People v. Chambers CA1/4 ( 2021 )

Filed 11/2/21 P. v. Chambers CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159908
v.
MARSHAWN DEDRICK CHAMBERS, (Alameda County
Super. Ct. No. 18-CR-020085A)
Defendant and Chambers.
Upon leaving an illegal gambling establishment, defendant Marshawn
Dedrick Chambers was captured on video firing numerous shots at a group of
men who had followed him and his companion outside onto the street. One
man died, another one was seriously injured, and a bystander, who had been
asleep on the sidewalk, was shot in the foot. A jury convicted Chambers of
voluntary manslaughter (Pen. Code,1 § 192, subd. (a)), attempted voluntary
manslaughter (§§ 192, subd. (a), 664), assault with a semiautomatic firearm
(§ 245, subd. (b)), and possession of a firearm by a felon (§ 29800,
subd. (a)(1)). On appeal Chambers contends his convictions for voluntary
manslaughter, attempted voluntary manslaughter, and assault with a
semiautomatic firearm must be reversed because they are not supported by
1 All further undesignated statutory references are to the Penal Code.
1
substantial evidence and the trial court failed to instruct the jury sua sponte
on involuntary manslaughter. We reject these contentions and affirm.
BACKGROUND
A. Charged Offenses
On May 3, 2019, the Alameda County District Attorney filed a
multi-count information against Chambers.2 Count one charged Chambers
with the murder of Xin Hoang (§ 187, subd. (a)). Count two charged
Chambers with the attempted murder of Tam Huynh (§§ 187, 664). Count
three charged Chambers with assaulting Tam Huynh with a semiautomatic
firearm (§ 245, subd.(b)). Count four charged Chambers with assaulting
Linda Johnson with a semiautomatic firearm (§ 245, subd. (b)). Count five
charged Chambers with possession of a firearm by a felon (§ 29800,
subd. (a)(1)).
The information specially alleged that Chambers personally discharged
a firearm causing great bodily injury and death to Xin Hoang (counts one and
two) (§§ 12022.7, subd. (a), 12022.53, subds. (b)-(d), 12022.5, subd. (a). and
that he personally used a firearm, causing great bodily injury to Tam Huynh
and Linda Johnson, counts three and four, respectively. (§§ 1203.06,
subd.(a)(1), 12022.5, subd. (a)).
B. Evidence at Trial
1. Possible Robbery of the 11th Avenue Gambling Shack
On the evening of August 26, 2018, Tam Huynh was working as the
manager of an illegal gambling shack located at 1110 International
Boulevard and 11th Avenue (11th Avenue gambling shack) in Oakland. A
patron at the shack named “Deezy” thought that Chambers and another
Anthony Le was also charged as a codefendant; Le’s case was
2
subsequently severed.
2
young Black man were going to rob the place. The young men, who had been
at the shack for about 30 minutes, were not regular customers, but they were
polite and did nothing to call attention to themselves.
2. Assistance from the 7th Avenue Gambling Shack
Deezy went to another illegal gambling shack, located on 7th Avenue,
where he told security guard Gilbert Berena that “he seen somebody that has
a gun, and he thinks . . . that place [the 11th Street shack] is about to get
robbed.” Berena, along with Anthony Le and Xin “Timmy” Hoang, who were
at the 7th Avenue location, accompanied Deezy to the 11th Avenue shack to
investigate the possible robbery.
3. Investigation at the 11th Avenue Shack
Upon arriving at the 11th Street shack, Berena and his three
companions approached Huynh and asked if he was okay and if someone had
tried to rob the shack. Berena told Huynh, “Somebody might have a weapon
or a gun inside your spot.” Huynh responded that “everything looked okay,”
and that no one was trying to rob the shack. Huynh testified that Berena and
his companions had “some temper. Kind of young and screaming a little bit.”
“They walked back and forth and talked loudly.” Tina Addi, a patron at the
11th Avenue shack on the night in question, testified that the four men
definitely appeared to be under the influence of methamphetamine.
Berena announced to everyone in the shack that he would start
searching the customers for weapons. He heard someone respond, “[Y]ou are
not going to search me,” or “I don’t want to be searched,” in a calm tone of
voice. Berena told Chambers and his friend that weapons were not allowed
inside the shack, and that they would have to put any guns in their vehicle.
Chambers responded that “he didn’t want any problems and he was leaving.”
3
4. Events Outside the 11th Avenue Shack
The jury viewed surveillance footage from both inside and outside the
11th Avenue shack recorded on the night in question, which depicts the
ensuing events.3
Chambers and his friend left the shack without incident. Berena, Le,
Hoang, and Deezy followed them outside. Addi testified that she saw Hoang
walk out with a pole tucked up the sleeve of his jacket, while Le held a gun
behind his back. Huynh followed the four men and told them to return to the
shack.
The outside surveillance cameras showed Chambers and his companion
walking along International Boulevard away from the shack with Berena, Le,
Hoang, and Deezy following closely behind. As his companion continued
walking, Chambers stopped on the sidewalk, turned and waited for Berena,
Le, Hoang, and Deezy to approach. Huynh testified that he heard Le
challenge Chambers, by saying words to the effect of, “You came here to play.
You try to do something. Why don’t you show me.” Chambers then pulled “his
shirt up and took out a gun” and fired numerous gunshots while running.
Hoang immediately fell to the ground. As Huynh turned away to hide,
Chambers shot him in the stomach and leg. Le returned fire with his gun,
while Berena and Deezy fled.
Bystander Linda Johnson, who was shot in the foot during the melee,
did not testify at trial, but body camera footage of her statement on the night
of the offense was played for the jury. Johnson, who was homeless, said that
she had been sleeping on the sidewalk and did not see what happened, she
only “heard it.”
3 We have reviewed this footage.
4
After Chambers fled, Berena brought Hoang to the hospital, where he
was pronounced dead as a result of a single gunshot wound to the head.
Evidence technicians recovered ten .45 caliber shell casings and seven .40
caliber shell casings from the crime scene.
C. Jury Instructions
The jury was instructed with the CALCRIM Homicide Series, including
justifiable homicide–self-defense or defense of another (CALCRIM No. 505);
second degree murder with malice aforethought in violation of section 187
(CALCRIM No. 520); voluntary manslaughter on theories of heat of passion
(CALCRIM No. 570) and imperfect self-defense (CALCRIM No. 571);
attempted murder (CALCRIM No. 600); attempted voluntary manslaughter
on theories of heat of passion (CALCRIM No. 603) and imperfect self-defense
(CALCRIM No. 604). The jury was instructed it could not convict Chambers
of both attempted murder (count two) and assault with a semiautomatic
weapon (count three) (CALCRIM No. 3516). The jury was also instructed as
to the assaultive offenses (CALCRIM No. 875), weapons charges (CALCRIM
No. 2511), enhancements (CALCRIM Nos. 3146, 3148, 3149, 3160), and
defenses (CALCRIM Nos. 3470, 3471, 3472, 3474. Chambers did not request
an instruction on a lesser included offense of involuntary manslaughter.
(CALCRIM No. 580.)
D. Verdict and Sentencing
On October 21, 2019, the jury returned its verdicts. The jury acquitted
Chambers of Hoang’s murder, but convicted him of the lesser included offense
of voluntary manslaughter (count one) (§ 192, subd. (a)). The jury acquitted
Chambers of the attempted murder of Huynh, but convicted him of the lesser
included offense of attempted voluntary manslaughter (count two) (§§ 192,
subd. (a), 664). As to both counts one and two, the jury found the associated
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enhancement allegations to be true. Chambers was acquitted of the assault
with a semiautomatic firearm as to Huynh (count three). He was convicted of
assaulting Johnson with a semiautomatic firearm and possession of a firearm
by a felon (counts four and five, respectively).
The trial court struck the great bodily injury enhancements and, on
January 24, 2020, sentenced Chambers to state prison for the total
determinate term of eight years eight months.
DISCUSSION
Chambers seeks reversal, contending that his convictions for voluntary
manslaughter, attempted voluntary manslaughter, and assault with a
semiautomatic firearm are not supported by substantial evidence. He argues
he lacked the mens rea necessary to support his voluntary manslaughter and
attempted voluntary manslaughter convictions and that there is no evidence
that he fired the shot that injured Johnson. He also challenges the trial
court’s failure sua sponte to instruct the jury on involuntary manslaughter.
I. Substantial Evidence Supports the Convictions
A. Standard of Review
In evaluating Chambers’s claims, “we review the whole record to
determine whether any rational trier of fact could have found the essential
elements of the crime . . . beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e., evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.] In
applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence. [Citation.] . . .
A reversal for insufficient evidence ‘is unwarranted unless it appears “that
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upon no hypothesis whatever is there sufficient substantial evidence to
support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357,
italics omitted.)
As to the mens rea element, the California Supreme Court has
explained that “ ‘[e]vidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence
to support a conviction.’ [Citation.] Moreover, the standard of review that
applies to insufficient evidence claims involving circumstantial evidence is
the same as the standard of review that applies to claims involving direct
evidence. ‘We “must accept logical inferences that the jury might have drawn
from the circumstantial evidence. [Citation.]” [Citation.] “Although it is the
jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]”
[Citation.] Where the circumstances reasonably justify the trier of fact’s
findings, a reviewing court’s conclusion the circumstances might also
reasonably be reconciled with a contrary finding does not warrant the
judgment’s reversal.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
B. The Law of Homicide
We address Chambers’s claims in the context of the law of homicide. A
justifiable or excusable killing is not criminal. (People v. Elmore (2014)
59 Cal.4th 121, 132 (Elmore).) Murder is the unlawful killing of a human
being with malice aforethought, which may be express or implied. (Ibid.)
Express malice is “ ‘a deliberate intention unlawfully to take away the life of
a fellow creature.’ ” (Ibid.) Implied malice occurs when “an unlawful killing
results from a willful act, the natural and probable consequences of which are
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dangerous to human life, performed with conscious disregard for that
danger.” (Id. at p. 133.) “Thus, the mens rea required for murder is malice,
express or implied.” (Ibid.)
Manslaughter, a lesser included offense of murder, “is an unlawful
killing without malice” (Elmore, supra, 59 Cal.4th at p. 133) and may be
voluntary, involuntary, or vehicular (ibid.).
“Two factors may preclude the formation of malice and reduce murder
to voluntary manslaughter: heat of passion and unreasonable self-defense.
[Citations.] Heat of passion is recognized by statute as a mitigating factor.
[Citation.] Unreasonable self-defense is founded on both statute and the
common law.” (Elmore, supra, 59 Cal.4th at p. 133.) In contrast to voluntary
manslaughter, involuntary manslaughter is a killing that occurs during the
commission of “an unlawful act, not amounting to a felony; or in the
commission of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection.” (§ 192, subd. (b).)
1. Mens Rea of Voluntary Manslaughter
Voluntary manslaughter is a lesser included offense of murder. (People
v. Thomas (2012) 53 Cal.4th 771, 813.) A defendant commits voluntary
manslaughter when a homicide that is committed either with intent to kill
(express malice) or with conscious disregard for life (implied malice)—and
therefore would normally constitute murder—is nevertheless reduced or
mitigated to manslaughter by heat of passion or imperfect self-defense.
(People v. Bryant (2013) 56 Cal.4th 959, 968 (Bryant).)
Intent to kill or express malice “may in many cases be inferred from the
defendant’s acts and the circumstances of the crime.” (People v. Smith (2005)
37 Cal.4th 733, 741.) Notably, our Supreme Court has found that “the act of
purposefully firing a lethal weapon at another human being at close range,
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without legal excuse, generally gives rise to an inference that the shooter
acted with express malice.” (Id. at p. 742; see People v. Lashley (1991)
1 Cal.App.4th 938, 945 [“very act of firing a .22-caliber rifle toward the victim
at a range and in a manner that could have inflicted a mortal wound had the
bullet been on target is sufficient to support an inference of intent to kill”];
People v. Jackson (1989) 49 Cal.3d 1170, 1201 [“the very act of firing a
shotgun toward” victim at a short distance “would permit an inference of
intent to kill from the manner of killing”]; People v. Villegas (2001)
92 Cal.App.4th 1217, 1224–1225 [firing six shots at victims at distance of 25
feet indicated clear intent to kill]; People v. Chinchilla (1997) 52 Cal.App.4th
683, 690 [“act of firing toward a victim at a close, but not point blank, range
‘in a manner that could have inflicted a mortal wound had the bullet been on
target is sufficient to support an inference of intent to kill’ ”].)
The term “conscious disregard for life” is shorthand for the mens rea of
implied malice. (Bryant, supra, 56 Cal.4th at p. 968.) Malice is implied “when
a killing results from an intentional act, the natural consequences of which
are dangerous to human life, and the act is deliberately performed with
knowledge of the danger to, and with conscious disregard for, human life.”
(People v. Cook (2006) 39 Cal.4th 566, 596.) The conscious disregard element
“ ‘requires the jury to question [the defendant’s] subjective thoughts while
committing the crime.’ ” (People v. Benson (1989) 210 Cal.App.3d 1223, 1229.)
The defendant must have a “knowing or conscious appreciation of the risk to
human life” created by his or her conduct and must disregard that risk.
(Ibid.) However, ill will towards the victim is not required, and conscious
disregard may exist even if the death was accidental in the sense the
defendant did not intend to kill anyone. (People v. Nieto Benitez (1992)
4 Cal.4th 91, 103, 110 [“Even if the act results in a death that is accidental,
9
as defendant contends was the case here, the circumstances surrounding the
act may evince implied malice.”]; People v. Swain (1996) 12 Cal.4th 593, 603
[intent to cause death not required].)
Conscious disregard for life can readily be inferred when the
circumstances show the defendant’s conduct just before the fatal act was so
highly dangerous to human life that virtually no one would be unaware of the
risk. (See People v. Thomas (2012) 53 Cal.4th 771, 814–815 [putting gun to
victim’s head is highly dangerous and exhibits a conscious disregard for
life]; People v. Boatman (2013) 221 Cal.App.4th 1253, 1263 [substantial
evidence of implied malice based on defendant’s act, even in jest, of pointing
gun at girlfriend and cocking hammer back, knowing gun was loaded].)
2. Mens Rea of Attempted Voluntary Manslaughter
Attempted voluntary manslaughter is a lesser included offense of
attempted murder. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137
[“the offense of attempted murder is reduced to the lesser included offense of
attempted voluntary manslaughter when the defendant acted upon a sudden
quarrel or in the heat of passion”]; see People v. Gutierrez (2003)
112 Cal.App.4th 704, 708–709.)
Attempted voluntary manslaughter, like attempted murder, requires a
specific intent to kill; a conscious disregard for life will not suffice. (People v.
Lasko (2000) 23 Cal.4th 101, 107; People v. Bland (2002) 28 Cal.4th 313, 327–
328; People v. Gutierrez, supra, 112 Cal.App.4th at p. 710.) However, “a
person who intends to kill can be guilty of attempted murder even if the
person has no specific target in mind.” (People v. Stone (2009) 46 Cal.4th 131,
140, italics added.) For example, a person who “indiscriminately fires a single
shot at a group of persons with specific intent to kill someone, but without
targeting any particular individual or individuals, . . . is guilty of a single
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count of attempted murder.” (People v. Perez (2010) 50 Cal.4th 222, 225;
Stone, at p. 141.) In other words, “[a]n indiscriminate would-be killer is just
as culpable as one who targets a specific person.” (Stone, at p. 140.)
C. Substantial Evidence Supports the Voluntary Manslaughter
Conviction
As to the murder charge, the jury was instructed on second degree
murder (§ 187; CALCRIM No. 520) and the lesser included offense of
voluntary manslaughter (§ 192, subd. (a)) under theories of heat of passion
(CALCRIM No. 570) and imperfect self-defense (CALCRIM No. 571). The jury
acquitted Chambers of murder and convicted him of voluntary manslaughter.
Chambers argues his voluntary manslaughter conviction must be
reversed because there was insufficient evidence he acted with malice, that
is, an intent to kill or a conscious disregard for life. In particular, he claims
the “wild nature of the shots fired” demonstrated that “he did not engage in
any deliberative thought before he fired his gun randomly” toward the group
of men who had followed him and his friend.
The video surveillance footage belies Chambers’s claim that he fired
without “any deliberative thought.” The video shows Chambers stopped and
turned to face the men on the sidewalk as his companion walked away.
Berena and Huynh testified that they heard someone challenge Chambers
before he pulled out his gun and began firing numerous shots at them. The
video surveillance footage confirms that after Hoang fell onto the street,
Chambers continued to fire shots at the other men as they sought cover.
Viewing this evidence in the light most favorable to the verdict, a rational
trier of fact could have reasonably inferred that Chambers repeatedly fired
his gun with intent to kill or conscious disregard for life.
Chambers argues he did not have the requisite mental state because he
“did not appreciate the likely consequences of his actions as he merely
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reacted with no time for conscious consideration of the likely outcome of his
decision.” We are hard-pressed to find how Chambers could not be
subjectively aware that firing multiple gunshots at a group of people was
highly dangerous to human life. His attempt to recast his actions as
accidental is not supported by the record. Substantial evidence supports the
voluntary manslaughter conviction.
D. Substantial Evidence Supports the Attempted Voluntary
Manslaughter Conviction
The jury acquitted Chambers of attempted murder and assault with a
semiautomatic weapon but convicted him of the attempted voluntary
manslaughter of Huynh.
Chambers argues there is no “evidence whatsoever” that he intended to
kill Huynh. He adds that if the evidence established that he “intended to
shoot anyone in particular . . . firing wildly as he ran from the crowd of men
who were pursuing him, it showed [he] likely intended to shoot Anthony Le.”
Contrary to Chambers’s contention, his conviction of attempted
manslaughter does not require substantial evidence of his specific intent to
kill Huynh. (See Stone, supra, 46 Cal.4th at p. 140 [defendant need not have
a “specific target in mind”].) It is clear from the record that Chambers
indiscriminately, or using his words “wildly,” fired successive shots at a group
of people. This evidence was sufficient for the jury to find that Chambers had
an intent to kill someone. That he may not have targeted Huynh does not
make him any less culpable.
Chambers argues that the jury’s acquittal on the assault charge “is a
clear indication” that he lacked the intent to kill needed to support an
attempted voluntary manslaughter conviction. This argument is premised on
a fundamental misunderstanding of the crimes charged and the associated
verdicts. In CALCRIM No. 3516 the jury was instructed: “The defendant is
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charged in Count 2 with Attempted Murder, a violation of Penal Code section
664/187 and in Count 3 with Assault with a Semiautomatic Firearm, a
violation of Penal Code section 245(b). These are alternative charges. If you
find the defendant guilty of one of these charges, you must find him not guilty
of the other. You cannot find the defendant guilty of both.”
That the jury acquitted Chambers of assault with a semiautomatic
weapon demonstrates that the jury followed CALCRIM No. 3516, not that the
jury found he lacked the mental state for attempted voluntary manslaughter.
The evidence overwhelmingly supports the jury finding that Chambers acted
with a specific intent to kill when he fired numerous shots at Huynh and the
other men on the sidewalk and its guilty verdict on count 2, for attempted
voluntary manslaughter conviction.
E. Substantial Evidence Supports the Assault with a
Semiautomatic Firearm Conviction
Chambers contends that there is insufficient evidence to support his
conviction for assaulting Linda Johnson with a semiautomatic firearm
because there is no evidence that he was the person who shot her.
1. Applicable Law
The elements of assault with a deadly weapon are: (1) the defendant
did an act with a deadly weapon that by its nature would directly and
probably result in the application of force to a person; (2) the defendant did
the act willfully; (3) when he or she did so, the defendant was aware of facts
that would lead a reasonable person to realize his or her act would result in
the application of force to someone; and (4) the defendant had the present
ability to apply force with the deadly weapon. (§§ 240, 245, subd. (a)(1);
People v. Golde (2008) 163 Cal.App.4th 101, 120–123.)
Assault with a deadly weapon does not require “a specific intent to
injure a particular victim . . . . [B]ecause the law seeks to prevent the
13
wrongful application of physical force upon the victim ‘irrespective of any
actual purpose to cause it,’ the mens rea element of assault is established by
proof of general criminal intent. [Citation.] . . . [T]he pivotal question is
whether the defendant intended to commit an act likely to result in such
physical force, not whether he or she intended a specific harm” directed at a
specific victim. (In re Tameka C. (2000) 22 Cal.4th 190, 198.)
2. Analysis
Chambers argues his conviction of assault with a deadly weapon
against Johnson is not supported by substantial evidence because Johnson
did not see who shot her. He contends “there were numerous shots fired by
multiple weapons” and Johnson was “hit by a stray bullet.” Accordingly, he
asserts “[t]here is no evidence that it was Chambers who fired the shot that
injured Ms. Johnson.” We disagree.
The evidence, viewed as a whole, supports Chambers’s conviction. At
trial, the prosecutor established that the 11th Avenue gambling shack was
located at 1110 International Boulevard. The prosecutor also established that
Linda Johnson was shot in front of 1124 International Boulevard.
Additionally, the parties stipulated that People’s Exhibit 1, the surveillance
video of the shooting, was taken from 1106 International Boulevard. Viewing
all this evidence in the light most favorable to the verdict, a rational trier of
fact could have reasonably concluded that as Chambers walked past 1106
International Boulevard, he turned and fired his weapon back toward victims
Hoang and Huynh, who were closer to 1110 International Boulevard.
Further, a rational trier of fact could have reasonably inferred that one of
Chambers’s gunshots continued past 1110 International Boulevard and
struck Johnson as she sat at 1124 International Boulevard. Conversely, a
rational trier of fact could have reasonably concluded that Anthony Le fired
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his gun toward Chambers at 1106 International Boulevard, and away from
Johnson. Substantial evidence therefore supports Chambers’s conviction of
assault with a semiautomatic firearm.
Even crediting Chambers’s shootout scenario, we find no difficulty in
upholding his conviction for this offense. As the California Supreme Court
indicated in In re Tameka C., the crime of assault with a deadly weapon does
not require a specific intent to injure a particular victim. (In re Tameka C.,
supra, 22 Cal.4th at p. 198.) “[A] defendant need not intend to strike any
particular person to be guilty of an assault, and it is therefore irrelevant
whether the defendant strikes his intended victim or another person.” (People
v. Lee (1994) 28 Cal.App.4th 1724, 1737.) Here, there was no evidence that
Chambers accidentally discharged his firearm; the evidence established that
he willfully and repeatedly fired his gun into a group of people on a public
sidewalk. Any reasonable person would realize that injury to people on the
sidewalk was likely to occur as a direct, natural, and probable result of the
act of shooting a semiautomatic weapon in a public space.
The reasonable inferences from the testimony and the surveillance
video indicate Chambers was aware his act of firing a semiautomatic weapon,
in close proximity to a group of people on a public sidewalk, would by its
nature probably and directly result in the application of physical force
against another. Nothing more is required. (See People v. Williams (2001)
26 Cal.4th 779, 790.) The challenged conviction of assault with a
semiautomatic firearm, relating to Johnson, is supported by substantial
evidence.
II. The Trial Court Did Not Have a Sua Sponte Duty to Instruct the
Jury on Involuntary Manslaughter
An instruction on involuntary manslaughter as a lesser included
offense was notb requested by Chambers and was not given. Chambers now
15
contends the trial court had a sua sponte duty to instruct the jury on
involuntary manslaughter as a lesser included offense of murder because
there was substantial evidence that he killed Xin Hoang without malice. The
record does not support that claim, and we find no error. A defendant cannot
commit involuntary manslaughter where he or she acts with an intent to kill
or conscious disregard for life. (See People v. Blakeley (2000) 23 Cal.4th 82, 91
(Blakeley).) As we show above, there was overwhelming evidence and the jury
found as to count one either that Chambers had an intent to kill or a
conscious disregard for life and, as to count two, an intent to kill. Further,
even if we were to find error based on the failure to give the involuntary
manslaughter instruction, we would nonetheless affirm because any error
was harmless.
A. Applicable Law
1. Sua Sponte Duty
“A trial court has a sua sponte duty to ‘instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence
the defendant is guilty only of the lesser.’ [Citation.] Substantial evidence in
this context is evidence from which a reasonable jury could conclude that the
defendant committed the lesser, but not the greater, offense.” (People v.
Shockley (2013) 58 Cal.4th 400, 403.) “[A] trial court must instruct on lesser
included offenses, even in the absence of a request, whenever there is
substantial evidence raising a question as to whether all of the elements of
the charged offense are present.” (People v. Cunningham (2001) 25 Cal.4th
926, 1008.) Conversely, even on request, a trial judge has no duty to instruct
on any lesser offense unless there is substantial evidence to support such
instruction. (Ibid.) “We review the trial court’s failure to instruct on a lesser
included offense de novo [citations] considering the evidence in the light most
16
favorable to the defendant.” (People v. Brothers (2015) 236 Cal.App.4th 24, 30
(Brothers).)
2. Mens Rea of Involuntary Manslaughter
California treats involuntary manslaughter as an unintentional killing
caused by criminal negligence. (See People v. Ochoa (1998) 19 Cal.4th 353,
423 [“[i]nvoluntary manslaughter, when not misdemeanor manslaughter, is
criminally negligent unlawful homicide”]; see also CALCRIM No. 580
[involuntary manslaughter requires criminal negligence]; People v.
Penny (1955) 44 Cal.2d 861, 879 [a “lack of ‘due caution and circumspection’ ”
means “ ‘criminal negligence’ ”]; accord People v. Evers (1992) 10 Cal.App.4th
588, 596.)
The intentional use of violent force against a victim, knowing the
probable consequences of one’s actions, precludes an instruction on
involuntary manslaughter. (See People v. Evers, supra, 10 Cal.App.4th at
p. 598 [court was not required to instruct jury on involuntary manslaughter
where defendant intentionally used violent force against victim knowing the
probable consequences of his action]; see also People v. Hendricks (1988)
44 Cal.3d 635, 643 [involuntary manslaughter is an unintentional killing];
People v. Guillen (2014) 227 Cal.App.4th 934, 1027–1028 [instruction on
involuntary manslaughter not warranted when defendants knew the risk
involved to victim when they violently attacked him].)
In the context of brandishing a firearm, an unintentional shooting can
be murder if the defendant acted in conscious disregard of life and the act
was dangerous to human life. (People v. Thomas (2012) 53 Cal.4th 771, 814–
815.) In the scenario of brandishing a firearm, a defendant is guilty of
involuntary manslaughter only if the shooting was accidental and the
defendant acts without malice. (Id. at p. 815.) In contrast, a defendant is
17
guilty of voluntary manslaughter if he or she unlawfully kills in unreasonable
self-defense with the intent to kill or with conscious disregard for life.
(Blakeley, supra, 23 Cal.4th at p. 91.)
Chambers relies on Brothers, supra, 236 Cal.App.4th 24 to support his
claim of error for failure to give the involuntary manslaughter instruction sua
sponte. Brothers concluded that “an instruction on involuntary manslaughter
as a lesser included offense must be given when a rational jury could
entertain a reasonable doubt that an unlawful killing was accomplished with
implied malice during the course of an inherently dangerous assaultive
felony.” (Id. at p. 34.)
However, Brothers concluded that when a defendant “indisputably has
deliberately engaged in a type of aggravated assault the natural
consequences of which are dangerous to human life, thus satisfying the
objective component of implied malice as a matter of law, and no material
issue is presented as to whether the defendant subjectively appreciated the
danger to human life his or her conduct posed, there is no sua sponte duty to
instruct on involuntary manslaughter. (See People v. Cook (2006) 39 Cal.4th
566, 597 [‘[Defendant] savagely beat Sadler to death. Because the evidence
presented at trial did not raise a material issue as to whether defendant
acted without malice, the trial court was not obliged, on its own initiative, to
instruct the jury on involuntary manslaughter as to victim Sadler.’];
[Citation]. Otherwise, an involuntary manslaughter instruction would be
required in every implied malice case regardless of the evidence.” (Brothers,
supra, 236 Cal.App.4th at p. 35.)
18
B. Analysis
Chambers argues the trial court should have instructed on involuntary
manslaughter because, in finding him guilty of voluntary manslaughter
rather than murder, the jury necessarily concluded he acted without malice.
As we explain ante, there was abundant evidence that Chambers
“indisputably has deliberately engaged in a type of aggravated assault the
natural consequences of which are dangerous to human life.” (Brothers,
supra, 236 Cal.App.4th at p. 35.) Therefore the court had “no sua sponte duty
to instruct on involuntary manslaughter.” (Ibid.)
The surveillance video graphically supports our conclusion. Four men
followed Chambers and his friend as they walked away from the gambling
shack. Chambers paused, turned to face the men and shot Hoang at close
range. He continued firing even after Hoang fell to the ground. The evidence
indisputably refutes any claim that Chambers fired his weapon accidentally
or that he was unable to appreciate the consequences of his actions. This was
not a case where the victim’s death resulted from an unlucky blow. (See
People v. Cook (2006) 39 Cal.4th 566, 597.) Instead, there was a high
probability Chambers’s actions would result in death.
Finally, even if we were to determine that the jury should have been
instructed on involuntary manslaughter, we would conclude the error was
harmless. There is currently a debate in the Courts of Appeal whether
prejudice for instructional error on a lesser included offense should be
reviewed under the federal standard articulated in Chapman v. California
(1967) 386 U.S. 18 (Chapman) or under the state standard articulated in
People v. Watson (1956) 46 Cal.2d 818. (See People v. Wright (2015)
242 Cal.App.4th 1461, 1495, fn. 14 [noting disagreement].) We need not
resolve this issue. Instead, based on this record, we conclude that any
19
presumed instructional error here was harmless beyond a reasonable doubt,
satisfying the more stringent federal standard of review. (See Chapman, at
p. 24.) The evidence refutes any claim that Chambers shot Hoang
accidentally. Moreover, the jury found true the enhancement that Chambers
personally used a firearm during the commission of this crime (§ 12022.5). To
find this enhancement true, the jury was instructed that Chambers must
have intentionally displayed the firearm in a menacing manner, and hit
someone with it or fired it. Based on its true finding, the jury found that
Chambers intentionally fired his gun, negating any claim of an accidental
discharge.
On this record, we can declare beyond a reasonable doubt that any
presumed instructional error was harmless. (Chapman, supra, 386 U.S. at
p. 24.)
DISPOSITION
The judgment is affirmed.
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_________________________
Ross, J.*
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Brown, J.
A159908 People v. Chambers
*Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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