KITCHING, J.
Appellants Efren Ruiz Alcaraz and Israel Garcia appeal from the judgments entered following their convictions by jury on count 1 — attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187) with, as to Alcaraz, personal and intentional discharge of a firearm (former Pen. Code, § 12022.53, subd. (c)) and, as to Garcia, a principal personally and intentionally discharging a firearm (former Pen. Code, §§ 12022.53, subd. (c) & 186.22, subd. (e)(1)) and on count 2 — shooting at an occupied motor vehicle (Pen. Code, § 246). Alcaraz further appeals following his conviction by jury on count 3 — possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)). Garcia further appeals following his conviction by jury on count 4 — driving a vehicle while permitting another to shoot from it (former Pen. Code, § 12034, subd. (b)). The jury found each of the above offenses was committed for the benefit of a criminal street gang (former Pen. Code, § 186.22, subd. (b)(1)).
The court found Alcaraz suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court found Garcia suffered three prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced Alcaraz to prison for life with the possibility of parole, plus 55 years. The court sentenced Garcia to prison for life with the possibility of parole, plus 23 years. We affirm the judgment as to Alcaraz. We modify the judgment as to Garcia and, as modified, affirm it with directions.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)), the evidence established that about 2:39 a.m. on May 10, 2010, Harvey Coleman, an off-duty Los Angeles Department of Airports police officer, was driving his Dodge Charger eastbound on Firestone in Los Angeles County. Coleman saw a burgundy SUV traveling towards him, northbound on Plevka. The SUV's headlights were off. The SUV, which appeared to have two occupants, failed to stop for the stop sign at Plevka and continued onto Firestone. Coleman swerved his Charger to the left to avoid colliding with the SUV. Coleman was not angered by the fact the SUV failed to stop for the stop sign.
Coleman continued driving on Firestone past Compton Boulevard and at least a mile east of Plevka. He then pulled over to get his cell phone. The SUV drove up to the driver's side of the Charger and stopped. The front passenger window of the SUV was down. Coleman lowered, perhaps halfway down, his driver's side window. Coleman lowered his window so he could see, because his windows were tinted. Coleman was about three and one-half or four feet from the front passenger of the SUV. Coleman saw Garcia in the driver's seat, and Alcaraz in the front passenger seat, of the SUV. Codefendant Carlos Vasquez
Coleman heard people talking in the SUV. He heard Alcaraz ask Coleman "`Where you from[?]'" Coleman heard appellants direct a racial epithet at Coleman.
Alcaraz pointed a black revolver at Coleman and fired it twice. The gun was about three or three and one-half feet from Coleman, and he saw the flash from the gun's muzzle. Coleman testified "[the gun] was directly next to me. Close enough where even today I don't understand why I'm not dead[.]" He also testified he "looked right down the barrel of the gun as it was being fired[.]" A bullet broke the driver's side window of the Charger, and lodged in the Charger's steering wheel. Glass hit Coleman's left hand, causing it to bleed profusely. Coleman did not know the whereabouts of the other bullet. Coleman sped away, thinking he had been shot in the head and hand. Coleman's gun, in its holster, was under his driver's seat, but the gun was inaccessible during the incident.
Around Firestone and Alameda, and more than a mile from the shooting scene, Coleman stopped to summon help. Paramedics responded and Coleman then learned, to his utter disbelief, he had not been shot. While Coleman was being treated by paramedics, and perhaps five to 15 minutes after the shooting, he learned police had stopped a suspect vehicle. The situation at Coleman's location was chaotic.
Los Angeles County Sheriff's Deputy Travis Dowdy went to Coleman's location and spoke with him.
About 2:39 a.m. on May 10, 2010, Los Angeles County Sheriff's Deputy Marco Carrillo and his partner were on duty when they received a call pertaining to Coleman. They later received a call relating suspect and vehicle descriptions. The deputies drove to 8714 Plevka, the address of Vasquez's residence, and saw the SUV containing appellants and Vasquez. Vasquez was trying to hide in the back seat and was sitting on a .38-caliber gun, partially concealing it. Dowdy recovered the gun. Carrillo arrested appellants and Vasquez at 3:31 a.m.
During booking, appellants and Vasquez were shouting back and forth, saying "`Florencia'" and "`Florencia Trece.'" A firearms examiner determined the bullet recovered from the Charger's steering wheel had been fired from the fully functional .38-caliber gun recovered from the SUV.
A Los Angeles County Sheriff's detective, a gang expert, testified appellants and Vasquez were members of the Florencia 13 gang (Florencia). The detective had investigated crimes in which the gang had targeted African-Americans who were not members of a rival gang. The detective opined the present offenses were committed for the benefit of, and in association with, Florencia. Appellants presented no defense evidence.
Alcaraz claims (1) the trial court erred by failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder, (2) he was denied effective assistance of counsel by his trial counsel's failure to request a modified CALJIC No. 8.73 instruction, (3) the trial court erred by permitting the handcuffing of Alcaraz in the presence of the jury, and (4) the trial court abused its discretion by denying his Romero
Garcia claims (1) there was insufficient evidence Garcia was an accomplice to any crimes, (2) there was insufficient evidence of attempted murder, (3) there was insufficient evidence of attempted willful, deliberate, and premeditated murder, and (4) he is entitled to an additional day of custody credit.
Garcia asked the court to instruct the jury on attempted voluntary manslaughter based on sudden quarrel or heat of passion as a lesser included offense of attempted murder. The court denied the request. Alcaraz claims the denial was error. Garcia joins in the claim. We reject it.
In order for sudden quarrel or heat of passion to act as mitigation negating malice aforethought, the perpetrator's reason must be actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than judgment. (People v. Lasko (2000) 23 Cal.4th 101, 108.) The defendant must actually both possess and act upon the required state of mind. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.) The provocation must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Lee (1999) 20 Cal.4th 47, 59.)
Coleman was a completely innocent victim of gang-related crimes committed following illegal and dangerous driving by Garcia that nearly caused a traffic accident. We conclude for the following reasons the trial court did not err by failing to instruct on attempted voluntary manslaughter. First, there was no substantial evidence Coleman provoked appellants. Second, there was no substantial evidence any provocation was legally adequate, i.e., provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from that passion rather than judgment. Third, there was no substantial evidence the reason of either appellant was actually obscured as the result of any such passion. Fourth, there was no substantial evidence appellants acted rashly or without due deliberation and reflection based on any such passion.
A trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944 (Tufunga).) The trial court did not err or violate appellants' rights to due process by failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder.
Even if the trial court erred by failing to instruct on attempted voluntary manslaughter, it does not follow we must reverse the judgment. There was strong evidence appellants were guilty not only of attempted murder, but of attempted willful, deliberate, and premeditated murder (with Garcia as Alcaraz's accomplice
As for attempted murder, the act of discharging a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741.) As for attempted willful, deliberate, and premeditated murder, principles pertaining to that offense are settled.
In the present case, appellants and Vasquez were Florencia members and together in the SUV. About 2:39 a.m. on May 10, 2010, Garcia, driving the SUV with its headlights off, failed to stop for a stop sign and would have collided with Coleman's Charger but for Coleman's quick action to avert the collision. Coleman denied the incident upset him. He drove at least a mile further before pulling over to stop to get his cell phone. Garcia also drove that distance, then stopped next to the Charger.
Alcaraz ask Coleman where Coleman was from. Garcia, instead of apologizing for his previous illegal and dangerous driving, joined Alcaraz in directing racial epithets at Coleman. Garcia joined Vasquez in saying, "`Shoot him.'" Alcaraz fired twice a .38-caliber revolver at Coleman, shattering a portion of the driver's side window of the Charger. Coleman testified the gun was directly next to him. Broken glass from the driver's side window injured Coleman's left hand, causing it to bleed profusely. He was unarmed and the shooting was unprovoked.
A bullet fired from the gun was recovered from a location very close to Coleman, i.e., from his steering wheel, and Coleman later discovered an additional hole or damage to his steering wheel and recovered an additional bullet fragment. The jury reasonably could have concluded that if both bullets, or even one bullet, had struck Coleman, he would have been struck in the head and/or upper body and killed. The gang expert opined the offenses were committed for the benefit of, and in association with, Florencia. We believe there was strong evidence appellants committed not only attempted murder but the attempted willful, deliberate, and premeditated murder of Coleman (with Garcia as Alcaraz's accomplice).
The jury found the attempted murder was willful, deliberate, and premeditated. The jury also found true the gang allegation. In light of all of the above, even if the trial court erred by not instructing on attempted voluntary manslaughter, it is not reasonably probable the jury would have convicted appellants of attempted voluntary manslaughter if the court had instructed on that offense. Any error by the trial court in failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder was not prejudicial. (Cf. People v. Box (2000) 23 Cal.4th 1153, 1171, 1213; People v. Watson (1956) 46 Cal.2d 818, 836.)
Alcaraz claims his trial counsel denied him effective assistance of counsel by failing to request that the trial court give a modified CALJIC No. 8.73 on provocation as it relates to premeditation and deliberation regarding attempted murder.
The proposed instruction stated, "When the evidence shows the existence of provocation that played a part in inducing the unlawful attempted killing of a human being, but also shows that such provocation was not such as to reduce the offense to attempted voluntary manslaughter, and you find that the offense was attempted murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the attempted murder was premeditated and deliberate." Garcia joins in Alcaraz's claim. We reject it.
First, there was no substantial evidence of provocation by Coleman which played any part in inducing the unlawful attempted killing of Coleman. A trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. Tufunga, supra, 21 Cal.4th at p. 944.)
Second, the court instructed the jury (1) they were to consider the instructions as a whole (CALJIC No. 1.01), (2) on the presumption of innocence and proof beyond a reasonable doubt (CALJIC No. 2.90), on attempted murder (CALJIC No. 8.66), and on attempted willful, deliberate, and premeditated murder (CALJIC No. 8.67) (hereafter, premeditated murder).
CALJIC No. 8.67 defined the terms "willful," "deliberate," and "premeditated." Said instruction also told the jury they had to find the premeditated murder allegation true, if at all, beyond a reasonable doubt. The instruction further told the jury the intent to kill "must . . . not [have been formed] under a sudden heat of passion or other condition precluding the idea of deliberation" and "a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation." The jury reasonably would have understood from the entire charge that the jury was to consider any evidence of heat of passion provocation for its effect on premeditation and deliberation.
Third, as discussed, there was strong evidence the attempted murder of Coleman was willful, deliberate, and premeditated, and that the offense was committed for the benefit of a criminal street gang. The jury found true the premeditation and gang allegations.
The record sheds no light on why Alcaraz's trial counsel allegedly failed to act in the manner challenged, the record does not reflect said counsel was asked for an explanation and failed to provide one, and, in light of the above discussion, we cannot say there simply could have been no satisfactory explanation. We reject Alcaraz's ineffective assistance claim, since he has failed to demonstrate prejudicial constitutionally-deficient representation. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
On October 25, 2010, voir dire of prospective jurors commenced and appellants and Vasquez were in the courtroom. On October 26, 2010, appellants and Vasquez refused to leave their jail cells to attend the proceedings. Voir dire resumed, a jury was sworn, and the presentation of evidence commenced. On October 27, 2010, appellants refused to leave their jail cells to attend the trial.
At the morning session on October 28, 2010, the court called the case absent appellants and Vasquez, and the court indicated as follows. The bailiff and a managerial bailiff had informed the court that appellants and Vasquez wanted to be present in court. However, the court stated "[a custodial officer in the main lockup] . . . approached the bailiff and indicated that they were acting very suspiciously. They said today is the day it's going to happen or words to that effect. They started making gestures towards each other and noises towards each other."
The court indicated the custodial officer or bailiff believed there were security risks, and the bailiff would increase security in the courtroom. The court permitted additional deputies to remain in the courtroom during the remainder of the trial while appellants and Vasquez were in the courtroom.
The court attempted to read jury instructions to the jury but Alcaraz and Vasquez repeatedly were verbally disruptive. Despite repeated warnings from the court, the two continued to be verbally disruptive and the court eventually ordered them removed from the courtroom. The court told the jury, "Obviously, ladies and gentleman, you can't use any of that in deciding their guilt or innocence. Nothing to do with what happened that night out in the street." The reporter's transcript for the October 28, 2010, proceedings reflects the court indicated Garcia could remain in the courtroom because he had not done anything. The court later continued reading the jury instructions.
The October 29, 2010, minute orders pertaining to the October 28, 2010, proceedings state appellants and Vasquez were yelling despite court warnings and, "The court orders the 3 [sic] defendants removed from the courtroom. The defendants are handcuffed and escorted out of the courtroom back to their cell in lockup. [¶] The court admonishes the jury that they cannot take into consideration during their deliberations what just happened in court." During the afternoon session, appellants and Vasquez were present in the courtroom and, after the court admonished them, they remained in the courtroom during subsequent proceedings.
Alcaraz essentially claims the trial court erred by permitting him to be handcuffed in front of the jury. Garcia joins in the claim.
We conclude the claim is unavailing. Appellants waived the issue by failing to object to the handcuffing when it occurred. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583 (Tuilaepa.) As to the merits, a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints. (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).)
In the interest of minimizing the likelihood of courtroom violence or other disruption the trial court is vested, upon a proper showing, with discretion to order the physical restraint most suitable for a particular defendant in view of the attendant circumstances. (Duran, supra, 16 Cal.3d at p. 291.) An accused may be restrained on a showing the accused plans an escape from the courtroom or plans to disrupt proceedings. Evidence of existing or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained may warrant the imposition of reasonable restraints if, in the sound discretion of the court, such restraints are necessary. (Id. at p. 292, fn. 11.) The issue of whether handcuffing is an appropriate physical restraint is reviewed for abuse of discretion. (Id. at p. 293, fn. 12.)
In the present case, appellants on prior occasions repeatedly refused to enter the courtroom. The custodial officer's comments to the bailiff provided evidence appellants planned an attempted violent escape from the courtroom. Extra security was provided in the courtroom. Alcaraz and Vasquez later repeatedly engaged in disruptive behavior before the court ordered them removed. There is no dispute as to the propriety of the removal order per se.
Alcaraz and Vasquez were handcuffed while they were exiting the courtroom. Alcaraz and Vasquez, by their words and conduct, demonstrated the requisite plans for escape, and nonconforming and disruptive conduct, which supported restraint by handcuffs. The trial court did not abuse its discretion or violate Alcaraz's rights under the Fifth, Sixth, or Fourteenth Amendments by permitting Alcaraz and Vasquez to be handcuffed. Moreover, the burden is on appellants to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Garcia has failed to demonstrate from the record that he was handcuffed
Moreover, even if the trial court erred, our Supreme Court has consistently found any unjustified shackling harmless where there was no evidence it was seen by the jury. (Tuilaepa, supra, 4 Cal.4th at pp. 583-584.) Appellants have failed to meet their burden of demonstrating from the record that the jury or any juror saw anyone being handcuffed or in handcuffs.
Further, when one or more jurors briefly observe a defendant in shackles inside or outside a courtroom, such an observation generally has been recognized as not constituting prejudicial error. (Duran, supra, 16 Cal.3d at p. 287, fn. 2.) Even if the jury observed appellants and/or Vasquez in handcuffs, those observations were brief and occurred while said persons were exiting the courtroom. The court instructed the jury to disregard what had happened in the courtroom. No prejudicial error occurred.
The probation report prepared for a May 26, 2010, hearing reflects as follows. Alcaraz, who was born in February 1986, had three aliases and had engaged in gang activity. He suffered a 2004 conviction for being an unlicensed driver (Veh. Code, § 12500, subd. (a). In November 2007, Alcaraz was arrested for unlawful possession of ammunition (Pen. Code, 12316, subd. (b)(1)) and, in that matter (case No. VA095708), he suffered a December 2007 conviction for carrying a concealed weapon in a vehicle with a prior felony conviction (Pen. Code, § 12025, subd. (a)(1)). He was sentenced to prison for 40 months. In January 2010, Alcaraz violated parole in that matter and was remanded to prison to finish his prison term. In March 2009, Alcaraz was convicted of attempted grand theft and placed on probation for three years. The present offenses occurred in May 2010.
At the sentencing hearing in the present case, the court found true an allegation in the information that Alcaraz suffered the above 2007 conviction for a violation of Penal Code section 12025, subdivision (a)(1) (case No. VA095708) as a strike for purposes of the Three Strikes law (People v. Briceno (2004) 34 Cal.4th 451, 456-457; Pen. Code, §§ 667, subd. (d), 1192.7, subd. (c)(28)).
Alcaraz made an oral Romero motion requesting the court to strike the strike. Alcaraz argued the strike was based on a 2006 case pertaining to simple possession of a weapon, and his status as a felon at the time had elevated the conviction to a felony. Alcaraz also argued that although the present case was extremely serious, Coleman was not physically harmed except for a cut, the court would impose a life sentence on Alcaraz even absent the strike, and Alcaraz was young. The court denied Alcaraz's Romero motion and sentenced him as previously indicated.
Alcaraz claims the trial court erroneously denied his Romero motion. We disagree. The court presided at Alcaraz's jury trial on the present offenses and at his court trial on the prior conviction allegations. The court heard argument of counsel on the Romero motion. In light of the nature and circumstances of Alcaraz's current offenses and the strike, and the particulars of his background, character, and prospects, he cannot be deemed outside the spirit of the Three Strikes law as to the strike, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164 (Williams ).) We hold the trial court's order denying Alcaraz's Romero motion was not an abuse of discretion. (Cf. Williams, supra, at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.)
Garcia presents related claims. First, he claims there was insufficient evidence supporting his convictions because there was insufficient evidence he was an accomplice to the offenses of which he was convicted. We reject the claim. We concluded in part one of our Discussion that there was sufficient evidence Garcia was an accomplice to the attempted willful, deliberate, and premeditated murder of Coleman. That discussion controls here as to count 1. Moreover, that discussion compels the conclusion there was sufficient evidence Garcia, as an accomplice, committed the offense of shooting at an occupied motor vehicle (count 2).
Count 4 alleged Garcia was driving a vehicle while knowingly permitting another person to discharge a firearm from the vehicle. The same discussion supporting Garcia's convictions on counts 1 and 2 supports his conviction on count 4. However, as to count 4, Garcia was not an accomplice but a direct perpetrator. There was sufficient evidence supporting Garcia's convictions on counts 1, 2, and 4. (Ochoa, supra, 6 Cal.4th at p. 1206.)
Second, Garcia claims there is insufficient evidence he committed attempted murder because there was insufficient evidence of intent to kill. Third, Garcia claims there is insufficient evidence he committed attempted willful, deliberate, and premeditated murder. However, the analysis in part one of our Discussion compels the rejection of these claims as well.
Garcia was arrested on May 10, 2010, and remained in custody until the court sentenced him on November 15, 2010, a total of 190 days, inclusive. At the sentencing hearing, the court awarded Garcia 217 days of precommitment credit, consisting of 189 days of custody credit and 28 days of conduct credit. Respondent effectively concedes Garcia is entitled to an additional day of custody credit. We accept the concession (People v. Smith (1989) 211 Cal.App.3d 523, 525-527; Pen. Code, § 2900.5, subd. (a)) and we will modify the judgment as to Garcia accordingly.
The judgment as to Efren Ruiz Alcaraz is affirmed. The judgment as to Israel Garcia is modified by the addition of one day of custody credit pursuant to Penal Code section 2900.5, subdivision (a) for a total precommitment credit award of 218 days and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment as to Israel Garcia reflecting the above modification.
CROSKEY, Acting P. J. and ALDRICH, J., concurs.
