NOT TO BE PUBLISHED IN OFFICIAL REPORTS
A jury convicted defendant Omar Escamilla Guillen of a drive-by, special-circumstance murder, which defendant committed without provocation in an apparent effort to defend his brother, Leonel G., from a perceived gang threat. (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(21); 1192.7, subd. (c)(8); 12022.53, subd. (d).)
On appeal, defendant contends: (1) the court erroneously instructed the jury on an initial aggressor's right to self-defense; and (2) the special circumstance was unconstitutional as applied in light of the prosecutor's argument that the jury should reach a true finding by default if it convicted defendant of murder. We reject defendant's contentions and affirm the judgment.
STATEMENT OF FACTS
On the afternoon of April 21, 2013, defendant's brother, Leonel, had an encounter with two men, Gerardo I. and Homero V., at a convenience store. Leonel had arrived at the store accompanied by his girlfriend and their children. When he parked, he noticed "two gang members," looking at him from a truck two spaces to his left. Leonel had known one of the men, Homero since the sixth grade, about 18 or 19 years ago.
Gerardo and Homero entered the store behind defendant and started "gangbanging." Leonel thought Gerardo was ready to fight. Gerardo said he was "Criminal" from Penn West. Gerardo asked Leonel whether there was a "problem" and removed his shirt, displaying on his chest the tattoos of a "P" and a "W," for the neighborhood, Penn West.
Leonel announced, "I'm from nowhere," indicating he was not involved in a gang but the other two men still blocked him. Homero said, "You and your brothers got something coming," apparently referring to an incident which occurred between a friend of Homero's and Leonel. Meanwhile, Gerardo flashed Penn West gang signs and said to Leonel, "Come outside, I got a .45 for you."
A store clerk intervened and threatened to call the police. The clerk told the other men to leave but said Leonel could stay. The store video from two surveillance cameras depicted three men entering the store, one of them removing his shirt and the store's employees trying to de-escalate a confrontation.
Gerardo denied ever threatening Leonel. He did not recall Homero threatening or confronting Leonel. The two men were not armed. Gerardo did not recall a store employee intervening and he said the confrontation ended when he and Homero left the store and Gerardo saw Leonel still inside the store and on the phone.
Leonel watched as the two men got into their truck. He saw Homero reach under his seat and display a black, semiautomatic handgun. Leonel believed his life was in danger so he called defendant, his brother, on his cell phone to tell him two men had confronted him at the store and they had a .45 and were going to "blast" him. He made the call so that, if he was killed, defendant would know who was responsible.
Homero continued displaying the gun as the truck backed out of its parking space. Leonel stayed in the store until the truck left the parking lot. When Leonel returned to his vehicle, he was scared but he did not tell his girlfriend what had happened although she had seen two men leave the store before him. She later told an Indio police officer the two men had said her husband had "something coming" but they refrained from acting because of the presence of defendant's children.
A short distance from the store, Gerardo tried to make a U-turn but he cut in front of an Expedition, and the two vehicles collided. Seeing the crash, Leonel drove in the opposite direction. He called defendant again and told him about the crash.
Meanwhile, Gerardo warned the driver of the Expedition and his passenger, "You need to bounce," meaning to leave. The passenger was still standing by the Expedition when she heard what sounded like "a big pop" and a light-colored Jeep Cherokee near the truck drove off. The Expedition driver heard a gunshot and saw a man prone on the ground. He denied seeing a shooting, only the back of the Jeep, which was brand new. The victim seemed to be talking to the driver through the window of the Jeep when he was shot.
The truck and a white Jeep appear in a videotape. Another witness, a 14-year-old girl, told an officer she saw Homero walking across the street with a beer can in his hand before he was shot. The teenager said the Jeep briefly slowed down or stopped next to the truck. Other reluctant witnesses saw the two vehicles that had collided and a white Jeep stopping near the truck, heard gunshots, and saw Homero being shot. Leonel identified the white Jeep as the one his brother was driving in April 2013.
Gerardo claimed he exchanged insurance information with the Expedition driver while Homero stayed inside the truck. Then Gerardo saw Homero outside the truck and speaking to someone inside a white SUV about 25 feet away. Gerardo could not hear the conversation but he could hear they were arguing. When Gerardo heard a shot, Homero ducked and fell to the ground. The Jeep took off. Gerardo could not identify the driver.
The police searched the truck and the area but did not find any firearm or any bullets or projectiles. Based on an autopsy, a forensic pathologist determined Homero died as the result of a gunshot wound to the chest at close range. An X-ray revealed a retained bullet on the left side of his torso. When he died, Homero had a blood alcohol level of .13 and methamphetamine in his system.
Shortly after midnight on April 22, police found Leonel passed out and intoxicated at his house. First, Leonel denied calling defendant, his brother. Then he admitted telling defendant he was in danger. Police arrested Leonel for murder and interrogated him for six hours before releasing him around 7:00 a.m. Cell phone records showed 12 separate calls placed or received between Leonel and defendant on April 21. Police arrested defendant and his wife at a hotel in Palm Desert.
During his interrogation, defendant did not mention self-defense or that Homero had threatened him or Leonel. Police officers searched defendant's hotel room, residence, and white Jeep Cherokee, located in the hotel's parking lot. A bullet hole in the passenger side door's interior window frame showed an attempt to fix the damage. At defendant's residence, police found a loaded .9-millimeter Glock 17 handgun under the couch cushion; neither the handgun nor ammunition matched the firearm used in the shooting. Investigators could not find a handgun matching the projectile recovered from the victim's body.
Defendant testified he received a phone call from Leonel, who said some men from Penn West were "trippin' on him." Leonel did not name or describe the men but he asked defendant to pick him up. Defendant decided not to call the police. Instead, he armed himself with the gun he kept in his Jeep under the driver's seat. Pushing back the slide, he rested the gun on his thigh with his hand on top of it but not with his finger on the trigger. He intended to pick up Leonel and he had the gun ready for protection. He was nervous about Leonel getting hurt and scared for both his own and his brothers' safety.
While on his way, defendant received another phone call from Leonel, who said the men had mentioned a .45 and said "we had something coming," meaning they intended to try to kill or hurt Leonel and his brothers. Leonel then said that, when the two men were leaving, Homero had pointed a gun at him. Leonel announced, "Oh, they crashed," but he did not say where the accident occurred. Leonel said he planned to take evasive action. Defendant still wanted to make sure Leonel was okay.
When defendant came to the site of the collision, he stopped, intending to help the Expedition passengers. Before leaving his Jeep, he heard his name and recognized Homero, standing on the sidewalk near a GMC truck. They knew each other from middle school and met occasionally. Defendant did not know Gerardo. Defendant thought the men may have threatened Leonel but he could talk to them.
Instead, Homero approached defendant's jeep carrying a carton of beer. Defendant asked casually, "Why you guys trippin' on my brother?" Homero responded "You fools have something coming," "I'll fuck your brothers and you," and "I'm going to kill your brothers and you." Gerardo was walking toward the jeep "like a gangster" and both men seemed pumped up with adrenaline.
Defendant thought Homero had a gun although defendant could not see one. Defendant knew Homero was a gang member. Homero behaved in a threatening way. Homero moved his hand toward his waist. When Homero made a sudden movement, defendant grabbed his gun and shot near where Homero was standing without intending to kill him. Defendant fired to protect himself, thinking Homero was going to kill him. Not knowing whether the shot had hit Homero, defendant stepped on the gas and sped away.
Defendant told his brothers and his wife what had happened. He repaired his Jeep and gave away the gun. When defendant found out Homero had died, he took his wife to a hotel because he feared retaliation. He parked the Jeep at the hotel without trying to hide it and was planning to pick up his children when police arrested him. When interviewed, defendant was scared so he denied involvement in the shooting.
INSTRUCTION ON SELF-DEFENSE
The trial court instructed the jury with CALCRIM No. 3471, concerning limitations on self-defense where the defendant started a fight or was engaged in mutual combat with the victim. Defendant contends there was no evidence warranting the instruction and the instruction made it harder for him to establish self-defense. The People respond that, although defendant forfeited this argument, giving CALCRIM No. 3471 was not prejudicial error. The jury was instructed that some of the instructions may not apply to the facts of the case and that it should follow only those instructions that do apply. We conclude that, because there was no evidence that defendant started a fight or engaged in combat with Homero, the jury could not have relied on CALCRIM No. 3471.
While discussing jury instructions, the court indicated that it was going to give CALCRIM No. 505 ("Justifiable Homicide: Self-Defense or Defense of Another"). Defense counsel initially argued that CALCRIM No. 3471 did not apply. The court explained that it planned to modify the instruction to remove the element of mutual combat and to retain the circumstance in which a "person who starts a fight" may act in self-defense. The prosecutor said the instruction was appropriate because it was arguable that defendant had started a fight and defense counsel conceded there was a basis for the instruction although he disagreed with it being given. After closing arguments, the trial court instructed the jury, without objection, with a modified version of CALCRIM No. 3471:
The trial court also gave CALCRIM No. 505, CALCRIM No. 571, ("Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another — Lesser Included Offense"), and CALCRIM No. 3472 ("Right to Self-Defense: May Not Be Contrived"). In addition, the trial court instructed the jury based on CALCRIM No. 200 that: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them."
Standard of Review
Assertions of instructional error are reviewed de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
CALCRIM No. 3471
Defendant's failure to object to CALCRIM No. 3471 forfeits a claim of error on appeal. (People v. Virgil (2011) 51 Cal.4th 1210, 1260.) The record shows defense counsel did not object to CALCRIM No. 3471, other than to suggest that he did not think it applied. A passing comment, without a court ruling, does not suffice to preserve an objection. (People v. Ramirez (2006) 39 Cal.4th 398, 440; People v. Rowland (1992) 4 Cal.4th 238, 259.)
Nevertheless, respondent agrees the trial court should not have instructed with CALCRIM No. 3471 because there was no evidence defendant started a fight with the victim before shooting him: "[I]nstructions not supported by substantial evidence should not be given." (People v. Ross (2007) 155 Cal.App.4th 1033, 1050.) Our Supreme Court explained that self-defense of this kind is for cases "[w]here one is making a felonious assault upon another, or has created appearances justifying that other in making a deadly counter attack in self-defense." (People v. Hecker (1895) 109 Cal. 451, 463.) Before shooting Homero, defendant did not physically touch him or commit a felonious assault or conduct that created an appearance justifying a deadly counterattack from Homero. Accordingly, the trial court's CALCRIM No. 3471 instruction was error: "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
However, a wrong instruction does not always result in prejudice: "[G]iving an irrelevant or inapplicable instruction is generally `"only a technical error which does not constitute ground for reversal."'" (People v. Cross (2008) 45 Cal.4th 58, 67.) The error is not of federal constitutional dimension, but is "one of state law subject to the traditional Watson test." (People v. Guiton, supra, 4 Cal.4th at p. 1130, citing People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Ross, supra, 155 Cal.App.4th at pp. 1054-1055.) Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. (Guiton, at p. 1130.) "Furthermore, instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt" and "if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict." (Ibid.)
Here, there was no prejudice because there was no evidence that defendant started a fight with the victim. The jury was instructed to ignore instructions that did not apply to the facts of the case, and the jury presumably followed that instruction. (People v. Pearson (2013) 56 Cal.4th 393, 477.) Because the jury presumably disregarded CALCRIM No. 3471, that instruction could not have affected the verdict.
Defendant argues the jury might have concluded defendant initiated a fight when he asked Homero, "Why you guys trippin' on my brother?" However, reversal is required only "if the record affirmatively demonstrates there was prejudice, that is, if it shows that the jury did in fact rely on the unsupported ground." (People v. Guiton, supra, 4 Cal.4th at p. 1129.) Therefore, "the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Id. at p. 1130.) The record does not affirmatively demonstrate any reasonable probability that the jury found defendant guilty based solely on CALCRIM No. 3471.
In summary, in cases where a jury instruction is factually unsupported, "affirmance is the norm." (People v. Guiton, supra, 4 Cal.4th at p. 1129.) "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (Ibid.) The verdict here was based on valid grounds.
Defendant contends the LWOP sentence for the drive-by special circumstance was unconstitutional because the prosecutor told the jury the first degree murder conviction and the special circumstance finding were based on the same elements.
The constitutionality of a mandatory sentence is reviewed independently. (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) The jury was properly instructed to use the same elements both to elevate defendant's crime to first degree murder and to find the special circumstance true. Nothing is unconstitutional in this procedure, described as "double-counting." (People v. Abilez (2007) 41 Cal.4th 472, 528; People v. Catlin (2001) 26 Cal.4th 81, 158.) In People v. Rodriguez (1998) 66 Cal.App.4th 157, 164-181, the court addressed the unconstitutionality of the LWOP sentence and particularly the same issue presented here: whether imposition of an LWOP sentence based on the drive-by special circumstance is constitutional when the defendant's first degree murder conviction is also based on the drive-by elements. The court rejected the defendant's challenges to the sentence, finding no merit to defendant's argument that "a constitutional infirmity [exists] simply because it duplicates the elements which defined defendant's murder as, or `elevated' it to, first degree murder. . . ." (Rodriguez, at p. 164, citing Lowenfield v. Phelps (1987) 484 U.S. 231 and People v. Edelbacher (1989) 47 Cal.3d 983, 1023, fn. 12.)
What the prosecutor told the jury about the "duplication of elements" is completely accurate and completely constitutional. (People v. Abilez, supra, 41 Cal.4th at p. 528; People v. Catlin, supra, 26 Cal.4th at p. 158; People v. Rodriguez, supra, 66 Cal.App.4th at p. 164.) There was no constitutional harm in the prosecutor correctly telling the jury that the first degree murder instruction and the special circumstance instruction required equivalent findings. The special circumstance elements were the same as the first degree murder elements. The jury necessarily deliberated over those elements when it convicted defendant of first degree murder. Because this was not a death penalty case, the jury was not required to further consider purported "mitigating factors" before finding the special circumstance true. The LWOP sentence for a special circumstance finding is constitutional.
There was no prejudicial error in the jury instructions and the LWOP sentence was constitutional. We affirm the judgment.