(Super. Ct. No. CRF11336)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of attempted first degree murder and sentenced to prison for life, defendant Edward Leroy Scott II argues on appeal that the trial court erred in failing to give sua sponte, or his trial attorney was ineffective in failing to request, an instruction explaining that provocation can reduce attempted first degree murder to attempted second degree murder (which it does by negating premeditation and deliberation). He also contends the trial court erroneously denied him 30 days of conduct credits and the abstract of judgment erroneously shows that he was convicted by plea, rather than by jury.
We find no error in the trial court's failure to give a provocation instruction because Supreme Court precedent establishes that the trial court has no duty to give such an instruction without a request. Further, we find no merit in defendant's assertion that his attorney was ineffective for failing to make that request because the record shows that defense counsel could have had a reasonable tactical basis for not trying to bring provocation into the case. We do, however, agree with defendant (and the People) that he was wrongly denied 30 days of custody credits and that the abstract of judgment inaccurately shows the means by which his conviction was obtained. Accordingly, we will modify the custody credits in the judgment and direct the preparation of an amended abstract.
FACTUAL AND PROCEDURAL BACKGROUND
At the beginning of April 2011, Allan Noell, along with his wife and his mother, moved temporarily into defendant's house, where defendant was also living. Noell and defendant squabbled over various landlord-tenant issues.
On the morning of April 21, Noell told defendant that he had a new place and they were going to move out of defendant's house in two days. That afternoon, while sitting at his desk in the front room, defendant "kind of smiled" at Noell and asked, " 'How would you like me to shoot you?' " Noell did not think defendant was serious.
On the morning of April 23, Noell's wife went to take a shower, but there was no hot water, then the water stopped completely. Shortly after, the electricity went off. Noell went outside to check the electrical box and found it locked with a padlock. Because defendant's vehicle was not in the driveway where it was usually parked, Noell thought defendant had shut off the electricity, locked the box, and left. Noell grabbed the lock and turned it, and it came off in his hand. At that moment, he heard a shot and felt like he had been hit by a bean bag. As he was standing there, "kind of in amazement," he was shot again, this time in the stomach. He saw the muzzle flash from inside the garage, where he saw defendant. Noell ran toward the driveway, keeping his eye on defendant and zigzagging back and forth in an attempt to dodge further shots. As he reached the street, he was shot in the face with pellets. He ran into the house to get his cell phone to call 911.
Noell suffered multiple pellet wounds to the face, chest, and side, as well as to his colon and liver, which required immediate surgery. Police found a disassembled shotgun in the garage.
Defendant was charged with attempted first degree murder with a firearm enhancement, assault with a firearm with a firearm enhancement, discharging a firearm at an inhabited dwelling, and willfully discharging a firearm in a grossly negligent manner.
At trial, defendant testified in his own defense that on the date of the shooting, he decided it was time for Noell to leave because "[i]t was such a hostile environment," so he disconnected the electricity, gas, and hot water and waited in the garage to talk to Noell. Defendant claimed that instead of Noell coming to talk to him "about the utilities being turned off, [Noell] assaulted the electrical box area and began twisting on the lock" defendant had placed on the box. According to defendant, in an effort to stop Noell from breaking into the electrical box, he fired a blank round from the shotgun, with the wad hitting the box. Because that shot did not deter Noell, defendant put a round full of rock salt into the gun and fired it. When that did not work, defendant yelled at Noell that the next round was " 'going to be lead,' " and he loaded the gun with a round of bird shot and fired it. When Noell responded by saying, "Well, ...