People v. McVoy CA2/1 ( 2023 )

Filed 12/29/23 P. v. McVoy CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B317535
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA105677)
v.
JOHN KEVIN MCVOY, JR.,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Viet H. Nguyen, Deputy
Attorneys General for Plaintiff and Respondent.
_________________________________________
A jury convicted defendant John Kevin McVoy, Jr., of one
count of second degree murder, a lesser offense to the charged
crime of premeditated first degree murder. (Pen. Code, § 187.)1
The jury also found true an allegation that defendant personally
and intentionally used a firearm. (§ 12022.53, subd. (c).) The
court sentenced him to prison for 35 years to life.
On appeal, defendant makes the following contentions:
(1) The court failed to instruct on transferred self-defense; (2) The
court failed to instruct on voluntary manslaughter; (3) The court
made a statement to the jury that had the effect of directing
a verdict on the issue of malice; (4) If the court’s instructional
errors did not separately require reversal, the cumulative
prejudicial effect of them does; (5) If defense counsel forfeited
any argument concerning instructional errors by failing to
object, defendant was denied the effective assistance of counsel;
(6) There is insufficient evidence to support the finding of malice;
and (7) A further sentencing hearing is required to allow the
court to exercise its discretion to strike or reduce the gun
enhancement. We reject these contentions and affirm the
judgment.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
A. Prosecution Evidence
Victor Garcia, Ramon Chavarria, and Richard Muno were
musicians in an “alternative new metal” band called, Below the
1 Subsequent unspecified statutory references are to the
Penal Code.
2
Fault Line.2 During the last few months of 2016 they ordinarily
met on Tuesday evenings to practice in Victor’s garage.
Defendant was a musician who worked in the music retail
business selling guitars. He promoted his business by sponsoring
local bands and supplying bands with musical gear at no cost to
the bands. He had known Victor and Muno since 2011 or 2012.
In September or October 2016, defendant began attending
Below the Fault Line’s Tuesday practice sessions in Victor’s
garage. He did not play an instrument, but did bring beer and
“weed.” Victor and Muno had developed an instrument with a
synthesizer pad attached to a guitar frame, and in late November
2016, they invited defendant to play the instrument in the band.
According to Muno, the instrument “was unnecessary” and
defendant’s role in the band was not very important. The new
instrument was never fully developed, and defendant never
played it with the band.
A practice session for the band was scheduled for
January 10, 2017. At about 5:20 p.m., Miguel Rea, a friend of
Victor’s, arrived at Victor’s home with a bottle of whiskey. Victor
and Rea drank some whiskey. A short time later, Victor’s wife
Susan arrived at the home with their two-year-old son, R.G.
Susan had a mixed whiskey drink.
Chavarria arrived at Victor’s house at about 7:00 p.m. He
sat at a table to the right of Susan, who held R.G. Rea sat at the
table across from Chavarria. Victor was standing at the edge of
the table near Susan.
2 Because Victor Garcia and the victim Susan Garcia share
a last name, we will refer to them by their first names to avoid
confusion. No disrespect is intended.
3
A television was on in the house and President Obama
was making a speech. Victor, Chavarria, and Rea talked about
politics and the recent election. Chavarria and Rea teased Victor
about saying he voted for Donald Trump. They were in a “happy”
mood, “joking around, poking fun at each other.”
Defendant arrived at the house at about 7:15 p.m. He had
a loaded .41 caliber revolver hidden in the waistband in the back
of his pants.3 Chavarria offered defendant a chair, but defendant
remained standing and paced around the room. Rea asked
defendant about defendant’s motorcycle.
According to Chavarria and Rea, Victor was talking about
President-elect Trump and said something like, “That’s what
I hate about White people.” Victor said this in a “joking” and
“playful” way. Victor asked the others whom they voted for.
Chavarria said he did not vote. Defendant said he voted for
“Hillary Clinton.” Victor then snapped his fingers, pointed to
the door, and told defendant, in a “friendly,” “joking” way, “ ‘Get
the fuck out of my house.’ ” Victor, Chavarria, Rea, and Susan
laughed. At no point did Victor threaten defendant in any way.
Defendant stood between Victor and Rea, and across
the table from Susan. He pulled the gun from his waistband
and shot Victor in the left side of his head.4 Just before or as
3 The gun was manufactured sometime between 1877 and
1909. Defendant described it as a family heirloom.
4 None of the prosecution witnesses saw defendant fire
the shot that hit Victor. Chavarria testified that he looked down
to grab a bottle of water to drink during the “split second” that
defendant drew his gun and fired. Rea was facing Chavarria and
Susan, with his back to defendant. Victor, who testified after
4
defendant fired the shot, Susan yelled, “Victor.” Victor fell to
the floor, and defendant turned and pointed the gun at Susan.
Susan, who had been holding R.G. in her lap, turned sideways
to protect her child. Within two or three seconds after shooting
Victor, defendant fired the gun at Susan, killing her.
After the second gunshot, Rea grabbed defendant’s hand
or arm, and the gun fell to the floor. Rea tackled defendant, and
struggled to restrain him until police arrived. As they fought,
Rea asked defendant, “ ‘What did you do?’ ” According to Rea,
defendant responded, “ ‘Jihad,’ ” “ ‘Jihad.’ ”
As Rea and defendant fought, they slid along the floor from
the living room into a hallway. Defendant attempted to gouge
Rea’s eye, and Rea punched defendant repeatedly. Meanwhile,
Chavarria picked the gun up off the floor, took it outside the
house, and called 911. Police officers arrived about five minutes
later.
The next morning, detectives interviewed defendant
in the hospital. He admitted shooting Victor, and explained,
“[T]hey kind of came at me so I didn’t know what to do.”
Defendant further explained to the detectives that he brought
his gun to the house because he felt threatened and scared by
the band members and was afraid that if he did not join their
band, they would kill him. When he arrived, “they were talking
about . . . how much they hated White people,” and wanted to
“kill [him] and kill White people.”
undergoing several brain surgeries related to the shooting,
recalled “being hit in the back of the head,” but did not realize at
the time that he had been shot.
5
At trial, defendant explained that although he repeatedly
used the word “they” during his police interview, he did not
“know why [he] kept saying ‘they.’ Because it wasn’t a multiple-
party thing. It was just Victor.”
When a detective asked defendant if he shot anyone else,
he replied, “No, not intentionally, I mean I just was scared—I
didn’t know, I was defending myself.” After a detective informed
him that he shot Susan, defendant explained that the gun is
“a revolver[,] so [he] just pulled the trigger twice. It wasn’t like
I was like aiming at her like that[,] so I don’t know.” Later, he
reiterated that his shooting of Susan “wasn’t intentional.”
An expert on gunshot residue testified that defendant
had particles on his hands that were characteristic of gunshot
residue, indicating that he may have discharged a firearm. Rea
and Chavarria did not have particles characteristic of gunshot
residue on them, making the tests on them “inconclusive.” They
did, however, have particles that indicated they “may have been
in the environment of gunshot residue.”
B. Defense Evidence
Defendant testified. He stated that in the fall of 2016,
Victor invited him to check out his new band, and later asked
him to join. In November 2016, the band signed a sponsorship
agreement with a company that agreed to provide “straps”
for the band with the company’s logo. After entering into the
sponsorship agreement, Victor became more demanding, “bossy,”
and argumentative.
Defendant described three incidents prior to January 2017
when he felt threatened by Victor. On the first occasion, Victor
referred to drowning defendant in his backyard pool. In the
second incident, Victor said he was going to fry a turkey for
6
Thanksgiving, and told defendant, “ ‘I would hate for you to leave
the band. We would have to fry you up and eat you.’ ” The third
incident occurred in early December, when Victor showed him a
shotgun in his house and said, “ ‘I would hate to see you leave the
band or [I] might have to use a shotgun on you.’ ”5
Defendant testified that he brought his revolver with him
to Victor’s house on January 10, 2017, because he was planning
to quit the band and was afraid that Victor would “pull[ ] a
shotgun on [him].” Defendant did not plan to shoot the gun that
night.
When defendant arrived at Victor’s house, he observed
that Victor was drunk and “belligerent.” President Obama was
speaking on the television and Victor was making statements,
such as, “ ‘I want to kill all of the White people,’ ” and “ ‘I hate
White people.’ ” Defendant was “the only White person in the
room.”
After defendant said he voted for Hillary Clinton, Victor
said, “ ‘ [G]et the fuck out of my house.’ ” Although defendant
“laughed it off” and “thought [Victor] was joking around with
his friends,” “[i]t was still in an angry tone.” Victor then told
defendant, “ ‘It’s White people like you who should die,’ or
‘White people like you that we should kill, White boy’ ” and
“ ‘White people like you that make this world a piece of shit.’ ”
5 On cross-examination, defendant stated that the
third threatening incident, where Victor showed defendant his
shotgun, occurred before a practice session at Victor’s house on
December 6 or December 13, 2016. There were no meetings at
Victor’s house between the December 13 session and January 10,
2017. The prosecution introduced uncontradicted evidence
showing that Victor acquired the shotgun on December 16, 2016.
7
Victor picked up what defendant thought was a knife from the
table and walked aggressively toward defendant yelling, “ ‘I’m
going to fuck you up.’ ” Defendant pulled the gun from his
waistband, cocked the hammer, and told Victor to “back off.”
When Victor “was reaching above” defendant, defendant fired
the gun at Victor. Defendant later realized that the object Victor
picked up from the table was a can opener.
After shooting Victor, defendant thought that Rea might
also try to attack him. He cocked the hammer on the gun and
started to tell Rea to “back the fuck off,” but before he could
finish, Rea grabbed his arm or hand, causing the gun to point at
Susan. Defendant did not point the gun at Susan intentionally.
During their struggle, the gun fired. The gun fell to the floor,
and Rea tackled defendant to the ground and started hitting him.
Rea asked him why he did it, and defendant responded, “No gun.
I have no gun. And he was going to hit me. He was going to hit
me.” He denied saying, “Jihad.” Rea punched him “at least 50,
maybe [100 times]” for about 20 to 30 minutes.
On cross-examination, defendant used a replica of a gun
to demonstrate how Rea grabbed his hand as the gun fired the
shot that hit Susan. He held the replica in his right hand and
used his left hand to show how Rea’s left hand was placed. As
the court described it, the fingers of the left hand were over
defendant’s right “hand, the wrist, and the top of the gun.”
C. Rebuttal and Surrebuttal Evidence.
In the prosecution’s rebuttal case, a criminologist testified
that if Rea had grabbed defendant’s hand in the manner
defendant had demonstrated, the firing of the gun would have
caused burn marks or stippling on Rea’s hand. Rea testified that
8
he had no burn marks on his hand. He further testified that he
did not see Victor threaten defendant with any weapon.
In the defense surrebuttal case, defendant testified that,
as he and Rea struggled over the gun just before Susan was shot,
Rea “was grabbing mostly my hand,” and Rea’s hand “wasn’t
covering any part of the gun that would move, certainly not the
hammer or the cylinder.”
Additional facts will be included in the discussion below.
D. Procedural History
Defendant was charged by information with first degree
premeditated murder (count 1; § 187), two counts of attempted
murder (counts 2 & 3; §§ 187, 664), and one count of child abuse
under circumstances likely to cause great bodily injury or death
(count 4; § 273a, subd. (a)). The information further alleged that
defendant personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)), causing great bodily injury and death (id.,
subd. (d)).
During a preliminary discussion with counsel regarding
jury instructions, the court raised the possibility of instructing
on the theory of transferred self-defense with respect to count 1—
the murder of Susan. After the close of evidence, the court
indicated it would not give the instruction. The prosecutor,
however, questioned the omission because there might have been
“a transfer[red] intent between [Rea] and Susan.” The court
explained that it would not include the instruction because it “did
not hear [defendant] say that he intended to shoot [Rea]. What I
am hearing is that he pointed it but he had no intent in shooting
him. So it wasn’t an intent to kill and that transferred to Susan.
It was[,] it’s accidental. It was a struggle. I’m not hearing any
intent.” After some further colloquy, the court concluded: “Under
9
any analysis that I can think of, given that I have to give
instructions only when there is sufficient evidence for a jury
to find something, I don’t think they can find transferred intent
based on what we heard.” Defense counsel did not comment or
express any view on the issue. Defendant did not request, and
the court did not give, instructions on voluntary manslaughter
as to count 1.
The court gave the following instruction on the defense
of accident: “When a person commits an act through misfortune
or by accident under circumstances that show neither criminal
intent nor criminal negligence, he does not thereby commit a
crime.”
In connection with the two counts of attempted murder,
the court instructed the jury on self-defense. As to count 3—the
attempted murder of Victor—the court further instructed as to
attempted voluntary manslaughter.
The jury deliberated for five days. During that time the
jury sent several questions to the court. During the morning
of November 10, 2021, the jury asked two questions. The
first question was: “When examining the right of self-defense
in charge 3 [attempted murder of Victor], if the jury finds
the defendant is able to claim self-defense, does the right of
self-defense also extend to charges 1 [murder] and 4 [child
abuse], or does the jury examine the right of self-defense in each
charge independently of one another?” To this question, the court
responded: “Self-defense applies to counts 3 [attempted murder
of Victor] and 4 [child abuse] only.” (Capitalization omitted.)
The second question was: “When examining malice
aforethought, if the jury finds that malice aforethought exists
in one charge, does that establish malice aforethought across
10
all charges, or do we need to establish malice aforethought
in each individual charge?” The court responded: “You must
establish malice aforethought in each individual charge.”
On the afternoon of November 10, 2021, the jury asked
two more questions. The first was: “In regards to malice
aforethought in charge 1, does malice aforethought need to exist
explicitly towards Susan, or if we establish malice aforethought
is present towards any individual in this case, would it satisfy
the element of malice aforethought?” In response, the court read
CALCRIM No. 520 (first or second degree murder with malice
aforethought).
The second question was: “When determining what is
an unreasonable or reasonable perception of threat in regards to
attempted voluntary manslaughter . . . when considering what a
reasonable person would believe in that same situation [or] is the
jury placing themselves in the mind of the defendant or judging
their actions as an independent reasonable person?” The court
responded to this question by referring to the previously given
instruction under CALJIC No. 5.17 and stating: “It’s a
reasonable person. What would a reasonable person do? No
other options there. Just what would a reasonable person do.”
The court also allowed counsel to make further arguments
with respect to the jury’s questions concerning malice, self-
defense, and imperfect self-defense.6
6 The jury asked a fifth question regarding the child abuse
count. “In count 4 is the jury examining the defendant’s right to
defense himself against the child specifically or if the defendant
has the right to self defense based on the situation as a whole.”
The court responded: “You must identify the defendant’s actions,
11
The jury convicted defendant of second degree murder,
a lesser offense of the charge of first degree murder (§ 187),
and found that he personally and intentionally discharged a
firearm (§ 12022.53, subd. (c)). The jury found defendant not
guilty of the attempted murder and child abuse counts, and
found not true the personal firearm use allegation under
section 12022.53, subdivision (d).
Defendant filed a motion for new trial, which the court
denied.
At the sentencing hearing, the court rejected defendant’s
request to strike or reduce the gun enhancement. The court
sentenced defendant to 15 years to life in prison on the murder
conviction, plus 20 years on the firearm enhancement.
Defendant timely appealed.
DISCUSSION
A. Failure to Instruct on Transferred Self-Defense
Defendant contends that the court erred by failing to
instruct the jury sua sponte as to transferred self-defense. We
disagree.
Under the doctrine of transferred intent, “a defendant
who shoots with the intent to kill a certain person and hits a
bystander instead is subject to the same criminal liability that
would have been imposed had ‘ “the fatal blow reached the person
for whom intended.” ’ ” (People v. Scott (1996) 14 Cal.4th 544,
546.) The doctrine is founded upon the policy “that a defendant
if any, which caused the child unjustifiable pain or mental
suffering. If all of those actions were in lawful self-defense, the
defendant is not guilty of count 4.”
12
who shoots at an intended victim with intent to kill but misses
and hits a bystander instead should be subject to the same
criminal liability that would have been imposed had he hit his
intended mark.” (Id. at p. 551.)
In People v. Mathews (1979) 91 Cal.App.3d 1018 (Mathews),
the court applied the transferred intent doctrine to the theory
of self-defense to “insulate one from criminal responsibility where
his act, justifiably in self-defense, inadvertently results in the
injury of an innocent bystander.” (Id. at p. 1024.) “Thus, a
defendant is guilty of no crime if his legitimate act in self-defense
results in the inadvertent death of an innocent bystander.”
(People v. Levitt (1984) 156 Cal.App.3d 500, 507.) Courts have
since labeled this application of transferred intent, “transferred
self-defense.” (People v. Waxlax (2021) 72 Cal.App.5th 579,
592; People v. Vallejo (2013) 214 Cal.App.4th 1033, 1038.)
In determining whether transferred self-defense applies in a
particular case, the question is “ ‘whether the killing would have
been justifiable if the accused had killed the person whom he
intended to kill.’ ” (Mathews, supra, 91 Cal.App.3d at p. 1024.)
The killing of another in self-defense is justifiable
and noncriminal if the defendant acted with “an actual and
reasonable belief in the need to defend.” (People v. Stitely
(2005) 35 Cal.4th 514, 551.) If the defendant acted “upon
an actual but unreasonable belief in the need for self-defense,”
he can be convicted of no crime greater than voluntary
manslaughter. (Ibid.; People v. Rangel (2016) 62 Cal.4th 1192,
1226.) Both self-defense and imperfect self-defense are premised
on the defendant’s intentional act. (People v. Wickersham (1982)
32 Cal.3d 307, 328; People v. Villanueva (2008) 169 Cal.App.4th
41, 50, fn. 7 (Villanueva); Stitely, supra, 35 Cal.4th at p. 551.)
13
Thus, if the doctrine of transferred self-defense applied
here, defendant’s killing of Susan could be justifiable and
noncriminal if he fired his gun with the intent to shoot Rea
while possessing an actual and reasonable belief in the need to
defend against Rea, but shot Susan instead; or the killing could
constitute voluntary manslaughter if he acted with the same
intent, but his belief in the need to defend against Rea was
unreasonable. (See People v. Curtis (1994) 30 Cal.App.4th
1337,1357 (Curtis) [transferred self-defense may “apply where
the defendant intends to injure or kill the person who poses the
threat, but inadvertently kills an innocent bystander instead”]).
In criminal cases, “ ‘the trial court must instruct on the
general principles of law relevant to the issues raised by the
evidence.’ ” (People v. Sedeno (1974) 10 Cal.3d 703, 715 (Sedeno).)
The “court is required to instruct sua sponte on any defense,
including self-defense, only when there is substantial evidence
supporting the defense, and the defendant is either relying on the
defense or the defense is not inconsistent with the defendant’s
theory of the case.” (Villanueva, supra, 169 Cal.App.4th at
p. 49; accord, People v. Brooks (2017) 3 Cal.5th 1, 73.) Stated
differently, even when there is substantial evidence to support a
defense, the court does not have a sua sponte duty to instruct on
the defense if the defendant is not relying on the defense and the
defense is inconsistent with the defendant’s theory of the case.
As our Supreme Court has explained, limiting the
sua sponte duty to instruct in this way “is necessary not only
because it would be unduly burdensome to require more of trial
judges, but also because of the potential prejudice to defendants
if instructions were given on defenses inconsistent with the
theory relied upon.” (Sedeno, supra, 10 Cal.3d at p. 716.)
14
Thus, although a defendant is entitled to instructions on
inconsistent defense theories when requested—provided each
theory is supported by substantial evidence—the defendant
may not be placed in the position of having the jury instructed
on inconsistent defenses theories in the absence of a request.
(See Villanueva, supra, 169 Cal.App.4th at p. 52 [court was
required to give instruction on inconsistent defenses when
“defendant requested the instruction[s]”].)
Here, defendant did not seek an instruction on transferred
self-defense and his counsel remained silent when the court
raised the possibility of giving the instruction. Our record
does not indicate that defendant relied, or sought to rely, on a
transferred self-defense theory, and he does not assert otherwise
on appeal. The defense theory as to count 1, as counsel expressed
in opening and closing statements, was that the gun discharged
accidentally as Rea grabbed defendant’s hand and they struggled
for control of the gun. Therefore, assuming arguendo that there
is substantial evidence to support a transferred intent theory of
self-defense or imperfect self-defense, the issue is whether these
theories are inconsistent with the theory upon which defendant
relied: The killing of Susan was an accident.
As noted above, traditional self-defense and imperfect
self-defense are both premised on the defendant’s intentional
act; in this case, the intentional shooting of a gun. As such,
these defenses and the defense of “accidental homicide are
mutually exclusive.” (Curtis, supra, 30 Cal.App.4th at p. 1358.)
Therefore, “a defendant who claims to have killed by accident
while defending him or herself is not thereby entitled to jury
instructions on self-defense.” (Ibid.; see also Villanueva, supra,
169 Cal.App.4th at p. 50 [“an accidental shooting is inconsistent
15
with an assertion of self-defense”].) Because defendant asserted
that he killed Susan by accident and relied on that theory at
trial, the court did not err in declining to instruct the jury
sua sponte on inconsistent theories of transferred self-defense or
imperfect self-defense.7
Defendant relies on Villanueva, supra, 169 Cal.App.4th 41and People v. Elize (1999) 71 Cal.App.4th 605 (Elize), in asserting
that the inconsistency between transferred self-defense and the
theory he relied upon below does not preclude an instruction on
transferred self-defense. In Villanueva and Elize, the defendants
had testified that their act of shooting their victim was an
accident. The defendants’ attorneys, however, requested
instructions on self-defense, as well as accident, and the trial
court refused the requests. The Courts of Appeal reversed, and
held that, although the theories of accident and self-defense
were inconsistent, the trial courts erred by refusing defendant’s
request to instruct on self-defense. In each case however, the
Court of Appeal’s holding was based in part on the fact that
the defendants’ counsel requested the self-defense instruction.
(Villanueva, supra, 169 Cal.App.4th at p. 52 [because “there was
sufficient evidence of self-defense, and defendant requested the
7 In defendant’s opening brief, he separates his arguments
regarding the failure to instruct on self-defense and imperfect
self-defense under separate headings. Because both arguments
fail for the same reason—these defenses are inconsistent with his
defense of accident—we address them together. (See Villanueva,
supra, 169 Cal.App.4th at p. 50, fn. 7 [in considering whether
self-defense theories are inconsistent with defense of accident,
the court “consider[ed] self-defense and imperfect self-defense
somewhat interchangeably, as the key issue in dispute is whether
defendant acted intentionally”].)
16
instruction, the trial court was required to give the instruction,”
italics added]; Elize, supra, 71 Cal.App.4th at p. 616 [“the trial
court should have allowed the jury to determine the self-defense
issue by instructing upon it when requested,” italics added].) By
contrast, defendant did not request a transferred self-defense
instruction. Villanueva and Elize are thus inapposite.
Defendant also relies on People v. Mayweather (1968)
259 Cal.App.2d 752. In that case, the defendant and the victim
had been in a physical altercation. As the victim ran toward the
defendant, the defendant picked up a gun. The gun discharged,
causing the victim’s death. (Id. at p. 755.) The defendant said
he did not mean to shoot the victim. (Ibid.) The trial court did
not instruct on self-defense, and the Court of Appeal reversed,
stating that “a self-defense instruction should have been
given.” (Ibid.) The Mayweather court’s brief opinion does not
indicate whether defendant requested an instruction on self-
defense, and it has never been cited to support the proposition
defendant asserts here: that the court must instruct on a theory
inconsistent with a theory upon which the defense is relying
in the absence of a defense request for the instruction. To the
extent that Mayweather can be read to support defendant’s
argument, we decline to follow it.
B. Failure to Instruct on Voluntary Manslaughter
Defendant contends that the court erred by failing to
instruct the jury sua sponte on voluntary manslaughter. We
disagree.
Voluntary manslaughter is a lesser included offense to the
charge of murder. (People v. Steskal (2021) 11 Cal.5th 332, 345;
People v. Thomas (1987) 43 Cal.3d 818, 824.) The trial court is
required to “ ‘instruct on all lesser included offenses supported
17
by substantial evidence,’ ” that is, “ ‘ “evidence that a reasonable
jury could find persuasive.” ’ ” (Steskal, supra, at p. 345.)
An unlawful homicide may be reduced to voluntary
manslaughter in two ways: When the defendant kills in
imperfect or self-defense—that is, in the unreasonable but good
faith belief in having to act in self-defense; or when the defendant
kills in a sudden quarrel or heat of passion. (People v. Schuller
(2023) 15 Cal.5th 237, 252.)
Defendant’s imperfect self-defense theory is premised on
the doctrine of transferred self-defense, which we rejected in the
preceding part. We reject defendant’s argument regarding a heat
of passion instruction for a different reason. To warrant an
instruction on this theory, there must be substantial evidence
that the defendant killed his victim “ ‘ “due to ‘sufficient
provocation,’ ” ’ which was “ ‘caused by the victim’ ” or by conduct
the defendant reasonably believed the defendant engaged in.
(People v. Moye (2009) 47 Cal.4th 537, 549–550.) “It is well
settled” that the provocation that may reduce murder to
manslaughter “must be caused by the victim, not a third party.”
(People v. Nunez (2023) 97 Cal.App.5th 362, 369, citing Moye,
supra, at pp. 549–550, People v. Avila (2009) 46 Cal.4th 680,
705, and People v. Verdugo (2010) 50 Cal.4th 263, 294.) Here,
the victim, Susan, merely stood up from her seat at the table
and turned to protect her child from being shot. There is no
evidence in the record that she did anything that would have
caused “an ordinary person of average disposition to act rashly or
without due deliberation and reflection.” (Moye, supra, at p. 550.)
There was therefore no error in failing to instruct on voluntary
manslaughter based on heat of passion.
18
C. The Court’s “No Lawful Excuse” Comment
During deliberations, the jury sent several questions to the
court, including the following: “In regards to malice aforethought
in charge 1 [the murder of Susan], does malice aforethought
need to exist explicitly towards Susan, or if we establish malice
aforethought is present towards any individual in this case,
would it satisfy the element of malice aforethought?” In
response, the court read the following definition of malice
aforethought based on CALCRIM No. 520: “There are two
kinds of malice aforethought. Express malice and implied
malice. Proof of either is sufficient to establish the state of
mind required for murder. So the defendant acted with express
malice if he unlawfully intended to kill, or he acted with implied
malice if he intentionally committed an act, the consequences
of the act were dangerous to human life, at the time he knew
his act was dangerous to human life, and he deliberately acted
with conscious disregard for human life. [¶] Malice aforethought
does not require hatred or ill will toward the victim. It is a
mental state that must be formed before the act that causes
death is committed. It does not require deliberation or any
passage of any particular time.”
To illustrate the instruction without “trying to go beyond
[the jury’s] question,” the court provided the jury with the
following hypothetical based on “an old western movie. An
individual, a cowboy, comes out and fires a gun down the dirt
street towards the saloon. There are people standing in front of
the saloon and an individual is killed. The jury for the cowboy
would need to decide for each shot fired, if there is more than
one, did the cowboy intend to kill or did the cowboy act with
reckless disregard for life knowing it was dangerous? Those
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are the only elements with respect to intent. In this fact pattern
we’re not talking about any lawful excuse. I’m just focusing on
malice aforethought. These elements do not require a decision
as to who the person was that the defendant shot at or intended
perhaps to kill or why. It’s just these elements. That’s what
you’re looking at. Just focus on these elements.” (Italics added.)
There was no objection to the court’s statements.
Defendant contends that the court’s statement, which
we have italicized above—“we’re not talking about any lawful
excuse”—amounted to “a directed verdict of guilt because the
charge resolved the issue [of malice] for them.” Even if the
issue has been preserved for appeal in the absence of an
objection below, the contention is without merit.
In reviewing a challenge to a court’s instructions to the
jury, we consider the challenged statements in their context,
not in isolation, and in light of the entire charge to the jury.
(People v. Holt (1997) 15 Cal.4th, 619, 677; People v. Wilson
(1992) 3 Cal.4th 926, 943.) Here, the court’s cowboy hypothetical
was given to illustrate the meaning of malice aforethought—
the subject of the jury’s question—and the court made clear
that it was not intended to address issues “beyond [the jury’s]
question,” such as what constitutes a lawful excuse for homicide.
A potential lawful excuse in this case—accident—is addressed
in another instruction, about which the jury apparently had no
question.
Read in its context, we do not believe the jury could
reasonably have understood the court to mean that there was
no lawful excuse for defendant’s shooting of Susan. Rather, the
court’s statement, “we’re not talking about any lawful excuse,”
would have reasonably been understood to mean that the court,
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through its hypothetical, was not addressing the possibility
that the hypothetical cowboy had a lawful excuse for his actions,
but only the narrow question of whether he acted with malice
aforethought.
The court’s statement, we conclude, was not error.
D. Cumulative Effect and Ineffective Assistance of
Counsel
Defendant contends that the cumulative effect of the
alleged instructional errors addressed above rendered the trial
unfair and a denial of due process. Because we conclude that
there was no instructional error, this argument fails.
Defendant argues that if we determine that the arguments
he asserts on appeal concerning alleged instructional error were
forfeited by his counsel’s failure to raise them below, then he
was denied his constitutional right to the effective assistance of
counsel. We have, however, addressed and rejected defendant’s
instructional error arguments on the merits. Therefore, any
possible deficiency in failing to object did not result in the denial
of defendant’s constitutional right to the effective assistance of
counsel.
E. Substantial Evidence of Murder
Defendant next contends that the judgment should be
reversed because there is no substantial evidence to support the
second degree murder conviction. The contention is meritless.
Substantial evidence is that which is “reasonable,
credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 578.) Our evaluation
of the sufficiency of the evidence to support defendant’s murder
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conviction is “ ‘independent of the jury’s determination that
evidence on another count was insufficient.’ ” (People v. Lewis
(2001) 25 Cal.4th 610, 656, quoting United States v. Powell (1984)
469 U.S. 57, 67.)
Murder is an unlawful killing of a human being committed
with malice aforethought. (§ 187, subd. (a); People v. Blakeley
(2000) 23 Cal.4th 82, 87.) Second degree murder “is the unlawful
killing of a human being with malice aforethought but without
the additional elements, such as willfulness, premeditation,
and deliberation, that would support a conviction of first degree
murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.)
Malice is express when the defendant has the intent to kill
(People v. Soto (2018) 4 Cal.5th 968, 970), and can be inferred
from “the act of purposefully firing a lethal weapon at another
human being at close range, without legal excuse.” (People v.
Smith (2005) 37 Cal.4th 733, 742.)
Here, Chavarria testified that he was next to Susan at
a table across from defendant. Immediately after defendant shot
Victor, defendant pointed his gun in Susan’s and Chavarria’s
direction. Defendant fired the gun, hitting Susan.
Rea testified that defendant shot Victor, then pointed his
gun “[d]irectly at Susan” and shot her. It was not until after
defendant fired the shot that killed Susan that Rea acted to
knock the gun out of defendant’s hand.
A medical examiner testified that the bullet fired from
defendant’s gun hit Susan in her left arm, entered her chest
cavity, perforated her lungs, and caused her death.
The foregoing evidence is reasonable, credible, and of solid
value, and thus sufficient to support the jury’s verdict of second
degree murder.
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F. The Court’s Discretion to Strike or Reduce the
Gun Use Enhancement
Defendant contends that we should direct the court on
remand to exercise its discretion to either strike or reduce the
gun enhancement. We decline to do so.
Prior to the sentencing hearing, defendant filed a
sentencing memorandum in which he requested the court
exercise its discretion to strike the gun enhancement imposed
under subdivision (c) of section 12022.53, and impose a lesser
enhancement under either subdivision (a) of that statute or
section 12022.5, subdivision (a). At the sentencing hearing,
the court stated that it had read and considered the defendant’s
memorandum and denied defendant’s request, stating it was
“exercis[ing its] discretion to add 20 years for the gun use.” The
court explained that there was “no reason [for defendant] to be
pointing the gun at Susan.” Defendant could see that Susan was
behind Rea, “trying to shelter her son, trying to get down,” but
“[s]he couldn’t get down because of where the body of [Victor]
had laid. [Defendant] knew that. And yet, he pointed that gun,
he had cocked that gun again and pointed it at Mr. Rea.” The
court concluded that “the gun use allegation” and “the sentence
to be appropriate.”
It thus appears from the record that the court was aware
of its authority and discretion to strike or reduce the gun
enhancement, and that it exercised that discretion by imposing
the sentence authorized by the jury’s findings. A further
sentencing hearing is not required.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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