Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. TA087353, Allen J. Webster, Jr., Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Efrine Caballero appeals from the judgment entered following his conviction of the 1987 murder of Jerome Thrash and attempted willful, deliberate, and premeditated attempted murder of Troy Collins. (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a).) Defendant was also found to have used a firearm during the commission of the offenses. (§ 12022.5, subd. (a).) He contends that the prosecutor engaged in misconduct and the trial court erred by not instructing the jury on the lesser included crimes of voluntary manslaughter and attempted voluntary manslaughter. We order the trial court to amend the abstract of judgment, and affirm.
The jury was unable to reach a verdict on a second count of attempted murder. All further statutory references are to the Penal Code.
BACKGROUND
In November 1987, Jose Rodriguez had a party for his sister at his home. Members of three local Hispanic gangs, Banning Street, Compton Locos, and Lynwood Varrio Paragon (LVP), were among the guests. At some point, a group of African-American males attempted to join the party. They were denied entry. Some of the Hispanic guests got into a verbal dispute with the African-American males. The two groups ended up at a nearby church, where a physical altercation broke out. The fight was broken up, and there was no evidence that any of the participants was armed or suffered serious injuries. Several prosecution witnesses testified to what followed.
Jesus Izarraraz saw two LVP members, defendant and his nephew Larry Caballero, get into a gray or light blue Nova and leave the area. A short time later, the Nova passed Izarraraz as he stood on Banning Street. He saw the driver park it near the church. Larry and defendant got out of the car, each armed with a rifle. The men ran behind the church. As Izarraraz started to walk away, he heard four to five gunshots.
Jorge Izarraraz, Jesus’s brother, knew Larry and defendant were LVP members. He testified that at the time of the shooting, he considered defendant to be a friend. Sometime after the initial fight at the church ended, he got into a car and began to look for Jesus. He stopped the car when he saw three men, including Larry and defendant, fighting with an African-American male. Defendant was wearing a black baseball cap with the letters LVP on the front. Larry was choking the male. Jorge saw defendant fire two shots and strike the male with the rifle. Jorge said that Martin Avila, who accompanied him during his search for Jesus, attempted to separate Larry and the African-American male. Jorge became scared, and he left the area. When Jorge was arrested by the police later that night, he told them that Larry and defendant were involved in the shooting that led to Thrash’s death.
Martin Avila testified that he knew the Izarraraz brothers and used to “hang out” with Larry and defendant, who were members of LVP. Avila was associated with the Banning Street gang. He was present during the initial fight at the church. Avila said that defendant was among the crowd watching the fight, but he did not become involved. Larry did engage in the altercation.
After the fight ended, Avila walked back to the party with Larry and defendant. When they got to the house, Larry and defendant left. About 10 minutes later, Avila was walking on Banning Street when he saw a Nova drive by “real fast.” He continued to walk until he came to the “bushes” that were farther down Banning Street. There, he saw Larry fighting with a “Black guy.” Defendant was standing with a rifle in his hands. Avila told police officers on the night of the shooting that he heard three to four shots (at the time of trial, he did not recall whether he had heard gunshots).
Jose Hurtado was a member of Banning Street. He did not remember going to a party that resulted in a fight and a later shooting. He did not recall being arrested on the night of the shooting, and denied making any statements to the police in connection with a shooting. He denied knowing the meaning of the word “snitch,” and he did not recognize defendant. However, Detective John Yarbrough, the original homicide detective, testified that he interviewed Hurtado on the night of Thrash’s murder. Yarbrough said Hurtado was reluctant to give any information, although he did say that he went to a party with LVP members, including Larry and defendant, and that defendant was wearing a hat bearing the letters LVP.
Troy Collins, the victim of the attempted murder, went to a different party on the night of the shooting. There, he saw Jerome Thrash, the murder victim. Thrash was associated with Palm and Oak, a local African-American gang. Collins became aware of a fight between guests at his party and a group of Hispanics. After the fight, Thrash returned to the party, but remained angry as a result of the fight. He wanted to go back to continue the fight, and Collins and another friend, Chuckie, tried to talk him out of returning.
As the three males walked down the street, Collins saw a car turn the corner with its lights out. Chuckie thought he recognized the occupants, and he walked toward the car. He said something to the effect that the people in the car knew him. Someone got out of the car and fired what Collins thought was a “cut-off .22 rifle.”
Collins started to run, and he noticed that Chuckie and Jerome were in front of him. Chuckie was able to climb over a fence. Collins saw Jerome run toward a garage where “there was no way out for him.” A person ran past Collins and shot Jerome. Collins ran at the shooter and grabbed the gun. He struggled with the shooter trying to get possession of the gun. He was struck with the gun. Collins continued to struggle, but he was hit in the back of the head several times with something hard. He started to lose consciousness. He let go of the gun, and noticed that people were running away.
Sheriff’s deputies came to see Collins in the hospital. He was able to pick a photo out of a photographic lineup. Collins stated that the person in the photo was the one with whom he had struggled. In 1988, Collins testified at a preliminary hearing against the individual whose photo he had selected (not defendant). At the time of the instant trial, Collins did not recognize defendant.
Larry Caballero testified that he is defendant’s nephew. Collins selected his photo in the lineup shortly after Thrash’s murder and testified against him at the 1988 preliminary hearing. Following the preliminary hearing, Larry pled guilty to second degree murder. When he testified at defendant’s trial, he was serving that sentence.
At the time of the shooting, Larry and defendant were members of LVP. On the night of the murder, they drove to the party in a Nova owned by Larry’s Aunt Sandra. While at the party, someone ran in yelling that a fight was in progress. Larry and defendant ran outside to watch the fight, and became involved in the altercation. When the fight ended, they got into the Nova and drove back to their house. Larry decided to go there to pick up some beer and two .22 rifles.
They drove back to Banning Street. As the vehicle moved slowly down the street, Larry saw three to four African-American males walking. He turned the vehicle’s lights off, and started to park. Larry and defendant waited until the males got close to the car, and defendant jumped out with his rifle with Larry close behind. Defendant was in front of Larry, and he fired “quite a few shots.” Defendant was running in the direction of the garage as he shot. Larry was getting ready to shoot, but someone jumped on him and grabbed his rifle. Larry fired once in the direction of that person. Defendant was still shooting. Larry hit someone with his rifle, causing it to break. He saw defendant swinging his rifle. Defendant and others, including Jorge Izarraraz, helped separate Larry and the male. Larry struck the male several times with the rifle.
Larry said that the rifle he carried was equipped with a scope. Defendant did not fire his rifle at the person with whom Larry struggled. Larry identified a hat with the letters LVP that was at the murder scene, and testified that defendant had been wearing it that night.
Sometime after the murder, Larry was told that defendant and he were wanted by the police. They fled to Mexico. Larry stayed for about a year, returned to California, and was arrested. While in prison, he remained active in the gang. Later, when he decided to leave the gang, he informed prison authorities of certain gang activities in prison. As a result, he was housed in protective custody. In September 2004, he wrote a letter to law enforcement stating that he was willing to provide information relevant to Thrash’s murder if he received a better deal. Larry was told by a Los Angeles County Sheriff’s deputy that he would not receive any assistance from the department.
After defendant was arrested, his family asked Larry to lie on defendant’s behalf. Larry’s aunt, Evangelina, called him at the prison and asked him to give favorable testimony for defendant. He decided to testify and to tell the truth, even though he was promised nothing in return.
Detective Yarbrough identified photographs of the murder scene. Among the items located at the scene were pieces of two rifles, a rifle scope, two shell casings, and a hat bearing the letters LVP (the hat Jorge Izarraraz and Larry Caballero identified as belonging to defendant). He received a bullet from the deputy coroner who performed the autopsy on Jerome Thrash and placed it into evidence.
Edward Robinson, a firearms expert, testified that the bullet recovered from Thrash was fired through the barrel magazine of a rifle that was found at the scene. The two shell casings recovered from the scene were struck by the firing pin in the bolt assembly that was also located at the scene. The barrel magazine and the bolt assembly came from the same rifle.
Kenneth Sewell, a supervisor in the forensic biology section of the Sheriff’s crime lab, testified that the hat found at the scene was sent for DNA testing. However, there was insufficient DNA material on the hat for testing purposes.
Ray Sanchez is a detective with the El Paso Police Department. In July 2005, he was contacted by Los Angeles County detectives. They sent fingerprints belonging to Efrine Caballero and wanted to know if they matched an individual named Rudy Caballero, who was in the El Paso criminal system. After receiving information that the prints belonged to the same individual, Sanchez pulled a Texas DMV photo of Rudy Caballero. Along with Los Angeles County detectives, Sanchez went to the address listed for Rudy Caballero. Defendant was at the home, and he identified himself to officers as Rudy Caballero. Defendant was arrested. He gave a statement to police, again identifying himself as Rudy. He said that he had previously used the name Efrine because he knew that Efrine had never been in trouble with the law.
The sole witness for the defense was defendant’s sister, Evangelina. In 1987, she lived on Banning Street. She testified that she recalled a shooting in the neighborhood around that time. When she heard the shots, she went out to investigate and saw defendant in front of the house talking to “two Mexican guys.”
Later that evening, Larry came into the house. He was covered with blood, but he provided no explanation for his condition. About 10 minutes later, her brother Danny came home with a small amount of blood on his clothing. The two changed clothes and left the house. She saw nothing else.
She testified that defendant did not go to Mexico after the shooting. She said that he stayed at the Banning Street address until he moved to El Paso. She denied asking Larry to lie on defendant’s behalf.
On March 9, 2007, defendant was convicted of murder and attempted murder. On May 9, defendant’s motion for new trial was denied, and he was sentenced to consecutive terms for the two offenses.
DISCUSSION
I. Prosecutorial Misconduct
Defendant alleges the prosecutor committed prejudicial misconduct during his presentation of evidence and closing argument. He contends that the cumulative effect of the misconduct deprived him of a fair trial. While we conclude that the prosecutor committed misconduct during closing argument, reversal of the judgment is unwarranted.
Defendant complains that the prosecutor improperly injected gang evidence into the trial, and “attempted to turn what he knew was not a gang case into a gang prosecution.” “In addition, knowing how juries are impressed by DNA evidence, the prosecutor also put on a DNA expert, even though there was no forensic evidence to establish that [defendant’s] DNA was found at the crime scene.” Defendant asserts that the prosecutor introduced this irrelevant evidence in order to confuse the jury.
Initially, we note that trial counsel did not object to the testimony of the DNA expert. Therefore, defendant failed to preserve this misconduct claim. (People v. Welch (1999) 20 Cal.4th 701, 753, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.) In any event, we find it difficult to understand how an attorney commits misconduct by introducing evidence that is allowed by the trial court. If the court erred by admitting the evidence, defendant’s only legitimate complaint is with the ruling, not with the opposing party who acted in conformity with the ruling. Defendant has failed to point to a single instance where the prosecutor willfully violated a court order not to present certain evidence. Simply put, there was no misconduct during the presentation of evidence.
Defendant contends that the prosecutor denigrated trial counsel during argument. He claims that the prosecutor “told the jury that, in effect, defense counsel had lied about [defendant’s] juvenile probation,” and suggested to the jury that both defendant and his attorney “would do anything — including lie — to get an acquittal.” According to defendant, the prosecutor continued this theme by referring to reasonable doubt as a “defense trick.”
Again, trial counsel did not object to these comments. Although defendant asserts that his counsel’s failure to object and “to request an admonition should be excused because it would have been futile and also because it would have drawn additional attention to the prosecutor’s remarks,” we are not persuaded. Neither comment was so inflammatory that a timely admonition would have been ineffective. (See People v. Bloom (1989) 48 Cal.3d 1194, 1213.)
Addressing the merits of defendant’s argument, he mischaracterizes the prosecutor’s remarks in both instances. The prosecutor did not accuse defense counsel of lying about defendant’s probation status. In attacking defense counsel’s claim that defendant might have been in hiding in Texas due to a probation violation, he argued:
“But his sister said he was on probation. And then, that was it. That was [the] only thing you heard. The only evidence is that the sister said he was on probation, which means he committed some other kind of crime as a juvenile. Then counsel stood here and argued to you that his probation was violated. How do you know that? How do you know that his probation was violated? He basically just made that up. He told you his probation was violated. But he can’t do that. He’s a lawyer. He doesn’t get to just make up stuff that fits his case. Not one witness said anything about any probation being violated.”
In this circumstance, the prosecutor pointed out that the parties were required to rely on the evidence, and correctly noted that counsel’s argument was not supported by the testimony. Although he could have chosen his words more carefully, his remarks did not constitute misconduct.
In People v. Stanley (2006) 39 Cal.4th 913, the victim was stabbed to death with a buck knife that was recovered at the scene and introduced at trial. A prosecution witness testified that two weeks prior to the murder, he had seen the defendant with a buck knife similar to the knife in evidence. (Id. at p. 923.) Although the witness acknowledged that the defendant’s knife appeared thinner than the one in evidence, he refused to say that the knife in evidence was not the one he had seen in the defendant’s possession. During argument, defense counsel suggested to the jury that the People’s exhibit was not the knife the witness had seen and stated that the knife the witness described was “‘more like a stiletto.’” In his rebuttal argument, the prosecutor told the jury that “counsel ‘imagined things that go beyond the evidence,’ and that he had told them a ‘bald-faced lie.’” (Id. at p. 952.) Our Supreme Court concluded that “[t]he prosecutor’s argument, although intemperate in tone, did little more than urge the jury not to be influenced by counsel’s arguments, and to instead focus on the testimony and evidence in the case.” (Ibid.) The prosecutor’s comments in the instant case were milder than those uttered by the prosecutor in Stanley. Thus, defendant’s claim of misconduct is not established.
Defendant also inaccurately characterizes the prosecutor’s reference to reasonable doubt. The prosecutor’s entire statement in this regard is as follows:
“Now, getting back to defense’s argument — and that’s what it was, Ladies and Gentlemen, an argument — one of the first things he said is, it’s your conscience, and that the stakes are high. He wants the truth to come out. Again, do you think his client, if he’s guilty, really wants the truth to come out? Of course not. Send him home to his family. All of that was said on purpose, to make this feel emotional, to make you feel emotional. . . . Counsel isn’t supposed to try to make you feel sad and empathetic and, Oh, my God, we have someone’s life in our hands, so that you overanalyze the evidence and you take reasonable doubt to whatever standard it is and put it up to this impossible standard. I mean, that is a defense trick, that he did. That was why he tried to say it’s so important and emotional.”
We find nothing improper in the prosecutor’s remarks. He merely pointed out that defense counsel was trying to inject emotion into the case, and the prosecutor argued that was inappropriate. His reference to a defense trick, in context, was nothing more than vigorous argument. (People v. Stanley, supra, 39 Cal.4th at p. 952.) We do not agree that when the prosecutor mentioned a “defense trick” he was referring to the reasonable doubt standard. We infer defense counsel came to the same conclusion when he did not lodge an objection.
Defendant suggests that the prosecutor attempted to appeal to the jurors’ emotions by falsely characterizing Jerome Thrash’s final moments before he died. He asserts that the prosecutor argued Thrash had urinated on himself, and that the claim was unsupported by the evidence. Further, the prosecutor improperly claimed that Thrash cried for his mother before he died. Trial counsel’s failure to object forfeited this claim.
Moreover, defendant’s claims are not supported by the record. In arguing that Thrash had urinated on himself, the prosecutor referred to one of the photographs of the murder scene. He pointed out that Thrash’s overalls were wet in the area of his groin and that a wet area in front of him was clearly not blood. The reference the prosecutor made to a victim’s cries for his mother was not to the instant case, but to the manner in which the movies depict a victim’s death.
Defendant contends the prosecutor improperly vouched for the witnesses during a segment of his closing argument. The prosecutor claimed that defense counsel had attacked him by asserting that he was hiding evidence. The prosecutor argued that trial counsel was doing all he could to defend his client, and stated, “I don’t represent a client. I represent the State of the People . . . of California. I put on this evidence. If my office thinks someone is not guilty, they have to dismiss the case, by law.” Counsel interposed an objection, and the court told the jury that the argument of counsel is not evidence.
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his] office behind a witness by offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 971.)
Although the prosecutor properly attempted to contrast the role and motivation of an attorney for the state and counsel for the accused, he stepped over the line of proper advocacy when he asserted that if his “office thinks someone is not guilty, they have to dismiss the case, by law.” The prosecutor’s point that the district attorney’s office is under an obligation to dismiss a case that cannot be proven, although accurate, left the jury with the inference that the office had reviewed the evidence and had found it sufficient to support a conviction. Whether intended or not, the prestige of the district attorney’s office was placed behind the witnesses. (See People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585 [prosecutor’s argument that she had “a duty” and had taken “‘an oath as a deputy District Attorney not to prosecute a case if [she had] any doubt that that crime occurred. [¶] The defendant charged is the person who did it’” was misconduct].)
A prosecutor’s misconduct violates the federal Constitution when it comprises a pattern of egregious conduct that results in such an unfair proceeding the defendant is denied due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) We conclude that the prosecutor’s single statement in argument, although misconduct, did not rise to the level of federal constitutional error.
Thus, we examine whether the misconduct was prejudicial under state law. Under state law, a conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable that the jury would have rendered a verdict more favorable to defendant absent the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.)
Defendant argues that “[t]here was not an overwhelming amount of evidence against appellant.” He contends that although a number of witnesses testified he had a gun on the night in question, only Larry claimed to have seen defendant fire his weapon. He also points to Troy Collins’s inability to identify him as one of the assailants.
First, we note that defendant misstates the testimony. Jorge Izarraraz testified that he saw defendant fire two shots. Second, more significantly, defendant ignores the fact he was tried under the alternative theories that he was the actual shooter or an aider and abettor. Jesus Izarraraz testified that defendant was carrying a rifle when he exited the Nova with Larry. They ran toward the area of the garage, and Jesus heard four to five shots. Martin Avila said that when he got to the scene, Larry was fighting with an African-American male, and defendant was there with a rifle in his hands. Avila told police that just prior to seeing Larry and defendant, he heard three or four shots. Larry testified that defendant and he waited until the African-American males got close to the vehicle before they sprang into action with loaded rifles. He said that defendant exited the car first, ran to the area where the dead victim was later found, and fired several shots. A number of witnesses said that the hat left at the murder scene belonged to defendant.
The evidence was overwhelming that, at the very least, defendant was present at the scene that night and aided and abetted in the murder of Jerome Thrash and attempted murder of Troy Collins. He was a willing participant in an armed assault that led to the death of one of the victims and the attempted killing of the other. It is not reasonably probable the jury would have rendered a more favorable verdict absent the prosecutor’s one act of misconduct.
II. Instructions for Voluntary Manslaughter and Attempted Voluntary Manslaughter Were Not Required
Defendant argues the court erred when it failed to instruct on the lesser included crimes of voluntary manslaughter and attempted voluntary manslaughter. He contends that there was sufficient evidence to support a theory that the shooting was committed in the heat of passion, thus negating the required mental state of malice. Defendant asserts that the court’s failure to instruct on the lesser offenses also violated his federal constitutional right to have the jury determine all of the material issues presented by the evidence.
During the discussion of instructions, the prosecutor suggested that it would be necessary to give manslaughter instructions under the theories of self-defense and heat of passion. When defense counsel was asked for his input, he told the court that he was not yet prepared to address the issue.
The next day, the trial court stated that the manslaughter instructions should be given, saying if “there [is] some sort of possibility[,] no matter how slim, that it’s relevant, we should do it.” The prosecutor asked the court to ascertain whether counsel wanted the instructions, implying that they might be inconsistent with the defense theory of the case.
When the court asked defense counsel for his views on the issue, he stated, “Your Honor, the defense is not requesting lesser manslaughter instruction. Our theory of the defense of this case has been alibi. That’s all I can tell the court. Is [sic] we didn’t — we’re not asking for it, we didn’t ask for it. It’s inconsistent with our theory of the case.” When the court asked whether it should take a waiver from defendant, his counsel objected, and said, “I will represent to the court that I have discussed the issue with the defendant. We are not asking for a self-defense instruction and — excuse me . . . manslaughter instruction . . . on any theory. And such an instruction would be inconsistent with our theory of the defense.” Relying on People v. Breverman (1998) 19 Cal.4th 142, the court decided not to give the manslaughter instructions based on counsel’s declaration that the defense did not want them.
“[A] defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.” (People v. Barton (1995) 12 Cal.4th 186, 198.)
Defendant argues that “the record is ambiguous with respect to whether or not defense counsel actually made a tactical decision regarding the jury instructions.” He asserts that counsel could not have made a tactical decision to rely on an alibi defense because he failed to ask for alibi instructions. We disagree. The record clearly reflects that counsel specifically informed the court that he was not asking for manslaughter instructions because they were inconsistent with the defense that had been presented—that defendant was not present at the scene of the murder. Defendant cannot now claim reversible error. (People v. Hardy (1992) 2 Cal.4th 86, 183-185 [in a murder trial, defendants waived their right to have court give instructions on diminished capacity or voluntary intoxication where their counsel made the tactical decision to forego those instructions because they were inconsistent with the alibi defense they had presented].)
While acknowledging the doctrine of invited error, defendant asserts that the trial court’s duty to instruct on all lesser included offenses supported by the evidence should take precedence. That is not the law. (People v. Barton, supra, 12 Cal.4th at p. 198.)Defendant cites a number of federal cases for the proposition that the court’s failure to instruct on all lesser included offenses violated his right to due process. However, none prohibits a defendant from declining such instructions for tactical reasons, as was the case here.
In any event, manslaughter instructions were not supported by the evidence. A trial court is required to instruct on lesser included offenses “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]” (People v. Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence is evidence “that a reasonable jury could find persuasive.” (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.)
Defendant contends that “[t]here was ample evidence that the shooting in this case occurred in the midst of a fight between two groups of inebriated teenagers.” He argues Jerome Thrash was still angry after the initial confrontation, and wanted to continue the fight. Defendant points out that Thrash’s blood alcohol level was .22 percent at the time of his death. He also relies heavily on the fact that the prosecutor and the trial court believed manslaughter instructions were required.
“The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or [by] conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.”’ [Citation.]” People v. Lee (1999) 20 Cal.4th 47, 59.) “Adequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]” (Id. at p. 60.)
Although defendant asserts that the shooting took place in the midst of a fight, this ignores the fact that defendant and his nephew ambushed the victims. The original fistfight between the groups of partygoers had ended. According to Larry, it was his idea to return to the house to retrieve two rifles and some beer. Larry and defendant returned to Banning Street in Larry’s aunt’s Nova. When the men saw the three African-American males walking, Larry slowed to a stop and waited until the males got close to the car. At that point, defendant jumped out of the car and chased the fleeing young men. He ran past Troy Collins toward the garage area, where Jerome Thrash had turned into a “dead end.” Witnesses heard gunshots. Thrash was found lying near the garage. Defendant claims that Tipton (Chuckie) confronted Larry and defendant as Larry drove the Nova down the street. Not so. Collins testified that Chuckie tried to talk to the occupants of the Nova because he thought he knew them. The evidence established the victims were not participants in an ongoing fight. They were the objects of an unprovoked attack.
Even assuming the gunfire was the result of the earlier altercation, “neither simple trespass nor simple assault constitute provocation sufficient to reduce the killing to manslaughter.” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.) No one in the initial fight had a weapon, and nobody was seriously injured. There was simply inadequate evidence of provocation.
Nor was there evidence of heat of passion. The prior fight would not have caused a reasonable person of average disposition to become so enraged so as to shoot an individual merely because he was of the same race as the participants of the earlier altercation (there was no evidence Larry or defendant recognized the victims from the earlier fight).
The trial court was inclined to give the manslaughter instructions believing it was required to do so if “there [is] some sort of possibility[,] no matter how slim, that [they are] relevant.” As we have discussed, the court’s duty to instruct on lesser included offenses is triggered when there is substantial evidence showing the accused is guilty of only the lesser. Such evidence was not present here. Manslaughter instructions were not required.
III. The Abstract of Judgment Must Be Amended
The trial court sentenced defendant to consecutive terms for the murder and attempted murder convictions. However, the abstract of judgment does not reflect that. The abstract must be amended to correspond to the sentence imposed by the court.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment to reflect that the sentences for counts one and two are consecutive. An amended abstract is to be delivered to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.