People v. Garcia
| Decision Date | 21 April 2008 |
| Docket Number | No. B194011.,B194011. |
| Citation | 162 Cal.App.4th 18,74 Cal.Rptr.3d 912 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Victor GARCIA, Defendant and Appellant. |
Catherine White, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Garcia struck Aristeo Gonzalez in the face with the butt of a shotgun, causing Gonzalez to fall, hit his head on the sidewalk and die. Could a jury find Garcia guilty of involuntary manslaughter, rather than second degree murder or voluntary manslaughter, based on Garcia's testimony he hit Gonzalez in an automatic response to Gonzalez's lunge at the shotgun and did not aim for Gonzalez's face and did not intend to kill the man? An unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter. Because an assault with a deadly weapon or with a firearm is inherently dangerous, the trial court properly concluded the evidence would not support Gonzalez's conviction for involuntary manslaughter and, therefore, did not err in declining to instruct the jury on involuntary manslaughter as a lesser included offense of murder. We affirm the judgment, modified only to correct a clerical error as to Garcia's sentence.
On the morning of March 6, 2005, after arguing with his girlfriend, Cynthia Ramos, Garcia drank a quantity of beer and inexpensive fortified wine. While walking toward Yoly's Market in East Los Angeles to purchase additional wine, Garcia encountered Rafael Barajas and Juan Avila. Garcia, who was holding something shiny in his left hand (a handgun), struck Avila with his right hand near Avila's left eye. Avila fell to the ground, got up and ran to his home. Garcia apparently walked back to Ramos's home, where he again argued with her, and then left, carrying a shotgun.
A short while later Barajas, who had continued to Yoly's Market, saw Garcia enter the store as he was leaving. Garcia was carrying the shotgun. Garcia testified he entered the store with the shotgun to buy cigarettes, realized there were a lot of people inside and walked back out.
Garcia was confronted by Gonzalez, who told Garcia to put the gun away. Garcia ordered Gonzalez to shut up and to mind his own business. The two men yelled at each other, and Gonzalez moved toward Garcia ("lunged" at him, according to Garcia). Garcia struck Gonzalez with the butt of the shotgun to back him up. Although Garcia testified he did not aim at a specific spot, the gun hit Gonzalez in the face. Gonzalez fell to the sidewalk and hit his head, which began to bleed profusely. Gonzalez subsequently died from craniocerebral injuries due to blunt force head trauma. His skull was fractured on the left side of his head, and he had suffered a "rather large" laceration on his upper lip, apparently where he had been struck by the gun. A postmortem toxicology examination revealed Gonzalez had a .31 blood alcohol level at the time of his death.
Barajas saw Gonzalez bleeding on the ground. When he tried to help him, Garcia pointed the shotgun at Barajas's back and asked if he "wanted to be dead as the person who was lying there." Garcia then left the scene. As he walked away, Garcia raised his shotgun and pointed it at Juan Arellano, who had been driving nearby and had slowed down to see if he could provide some assistance.
Garcia was charged in an amended information with the murder of Gonzalez, assault with a firearm and assault with a deadly weapon upon Avila, assault with a firearm on Barajas, assault with a firearm on Arellano and several additional aggravated assault counts identifying as victims two individuals who had encountered Garcia after he left the site of the shooting. Firearm enhancements were also alleged.
The jury found Garcia not guilty of murder but guilty of voluntary manslaughter as to Gonzalez (count 1) and found true the related firearm enhancement. Garcia was also convicted of assault with a firearm on Avila (count 2) and Arellano (count 5) with true findings on the firearm enhancement allegations; he was found not guilty on all other charges. The trial court sentenced Garcia to an aggregate state prison term of 25 years eight months: the upper term of 11 years for voluntary manslaughter plus a consecutive upper term of 10 years for the gun use enhancement, plus consecutive terms of two years four months (onethird the middle term of three years for assault with a firearm plus one-third the middle term of four years for the firearmuse enhancement) for each of the two aggravated assault counts and their related firearm enhancements.1
Garcia contends the trial court committed prejudicial error in failing to instruct the jury on involuntary manslaughter as a lesser included offense of murder. He also contends the trial court's imposition of the upper term sentence for voluntary manslaughter based on factual determinations made by the trial judge, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403 (Blakely).
"Generally, involuntary manslaughter is a lesser offense included within the offense of murder." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145, 124 Cal.Rptr.2d 373, 52 P.3d 572.) Instructions on lesser included offenses must be given when there is substantial evidence for a jury to conclude the defendant is guilty of the lesser offense but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177, 77 Cal.Rptr.2d 870, 960 P.2d 1094; People v. Birks (1998) 19 Cal.4th 108, 118-119, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) Substantial evidence is defined for this purpose as "evidence sufficient to `deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8, 47 Cal.Rptr.2d 569, 906 P.2d 531.) "In deciding whether evidence is `substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Breverman, at p. 177, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) The trial court's decision whether or not the substantial evidence test was met is reviewed on appeal under an independent or de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733, 94 Cal.Rptr.2d 396, 996 P.2d 46; People v. Hayes (2006) 142 Cal. App.4th 175,181, 47 Cal.Rptr.3d 695.)
In his statement to the police following his arrest and again when testifying in his own defense at trial, Garcia, who claimed he was intoxicated at the time, explained Gonzalez had lunged toward him and said he thought Gonzalez was going to try to fight him and was concerned Gonzalez would take the gun. Garcia said he "just reacted" and insisted he had jabbed or swung at Gonzalez to back him up. He did not intend to hit Gonzalez in the face and "never intended to kill him or for him to die."
Garcia was charged with second degree murder. The `People tried the case on a theory of implied malice; and the trial court instructed the jury, using the appropriate CALJIC jury instruction, that to prove the crime of murder, the People had to establish the killing of Gonzalez was unlawful and "done with malice aforethought," which may be either express or implied. The court defined implied malice in the language of CALJIC No. 8.11, The court also explained, "When the killing is the direct result of such an act [one done with implied malice], it is not necessary to prove that the defendant intended that the act would result in the death of a human being." (CALJIC No. 8.31.)
Based upon Garcia's testimony and his theory of how the killing occurred, the trial court also instructed the jury on voluntary manslaughter as a lesser included offense of the charge of murder. Specifically, the court instructed the jury the crime of voluntary manslaughter is the unlawful killing of a human being without malice aforethought but either with an intent to kill or with conscious disregard for human life and gave the CALJIC instructions regarding sudden quarrel or heat of passion (CALJIC Nos. 8.42. 8.43, 8.44), as well as the instructions concerning "imperfect selfdefense," a killing done in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury (CALJIC Nos. 5.17, 8.50). However, after discussing the issue with counsel, the court refused to instruct on involuntary manslaughter as an additional lesser-included offense, reasoning that involuntary manslaughter may be a proper verdict in a case in which the unintentional killing of the victim occurs during the commission of a nondangerous felony (see People v. Burroughs (1984) 35 Cal.3d 824, 835-836, 201 Cal.Rptr. 319, 678 P.2d 894 (Burroughs), disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89, 96 Cal.Rptr.2d 451, 999 P.2d 675), but not when the victim dies as the direct result of an inherently dangerous felony such as assault with a deadly weapon or assault with a firearm.
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