People v. Wooley CA2/4 ( 2020 )

Filed 12/11/20 P. v. Wooley CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B303431
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144673)
v.
GARY LAMAAR WOOLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Tammy Chung Ryu, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Gary Wooley was sitting in a vehicle in a drive-
through lane of a Burger King when Jerry Whitaker walked up
and punched him through the open car window. Whitaker then
walked around the vehicle and apparently confronted the
backseat passenger. Defendant got out of the car with a gun and
shot Whitaker, then chased and shot Whitaker as he ran away.
Whitaker sustained gunshot wounds to the front of his thigh and
his lower back. In a recorded jailhouse call in which defendant
discussed the incident with his brother, defendant stated, “My
intention was trying to kill that fool.” A jury convicted defendant
of attempted murder and possession of a firearm by a felon.
On appeal, defendant asserts that that there was
insufficient evidence to support the conviction for attempted
murder, and the jury was compelled to find that the shooting was
done in self-defense. He also argues that the trial court erred in
admitting late-disclosed evidence, and in failing to instruct the
jury with the corpus delicti rule. We find that the evidence was
sufficient to support the verdict, and find no error or prejudice
regarding the late-disclosed evidence. Although the court erred
in failing to instruct on the corpus delicti rule, the error was
harmless. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In an amended information, the Los Angeles County
District Attorney (the People) charged defendant with attempted
murder (Pen. Code, §§ 667, 187, subd. (a), count 1),1 and
possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2).
The information further alleged that as to count 1, defendant
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
personally and intentionally discharged a firearm (§ 12022.53,
subd. (d)). In addition, the information alleged that with respect
to count 1, defendant suffered a prior serious or violent felony
conviction (§ 667, subd. (a)(1)), and a prior strike conviction under
the Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12).
Defendant pled not guilty, and the case proceeded to a jury
trial. The following evidence was presented at trial.
The jury was shown surveillance video of the shooting that
occurred at a Burger King restaurant on November 10, 2017, at
about 2:00 p.m. The video showed cars waiting in line at the
drive-through window. The victim, Jerry Whitaker, was sitting
on a low wall near the drive-through lane. One of the cars in line
was a white SUV driven by defendant. A woman exited the SUV
from the front passenger door and walked into the restaurant.
Whitaker got up, walked to the driver’s side of the SUV, and
appeared to reach into the open window and punch defendant.
The back right door of the SUV opened; the video does not clearly
show whether someone got out. Whitaker walked around the
rear of the car toward the open back door, where he was no longer
visible to the camera. Defendant exited the car through the
driver’s door as Whitaker walked back around the rear of the
vehicle; defendant and Whitaker met near the rear left corner of
the vehicle. Defendant appeared to shoot Whitaker. Whitaker
turned and began running away; defendant followed, pointing the
gun toward Whitaker. The video does not make clear when shots
were fired. Whitaker ran around the corner of the restaurant and
continued running along a walkway. In video from the inside the
restaurant, Whitaker can be seen through the window running
down the walkway with his arms raised. Defendant paused at
the corner of the restaurant with the gun pointing toward
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Whitaker. Defendant then returned to the SUV and got in, the
back passenger door closed, and the SUV drove away. The
female passenger remained inside the restaurant.
Los Angeles Police Department (LAPD) detective Erik
Shear testified that he responded to the call at the Burger King.
Shear found victim Whitaker in “very poor” condition; “He was
laying on his back. He was bleeding . . . pretty heavily from a
gunshot wound to his back. And he was nonresponsive.”
Whitaker had been shot in the front of his thigh and in his lower
back. Shear testified that he found four expended cartridge
casings in the drive-through lane and walkway next to the
Burger King. A vehicle in the parking lot had also been struck by
one of the bullets. The vehicle was around the corner from the
drive-through lane, indicating that at least one round had been
fired after Whitaker rounded the corner of the restaurant. A trail
of blood led to where Whitaker had collapsed on the walkway
outside the restaurant. Whitaker had not been armed.
Shear reviewed the surveillance video and got the license
plate number of the white SUV. He determined that the
registered owner of the vehicle was Renate Brumfield. Shear put
a “want” out for the vehicle, alerting officers that if the vehicle
were spotted, it should be stopped and the people inside detained.
Shear learned that the vehicle had been stopped by police a few
weeks earlier, on October 22, 2017. Defendant was driving the
car during the stop, and Brumfield was in the car at the time.
The jury was shown a portion of the officer’s body camera footage
from the stop.
In the early morning hours of November 11, 2017, police
executed a search warrant for a residence near the restaurant,
where they discovered a Hi-Point .380 caliber semiautomatic
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pistol with a magazine in a trash can. Ballistics test results
showed that this pistol fired the casings found at the Burger
King. No fingerprints were found on the pistol. Witness Martina
Felix testified that she lived at the residence where the pistol was
found, and that on November 10, 2017 there was a barbecue at
the home. Defendant was friends with Felix’s cousin, who also
lived at the home. While officers were at the home executing the
search warrant, Felix told them that defendant had been at the
barbecue the previous evening.
The same day, a search warrant was executed at another
residence, where police detained defendant. Officers found .380
caliber ammunition in the room where defendant was detained.
On November 14, 2017, sheriff’s deputies informed
Detective Shear that they had located the white SUV. Brumfield,
the registered owner, was with the vehicle. The vehicle was
impounded and searched; Shear found that the radio could easily
be pulled from the dashboard, revealing a space behind it. Shear
testified that in the video of the incident, defendant’s movements
inside the car after he had been punched were “consistent with
maybe a firearm was hidden behind that radio,” but he “couldn’t
see it definitively.”
The People introduced audio recordings of several calls
defendant made from jail. In one call on November 11, 2017,
defendant was speaking with his brother, Marvin. Defendant
told Marvin that the gun had been found “somewhere else in
somebody else’s house,” and he said, “[T]hat gun done been
through hands, cuz. Ain’t no fingerprints on that mutherfucker. .
. .” In another call later the same day, Marvin said, “[C]learly if
they got the video camera, then it shows this person came and
attacked you first, so they can’t say your intention was to kill
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him.” Defendant responded, “Right. My intention was trying to
kill that fool. Nigga, I was trying –.”
In another call, defendant spoke to Brumfield on February
4, 2019, shortly before the trial began. Defendant told Brumfield
that the prosecutor was trying to find her to use her as a witness,
so she could repeat an earlier statement to police that defendant
was the only other person who drove her car. Defendant told
Brumfield, “[Y]ou tell too much, baby. You talk too damn much.”
He told Brumfield that she “ratted me out” by telling police “‘Oh,
don’t nobody else drive my car but him.’” Defendant also said,
“I’m blaming you for making yourself a witness.” Brumfield did
not appear at trial. Detective Shear testified that Brumfield had
been served with a subpoena, and the court took judicial notice of
the body attachment it issued for Brumfield.
In another call from defendant to Brumfield on February 7,
2019, Brumfield added a third caller, an unidentified male. In
this call, after Brumfield added the third caller, defendant said,
“Whitey and, uh, Tina, yeah, they . . . basically said nigga took
the gun over there.” “Tina” was witness Martina Felix.
Defendant continued, “I never took no gun over there, cuz. That’s
the thing, because I didn’t take no gun over there, nigga. That
was Squeaky and – and – and Dale.” He said, “[S]he told them
that, cuz, so they subpoenaed her to court, cuz, and she came to
the court yesterday. But they told her they don’t need her right
now and told her to come back Monday.” Defendant continued,
“She don’t need to come, cuz. She need to, uh, to go on and get
somewhere and get – get little, because she should have said
nothing.” Detective Shear testified that “get little” means to
“[s]tay low or hide out. Not be found.”
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The defense did not present any witnesses or evidence.
Defendant admitted his prior felony conviction for purposes of
count 2. The court instructed the jury on attempted murder, self-
defense and defense of another, attempted voluntary
manslaughter/heat of passion, and imperfect self-defense.
In closing, the prosecutor discussed the identification of
defendant by noting the traffic stop with defendant in
Brumfield’s car shortly before the Burger King incident. She also
argued that the jail calls also demonstrated defendant’s identity,
because he did not deny that he was involved in the crime, and
demonstrated consciousness of guilt, because he dissuaded
witnesses from testifying against him. The prosecutor argued
that defendant shot at Whitaker as he was running away, while
Whitaker was no longer any threat, so he was not acting in self-
defense. She also emphasized defendant’s statement on the jail
call that he intended to “kill that fool.”
In his closing, defense counsel admitted defendant was the
shooter and focused on intent. Counsel said that if defendant
intended to kill Whitaker, he would have shot him more times, or
shot him in the head. He argued that defendant’s statements
about people testifying against him were not an indication of
consciousness of guilt, they were “consciousness of trying to win
his case.” Defense counsel argued that Whitaker’s attack on
defendant was violent and unexpected, and the entire incident
happened fast. He also asserted that the evidence showed that
Whitaker was shot while he was close to defendant, not while he
was running away around the corner of the building.
The jury convicted defendant of attempted murder (§§ 667,
187, subd. (a), count 1), and possession of a firearm by a felon
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(§ 29800, subd. (a)(1), count 2). The jury found true the
allegation that defendant personally and intentionally discharged
a firearm with respect to count 1 (§ 12022.53, subd. (d)).
Defendant stipulated to his prior strike conviction.
The court sentenced defendant to a total of 18 years and
eight months, calculated as follows: on count 1, the high term of
nine years doubled to 18 years under the Three Strikes Law, plus
a consecutive eight months (one third the midterm) on count 2.
The court exercised its discretion to not impose a 25-years-to-life
enhancement under section 12022.53, subdivision (d) (§ 12022.53,
subd. (h)), and stayed the enhancement under section 667,
subdivision (a)(1). The court calculated defendant’s custody
credits, and imposed various fines and fees. Defendant timely
appealed.
DISCUSSION
Defendant asserts three errors on appeal: He contends the
trial court erred by admitting late-disclosed jail calls as evidence,
the court erred by failing to instruct on corpus delicti, and there
was insufficient evidence to support the verdict. We consider
each of these contentions below.
A. Admission of late-disclosed evidence
Defendant asserts in a supplemental brief that the “trial
court abused its discretion when it denied the defense motion to
exclude the jail calls which were not turned over to the defense
until two days before trial, rather than 30 days before trial as
required by statute.” Defendant’s brief states, “In the present
case, the prosecutor waited until two days before trial, on
February 4, 2019, to turn over recorded jail calls from November
2017, to the defense. (2RT A-1, A-2, A-7, A-11. The prosecution
had the evidence for one year, and three months. (1ART A-1-A-2,
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A-7-A-8.) Defense counsel objected to the late discovery and
moved to exclude the jail calls. (ART A-2, A-7.) The trial court
noted by the prosecution’s own acknowledgment, law
enforcement had the tape and statements since November 2017.
(1RT A-8.) The trial court remarked, ‘It’s clearly untimely.’ (2RT
A-8.) The trial court ordered the tapes and transcripts turned
over forthwith, but denied the motion to exclude. (2RT A-10.)”2
This recitation of the facts is inaccurate in two key
respects. First, the evidence at issue did not consist of recorded
jail calls. Second, defense counsel did not move to exclude it. At
the hearing on February 4, 2019, the prosecutor said to the court,
“[T]he People are going to ask for a 1054.7[3] in connection to
discovery that the People intend to turn over to [the] defense
right now.” Defense counsel observed that it was very late to
disclose new evidence because trial was about to begin, and the
court responded, “I’m well aware of that.”
During the in-camera hearing, the record of which is
separated from the remainder of the reporter’s transcript and
sealed, the prosecutor stated that the evidence consisted of “an
interview from a percipient witness” who provided information to
police. The prosecutor explained that portions of the interview
related to other crimes and were not relevant to this case, and
2Defendant’s citation to “1ART” and “1RT” appear to be
erroneous; the pages at issue are in the second volume of the
reporter’s transcript, or “2 RT.”
3Section 1054.7 states that disclosures “shall be made at
least 30 days prior to the trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred.” It further
provides, “Upon the request of any party, the court may permit a
showing of good cause for the denial or regulation of disclosures,
or any portion of that showing, to be made in camera.”
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asked that those portions be redacted before providing the
recording of the interview to the defense. The prosecutor
admitted that law enforcement had obtained the evidence in
November 2017 shortly after the crime occurred, but said the
prosecution had only recently learned about it.
In open court the judge stated, “We just concluded an in-
camera hearing pursuant to 1054.7. The request by [the People]
is denied. You’re ordered to disclose an unredacted version of the
audiotape. If you have a transcript, you’re ordered to provide an
unredacted version of the transcript as well.” The court ordered
the prosecutor to provide the evidence to defense counsel that
day.
Defense counsel stated that he “would be entertaining a
Brady motion” because the evidence was untimely.4 The court
said, “Well, it’s clearly untimely. The question – it’s not a Brady
issue, at least from what [the prosecutor] has indicated. It’s
inculpatory, not exculpatory.” Defense counsel said that after he
heard the recording, he would decide whether to file a motion to
exclude. The record on appeal does not include a motion to
exclude the evidence. The witness’s statements were not
introduced at trial.
On appeal, defendant cites this portion of the record and
asserts that the court “denied the defense motion to exclude the
jail calls.” He argues, “It was a discovery violation to turn
appellant’s recorded statements to the defense two days before
trial, rather than 30 days as required by statute.” He also
contends that the defense was “unfairly surprised by this delay,”
especially because the jail calls were “so damaging to the defense
case.” Defendant includes arguments that he was prejudiced by
4See Brady v. Maryland (1963) 373 U.S. 83.
10
introduction of the calls made on the evening of February 4 and
on February 7, 2019—evidence that did not exist at the time of
the February 4 hearing. In its brief, the Attorney General
asserts that defendant forfeited this argument because he never
made a motion to exclude the evidence. However, the Attorney
General also incorrectly refers to the late-disclosed evidence as if
it constituted jail call recordings rather than an interview with a
percipient witness
Defendant’s argument is not supported by the record. The
late-disclosed evidence involved the interview of a percipient
witness whose statements were never introduced at trial.
Defendant has demonstrated neither error nor prejudice
regarding the court’s rulings at the February 4, 2019 hearing.
B. The court’s failure to instruct the jury on
corpus delicti was harmless
Defendant asserts that the court erred in failing to instruct
the jury with CALCRIM No. 359, the corpus delicti rule, which
states in part, “The defendant may not be convicted of any crime
based on (his/her) out-of-court statement[s] alone. You may rely
on the defendant’s out-of-court statements to convict (him/her)
only if you first conclude that other evidence shows that the
charged crime [or a lesser included offense] was committed.”5
5CALCRIM No. 359 states in full:
“The defendant may not be convicted of any crime based on
(his/her) out-of-court statement[s] alone. You may rely on the
defendant’s out-of-court statements to convict (him/her) only if
you first conclude that other evidence shows that the charged
crime [or a lesser included offense] was committed.
That other evidence may be slight and need only be enough
to support a reasonable inference that a crime was committed.
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“Whenever an accused’s extrajudicial statements form part of the
prosecution’s evidence,” the trial court is required “to instruct sua
sponte that a finding of guilt cannot be predicated on the
statements alone.” (People v. Alvarez (2002) 27 Cal.4th 1161,
1170 (emphasis in original) (Alvarez).)
The parties agree that the trial court erred in failing to give
CALCRIM No. 359. However, the Attorney General asserts that
any such error was harmless. “Error in omitting a corpus delicti
instruction is considered harmless, and thus no basis for reversal,
if there appears no reasonable probability the jury would have
reached a result more favorable to the defendant had the
instruction been given.” (Alvarez, supra, 27 Cal.4th at p. 1181.)
Defendant contends the error was prejudicial. He argues,
“In six [sic] recorded jail calls, [defendant] admitted shooting
Whitaker with the intent to kill, wiping the gun clean, that he
drove, and dissuaded witnesses from testifying, which
established not only both counts and the firearm enhancement,
but consciousness of guilt and negated self-defense and
unreasonable self-defense.” Defendant asserts that “[i]f the jury
had been informed it needed corroborating evidence it is
reasonably probable [defendant] would have received a more
favorable outcome.”
This requirement of other evidence does not apply to
proving the identity of the person who committed the crime [and
the degree of the crime]. If other evidence shows that the
charged crime [or a lesser included offense] was committed, the
identity of the person who committed it [and the degree of the
crime] may be proved by the defendant’s statement[s] alone.
You may not convict the defendant unless the People have
proved (his/her) guilt beyond a reasonable doubt.”
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There was more than sufficient independent evidence of the
corpus delicti of the crimes, and it is not reasonably probable the
jury would have reached a different result had it been properly
instructed. “[T]he modicum of necessary independent evidence of
the corpus delicti, and thus the jury’s duty to find such
independent proof, is not great. The independent evidence may
be circumstantial, and need only be ‘a slight or prima facie
showing’ permitting an inference of injury, loss, or harm from a
criminal agency.” (Alvarez, supra, 27 Cal.4th at p. 1181.) The
jury watched a video of the shooting. Police arrived at the scene
just after it occurred, and found evidence consistent with the
video, including cartridge casings, a blood trail, and the wounded
victim. This “independent evidence is more than adequate to
establish, as a matter of law, that the failure to give the
instruction was harmless under state and federal standards.”
(People v. Andrade (2015) 238 Cal.App.4th 1274, 1299; citing
People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v.
California (1967) 386 U.S. 18, 24.)
Defendant asserts that because defendant’s “admissions in
the jail calls were such a pivotal part of the prosecution’s case,
the error cannot be deemed harmless.” He argues he was
prejudiced because the admission of the jail calls undermined his
ability to prove self-defense and imperfect self-defense. The
corpus delicti rule, however, is not affected by the potential
impact of a defendant’s statements. “‘The corpus delicti “rule is
intended to ensure that one will not be falsely convicted, by his or
her untested words alone, of a crime that never happened.”’”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 453-
454.) Here, the evidence clearly showed that the crime occurred.
It is not reasonably probable that defendant would have obtained
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a better result if CALCRIM No. 359 had been given (People v.
Watson, supra, 46 Cal.2d at p. 836), and any error in failing to
give the instruction was harmless beyond a reasonable doubt.
(Chapman v. California, supra, 386 U.S. at p. 24.)
C. The attempted murder verdict is supported by
substantial evidence
Defendant asserts that there was insufficient evidence to
support his conviction on count 1, attempted murder. He
contends that in light of Whitaker’s unprovoked attack,
defendant’s “actions of defending himself and his passengers from
a continuing attack is a complete justification, and [the] shooting
was not criminal.” He asserts that “since there is insufficient
evidence a crime was committed, [defendant’s] due process rights
under the federal constitution were violated,” and his conviction
on count 1 should be reversed.
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’” (People v. Avila (2009) 46 Cal.4th 680, 701.)
14
Defendant asserts that he had a right to defend himself
and his passenger from Whitaker’s unprovoked attack,6 and the
prosecution failed to meet its burden to show that defendant did
not act in self-defense. (See People v. Lloyd (2015) 236
Cal.App.4th 49, 63 [a “defendant is not required to establish self-
defense or the defense of others to be entitled to a not guilty
verdict; he need only raise a reasonable doubt. It ultimately is the
prosecution’s burden to prove the absence of justification beyond
a reasonable doubt.”].) Defendant argues that because Whitaker
assaulted both him and his backseat passenger, “the evidence
established as a matter of law the shooting was justifiable
because appellant had more than a reasonable belief that
Whitaker was about to commit a felony.”
Defendant compares this case to People v. Collins (1961)
189 Cal.App.2d 575 (Collins), in which the defendant killed
another man, Whiteside, during a physical struggle in which the
defendant believed Whiteside was attempting to rape him. The
Court of Appeal stated, “[T]he acts of Whiteside gave defendant
reasonable grounds to believe that Whiteside was about to
commit a felony (Pen. Code, § 286 [sodomy]), and that there was
imminent danger of its being accomplished. We hold the
evidence establishes as a matter of law that the homicide was
justifiable.” (Id. at pp. 592-593.)
Here, the evidence is not similar to that in Collins.
Whitaker attacked defendant first, then walked around to the
6Defendant incorrectly argues that his girlfriend was in the
vehicle at the time of the attack and was “also in danger.” In
fact, the video shows that the female passenger—who was never
clearly identified at trial—got out of the SUV and walked into the
restaurant before the attack occurred.
15
back door of the SUV, apparently to challenge or attack the
passenger. But defendant did not simply roll up his windows or
drive away. Instead, he retrieved a gun, got out of the car, and
confronted Whitaker. As Whitaker backed away, turned around,
and ran away, defendant fired at least four rounds, shooting
Whitaker in the thigh and back. Defendant chased after
Whitaker as he ran, firing at least one round after Whitaker
rounded the corner of the restaurant, evidenced by the car that
was struck. Whitaker was unarmed throughout the encounter,
and at one point in the video he had his hands up as he ran away.
Defendant then ran back to the vehicle and left the scene (leaving
his female passenger inside the restaurant), wiped the gun clean
of fingerprints, and disposed of the gun in a trash can at someone
else’s house. He told his brother that his intent was to kill the
victim, and as trial began, he attempted to prevent witnesses
from testifying against him.
This evidence was sufficient to support the jury’s verdict for
attempted murder. “To prove the crime of attempted murder, the
prosecution must establish ‘the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing.’” (People v. Canizales (2019) 7 Cal.5th 591,
602.) Both elements were met here. Defendant admitted his
intent to his brother. In addition, the evidence that defendant
shot four rounds, chased Whitaker, and shot at him as he ran
away supports a finding that defendant intended to kill
Whitaker. Defendant’s act of shooting Whitaker multiple times
was a direct but ineffectual act.
The jury was not compelled to find that defendant acted in
self-defense, as defendant contends. The jury was instructed
with CALCRIM No. 3470, describing the right to self-defense,
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including that “[t]he defendant used no more force than was
reasonably necessary to defend against th[e] danger.” The jury
was also instructed with CALCRIM No. 3474, which as given
stated, “The right to use force in self-defense continues only as
long as the danger exists or reasonably appears to exist. When
the attacker withdraws or no longer appears capable of inflicting
any injury, then the right to use force ends.” The prosecutor
argued in closing that defendant used far more force than was
necessary to defend against Whitaker, who was unarmed. The
prosecutor also asserted that even if defendant initially had a
right to use force, that right ended before he chased Whitaker
while shooting at his back. Defendant asserts on appeal that he
“stopped shooting once he realized he was safe.” However, the
jury considered that contention and rejected it; there was ample
evidence to support a finding that chasing someone and shooting
him was not a justifiable reaction to being punched. “Reversal is
‘not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’” (People v.
Westerfield (2019) 6 Cal.5th 632, 713-714.) Substantial evidence
supports the jury’s finding that the shooting was not justified as
self-defense.
Defendant also argues that even if the shooting could not
be considered self-defense, it was “no more than attempted
voluntary manslaughter.” He asserts that he had “an actual if
unreasonable belief in the need to continue to defend himself
against great bodily injury or death.” He contends that
alternatively, it constituted attempted voluntary manslaughter
“because the fight was a result of a sudden quarrel and/or
provocation.”
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Attempted “[v]oluntary manslaughter is a lesser included
offense of [attempted] murder when the requisite mental element
of malice is negated by a sudden quarrel or heat of passion, or by
an unreasonable but good faith belief in the necessity of self-
defense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
The jury was instructed regarding sudden quarrel/heat of passion
(CALCRIM No. 603) and imperfect self-defense (CALCRIM No.
604). These instructions, along with the instructions regarding
self-defense discussed above, made clear to the jury that it could
not convict defendant of attempted murder unless the
prosecution proved beyond a reasonable doubt that defendant did
not attempt to kill as the result of perfect or imperfect self-
defense or in the heat of passion. Defendant’s contention that the
jury could have found otherwise does not demonstrate error.
Substantial evidence supports the jury’s finding that the crime
constituted attempted murder.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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