IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 30, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHARLES WILLIAMS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F03247)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Williams
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A personnel dispute between two pimps ended in the death of one, Marcel Hatch, at the hand of the other, Charles Williams, during a drive-by assassination. A jury convicted Williams of first degree murder and various sentence enhancements., including intentional discharge of a firearm causing death, resulting in a state prison term of 50 years to life.
On appeal, Williams, hereafter, defendant, contends the trial court erred prejudicially when it failed to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter. We disagree and affirm the judgment.
In May 2010, Marcel Hatch lived with Ashanti Lewis and Dominique Phillips. Hatch was a pimp; Lewis was one of his prostitutes, and Phillips was his girlfriend and a former prostitute. Hatch's prostitution business was located at a motel on Auburn Boulevard in Sacramento.
On May 6, 2010, Hatch spit at prostitute Candence Mays*fn1 and fired his gun in the air. Defendant was Candence's pimp and her boyfriend. The next day, defendant went to the motel to confront Hatch about the incident. They got into a fight over their "sweating" of each other's prostitutes.*fn2 Hatch beat defendant severely and then took defendant's cellular telephone and other items. Thereafter, defendant picked himself up and drove away. At home that night, his face was swollen and he was crying. He told Candence that Hatch had taken his cellular telephone, a radio, and a television out of defendant's car.
The following day, May 8, 2010, defendant and Candence went to her parents' home in North Highlands. Candence's brothers Demetrius, Lorenzo, and Kenyatta were present. Defendant's face was still visibly injured from the beating. The brothers asked who had injured him and encouraged him to "do something to" the perpetrator. Candence did not hear defendant make any response.
After they talked a while, defendant, the brothers, their sister Brandy, and Demetrius's girlfriend Jenna left in Brandy's sport utility vehicle (SUV). They arrived at the motel around 4:00 or 5:00 p.m., entered the driveway and drove past prostitute Lewis, who was standing outside her motel room door at the time. Lewis exchanged glances with the occupants of the SUV as it passed. Lewis initially thought the SUV carried a potential "date." The occupants of the SUV drove to the end of the motel, made a U-turn, and came back. Defendant was looking for Hatch, and he recognized Lewis as one of Hatch's prostitutes. Hatch was not at the motel at the time, so the occupants of the SUV drove off and returned to North Highlands.
About a half hour later, defendant, Demetrius, Kenyatta, Lorenzo, and Brandy left again, with Brandy driving the SUV. Demetrius had a "long gun," his father's AK-47, which he had retrieved from the house before they left the second time. Lorenzo had a small gun with him. They went back to the motel. Meanwhile, Hatch had returned to the motel around 6:00 p.m. Lewis was in a room with a customer when she heard several gunshots. She looked out the window through the blinds and saw the SUV. She saw defendant in the SUV with a big gun in his hand, drawing it back through the window. She saw him shooting in the direction of Hatch.
Defendant fired additional shots, and Hatch came running toward Lewis's room. Apparently, defendant fired 10 shots in all. Hatch told Lewis to call 911 because he had been shot. Defendant shouted two or three times, "[W]hat now, nigga, what now?" Hatch told Lewis, "[T]hat nigga came back" and he (Hatch) had "been hit." Hatch explained he had been shot in the arm and "ass." Lewis removed Hatch's clothes to see where the wounds were located. Meanwhile, the occupants of the SUV drove off and returned to North Highlands.
Emergency and law enforcement personnel arrived at the motel. Hatch was taken to a hospital where he died two days later.*fn3
At the scene, officers found 10 expended shell casings consistent with having come from an AK-47. Bullet holes were found in the motel near where Lewis had been and in a car parked outside.
The day after the shooting, defendant called Hatch's cellular telephone number. Dominique Phillips, who had programmed her own cell telephone to receive Hatch's calls, did not answer although she recognized the number of the incoming call was defendant's. However, she called the number back, muted her phone, and overheard a conversation involving the defendant. She heard him declare he had "already laid one pussy nigga down and he don't want to have to lay another nigga down again." Without speaking, Phillips hung up the phone.
Defendant was arrested on May 11, 2010, three days after the shooting.
Defendant appeared in propria persona at trial. Although active throughout the trial, he rested his case without presenting evidence or testimony.
Defendant contends the trial court had a duty to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter. Because it did not do so, defendant says we must reverse his murder conviction. He claims there was sufficient evidence that he acted "upon a sudden quarrel or heat of passion," and thus the court was required to give the instruction. We are not persuaded.*fn4
"'"'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.'" [Citation.] "Conversely, even on request, the court 'has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.'" [Citation.] This substantial evidence requirement is not satisfied by "'any evidence . . . no matter how weak,'" but rather by evidence from which a jury composed of reasonable persons could conclude "that the lesser offense, but not the greater, was committed." [Citation.] "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." [Citation.]' [Citation.]
"'"Manslaughter, an unlawful killing without malice, is a lesser included offense of murder." [Citations.] "Although section 192, subdivision (a), refers to 'sudden quarrel or heat of passion,' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation." [Citations.] "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." [Citation.] "[T]he victim must taunt the defendant or otherwise initiate the provocation." [Citations.] The "'heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances . . . .'" [Citation.]' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 293, italics omitted.)
"'[T]he passion aroused need not be anger or rage, but can be any "'"violent, intense, high-wrought or enthusiastic emotion"'" [citations] other than revenge [citation].' [Citation.]" (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411, italics added.)
"'"[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter."' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 705.)
Ignoring context and their mutual "sweating" of one another's prostitutes, defendant claims there is "no doubt that the acts committed by Marcel Hatch in the days prior to his being shot constituted provocation that 'would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.'" (Quoting People v. Lee (1999) 20 Cal.4th 47, 59.)
The Attorney General counters that there was "no evidence that [defendant] was in a heat of passion at the time of the shooting; indeed, there was no evidence of any state of mind, except the desire for revenge." (Original italics.) The Attorney General is correct. That is what the record demonstrates.
The Mays brothers' statements just before the first SUV trip to the motel supplied unmistakable evidence of defendant's desire for revenge. According to Candence, the brothers encouraged defendant to seek revenge, stating, "[W]ho did that? You should go back and do something to him. Why he do [sic] that to you? Why would he do that?"
According to Candence's sister Vnelsia, the brothers said, "[L]et's go fight the dude that did that to you." Although neither Candence nor Vnelsia heard defendant respond verbally to the brothers' encouragement, they saw them depart in the SUV. During the second trip to the motel, defendant voluntarily did just what the brothers had encouraged him to do; he did something to Hatch. Thus, the evidence supports the singular inference defendant was motivated by his desire for revenge.
No evidence suggested defendant acted rashly, without due reflection, or in response to Hatch's "provocation," that is, his conduct from the day before, as opposed to importuning by Candence's family. Rather, evidence showed defendant shouted, "[W]hat now nigga, what now" as he shot a fleeing Hatch in the rear with an AK-47 during a second drive-by, the day after the beating, following encouragement from Candence's family. (See People v. Lee, supra, 20 Cal.4th at p. 59.)
People v. Berry (1976) 18 Cal.3d 509, on which defendant relies, is distinguishable because expert and other evidence showed that the defendant in that case "killed in a state of uncontrollable rage" following a "long course of provocatory conduct." (Id. at p. 516.) No comparable evidence was presented here.
Nor did the evidence presented here affirmatively suggest defendant would have acted at all, but for the encouragement of Candence's family members who furnished the AK-47, the SUV, and the driver.*fn5 The family effectively used defendant as a willing tool to avenge Hatch's spitting upon Candence, as well as his beating of defendant.
Confirmation came but a day after the shooting when defendant was heard to boast he had "already laid one pussy nigga down and he don't want to have to lay another nigga down again."
Because defendant's state of mind, i.e., his desire for revenge, does not support a voluntary manslaughter instruction (People v. Lujan, supra, 92 Cal.App.4th at p. 1411), and no evidence showed "'any "'"violent, intense, high-wrought or enthusiastic emotion"'" [citations] other than revenge'" (ibid.), there is simply no evidence in this record to raise a triable issue whether any ostensible passion had cooled in the hours preceding the shooting. Nor does the record contain "'substantial evidence . . . from which a jury composed of reasonable persons could conclude "that the lesser offense, but not the greater, was committed."'" (People v. Verdugo, supra, 50 Cal.4th at p. 293.)
Alternatively, the total absence of evidence of passion and the indisputable presence of evidence of defendant's desire for revenge leaves no room for an inference he could have fared any better had a voluntary manslaughter instruction been given. (People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant's assertion that the Breverman standard of prejudice is inapplicable for reasons stated in Justice Kennard's dissent must be addressed elsewhere. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
We concur: HULL , J. HOCH , J.