Filed 10/4/17 P. v. Robinson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed as modified.

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

Victim Lawrence Dion Ables pulled a gun on defendant Charles Ray Robinson and robbed him of cocaine. A day or two later, Ables pulled a gun on defendant again and threatened to kill him. But then, as defendant later put it, “he made a mistake by letting me go.” Defendant got a gun, loaded it, went back to where Ables was, shot him, and killed him. Two of defendant’s shots hit and wounded a bystander.

As a result, defendant was convicted of first degree murder (Pen. Code, § 187, subd. (a), 189), with two enhancements for personally and intentionally discharging a firearm, causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)), and sentenced to 105 years to life in prison.

In this appeal,[1] defendant contends:

1. The trial court erred by failing to instruct sua sponte that provocation can reduce first degree murder to second degree murder; or, alternatively, defendant’s trial counsel rendered ineffective assistance by failing to request such an instruction.

2. The trial court erred by imposing two separate firearm discharge enhancements.

We agree that defendant was subject to only one firearm enhancement. Accordingly, we will modify the judgment by staying the punishment on the other firearm enhancement. Otherwise, we find no error. Hence, we will affirm.

I

FACTUAL BACKGROUND

On March 20, 2012, around 8:45 p.m., a police officer on patrol in Highland heard “multiple gunshots.” He went in the direction of the sound and found the dead body of Lawrence Dion Ables lying outside an apartment complex.

Ables had been shot nine times. There was a screwdriver under his body. He was a member of the Delmann Heights gang, with the moniker “Demon.” He had menacing tattoos, including “fuck” on one check and “you” on the other cheek, plus the initials of various gangs with “K” for “killer” (e.g., “HGCK,” meaning “Hoover Gangster Crips killer”).

When the shooting occurred, one James Blanchard was inside the apartment complex. He heard it but did not see it. He started running. Two bullets hit him; one grazed his chest, and one went through his right arm.

In a photo lineup, a witness who claimed to have seen the shooting identified defendant as the shooter.

Defendant was a member of the Grape Street gang, with the moniker “Killa Mac.” A gang expert testified that Delmann Heights and Grape Street are rival gangs.

On May 10, 2012, the police interviewed defendant. Defendant admitted that he shot Ables.

Defendant explained that he sold drugs. Two days before the shooting, Ables pointed a gun at him and robbed him of approximately $1,000 worth of cocaine.

The next day, even though defendant tried to avoid Ables, they ran into each other again. Ables pointed a gun at defendant and said, “I’ll merc [meaning kill] your ass right now.” However, he also asked defendant what he had; when defendant said he had nothing, Ables let him go.

According to defendant, this second incident “made me think . . . he’s gonna kill me so I have to kill him first.” During the next 30 minutes, he obtained a gun from a friend, loaded it, went back, and shot Ables.[2]

When the police asked defendant what he was thinking when he saw Ables, he answered, “I’m bout to kill this nigga.” “I just seen who I wanted, and I got him.” However, defendant also told police, “When . . . I seen him he had his hands in his pocket.” “I know he always got a gun so I just started shooting him.”

Defendant testified in his own behalf. According to defendant, when he confronted Ables, his only intention was to tell Ables to leave him alone. He brought a gun to protect himself and also “to let him know I got a gun” — i.e., to deter future aggression by Ables. When they saw each other, Ables put his right hand in his waistband and “charged at” defendant. Defendant thought Ables was going to shoot him. He fired one shot in the air. When Ables “kept charging,” defendant “started shooting at him.” He claimed it was “self defense” but immediately added, “it ain’t really self defense ’cause my mom’s like it ain’t self defense if you shot him more than once . . . I just kept shootin’ . . . I was . . . killing him before he do me.”

II

PROCEDURAL BACKGROUND

A jury found defendant guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with an enhancement for personally and intentionally discharging a firearm, causing death to Ables, and a separate enhancement for personally and intentionally discharging a firearm, causing great bodily injury to Blanchard. (Pen. Code, § 12022.53, subd. (d).) However, it found a gang enhancement to be not true. (Pen. Code, § 186.22, subd. (b)(1).) It also found defendant not guilty of the attempted murder of Blanchard. (Pen. Code, § 664, subd. (a).)

In a bifurcated proceeding, after defense counsel represented that defendant was willing to waive a jury trial,[3] the trial court found true two “strike” priors (Pen. Code, § 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction enhancement (Pen. Code, § 667, subds. (a)).

Defendant was sentenced to a total of 105 years to life in prison,[4] along with the usual fines, fees, and miscellaneous sentencing orders.

III

FAILURE TO INSTRUCT THAT PROVOCATION

CAN REDUCE FIRST DEGREE MURDER TO SECOND DEGREE MURDER

Defendant contends that the trial court erred by failing to instruct the jury that provocation can reduce a murder from first to second degree. (E.g., CALCRIM No. 522.)

A. Additional Procedural Background.

The parties agreed that the trial court would give certain instructions, including CALCRIM Nos. 520, 521, and 570, but not including CALCRIM No. 522.

Thus, the jury was instructed that provocation can reduce murder to voluntary manslaughter. (CALCRIM No. 570.) It was also instructed on first and second degree murder, including that first degree murder requires premeditation and deliberation. (CALCRIM Nos. 520 & 521.)

However, it was not given CALCRIM No. 522. CALCRIM No. 522, as relevant here, would have stated: “Provocation may reduce a murder from first degree to second degree. . . . The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.”

B. Discussion.

CALCRIM No. 522 is a “pinpoint” instruction, and therefore the trial court is not required to give it except on request. (People v. Rogers (2006) 39 Cal.4th 826, 877–880 (Rogers).) Rogers dealt with CALJIC No. 8.73, the predecessor of CALCRIM No. 522. The court noted that the definition of a pinpoint instruction is one that “‘relate[s] particular facts to a legal issue in the case or “pinpoint[s]” the crux of a defendant’s case . . . .’ [Citation.]” (Rogers, supra, at p. 878.) It concluded that “[b]ecause CALJIC No. 8.73 relates the evidence of provocation to the specific legal issue of premeditation and deliberation, it is a ‘pinpoint instruction.’” (Ibid.)

Defendant argues that, even if the trial court does not normally have a sua sponte duty to give CALCRIM No. 522, it did under the circumstances of this case. The trial court gave CALCRIM No. 570, which states that, for purposes of reducing murder to manslaughter, provocation must meet an objective standard. According to defendant, it was therefore necessary to give CALCRIM No. 522, because it would have stated that, for purposes of reducing first degree murder to second degree murder, provocation need only meet a subjective standard.

Rogers itself, however, refutes this argument. There, the Supreme Court rejected the “proposition that the standard heat-of-passion voluntary manslaughter instructions are always misleading . . . where the jury is instructed on premeditated murder and there is evidence of provocation, or that such manslaughter instructions always must be accompanied by instructions on the principle of inadequate provocation . . . . [T]he standard manslaughter instruction is not misleading, because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder. Further, the manslaughter instruction does not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed.” (People v. Rogers, supra, 39 Cal.4th at p. 880.)

Thus, as a fallback argument, defendant also contends that his trial counsel’s failure to request CALCRIM No. 522 constituted ineffective assistance of counsel.

“When challenging a conviction on grounds of ineffective assistance, . . . the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. . . . On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

As far as our record shows, defense counsel was never asked to explain his decision not to request CALCRIM No. 522. Thus, the issue before us is whether there could be a satisfactory explanation for this. It could have been a reasonable tactical decision, because there is a much greater difference in punishment between second degree murder and manslaughter than there is between first degree murder and second degree murder. The penalty for first degree murder is 25 years to life in prison. The penalty for second degree murder is 15 years to life in prison. (Pen. Code, § 190, subd. (a).) By contrast, the penalty for voluntary manslaughter is only three, six, or eleven years in prison. (Pen. Code, § 193, subd. (a).)

Admittedly, defendant had two strike priors. Ordinarily, this would make him subject to a term of at least 25 years to life, even for manslaughter. (Pen. Code, §§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) However, as discussed, in footnote 4, ante, it appears that he was entitled to have one of the strikes dismissed, which would mean that all of the terms, including for manslaughter, would be doubled, at most. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)

Even more important, in connection with the murder count, defendant was charged with enhancements for personally and intentionally discharging a firearm, causing death or great bodily injury, which entailed “an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (Pen. Code, § 12022.53, subd. (d).) If defendant was convicted of manslaughter rather than murder, none of the firearm enhancements in Penal Code section 12022.53 could apply. (See Pen. Code, § 12022.53, subd. (a) [specifying crimes].)[5]

In sum, then, if the jury used provocation to reduce first degree murder to second degree murder, defendant would still be facing multiple consecutive life sentences. However, if the jury used provocation to reduce murder to voluntary manslaughter, he would be facing only a relatively brief term of years. Thus, it was reasonable for defense counsel to bet all of the “provocation” chips on manslaughter.

IV

IMPOSITION OF TWO SEPARATE FIREARM ENHANCEMENTS

Defendant contends that the trial court erred by imposing two separate enhancements for personally and intentionally discharging a firearm, causing death or great bodily injury. (Pen. Code, § 12022.53, subd. (d).)

A. Additional Procedural Background.

Defendant was not only charged, in count 1, with murder of Ables, but also, in count 2, with attempted murder of Blanchard. It was further alleged “as to count(s) 1 [and] 2 that [defendant] personally and intentionally discharged a firearm, . . . which caused great bodily injury and death to . . . Ables and . . . Blanchard Jr within the meaning of Penal Code section 12022.53(d).”

The verdict forms unpacked this single allegation into four separate enhancements, each requiring its own true or not true finding (bolding omitted and capitalization altered):

1. “[T]hat in the commission of the offense charged in Count 1,” defendant “personally and intentionally discharged a firearm, . . . which proximately caused death to . . . Ables.”

2. “[T]hat in the commission of the offense charged in Count 1,” defendant “personally and intentionally discharged a firearm, . . . which proximately caused great bodily injury to . . . Blanchard.”

3. “[T]hat in the commission of the offense charged in Count 2,” defendant “personally and intentionally discharged a firearm, . . . which proximately caused death to . . . Ables.”

4. “[T]hat in the commission of the offense charged in Count 2,” defendant “personally and intentionally discharged a firearm, . . . which proximately caused great bodily injury to . . . Blanchard.”

The jury found the first two of these enhancements, relating to count 1, to be true. However, it found defendant not guilty on count 2. It also found the latter two enhancements, relating to count 2, to be not true.

The trial court imposed a consecutive term of 25 years to life on each of the two firearm enhancements to count 1, for a total additional term of 50 years to life.

B. Discussion.

Defendant argues that the imposition of both enhancements on count 1 was erroneous for several alternative reasons.

First, defendant argues that the murder of Ables, as charged in count 1, could not be enhanced based on the attempted murder of Blanchard, as charged in count 2 (and vice versa). However, if, in the commission of the murder of Ables, defendant personally and intentionally discharged a firearm and thereby proximately caused great bodily injury to Blanchard, then the enhancement, by its terms, did apply. And, as the People note, there was substantial evidence that this occurred. In his effort to kill Ables, defendant fired at least 13 shots. Nine of them hit Ables. Two of them hit Blanchard. There is no requirement that the person who suffers great bodily injury or death must also be the victim of the underlying crime. (People v. Mason (2002) 96 Cal.App.4th 1, 11–14.)

Second, defendant argues that the true finding on the enhancement based on great bodily injury to Blanchard was inconsistent with the findings that he was not guilty of attempted murder of Blanchard (count 2) and that the parallel enhancement to count 2 was not true. The supposed inconsistency does not exist. With regard to the acquittal, the jury could reasonably find that defendant intended to kill only Ables and did not intend to kill any bystanders (though he may have been negligent as to them). Indeed, there was no evidence that he even knew Blanchard was there. For these reasons, the jury could find him not guilty of the attempted murder of Blanchard. (See People v. Stone (2009) 46 Cal.4th 131, 141.) However, the enhancement would still apply. Similarly, with regard to the not true finding, the verdict form required the jury to find that, “in the commission of the offense charged in Count 2,” defendant personally and intentionally discharged a firearm, causing great bodily injury to Blanchard. (Italics added.) Once it found that defendant did not commit the offense charged in count 2, it had to find this enhancement not true, even if he did cause Blanchard’s injury. However, the otherwise identical enhancement to count 1 would still apply.

We also reject defendant’s second argument for a separate and alternative reason. “A jury in a criminal case may return inconsistent verdicts.” (People v. Williams (2001) 25 Cal.4th 441, 449.) “As a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] For example, ‘if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 600.)

Third, defendant argues that Penal Code section 12022.53, subdivision (f) bars the imposition of the second enhancement.[6] This time, we agree. This subdivision states: “Only one additional term of imprisonment under this section shall be imposed per person for each crime.” Thus, it flatly prohibits the imposition of two enhancements under Penal Code section 12022.53 on a single count. (People v. Smart (2006) 145 Cal.App.4th 1216, 1223–1226.)

We will therefore modify the judgment by staying the enhancement term that is based on great bodily injury to Blanchard. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1129.)

V

DISPOSITION

The judgment is modified by staying the term of 25 years to life that was imposed on the second enhancement under Penal Code section 12022.53, subdivision (d). As a result, the total term of imprisonment is reduced from 105 years to life to 80 years to life. This stay will become final once defendant has served the remainder of his sentence. As thus modified, the judgment is affirmed. The superior court clerk is directed to prepare

an amended sentencing minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.