People v. Brito

• Decision Date: 16 July 1991
• Docket Number: No. D010261,D010261
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael BRITO, Defendant and Appellant.

Page 441

283 Cal.Rptr. 441

232 Cal.App.3d 316

The PEOPLE, Plaintiff and Respondent, v. Michael BRITO, Defendant and Appellant.

No. D010261.

Court of Appeal, Fourth District, Division 1, California.

July 16, 1991.

Certified For Partial Publication ¹

As Modified on Denial of Rehearing

Aug. 9, 1991.

Review Denied Oct. 16, 1991.

[232 Cal.App.3d 319] Gary Nelson, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and M. Howard Wayne, Deputy Atty. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Michael Brito appeals a judgment of convictions of robbery (PEN.CODE, § 211)², attempted murder, with a finding of premeditation and deliberation (§§ 664, 187, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). He asserts the court erred by (1) failing to instruct on attempted involuntary manslaughter as a lesser included offense; (2) refusing to instruct on attempted voluntary manslaughter; (3) failing to give CALJIC No. 8.73 instructing that provocation may show lack of deliberation and premeditation; and (4) failing to instruct on the lesser included offense of grand theft. He also claims there was insufficient evidence to support the attempted homicide findings of premeditation and deliberation; the evidence was insufficient to prove robbery; and reversal is required because of prosecutorial misconduct during closing argument. We reject each contention and affirm the judgment.

FACTUAL BACKGROUND

Eugene Smith offered a ride to Brito who was hitchhiking on a freeway on-ramp with a gasoline can in his hand. When Smith opened the passenger door, Brito leaned into the vehicle, pointed a gun toward Smith's face, and demanded gold and money. Motorists in vehicles behind Smith's were unable to pass and began honking their horns. Brito looked back and, when Smith fled through the driver's door, Brito shot him in the back. Brito then drove away in Smith's car which was later found stripped.

Brito's defense was mistaken identity and alibi.

I

NONRECOGNIZABLE CRIME OF ATTEMPTED INVOLUNTARY MANSLAUGHTER

In People v. Broussard (1977) 76 Cal.App.3d 193, 197, 142 Cal.Rptr. 664, the court of appeal concluded attempted involuntary manslaughter is not a recognizable crime. Pointing out that an attempt to commit a crime requires a specific intent to commit that crime and involuntary manslaughter is inherently an unintentional killing, the court reasoned that attempted involuntary manslaughter is logically impossible since an attempt to commit the crime would require the defendant to intend to perpetrate an unintentional killing.

An attempt is defined as requiring the specific intent to commit a crime. (People v. Camodeca (1959) 52 Cal.2d 142, 145, 338 P.2d 903; People v. Miller (1935) 2 Cal.2d 527, 530, 533, 42 P.2d 308; § 21a. ³ ) Defining the parameters of the law of attempt, our Supreme Court has explained that "[o]ne of the purposes of criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime." (People v. Camodeca, supra, 52 Cal.2d at p. 147, 338 P.2d 903.) California courts have consistently held that there are no crimes of attempted felony-murder, attempted murder based on implied malice, ⁴ and attempted involuntary manslaughter, since all of these crimes by definition do not require the defendant have the specific intent to kill. (People v. Ramos (1982) 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171; People v. Patterson (1989) 209 Cal.App.3d 610, 614, 257 Cal.Rptr. 407; People v. Broussard, supra, 76 Cal.App.3d at p. 197, 142 Cal.Rptr. 664; contrast People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825, 217 Cal.Rptr. 581 [attempted voluntary manslaughter is legally possible since defendant can intend to kill but with mitigating circumstances].)

Brito argues that for crimes such as involuntary manslaughter, criminal negligence substitutes for specific intent to kill. Thus, he asserts a defendant who acts with gross negligence and commits an act the probable result of which could, but did not, cause death has committed attempted involuntary manslaughter. Absent such a crime, he characterizes as absurd the situation that a person who acts with gross negligence resulting in the death of another may be found guilty of involuntary manslaughter on the mere fortuity that the victim died, whereas if the victim lives the defendant must be convicted of attempted murder or of no attempted homicide at all.

Brito's argument is misplaced under the facts of his case, since the jury's verdicts establish he shot while committing a felony, not while merely acting with gross negligence, and he could not be found to have been guilty of any attempted homicide less than attempted felony murder. Involuntary manslaughter is committed when a defendant does not intend to kill his victim, but commits an unlawful act not amounting to a felony, or commits a lawful act with gross negligence resulting in the death of another. (§ 192; Somers v. Superior Court (1973) 32 Cal.App.3d 961, 967, 108 Cal.Rptr. 630.) Felony murder is committed when a defendant commits or attempts to commit inherently dangerous felonies, including robbery, and a death results, even if he did not intend to kill. (§ 189; People v. Ireland (1969) 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 450 P.2d 580.) Brito did not shoot while committing a nonfelonious unlawful act or a lawful act, but during the course of a robbery for which he was convicted. This conduct is within the parameters of the felony-murder rule, not involuntary manslaughter. Thus, the argument that if his victim had died he could have been guilty of the lesser offense of involuntary manslaughter is incorrect, since under the verdicts returned he would have been guilty of felony-murder.

In addition to being inapplicable to the facts of his case, Brito's argument that criminal negligence can substitute for specific intent for an attempt to commit a crime, would logically require that implied malice and commission of a felony also substitute for specific intent, a result we are certain he does not intend to urge. ⁵

II-III ^*

IV

SUFFICIENCY OF THE EVIDENCE TO SUPPORT DELIBERATION AND PREMEDITATION

Brito asserts the evidence is insufficient to establish he deliberated and premeditated prior to committing the attempted murder. In reviewing the sufficiency of the evidence, we draw all reasonable inferences in favor of the verdict and view the evidence in the light most favorable to the prosecution, and we uphold the judgment if any rational jury could have found the crime established beyond a reasonable doubt. (People v. Miranda (1987) 44 Cal.3d 57, 86, 241 Cal.Rptr. 594, 744 P.2d 1127.) Our Supreme Court has identified three categories of evidence which might sustain a finding of premeditated murder: (1) facts about a defendant's behavior that show prior planning of the killing; (2) facts about any prior relationship or conduct with the victim from which the jury could infer motive; and (3) facts about the manner of the killing from which the jury could infer the defendant intentionally killed the victim according to a preconceived plan. (People v. Anderson (1968) 70 Cal.2d 15, 26, 73 Cal.Rptr. 550, 447 P.2d 942.) A verdict will be upheld when there is extremely strong evidence of planning; or evidence of motive in conjunction with either (a) evidence of planning or (b) evidence of a manner of killing showing a preconceived design. (Id. at p. 27, 73 Cal.Rptr. 550, 447 P.2d 942; People v. Bloyd (1987) 43 Cal.3d 333, 348, 233 Cal.Rptr. 368, 729 P.2d 802.)

Here, there is evidence Brito was motivated to kill the victim because he was fleeing from and refusing to comply with his demands for money and gold. There is evidence of planning in that Brito held the loaded gun pointed toward the victim's face when making his demands, which supports an inference Brito had contemplated in advance the possibility he would have to shoot. (See, e.g. People v. Miranda, supra, 44 Cal.3d at p. 87, 241 Cal.Rptr. 594, 744 P.2d 1127 [fact that defendant attempting robbery brought loaded gun into store and shortly thereafter used it to kill unarmed victim suggests defendant considered possibility of murder in advance]; People v. Boyd (1985) 38 Cal.3d 762, 770, 215 Cal.Rptr. 1, 700 P.2d 782; People v. Adcox (1988) 47 Cal.3d 207, 240, 253 Cal.Rptr. 55, 763 P.2d 906.) Finally, the manner of the shooting can support an inference of preconceived design since Brito shot his unarmed victim in the back as he was fleeing, which could suggest he had decided ahead of time he would shoot if the victim did not comply with his demands.

In addition, the existence of a preconceived plan is consistent with Brito's statement to a fellow inmate after his arrest that he had gone "out to rob a mark" and when the mark tried to run, he "blew him away." This statement to a fellow inmate admits the shooting occurred during a robbery while the victim was fleeing and can support an inference Brito planned to kill if the victim tried to run.

The fact that Brito's formulation of the manner in which he would attempt to kill his victim may have occurred during a matter of seconds as his victim exited the vehicle, does not defeat the substantiality of the evidence in support of deliberation and premeditation.

"The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated...