Filed 6/3/14 P. v. Manchego CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065785

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF061919)

RICHARD MANCHEGO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside, Richard A. Erwood,

Judge. Affirmed.

         David L. Polsky, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Richard Manchego of second degree murder (Pen. Code,1 § 187,

subd. (a)). The jury also found that Manchego intentionally discharged a firearm causing

death or great bodily injury in the commission of the murder (§ 12022.53, subd. (d)). The

court sentenced Manchego to a total term of 40 years to life.

       Manchego appeals contending the trial court committed instructional error by

failing, sua sponte, to instruct on the lesser included offense of involuntary manslaughter.

We find there was no substantial evidence to justify such instruction and thus reject

Manchego's contention.

                                STATEMENT OF FACTS

       In 2008, Manchego was in a dating relationship with Lidia Estrada. On May 8,

2008, Estrada got into a telephone confrontation with Jorge Pozos, the brother of

Estrada's ex-boyfriend. The confrontation upset Manchego and he set out to drive to

Pozos's house to fight with him.

       At about 7:00 p.m. Estrada sent a text to her former boyfriend advising that

Manchego and Jorge Pozos were going to fight "right now." Meanwhile, Manchego had

driven to Jorge Pozos's apartment in Palm Springs. Manchego had a .40 caliber

semiautomatic pistol under the driver's seat of the vehicle.

       When Manchego arrived where Pozos lived, he immediately got out of his vehicle

and left the gun in the car. Pozos had been waiting for him and the fight began almost

immediately. Pozos beat Manchego rather severely delivering many blows. Ultimately

he was persuaded to let Manchego up. As Pozos backed away he told Manchego he was

1      All further statutory references are to the Penal Code unless otherwise specified.
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crazy to think he was "going to come down in my neighborhood and try to kick my ass."

As Manchego got up and moved to his car he responded: "You're right homie. You're

right homie. But there's one thing, just one thing." Manchego then went to his car and

obtained the pistol from under the driver's seat.

        Pozos yelled, "He has a gun." Pozos and others ran toward some palm trees, at

which time Manchego opened fire. Pozos was not hit by the initial volley. After hiding

behind a tree, Pozos stepped out and said, "What the heck, you can't even shoot a gun?"

or "I kicked your ass, and you can't even shoot a gun." Manchego fired again and this

time hit Pozos in the neck, fatally wounding him. Manchego got into his car and sped

away.

                                        DISCUSSION

        With the consent of the parties, the trial court instructed the jury regarding first

and second degree murder and voluntary manslaughter. The jury received verdict forms

on each offense. There was no request for an instruction on involuntary manslaughter.

At the conclusion of the trial the jury found Manchego guilty of second degree murder

and found that he intentionally used a firearm causing death.

        Manchego now contends the trial court had a duty on these facts to instruct on

principles of involuntary manslaughter, even in the absence of a request for such

instruction. We disagree.

                                   A. Standard of Review

        Trial courts have a duty, even in the absence of a request, to instruct juries in

criminal cases in those principles of law necessary to assist them in understanding the

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cases. (People v. Moye (2009) 47 Cal.4th 537, 548; People v. Breverman (1998)

19 Cal.4th 142, 154.) Courts must instruct juries on lesser included offenses where there

is substantial evidence from which a jury could conclude that the lesser offense was

committed and the greater offense was not. (People v. Cook (2006) 39 Cal.4th 566, 596.)

       On appeal we independently review the record to determine whether there is

substantial evidence that could support a finding of guilt on the lesser offense. We do not

assess credibility or decide whether a jury should convict on the lesser offense. Our

concern is only whether the evidence is substantial such that a jury could reasonably

choose the lesser of the offenses. (People v. Manriquez (2005) 37 Cal.4th 547, 587.)

                               B. Murder v. Manslaughter

       Murder is the unlawful killing of a human being with malice aforethought. (§ 187,

subd. (a).) Malice may either be express in the intention to kill or may be implied from

the intentional commission of an act which is inherently dangerous to life, with conscious

disregard for the consequences. (People v. Chun (2009) 45 Cal.4th 1172, 1181.)

       Manslaughter is the unlawful killing of a human being without malice

aforethought. (§ 192.) The jury in this case was instructed regarding voluntary

manslaughter as a lesser included offense of murder, however, the jury found Manchego

guilty of second degree murder. As we have discussed Manchego claims the court

should have also instructed on involuntary manslaughter.

       Involuntary manslaughter as defined in section 192, subdivision (b) is an unlawful

killing without malice "in the commission of an unlawful act, not amounting to a felony;

or in the commission of a lawful act which might produce death, in an unlawful manner,

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or without due caution and circumspection." (People v. Gutierrez (2002) 28 Cal.4th

1083, 1145.) Manchego contends a jury could have found his acts of firing five shots at

the victim in what appears to be two separate volleys did not involve either express or

implied malice and thus claims he was denied due process.

                                        C. Analysis

       Manchego does not challenge the sufficiency of the evidence in this case to

support the jury's finding him guilty of second degree murder, nor does he challenge the

jury's finding that he intentionally used a firearm to cause death or great bodily injury.

Manchego's argument appears to center on the beating he took, the "wild manner" of

shooting and the possible distance between him and the victim when the fatal shot was

fired. He claims those facts could have supported involuntary manslaughter. We

disagree and find there was no substantial evidence to support a finding of lack of malice.

       Although Manchego was the loser in the fistfight, it is important to note the

undisputed sequence of events following the fight. Manchego acknowledged to Pozos

that coming back to Pozos's neighborhood to try to "kick his ass" would be crazy.

However, Manchego then said, "But there's one thing, just one thing." At that point

Manchego went to his car, retrieved the gun and then started shooting at Pozos. That

sequence is a clear demonstration of a purpose to obtain the weapon and to shoot at the

person who had defeated him in the fight. Then, when the first shots missed the target,

Pozos foolishly taunted Manchego again followed by the second volley which struck and

killed Pozos.



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       Respectfully, that is not evidence of a misdemeanor gone wrong or a lawful act

done in an unlawful manner. Nor is it evidence of an act done without express or implied

malice. Firing five shots at the victim at the very least demonstrated an intentional act,

inherently dangerous to human life, done without regard to the consequences.

       Even if we agreed there might have been some possible evidence to support a sua

sponte duty to instruct on involuntary manslaughter, we find, beyond any reasonable

doubt there was no prejudice.

       Here the jury found malice to have been proved beyond a reasonable doubt and

rejected the lesser offense of voluntary manslaughter. The jury's finding on murder and

manslaughter together with the true finding on the intentional use of the firearm to inflict

death or great bodily injury clearly demonstrate the jury would have also rejected

involuntary manslaughter. (People v. Gutierrez, supra, 28 Cal.4th at p. 1145.)

                                      DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



                      HALLER, J.



                   O'ROURKE, J.


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