IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
August 18, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALCIDE DOUCET, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF110108A)
The opinion of the court was delivered by: Robie , J.
P. v. Doucet
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Alcide Doucet was found guilty of attempted murder, assault with a firearm, corporal injury to a cohabitant, and two counts of criminal threats, with enhancements for personal use of a firearm and inflicting great bodily injury. The trial court sentenced defendant to 30 years to life.
On appeal, defendant contends trial counsel was ineffective in failing to request lesser offense instructions for the attempted murder count, and defendant asserts instructional error regarding defendant's admissions and the lesser included offense of attempted criminal threat. We affirm.
Defendant was Julie Turner's boyfriend for 11 to 12 years, but their relationship was unclear in November 2008. About four weeks earlier, Turner told defendant she was considering dating a friend.
In the early morning of November 9, 2008, defendant went to Turner's home and forced open the front door. Turner heard a crash and woke up to find her bedroom light on and defendant standing over her bed, pointing a gun at her head.
Defendant had a silver .25-caliber semiautomatic pistol in his hand. He told Turner, "Why do you do me that way?" or "I know you had him here last night." Turner testified that defendant hit her twice on the head with the hand which held the gun. She told the police that defendant hit her five to seven times in the back of the head with his gun.
Meanwhile, Turner's neighbor Joe Hernandez went outside to investigate a loud bang. He noticed Turner's door was open and heard two people arguing inside. He got his black .380-caliber semiautomatic pistol from home and walked toward Turner's house, where he heard a man's voice yelling loudly at Turner, who was screaming and telling the man to stop.
Hernandez entered Turner's home and went to the bedroom, where he saw defendant holding Turner by the hair and raising back his right hand, which held a chrome plated gun. Defendant said, "I'm going to kill you, bitch." Hernandez, with his gun drawn, told defendant to put down the gun and stop. Defendant turned towards Hernandez told him, "Fuck you," and "I'm going to kill you, mother fucker," and started shooting.
Defendant fired two shots at Hernandez, who returned fire until his gun was empty. Defendant then pulled Hernandez toward him, and they started fighting. The struggle ended when Hernandez managed to flip defendant to the ground. Hernandez then jumped on defendant and threw defendant's gun into the living room. Defendant said he was going to kill Hernandez and kept trying to get up, so Hernandez hit him on the head with his gun. When defendant stopped struggling, he kept asking, "Why did she do this to me?"
Hernandez was shot through his right foot and sustained a fracture at the base of his second toe. Hernandez could not walk for two months, after which his foot would hurt if he walked for a long time. He and his wife moved to a new house, as he no longer felt comfortable living in his house.
Turner sustained a large bruise on the back of her head and a concussion. Her injury was most likely the result of being struck with a hard object such as a gun. She could have received the injury from being struck with fists, but the blows would have to come from someone really strong, like a professional boxer.
According to Turner, defendant had let go of her hair when Hernandez entered her bedroom and told defendant to stop. Defendant tripped over the blankets and fell after Hernandez entered. Defendant's gun went off when he fell; Turner did not see defendant fire it, but he had no gun when he got up from the floor. She told the police that defendant fired his gun two or three times. Turner denied that defendant threatened either Hernandez or herself, although she told the police that defendant threatened to kill both of them.
At trial and in her police interview, Turner declared she was not scared that defendant would kill her. A police officer testified that Turner was distraught after the incident, and that Turner later said defendant would have killed her if Hernandez had not arrived. Turner told the officer defendant used his fists and his gun to beat her. She did not recall how many times defendant struck her, but said, "He kept on beating me." Defendant told Turner, "Don't lie to me. I know you have [sic] him here last night."
Police found two .25-caliber and two .380-caliber casings in Turner's bedroom, along with three .380-caliber casings in the hallway. There was a bullet hole on the southeast corner of the bedroom and four bullet holes on the south wall under the window. Police found nine live .25-caliber rounds in defendant's pants pockets.
Defendant testified that he drank nearly a fifth of brandy before going to Turner's house. He did not intend to hurt Turner and went there to talk about their relationship. Defendant thought he saw someone on the sofa in Turner's living room. He remembered seeing a man at the door who said, "Hey," and started shooting at him. Defendant denied firing a gun that night, and did not remember hitting Turner. He did not remember struggling with a man or threatening him.
Lesser Included Instruction
Defendant contends trial counsel was ineffective in failing to request instructions for assault with a firearm and attempted voluntary manslaughter as lesser included offenses of the attempted murder charge. We disagree.
"To prevail on a claim of ineffective assistance of counsel, defendant 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.]'" (People v. Hart (1999) 20 Cal.4th 546, 623.) "Prejudice occurs only if the record demonstrates 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728.)
Trial counsel's strategy was that defendant was too intoxicated to form the intent to kill mental element of attempted murder. Asserting the evidence would support a conviction for assault with a firearm, defendant argues counsel's failure to ask for the instruction left the jury with no choice but to convict defendant of attempted murder or acquit him of any charges related to the unjustified shooting. Defendant concludes there was "no conceivable tactical reason" for trial counsel's choice, and defendant was prejudiced as a result.
Defendant is wrong. Assault with a firearm is a lesser related offense of attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) A defendant has no right to insist that the trial court instruct on a lesser related offense over the proscutor's objection. (People v. Birks (1998) 19 Cal.4th 108, 112-113, 119, 120, 136.) In this case, there is nothing in the record to show the prosecutor would have agreed to a request for a lesser related offense instruction on the attempted murder charge. Trial counsel's failure to ask for such an instruction was neither substandard nor prejudicial.
Defendant asserts the evidence supported an instruction on attempted voluntary manslaughter as a lesser included offense of attempted murder. Recognizing defense counsel specifically declined an instruction on the lesser included offense, defendant asserts counsel's decision constitutes ineffective assistance.
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Thompkins (1987) 195 Cal.App.3d 244, 255-256.) Unlike attempted murder, it requires an intent to kill but not malice aforethought. (People v. Tucciarone (1982) 137 Cal.App.3d 701, 705.)
Where substantial evidence would support a verdict of guilty on a lesser included offense, the trial court is required to instruct on that offense sua sponte, even over the defendant's objection; the failure to do so is error. (People v. Duncan (1991) 53 Cal.3d 955, 969.) If defense counsel refuses the instruction for a deliberate tactical purpose, the trial court's error will be deemed "invited" and therefore harmless. (Ibid.; People v. Lara (1994) 30 Cal.App.4th 658, 673-674.) This is so even if counsel appears to have acted out of an incorrect understanding of the law. (People v. Cooper (1991) 53 Cal.3d 771, 831.) "A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (Ibid.)
Trial counsel agreed with the prosecutor that the evidence did not support an instruction on attempted voluntary manslaughter as a lesser included offense. Counsel informed the court he did not argue attempted voluntary manslaughter as a lesser included offense to the jury and defendant "specifically requested that we not request the lesser offense and he understands that and the consequences of doing so." Later, counsel elaborated on his discussion with defendant, stating that while the lesser included offense "transcendently . . . could factually apply, . . . it was specifically our discussions and his decision. And I agree with it, that it is not what we were trying to argue in regards to the case."
Attempted voluntary manslaughter requires proof of a specific intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549.) Defense counsel had a rational tactical purpose in declining an instruction on attempted voluntary manslaughter, which would contradict the defense theory that defendant did not intend to kill.
In reviewing a claim of ineffective assistance on appeal, we accord great deference to trial counsel's tactical decisions (In re Fields (1990) 51 Cal.3d 1063, 1069-1070), and reverse "'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citation]" (People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22). Defense counsel's decision was informed by a rational tactical purpose, not presenting inconsistent defense theories to the jury. Defendant's claim of ineffective assistance of counsel is without merit.
Next, defendant contends that the trial court erred in failing to instruct sua sponte that defendant's out-of-court statements must be viewed with caution.
A trial court has a sua sponte duty to instruct the jury to view evidence of a defendant's oral admissions with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) The purpose of a cautionary instruction is to assist the jury in determining if a statement was in fact made. (Carpenter, at p. 393.) A cautionary instruction only applies to a defendant's inculpatory statements. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) "Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]" (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.)
Hernandez testified that defendant said, "I'm going to kill you mother fucker," and "I'm going to kill you," and continued to threaten to kill him while they fought and after he was pinned on the ground. Turner told the police defendant threatened to kill both of them, but at trial said that she just repeated what Hernandez said he had heard, and she only heard defendant say to Hernandez "I'll kick your ass and her ass too." The trial court should have instructed sua sponte that defendant's admissions should be viewed with caution.
The failure to give a cautionary instruction on a defendant's admissions is reversible error only if it is reasonably probable that the jury would have reached a more favorable result had the instruction been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) There was only limited disagreement regarding defendant's statements--Turner's statements to the police essentially agreed with Hernandez's testimony regarding defendant's statements, but her trial testimony indicated she never heard defendant expressing an intent to kill. However, there was other evidence of defendant's intent to kill, particularly his firing multiple shots at Hernandez at close range. In addition, the jury was properly instructed on judging the credibility of a witness, "thus providing guidance on how to determine whether to credit the testimony." (Carpenter, at p. 393.) Accordingly, it is not reasonably probable that the error was prejudicial. (Ibid.)
Attempted Criminal Threat
Finally, defendant argues the trial court erred in failing to instruct sua sponte on the lesser included offense of attempted criminal threat with respect to the charge of criminal threats against Turner.
Attempted criminal threats is a lesser included offense of criminal threats. (People v. Toledo (2001) 26 Cal.4th 221, 226, 230.) In Toledo, the California Supreme Court explained that a person commits attempted criminal threats "if a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear . . . ." (Id. at p. 231.) Defendant asserts the evidence that Turner sustained fear from defendant's threats was weak enough to support an instruction on the lesser offense.
Turner testified she was not afraid when defendant pointed the gun at her because she thought it was unloaded. At trial, she denied that defendant ever threatened to kill either Hernandez or herself. She did not recall telling a police officer she was scared when defendant pulled a gun on her.
Hernandez testified that before he entered Turner's house, he heard Turner yelling at defendant to stop, and the argument inside Turner's home sounded like someone was getting hurt. A police officer who interviewed Turner shortly after the incident noted she was crying hysterically when they first met, and she was in fear and shock. Turner told the officer defendant would have killed her if Hernandez had not shown up. When Hernandez's wife comforted Turner after the incident, Turner kept apologizing about how she almost got Hernandez killed.
Based on this evidence, the trial court erred in failing to instruct on attempted criminal threats because Turner's trial testimony supported an instruction on the lesser included offense.
The effect of the failure to instruct on a lesser included offense is tested under the "Watson standard." (People v. Breverman (1998) 19 Cal.4th 142, 178, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Under Watson, the court's failure to instruct on a lesser included offense is harmless if it was not reasonably probable that the jury would have found the defendant guilty of the lesser offense, but not the greater. (See Breverman, at pp. 176-178.) This test places a burden on the defendant to demonstrate prejudice, a burden he has not met.
There was ample evidence Turner was in fear -- her demeanor after the attack and her statements to an officer and Hernandez's wife. Turner, who professed her love for defendant on the stand, had motive to minimize defendant's culpability. The jury rejected her testimony lessening defendant's guilt in other contexts. Turner testified defendant hit her with his fists, not his gun, but the jury nonetheless convicted defendant of assault with a firearm against Turner and found he personally used a weapon while committing the offense. Although Turner testified that defendant's gun discharged as he was falling down, the jury concluded defendant intended to kill Hernandez and found defendant guilty of attempted murder. For these reasons, we conclude it is not reasonably probable that the jury would have found defendant guilty of the lesser offense, but not the greater.
The judgment is affirmed.
We concur: HULL , Acting P. J. MAURO , J.
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