P. v. Walker

Filed 4/6/07 P. v. Walker CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Manuel Walker appeals his conviction by jury trial of attempted murder (Pen. Code,  187, 664)^[1]with personal and intentional discharge of a firearm ( 12022.53, subds. (b), (c) & (d)), and personal infliction of great bodily injury ( 12022.7, subd. (a)). The jury also found true two prior prison term allegations ( 667.5, subd. (b).)^[2] In a bifurcated sanity phase, the jury found defendant sane at the time he committed the attempted murder.^[3] He contends the courts instructions on malice aforethought and imperfect self-defense were erroneous, and that the court committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296). We affirm.

Background

On the night of November 24, 2003, Elmel Galarza, the victim, and Lorenzo Bartholomew went to the Antioch home of Mark Eden. Galarza went up to the attic room in Edens home to meet some girls. Galarza saw Bartholomew walk toward Edens room. About 10 minutes later, Galarza heard scuffling downstairs and Bartholomew screaming violently. Galarza went downstairs and pounded on the door to Edens room. Galarza then kicked open the door and saw Bartholomew against the wall; he looked pale and his shirtsleeve was torn. A large pit bull was being held by a man inside the room near the door, and Galarza believed that the pit bull had been let loose on Bartholomew. Galarza asked Bartholomew what had happened and then noticed defendant and another man enter the room. As defendant walked by, he looked Galarza straight in the eye and shot Galarza in the neck. Galarza did not notice the gun until after he had been shot. Defendant attempted to fire the gun again, but it jammed. Galarza got up and walked into the living room in shock. Bartholomew grabbed him and dragged him outside of the house.

Galarza went to the nearby train station. He believed he was dying, and he returned to Edens house for revenge. He sat outside on the side of the house, holding his nine-millimeter pistol in his lap.^[4] Galarza saw defendant and another man leave Edens house. The other man walked toward a car, opened the drivers door, saw Galarza and said, There he is. Defendant and the other man both grabbed guns from their waists and started shooting at Galarza. Galarza starting shooting at defendant who was the more aggressive shooter. Galarzas fourth shot struck defendant in the cheek. Although defendant was dazed and staggering, he still held his gun. Galarza shot at him again, hitting him in the shoulder. Defendant and the other man entered the car and drove off. Galarza said that defendant and the other man emptied their guns, firing approximately 22 shots. Galarza estimated that he fired 11 shots.

Galarza walked back to the train station and sat down. A young man inside the station helped Galarza get back to Edens house. En route, Galarza put his gun under a tree. When Galarza reached Edens house, he told the police officers there that he had been shot. Galarza refused to identify his assailant. He was transported to the hospital where he underwent surgery. Following surgery, Galarza identified his shooter and falsely told police he had thrown his gun into the river.

Sara Chamberlain lived with Eden on the day of the shooting. She testified defendant and three or four other men and the pit bull were in the bedroom when a scuffle started. After four or five minutes, Chamberlain heard gunshots fired inside the bedroom. The people inside the room started to scatter, and Chamberlain climbed out the window and left the house. After another four or five minutes, Chamberlain heard more shots fired outside the house. Galarza told her he had been shot and asked her to call 911. She told Eden and Eden then called 911.

Gabriella Garcia was in the attic of Edens house with Galarza just prior to the shooting. She heard Bartholomew yelling help from downstairs and heard fighting. Galarza then jumped from a hole in the attic downstairs and said, Whats going on? Garcia next heard a gunshot and saw two men and a pit bull run outside. A few minutes later she heard more gunshots.

Antioch Police Detective Smith went to Edens house after the shooting. He found nine-millimeter bullets and shell casings and 22-millimeter casings outside the house.

In the early morning hours of November 25, 2003, Antioch Police Officer Rezentes contacted defendant at Sutter Hospital. Defendant identified himself as Edward Martin Masinas. He had been shot in his cheek and shoulder. Shards of broken safety glass were in his clothing. He said he was a transient, had blacked out and did not remember being shot or where he was when he was shot. He said someone asked him if he needed help and transported him to the hospital. Defendants identity was revealed through a fingerprint analysis.

Charles Waldo testified he committed a number of crimes between 1997 and 2004, many of which were theft-related. For about three weeks in May and June of 2004, Waldo and defendant were in adjoining cells in the county jail. Defendant told Waldo that while he was at Edens house, he shot someone in the neck after a falling out, and there was a dog involved. Defendant also said that after the victim was shot, he and the victim were outside Edens house and were involved in a little shoot-out during which defendant was shot. Waldo said he did not know whether defendant or the victim had fired the first shot during this shooting outside Edens house. Thereafter, defendant said he went to the hospital for treatment. Defendant said that he and the victim had been enemies from a while ago. Defendant also said he had used a .22 or .25-caliber gun in the shooting and thereafter disposed of it.

The Defense

Antioch Police Officer Walters spoke with Antioch Police Officer McCann in the hours after the shooting. McCann told Walters he had spoken with Galarza, who said he did not want to identify his assailant. Walters then spoke to Galarza at the hospital before Galarza went into surgery. Galarza told Walters that after hearing Bartholomew yelling, he dropped out of the attic near the room where Bartholomew was. Galarza did not tell Walters that he had a gun, that defendants gun jammed, or that he had shot anyone. Galarza did identify defendants picture from a photo lineup. Galarza said that after he entered the room in response to Bartholomews cries for help, defendant raised a .22-caliber gun and shot him one time in the neck.

A forensic toxicologist testified that Galarzas blood alcohol level in the early morning hours of November 25, 2003, was .088.

The thrust of the defense argument was that defendant shot Galarza in self-defense after an intoxicated Galarza was waving a gun around, and that Galarza was not a credible witness. Alternatively, defense counsel argued that defendant was at most guilty of voluntary manslaughter because the shooting occurred during a sudden quarrel.

Discussion

I. The Erroneous CALJIC No. 8.11 Instruction Was Invited Error

Defendant contends the courts modified version of the CALJIC No. 8.11 jury instruction regarding malice aforethought was erroneous.

Defendant concedes that the court properly instructed the jury on attempted murder with CALJIC No. 8.66 as follows:

Defendant is accused of having committed the crime of attempted murder, in violation of sections 664 and 187 . . . .

Every person who attempts to murder another human being is guilty of a violation of . . . sections 664 and 187.

Murder is the unlawful killing of a human being with malice aforethought.

In order to prove attempted murder, each of the following elements must be proved;

1. A direct but ineffectual act was done by one person towards killing another human being; and

2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.

In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the killing or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.

The court also gave the following modified version of CALJIC No. 8.11:

 Malice may be either express or implied.

Malice is express when there is manifested an intention unlawfully to kill a human being.

Malice is implied when:

1. The attempted killing resulted from an intentional act;

2. The natural consequences of the act are dangerous to human life; and

3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

When it is shown that the attempted killing resulted from the intentional doing of an act with express or implied malice; no other mental state need be shown to establish the mental state of malice aforethought.

The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

The word aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act. (Italics added.) The court modified the standard CALJIC No. 8.11 instruction by adding the italicized word attempted.

Defendant contends the court erroneously instructed the jury with a modified version of CALJIC No. 8.11 that states an attempted murder conviction can be predicated on either express malice or implied malice. He argues this instruction should not have been given and conflicted with the properly given CALJIC No. 8.66 that states express malice is a requisite element of attempted murder. Defendant contends the instructional error was magnified by the prosecutors closing argument, which quoted the erroneous CALJIC No. 8.11 instruction. He concedes that in arguing the facts the prosecutor referred only to an intent to kill. However, he argues the instructional error was prejudicial because the issue of express malice was not prominent and the evidence presented permitted the jury to find implied rather than express malice.

The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malicea conscious disregard for lifesuffices. [Citation.] But over a century ago, we made clear that implied malice cannot support a conviction of an attempt to commit murder.  To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend. [Citation.] The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder. [Citation.] [Citations.] (People v. Bland (2002) 28 Cal.4th 313, 327-328.)

Because implied malice does not require an intent to kill, implied malice is not a sufficient mental state to permit conviction of attempted murder. (People v. Beck (2005) 126 Cal.App.4th 518, 522.) CALJIC No. 8.66 properly addresses malice aforethought in the context of attempted murder by equating malice aforethought with express malice and a specific intent to kill. Thus, CALJIC No. 8.11, which provides that either express or implied malice may form the mental state required for the commission of murder should not be given in attempted murder cases. (Beck, at p. 522.) The People concede the court erred in instructing with CALJIC No. 8.11, but argue the error was harmless beyond a reasonable doubt.

The modified CALJIC No. 8.11 instruction was requested by defendant.^[5] Defendants list of proposed CALJIC jury instructions states, (8.11) use word attempted. Moreover, at the courts conference with counsel regarding proposed jury instructions, the court stated, 8.11, malice aforethought as goes to the charge. That was requested by [defense counsel], and that will be given. At no time below did defense counsel change his mind and object to CALJIC No. 8.11.

When a defense attorney makes a conscious, deliberate tactical choice to request a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was erroneously given. (People v. Wader (1993) 5 Cal.4th 610, 657-658; accord, People v. Catlin (2001) 26 Cal.4th 81, 150.) During oral argument, defendants appellate counsel contended that because CALJIC No. 8.11 should not be given in an attempted murder case, trial counsels request for the instruction could not have been a conscious, deliberate tactical choice. However, as Wader explains, Even a deliberate tactical choice by counsel . . . may be an incompetent one. Thus, . . . a defendant who is barred from raising instructional error by the invited error doctrine may always claim he received ineffective assistance of counsel.  (Wader, at p. 658, quoting People v. Cooper (1991) 53 Cal.3d 771, 831.)^[6]

By expressly requesting that the court instruct with CALJIC No. 8.11, defendant made a deliberate tactical choice and is barred from raising any claim of instructional error on appeal.

II. The CALJIC No. 5.17 Instruction Was Invited Error

Next, defendant contends the last paragraph of the CALJIC No. 5.17 imperfect self-defense instruction given by the court was erroneously misleading. The CALJIC No. 5.17 instruction requested by defendant and given by the court stated: A person who attempts to kill another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, attempts to kill unlawfully but does not harbor malice aforethought and is not guilty of murder.^[[7]] This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of attempted voluntary manslaughter. [] As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force. (Italics added.)

Defendant argues that the italicized portion of this instruction improperly limits the availability of the defense of imperfect self-defense. However, once again we conclude that defendants request for the instruction was invited error. Defense counsel requested the CALJIC No. 5.17 instruction given and acceded to that instruction on three occasions during the courts discussion with counsel on proposed jury instructions. Defendant concedes his counsel had a tactical reason for requesting the first two paragraphs of the CALJIC No. 5.17 instruction, but no tactical reason for requesting the third paragraph of that instruction. As noted in People v. Wader, supra, 5 Cal.4th at page 658, even if defendant now perceives that his counsels request for the entire CALJIC No. 5.17 instruction was mistaken or incompetent,^[8]he is not relieved of having made a tactical decision to request the instruction given. Defendant is barred from challenging the instruction on appeal.

III. There Was No Blakely Error

Finally, defendant contends the court committed Blakely error by imposing the upper term for attempted murder based on aggravating facts not determined by the jury, denying him a right to jury trial in violation of the Sixth and Fourteenth Amendments. In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court interpreted the Sixth Amendment to the United States Constitution to require that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by defendant; thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington(2004) 542 U.S. 296, 301-305.) In Cunningham, the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 860], overruling on this point People v. Black (2005) 35 Cal.4th 1238.)

In this case, the trial court imposed the upper term for attempted murder. The court found no mitigating factors and found the following eight aggravating factors, three of which related to the crime, while five related to defendant: (1) the crime involved great violence and great bodily harm, disclosing a high degree of cruelty, viciousness and callousness; (2) defendant was armed with a weapon at the time of the crime; and (3) defendant induced others, i.e., the getaway driver, to participate in the commission of the crime; (4) defendant engaged in violent conduct, indicating a serious danger to society; (5) defendants prior convictions as an adult and sustained proceedings as a juvenile are numerous;^[9](6) defendant served a prior prison term; (7) defendant was on parole at the time the instant crime was committed; and (8) defendants prior performance on probation and parole was unsatisfactory.

Factor (5) is appropriately relied upon under Blakely and Cunningham, even without a jury finding. (See Blakely v. Washington, supra, 542 U.S. at p. 301; Cunningham v. California, supra, 127 S.Ct. at p. 868.) Though the remaining factors should have been submitted to a jury, in Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2551-2553], the United States Supreme Court held that Blakely error was not structural error, but instead subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24; accord, People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) As respondent points out, any error the trial court made in considering an aggravating circumstance is harmless under Chapman, if we conclude, beyond a reasonable doubt, the jury would have found that circumstance true. As to factors (1) and (4), we conclude there is no reasonable doubt a jury would have found that defendants unprovoked shooting of the victim in the neck from close range, followed sometime later that same evening by defendant shooting at the same victim, involved great violence and great bodily injury, and disclosed a high degree of cruelty, viciousness and callousness, and indicates a serious danger to society. Factor (2) was undisputed by defendant at trial. Finally, factors (6), (7) and (8) were undisputed at sentencing, though the defendant was informed, in advance of sentencing, that the probation department was recommending an aggravated term based on those factors and that the court was planning on following that recommendation. Even though factor (3) should not have been considered by the court, under Chapman, we conclude beyond a reasonable doubt that without regard to factor (3) the trial court would have imposed the aggravated term for defendant, who, we note again, had suffered a sustained juvenile petition for murder.^[10]

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

MILLER, J.^*

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

^[2] Defendant pled no contest to being a felon in possession of a firearm. ( 12021, subd. (a)(1).)

^[3] Defendant was sentenced to a state prison term of 36 years 8 months to life.

^[4] Galarza said he had the gun with him when he was shot by defendant inside the house, but had not pulled it out because he did not think he was going to get shot.

^[5] The instruction was not requested by the prosecution.

^[6] No such ineffective assistance of counsel claim is made here.

^[7] Although the instruction inadvertently refers to murder rather than attempted murder, the court also properly instructed the jury pursuant to CALJIC No. 8.41 in part: There is no malice aforethought if the attempted killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself or other person against imminent peril to life or great bodily injury. Whether a jury has been correctly instructed depends upon the entire charge of the court (People v. Mardian (1975) 47 Cal.App.3d 16, 46; People v. Rhodes (1971) 21 Cal.App.3d 10, 20), and jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions (People v. Yoder (1979) 100 Cal.App.3d 333, 338). Thus, the omission of attempted from the CALJIC No. 5.17 instruction given was remedied by the CALJIC No. 8.41 instruction which informed the jury regarding imperfect self-defense.

^[8] Once again, he does not assert that his counsels request for the instruction constituted ineffective assistance of counsel.

^[9] Defendants criminal history includes a 1990 sustained juvenile petition for murder, a 1996 escape from the California Youth Authority (CYA), and a 2002 conviction of auto theft, being a felon with a firearm and possession of drugs and a firearm.

^[10] We reject the Attorney Generals assertion that defendant waived his Blakely error claim by failing to assert it below. Defendants sentencing hearing occurred two months after Black, which wasdecided on June 20, 2005. Thus, at the time of sentencing, the court was compelled to follow Black and any Blakely objection would have been futile. Consequently, there was no waiver. (See People v. Turner (1990) 50 Cal.3d 668, 703-704.)

^* Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.