P. v. Govea

Filed 3/8/07 P. v. Govea CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Affirmed.

________

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

_________

A jury convicted Les Govea of first-degree murder (count 1), three counts of carjacking with personal firearm use (counts 2-4), and evading police while driving with willful disregard of others (count 5). (Pen. Code, 187, subd. (a), 189; 215, subd. (a), 12022.53, subd. (b); Veh. Code, 2800.2, subd. (a); all further section references are to the Penal Code.) The jury also found that the murder resulted from Goveas personal discharge of a firearm proximately causing death. (12022.53, subd. (d).) In a bifurcated trial after a jury waiver the court found that Govea had two serious and strike and one prison term prior felony convictions. ( 667, subds. (a)-(i), 1170.12; 667.5, subd. (b).) The court imposed an aggregate sentence of 135 years-to-life, including, in addition to the base term for the murder, a consecutive 25 years-to-life term for intentionally discharging a firearm causing death.

Govea appeals, contending that the court erred in (I) refusing his request to instruct the jury regarding heat-of-passion voluntary manslaughter ( 192, subd. (a)) as a lesser included crime of murder, and (II) imposing a consecutive 25 years-to-life term for intentionally discharging a firearm causing death ( 12022.53, subd. (d)) in addition to the base term for the murder in which the firearm was discharged. He argues that because he committed the murder by shooting the victim, such sentence violates section 654s prohibition on multiple punishment for the same act.

We reject the contentions and affirm the judgment.

FACTS

On October 29, 2003, just after midnight, Govea shot and killed Mario Gonzalez. (All further date references are to 2003.) Govea first became acquainted with Gonzalez through Goveas then girlfriend, and later wife, Hollie.^[1] Gonzalez and Hollie had been friends for about eight years when Hollie met Govea in August. Shortly thereafter she and Govea began living together. The trio had socialized at least once between August and the time of Gonzalez death. About October 21, Hollie confided in Gonzalez that Govea had beaten her and Gonzalez photographed her injuries. Later that day, Gonzalez showed the photos to his friend Rachel Astengo. When Hollie told Govea that she had confided in Gonzalez, Govea became angry and, after confirming with Gonzalez that Gonzalez and Hollie had met, instructed Hollie never to tell anyone about the beating.^[2]

About October 26, Astengo met Gonzalez at his house to do errands together. As they were about to leave, Astengo saw Govea drive by in a black truck he and Hollie used. Gonzalez became observably nervous, cancelled the errands, and returned inside the house. Later the same day, when Astengo saw Govea driving the same black truck, Govea told Astengo to tell Gonzalez to stay away from Hollie, and that he was going to take [Gonzalez] life if [Gonzalez] didnt leave [Hollie] alone.

On October 28, after spending most of the day with Gonzalez, Astengo dropped him off at a friends house shortly before midnight. As she drove off, a red car with two occupants, one of whom looked like Govea, briefly followed her.^[3] Shortly thereafter, outside the friends house, Gonzalez was shot twice and killed. Deputies found two ejected shell casings nearby. Hollie testified that Govea came home on the evening of October 28, slept with her for a few hours, and left early the next morning.

On the evening of November 14, deputy sheriffs responding to a report of a liquor store robbery pursued the black truck, driven by Govea with Hollie as passenger, when it suddenly accelerated after a deputy illuminated it with a spotlight. A high speed chase ensued and only ended when the truck crashed. Hollie remained in the truck and was arrested but Govea fled on foot. Shortly thereafter, Govea stole a car at gunpoint from three victims and drove off with police in pursuit. He crashed this vehicle too and again fled on foot but was apprehended after he ran past a parked truck. In the bed of the parked truck, officers found a handgun; in the center console of the black truck, they found a loaded ammunition clip which fit the handgun. Ballistics tests disclosed that the two shell casings found at the murder scene and the fatal bullet recovered from Gonzalez body were fired from that handgun. At Hollies house, police found photographs showing Govea in the black truck and Gonzalez, Govea, and Hollie together.

Govea did not present a defense. The court refused his request that it instruct the jury on heat-of-passion voluntary manslaughter as a lesser included crime of murder, finding insufficient evidence supported such a theory. The jury convicted Govea of first-degree murder based on premeditation and deliberation and made a special finding that he personally discharged a firearm which caused the death. The jury also convicted Govea of three counts of carjacking with personal firearm use enhancements and evading police while driving with willful disregard of others.

DISCUSSION

I. The Court Properly Refused to Instruct On
Voluntary Manslaughter.

Govea contends that the court erred in refusing his request to instruct the jury regarding heat-of-passion voluntary manslaughter as a lesser included crime of murder because substantial evidence supported the conclusion that he committed that lesser crime rather than the charged murder. In support, he cites Hollies description of his anger upon discovering that she had confided in Gonzalez after he had beaten her and argues that there was no evidence of cooling off, and that the prosecutor argued that he killed Gonzalez because of that anger. We disagree.

Sudden quarrel heat of passion voluntary manslaughter is a lesser included crime of murder. (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216.) The court must instruct the jury regarding a lesser included crime sua sponte if substantial evidence would support a guilty verdict of the lesser included rather than the charged crime, even if the defendant objects or the lesser included crime is inconsistent with his trial theory. (People v. Barton (1995) 12 Cal.4th 186, 194-198.) Conversely, even on request, the court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [] On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. (People v. Cole, supra, 33 Cal.4th at p. 1215, internal quotations and citations omitted.)

Defendants seeking to mitigate killings from murder to heat of passion voluntary manslaughter must demonstrate heat of passion and provocation. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The heat of passion requirement for manslaughter has both an objective and a subjective component. The defendant must actually, subjectively, kill under the heat of passion. But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. (Id. at pp. 1252-1253, italics added, internal quotations and citations omitted.) Moreover, the provocation which incites the killer to act in the heat of passion case must be caused by the victim or reasonably believed by the accused to have been engaged in by the decedent. [Citations.] (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412, italics added.) In addition, to be entitled to voluntary manslaughter instructions, the killing must be upon a sudden quarrel or heat of passion ( 192[, subd. (a)]); that is, suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter. [Citation.] (People v. Daniels (1991) 52 Cal.3d 815, 868; People v. Pride (1992) 3 Cal.4th 195, 250 [criticism of defendants work performance received three days before the crime insufficient to support voluntary manslaughter instructions].)

Applying these principles to our facts, we conclude that the court properly refused to instruct the jury regarding heat-of-passion voluntary manslaughter. The record contains no evidence that Govea was acting under a heat of passion at the time he killed Gonzalez, nor, despite Goveas contrary argument, did the prosecutor so argue. On the contrary, the evidence showed the opposite of heat of passion. By stalking and threatening Gonzalez for a week before finally killing him, Govea showed deliberation and premeditation, not a sudden quarrel creating heat of passion at the time of the shooting. Nor does the prosecutors argument that Hollies confiding in Gonzalez incited Govea undermine this conclusion. In context, the prosecutor was arguing motive for the killing, not conceding heat of passion, and proposing that the murder was premeditated because Govea spent a week planning it.

In a related argument Govea contends that there was no evidence of cooling off. We disagree. A week was more than sufficient time for a reasonable persons passion to cool. (People v. Daniels, supra,52 Cal.3d at p. 868; People v. Pride, supra, 3 Cal.4th at p. 250 [three days between provocation and killing sufficient for passions to cool].)

Govea further suggests that Gonzalez provoked him by listening to Hollies complaints and photographing her injuries. Such conduct, however, is not provocation. (People v. Lujan, supra, 92 Cal.App.4th at pp. 1411-1412 [no provocation by either victim where defendant sees wife from whom he is separated and who he has been stalking and threatening embracing her boyfriend near wifes house and kills them both].) Govea also cites cases holding that provocation can be based on a course of abusive conduct by the victim of the defendant. (People v. Berry (1976) 18 Cal.3d 509, 514-516, 518; People v. Borchers (1958) 50 Cal.2d 321, 328-330; People v. Bridgehouse (1956) 47 Cal.2d 406, 413-414, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) Because there is no evidence that Gonzalez engaged in any, let alone a course of, abusive conduct, those cases are inapplicable.

II. The Court Properly Imposed a Consecutive 25 Years-to-Life Term
On the Murder for Intentionally Discharging a Firearm Causing Death.

Govea contends that the court violated section 654s prohibition against multiple punishments for the same act by imposing a consecutive 25 years-to-life term for intentionally discharging a firearm causing death ( 12022.53, subd. (d)) in addition to the base term for the murder.^[4] He argues that because he committed the murder by shooting Gonzalez, imposing the additional term for using a firearm punishes him twice for causing death. We disagree.

Two cases have rejected this contention, holding that imposition of the additional term does not punish twice for causing death, but adds an additional punishment where death is caused by firing a gun, a particularly dangerous manner of committing murder that is not an element of the underlying crime which the Legislature has chosen to punish more severely. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1373-1375; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1311-1315.) The Supreme Court has granted review in three cases raising closely related issues. (People v. Palacios (rev. granted May 11, 2005) S132144; People v. Izaguirre (rev. granted June 8, 2005, S132980); People v. Manila (rev. granted Sept. 20, 2006, S144885).) Pending resolution of this issue by the Supreme Court, we agree with Sanders and Hutchins and reject Goveas argument that they were wrongly decided. Thus, we reject Goveas contention for the reasons stated in those cases.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

VOGEL, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] To avoid confusion, hereafter we refer to Hollie Govea as Hollie. Govea and Hollie married before the trial.

^[2] At trial, Hollie testified that she sustained the injuries when she fell while intoxicated, and either denied or claimed she could not remember her contrary statements to deputies made after her arrest. We reject Goveas claim that the record shows that Hollies meeting with Gonzalez may have occurred as late as October 25. Goveas claim is based on a question from the prosecutor whether the meeting could have occurred on October 25. Hollie answered that she did not know but that the meeting happened about a week before Gonzalez death.

^[3] Astengos trial testimony diverged in some respects from statements she made to the police.

^[4] As relevant, section 654, subdivision (a) provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .

As relevant, section 12022.53, subdivision (d) provides that, [n]otwithstanding any other provision of law, anyone who, while committing an enumerated felony, including murder ( 12022.53, subd. (a)(1)), intentionally discharges a firearm causing death, shall be punished by a consecutive 25 years-to-life term.