People v. Holmes, B193801 (Cal. App. 11/30/2007)

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THE PEOPLE, Plaintiff and Respondent, v. NAHKI HOLMES, Defendant and Appellant.

B193801

Court of Appeals of California, Second Appellate District, Division Three

November 30, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA247844, Michael S. Luros, Judge. Affirmed as modified.

John Steinberg, 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, Michael R. Johnsen and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.

Defendant and appellant Nahki Holmes appeals from the judgment entered following a jury trial that resulted in his convictions for second degree murder, dissuading a witness by force or threat, and possession of a firearm by a felon. Holmes was sentenced to a prison term of 58 years to life.

Holmes contends: (1) the trial court erred by failing to sua sponte instruct the jury on involuntary manslaughter and refusing to instruct the jury on the defense of accident; (2) Holmes's counsel was ineffective for failing to object to evidence of Holmes's prior uncharged misconduct; (3) the evidence was insufficient to prove malice, requiring reduction of the murder conviction to voluntary manslaughter; (4) the evidence was insufficient to prove the gang enhancement; and (5) use of Holmes's prior juvenile adjudication as a "strike" for purposes of his sentencing pursuant to the three strikes law violated his right to a jury trial.

The People contend the trial court erred by awarding presentence conduct credit under Penal Code section 4019.¹ We agree that the trial court erred in this regard. Accordingly, we order the judgment modified to delete the presentence conduct credit awarded. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues on appeal established the following. On May 10, 2003, appellant attended a barbecue at a carwash. He and his friend Tremayne Watkins played dice together inside the carwash building. Eventually the two men emerged from the building, arguing. They became embroiled in a fistfight in which Holmes beat Watkins, leaving him beaten and bloodied. The son of the owner of the carwash broke up the fight.

Holmes, who appeared "hyped up" and "ready to fight again" circled around, asking the onlookers, "Who else want[s] some[?]" Victim Darryl Ficklin, who was also attending the barbecue and had watched the fight, stated, "I bet he won't do that to me." Holmes walked to a chair to retrieve his belongings and "shoulder shov[ed]" Ficklin, stating, "This is MVP Cuz."² Ficklin took off his sweater and prepared to fight. Ficklin then punched Holmes several times, causing Holmes to back up and eventually fall against some chairs against a wall. Holmes was not able to get in a punch. Holmes reached toward his waistband. After a pause of approximately two to three seconds, Holmes fatally shot Ficklin in the abdomen. Ficklin called out, "I'm shot," and fell to the ground. Holmes, holding the gun, kicked Ficklin three or four times and called him a "bitch ass nigger." Holmes then pointed the gun at the crowd and left the carwash in a red Camaro.

Several weeks later, Holmes approached Jason Brown, who had witnessed the shooting. Holmes displayed a gun and asked Brown what he knew about the shooting.

Holmes was arrested in February 2004. Prior to trial, his girlfriend, Shalonda Spriggs, visited him in jail on numerous occasions. Her visits with Holmes were monitored and recorded. Spriggs and Holmes repeatedly discussed fabricating potential defenses, including that Holmes was not at the carwash, and that the gun fired accidentally as he fell. They also hatched a plan to frame a person they believed to be a witness for rape.

2. Procedure.

Holmes was tried by jury twice. In Holmes's first trial, the jury found him guilty of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). The jury found not true the allegations that Holmes had committed the crimes for the benefit of a criminal street gang (§ 186.22) and personally used a firearm in connection with the dissuading offense. The jury acquitted Holmes of a second count of possession of a firearm by a felon. It deadlocked on count 1, the murder of Ficklin, and a mistrial was declared. Upon retrial of count 1, the jury found Holmes guilty of second degree murder. (§ 187, subd. (a)). It found true allegations that Holmes personally used, and personally and intentionally discharged, a firearm, causing Ficklin's death (§ 12022.53, subds. (b), (c), (d)), and that Holmes was armed with a firearm (§ 12022, subd. (a)(1)). The jury found not true the allegation that Holmes committed the murder for the benefit of a criminal street gang. The trial court sentenced Holmes to a term of 58 years to life in prison. It imposed a restitution fine, a suspended parole revocation fine, a victim restitution award, and a court security fee. Holmes appeals.

DISCUSSION

1. Purported instructional errors.

Holmes contends the trial court erred by failing to instruct on involuntary manslaughter and the defense of accident. Both contentions are premised on the theory that the gun could have discharged accidentally. We discern no error.

a. Additional facts.

The jury was instructed with the full panoply of instructions on second degree murder, voluntary manslaughter, and perfect and imperfect self defense. The trial court did not instruct on involuntary manslaughter, and the defense did not request that it do so. Over a defense objection, the trial court likewise did not instruct on the defense of accident. The court explained that if the defendant had testified that the gun fired by accident (as he did in his first trial), then substantial evidence would exist to support the instruction. However, the only evidence presented showed that there was a two- to three-second gap between the time Holmes fell and the gunshot, negating the possibility the gun fired by accident.

b. Discussion.

A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Benavides (2005) 35 Cal.4th 69, 102.) The trial court therefore must instruct, sua sponte, on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case, including lesser included offenses supported by the evidence and defenses on which the defendant relies or which are not inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 157; People v. Heard (2003) 31 Cal.4th 946, 980; People v. Salas (2006) 37 Cal.4th 967, 982; People v. Bohana (2000) 84 Cal.App.4th 360, 370; People v. Oropeza (2007) 151 Cal.App.4th 73, 78; People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) In determining whether an instruction is required, we do not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas, supra, at p. 982.)

A court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588; People v. Breverman, supra, 19 Cal.4th at p. 162.) " ` " `Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.'"' [Citation.]" (People v. Benavides, supra, at p. 102; People v. Oropeza, supra, 151 Cal.App.4th at p. 78; People v. Heard, supra, 31 Cal.4th at p. 981.)

On appeal, we independently review the question of whether the trial court erred by failing to instruct on defenses and lesser included offenses. (People v. Oropeza, supra, 151 Cal.App.4th at p. 78; People v. Cook (2006) 39 Cal.4th 566, 596; People v. Manriquez, supra, 37 Cal.4th at p. 587.) The erroneous failure to instruct sua sponte on a lesser included offense is, at most, an error of California law alone, and reversal is required only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Error in failing to instruct the jury on a lesser included offense is also harmless "`"when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." ' [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 928.)

The standard of review applicable to the erroneous failure to instruct on a defense is unsettled. (See People v. Salas, supra, 37 Cal.4th at p. 984 ["[w]e have not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense"]; People v. Russell, supra, 144 Cal.App.4th at pp. 1431-1432 [applying Watson standard]; People v. Thurmond (1985) 175 Cal.App.3d 865, 871-872 [accident is an affirmative defense].)

"Involuntary manslaughter is ordinarily a lesser offense of murder. [Citation.] `One commits involuntary manslaughter either by committing "an unlawful act, not amounting to felony" or by committing "a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional...