Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA064488, Harvey Giss, Judge.
Syda Kosofsky, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General for Plaintiff and Respondent.
MANELLA, J.
Appellant Dwayne E. Cooke challenges his conviction for attempted murder and assault with a deadly weapon. He contends that the jury should have been instructed on attempted voluntary manslaughter, and that his counsel rendered ineffective assistance by failing to request this instruction. In addition, he maintains that the trial court was obliged to strike his prior convictions, for purposes of sentencing under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (e)). We affirm.
All further statutory citations are to the Penal Code.
RELEVANT PROCEDURAL BACKGROUND
On June 26, 2009, an information was filed charging appellant in count 1 with attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664), and in count 2 with assault with a deadly weapon (§ 245, subd. (a)(1)). The information alleged under count 1 that appellant had used a deadly weapon (§ 12022, subd. (b)(1)), and under both counts that appellant had inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged that appellant had three prior convictions rendering him ineligible for bail (§ 1203, subd. (e)(4), and two convictions within the scope of the “Three Strikes” law. Appellant pleaded not guilty and denied the special allegations.
Trial was bifurcated on the prior conviction allegations. On January 6, 2010, a jury found appellant guilty of attempted murder and assault with a deadly weapon, but failed to reach a verdict on the allegation that the attempted murder was willful, deliberate, and premeditated. The jury otherwise found the remaining allegations regarding the crimes to be true. The trial court declared a mistrial with respect to the allegation concerning the attempted murder.
On January 13, 2010, the information was amended to allege that appellant had suffered two prior serious felony convictions (§ 667, subd. (a)(1)). On April 14, 2010, at the trial on the prior conviction allegations, appellant admitted that he had suffered two prior “strikes, ” within the meaning of the “Three Strikes” law. The trial court denied appellant’s motion to strike the strikes, and sentenced him to a total term of 41 years to life.
FACTS
A. Prosecution Evidence
In March 2009, appellant and Huy Huynh were inmates in the Pitchess Detention Center, a maximum security county jail located in Castaic. Both were housed in dormitory 629. Within the dormitory, certain inmates ensured that the other inmates were in or on their assigned beds when the jail authorities required the inmates to go to their beds. This supervision system was the inmates’ own creation.
According to Huynh, he was “second in command, ” and watched over a group of beds, including appellant’s bed. Huynh had held this position for about four months. He further testified that when the jail guards ordered inmates to go to their beds, they ordinarily turned off the dormitory television, and turned it on only after the inmates complied with the order.
At approximately 7:40 p.m. on March 23, 2009, the inmates in dormitory 629 were watching television when an alarm sounded, the television was turned off, and the inmates were ordered to their beds. As Huynh directed inmates to their beds, he saw that appellant had not returned to his. Huynh, who had never spoken to appellant before, told appellant that unless he went to his bed, the guards would not turn on the television. After initially ignoring Huynh, appellant suddenly punched Huynh in the face four or five times. Huynh pushed back at appellant, who ran to his bed, grabbed a small blade from beneath his mattress, slashed Huynh’s face with it, and declared that he was “from the Crips.” Huynh fled to the dormitory door, where the guards assisted him. Following the incident, a razor blade was found in the bathroom of dormitory 629.
Investigating officers interviewed appellant twice regarding the incident. During the first interview, appellant said that he knew Huynh, but had never talked to him. According to appellant, after Huynh approached him and talked to him, he “just went off on [Huynh].” Appellant said, “[H]e came up, talking about... the guard was going to... leave the t.v. on. And... he be thinking he can run the blacks for the longest.... And he went off with his mouth like he do all the rest of them in there and he got what he deserved.” When the officers asked appellant whether Huynh had been trying “to get people to go against” him, appellant answered, “No, he was trying to get us to shut up or get them to shut up.... [Y]ou don’t dictate nothing black. You sure don’t dictate nothing in this crew.” Appellant added, “Once I get mad, it’s over. Cause I don’t do no talking, you know. That could have been anybody.” He “cut” Huynh without warning him; Huynh never hit him.
Videorecordings of the interviews were played for the jury.
During the second interview, appellant said that on the night of the incident, when the lockdown occurred, he continued to stand and talk with his “bunkie.” Appellant further stated: “[Huynh] come over screaming at us, telling us to get on our bunk because the deputies gonna cut the t.v. back on for him.” After appellant ignored him for a while, “something clicked” in appellant. Appellant explained: “I already got a short fuse as it is.... I already didn’t like the dorm because of the looseness of the dorm... This, when he came with this -- from all this shit that’s been going on, all this shit’s going on with me personally and this -- he just picked the wrong night.” When appellant told Huynh to get away from his bunk, Huynh “went off at the mouth.” Appellant then followed Huynh, who retreated to his own bunk. According to appellant, he remembered hitting Huynh, but otherwise did not recall “how it went down.”
B. Defense Evidence
Appellant presented no evidence.
DISCUSSION
Appellant contends (1) that the trial court erred in failing to instruct the jury, sua sponte, on attempted voluntary manslaughter as a lesser included offense of attempted murder, (2) that he received ineffective assistance of counsel, and (3) that the trial court improperly declined to strike his strikes. For the reasons explained below, we reject these contentions.
A. Instructional Error
Appellant contends that the trial court erred in failing to instruct the jury sua sponte on attempted voluntary manslaughter based on a sudden quarrel or heat of passion. Generally, voluntary manslaughter based on a sudden quarrel or heat of passion is a lesser included offense of intentional murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-154, 160.) The trial court is obliged to instruct sua sponte on a lesser included offense “‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (Id. at p. 154.) As we explain below, there is no evidence of provocation sufficient to support an instruction regarding attempted voluntary manslaughter.
The factor that distinguishes murder from voluntary manslaughter based on a sudden quarrel or heat of passion is provocation. (People v. Manriquez (2005) 37 Cal.4th 547, 583 (Manriquez).) As our Supreme Court has explained: “‘[A]n intent to unlawfully kill reflects malice. [Citations.] An unlawful killing with malice is murder. [Citation.] Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation].’” (Ibid.)
The requisite provocation is subject to several requirements. (Manriquez, supra, 37 Cal.4th at p. 583.) The provocation must be caused by the victim, or reasonably attributed to the victim by the defendant. (Ibid.) Furthermore, although the provocative conduct may be physical or verbal, it “‘must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.’” (Id. at pp. 583-584.) The provocation is thus assessed under subjective and objective standards: it must actually motivate the defendant’s conduct, and also be capable of arousing the passions of a “‘“‘reasonable person.’”’” (Ibid.) These principles also govern attempted voluntary manslaughter based on a sudden quarrel or heat of passion. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709.)
Instructive applications of these principles are found in Manriquez, supra, 37 Cal.4th 547 and People v. Gutierrez (2009) 45 Cal.4th 789 (Gutierrez). In Manriquez, the defendant was charged with murder following a shooting in a bar. (Manriquez, supra, at p. 552.) At trial, there was evidence that the victim approached the defendant in the bar, taunted him, and called him a “‘motherfucker’”; in addition, the victim repeatedly asked the defendant whether he had a gun, and dared him to use it. (Id. at pp. 585-586.) On appeal, the defendant contended that the trial court erred in failing to instruct the jury on voluntary manslaughter. (Id. at p. 583.) In rejecting the contention, our Supreme Court concluded that the victim’s behavior did not satisfy the objective requirement regarding provocative conduct, reasoning that it was “insufficient to cause an average person to become so inflamed as to lose reason and judgment.” (Id. at p. 586.)
In Gutierrez, the defendant was charged with the murder of his ex-girlfriend, who was also his son’s mother. (Gutierrez, supra, 45 Cal.4th at pp. 796-797.) At trial, the defendant testified that when he attempted to pick up his son, he and his ex-girlfriend engaged in a verbal argument that escalated to a physical altercation, during which the ex-girlfriend scratched and kicked him. (Id. at pp. 826-827.) The Supreme Court concluded that this evidence did not trigger the trial court’s duty to instruct sua sponte on “heat of passion” voluntary manslaughter, as neither the verbal dispute nor “the tussle” that appellant had described rose to the level of provocation needed to support the instruction. (Ibid.)
Here, the evidence at trial regarding Huynh’s purported provocative conduct established only that he yelled at appellant in ordering him to his bed, and that he later responded to appellant’s blows by pushing him away. As Huynh’s conduct was manifestly “insufficient to cause an average person to become so inflamed as to lose reason and judgment, ” the trial court was not obliged to instruct the jury on attempted voluntary manslaughter. (Manriquez, supra, 37 Cal.4th at p. 586.) In sum, there was no instructional error.
In an apparent effort to suggest that Huynh initiated the use of physical force, appellant notes Huynh’s testimony that appellant “tried to fight back” when Huynh ordered him to his bed. However, when Huynh was asked to clarify how appellant “tried to fight back, ” Huynh explained, “[H]e ran over and tried to beat me up.”
People v. Lasko (2000) 23 Cal.4th 101 and People v. Fenenbock (1996) 46 Cal.App.4th 1688, upon which appellant relies, are inapposite. In Lasko, our Supreme Court concluded only that the intent to kill is not a necessary element of voluntary manslaughter. (23 Cal.4th. at pp. 107-111.) In Fenenbock, the appellate court held that there was no evidence to support an instruction regarding “heat of passion” voluntary manslaughter, as the defendant testified that he was not emotionally aroused prior to the victim’s death. (46 Cal.App.4th at p. 1704.)
B. Ineffective Assistance of Counsel
Appellant contends that defense counsel rendered ineffective assistance by failing to request an instruction on attempted voluntary manslaughter. Defense counsel does not render ineffective assistance by declining to raise meritless contentions. (People v. Price (1991) 1 Cal.4th 324, 387.) As we have explained, there was no meritorious basis for the instruction.
C. Refusal to Strike Prior Convictions
Appellant contends the trial court erroneously declined to dismiss his prior strikes, namely, his 1988 robbery conviction and 1992 armed robbery conviction. Under the “Three Strikes” law, the decision to dismiss or “strike” a prior felony conviction is consigned to the trial court’s discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) The trial court must consider whether, “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Under these standards, the trial court did not err in denying appellant’s motion to dismiss the strikes, in view of his lengthy criminal record and the circumstances of his present crimes. Generally, abuse of discretion in sentencing “is found only where [the trial court’s] choice is ‘arbitrary or capricious or “‘exceeds the bounds of reason, all of the circumstances being considered.’” [Citations.]’” (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247, quoting People v. Welch (1993) 5 Cal.4th 228, 234.) We see no abuse of discretion here. Since turning 18 in 1987, appellant has been convicted of receiving stolen property (1987), robbery (1988), armed robbery (1992), and petty theft with a prior conviction (2000). In between convictions, appellant has repeatedly violated the conditions of his parole, resulting in his return to custody. He committed the current offenses while confined following a violation of his parole conditions.
Appellant contends that the trial court erred in denying his motion, as his current offenses were committed in a jail and his most recent strikes occurred almost 20 years ago. We disagree. The circumstances of his current offenses do not militate in favor of dismissing the prior strikes, as they involved force and violence. (See People v. Strong (2001) 87 Cal.App.4th 328, 344.) Moreover, because they occurred while appellant was in the controlled conditions of a jail, they do not reasonably support the inference that appellant would refrain from violence if released from incarceration.
Nor does the age of the strikes support their dismissal. In People v. Humphrey (1997) 58 Cal.App.4th 809, 813, the appellate court held that absent evidence of the defendant’s efforts at rehabilitation, the remoteness of a prior conviction is not a proper basis for striking it. There, the trial court struck a 20-year old conviction. (Id. at p. 813.) In reversing the ruling, the appellate court stated: “In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways. Where... the defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a 20-year-old prior.” (Ibid.) That is also the case here.
Appellant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 is misplaced. There, the appellate court affirmed the dismissal of two violent but temporally remote strikes, reasoning that the defendant’s current offense for petty theft was nonviolent, and that his age made it unlikely that he would reoffend upon release from incarceration. (Id. at p. 1251.) In contrast, appellant’s current offenses involved violence and great bodily injury, and his statements admitted at trial disclosed a reflexive tendency to use violence.
Appellant also contends that the trial court denied his motion to dismiss under the misapprehension that the jury had convicted him of attempted willful, deliberate, and premeditated murder. The record shows otherwise. Although the trial court mistakenly attributed this verdict to the jury at the beginning of the sentencing hearing, it expressly corrected the error before ruling on appellant’s motion to dismiss. Later, in determining appellant’s sentence, the trial court repeated the error, but did not rely on it in calculating the length of the sentence. As the trial court accurately characterized the jury’s verdict immediately before denying the motion to dismiss, it is not reasonably likely that the trial court acted under a misapprehension in denying the motion. In sum, we discern no error in the trial court’s ruling on the motion to dismiss.
Upon sentencing appellant, the trial court remarked that appellant had been convicted of attempted willful, deliberate, and premeditated murder. Nonetheless, in establishing the sentence under the Three Strikes law, the court selected the nine-year upper term for nonpremeditated attempted murder, rather than the indeterminate term for premeditated attempted murder. (§§ 190, subd. (a), 664, subd. (a); see People v. Keelen (1998) 62 Cal.App.4th 813, 818-819 [trial court has discretion to select upper term for nonpremeditated attempted murder in sentencing defendant with two prior strikes].)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.