied malice and still be convicted of involuntary manslaughter is incorrect. Penal Code section 187 defines murder as the killing of a human being or a fetus with malice aforethought. (People v. Ramirez (2006) 39 Cal.4th 398, 464; People v. Randle (2005) 35 Cal.4th 987, 994.) Penal Code section 188 defines two types of malice aforethought--express or implied. (People v. Blakeley (2000) 23 Cal.4th 82, 95; People v. Lee (1999) 20 Cal.4th 47, 70.) Penal Code section 192, subdivision (b) states in part: “Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: . . . (b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.” Therefore, involuntary manslaughter is a killing committed without malice aforethought, be it express or implied; the only two types of malice identified in the Penal Code. (People v. Randle, supra, 35 Cal.4th at p. 994; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) Defendant is correct; the challenged modification to CALJIC No. 8.45 improperly suggested that he could be convicted of involuntary manslaughter if he acted with implied malice.

Third, this highly theoretical error was harmless. We apply the People v. Watson (1956) 46 Cal.2d 818, 836 test of reversible error to lesser included offense contentions in non-capital cases. (People v. Rogers, supra, 39 Cal.4th at pp. 867-868; People v. Seaton (2001) 26 Cal.4th 598, 667.) The error in question was favorable, not prejudicial to defendant. Also, by convicting defendant of second degree murder, the jury impliedly found malice, either express or implied, was present, thereby rendering the instructional error harmless. (People v. Rogers, supra, 39 Cal.4th at p. 884; People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on another point in People v. Breverman (1998) 19 Cal.4th 142, 175-176.) No reversible error occurred.

TURNER, P. J.

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^[1] Hereinafter, first names of the witnesses will be used for ease of reference, not out of lack of respect.

^[2] Respondent argues that appellant's failure to object to the instruction renders his claim waived. Trial counsel for appellant did not object to the additional language in the jury instruction. In fact, trial counsel's closing argument adopted the modified language. Mr. Applebaum described involuntary manslaughter to the jury as follows: "Every person who unlawfully kills a human being without express malice aforethought and without the intent to kill . . . and without conscious disregard for human life is guilty of the crime of involuntary manslaughter in violation of a code section 192." (Emphasis added). As such, we find appellant has waived his ability to challenge the propriety of the jury instruction on appeal. However, we will review the alleged error made in the jury instruction because the substantive rights of the appellant are at issue. (See People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7; Pen. Code, § 1259.)