Filed 4/19/16
                     CERTIFIED FOR PARTIAL PUBLICATION*


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D069229

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. FVA1200731)

MICHAEL CHRISTOPHER LUCERO,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Bernardino,

Gerard S. Brown, Judge. Affirmed and remanded with directions.

        Nancy J. King, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew S.

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.




*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts III.A. and III.C.
                                               I.

                                     INTRODUCTION

       A jury found Michael Christopher Lucero guilty of murder (Pen. Code, § 187,

subd. (a))1 (count 1), second degree robbery (§ 211) (count 2), and assault with a semi-

automatic firearm (§ 245, subd. (a)(2)) (count 5). The jury also found true an allegation

that Lucero committed the murder during the course of a robbery. In addition, with

respect to counts 1, 2, and 5, the jury found true allegations that Lucero personally and

intentionally discharged a firearm causing great bodily injury or death within the meaning

of section 12022.53, subdivision (d) and personally and intentionally discharged a

firearm within the meaning of section 12022.53, subdivision (c).2

       On appeal, Lucero claims that the trial court erred in failing to instruct the jury on

count 1 on the lesser included offenses of second degree murder, voluntary manslaughter

and involuntary manslaughter, given the evidence of his voluntary intoxication presented

at trial. In an unpublished portion of this opinion, we conclude that any error in failing to

instruct on second degree murder was harmless and that the trial court did not err in

failing to instruct the jury on voluntary manslaughter and involuntary manslaughter.

Lucero also claims that the trial court erred in instructing the jury that it could not

consider evidence of Lucero's voluntary intoxication in determining whether he

personally and intentionally discharged a firearm causing bodily injury or death within

1      Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2      We describe here only the offenses and sentencing allegations relevant to Lucero's
claims on appeal, and provide a full procedural history in part II.B., post.
                                               2
the meaning of section 12022.53, subdivision (d) and personally and intentionally

discharged a firearm within the meaning of section 12022.53, subdivision (c). In a

published portion of this opinion, we conclude that the trial court properly instructed the

jury that it could not consider Lucero's voluntary intoxication for purposes of determining

the truth of these firearm enhancement allegations. Finally, in an unpublished portion of

this opinion, we direct the trial court to correct an error in the abstract of judgment.

Accordingly, we affirm the judgment and remand the matter to the trial court to prepare a

corrected abstract of judgment.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       1.     The events leading up to the robbery and killing

     Ahmed Silmi frequently kept cash deposits from his businesses in the trunk of his

Mercedes. One of Silmi's friends, victim Darius Silveira, owned a barbershop in

Fontana. On May 23, 2012, at approximately 6:30 p.m., Silmi went to visit Silveira at the

barbershop. Silmi had a large amount of cash in the trunk of his Mercedes.

Approximately thirty minutes later, Lucero, whom Silmi had known for a few weeks,

arrived at the barbershop. The three men smoked methamphetamine together.

     Silmi went outside the barbershop and smoked a cigarette with Lucero. While the

two men were outside, Silmi received a phone call from one of his employees. Silmi and

the employee discussed Silmi picking up deposits. After the phone call, Silmi told



                                               3
Lucero that he had to leave to pick up some deposits. Silmi left the barbershop shortly

thereafter. Lucero also left the barbershop in a separate vehicle.

     At approximately 7:54 p.m., Lucero called Fontana Police Officer Buddy Porch.

Lucero told Officer Porch that the driver of a Mercedes with Silmi's license plate number

had something illegal on his person. Lucero described the location of the Mercedes.

Officer Porch responded to the location and conducted a traffic stop of Silmi's vehicle.

Silmi had $18,228 in cash and 44 cellular phones in the Mercedes. Silmi was taken into

custody on an outstanding traffic warrant.

     With Officer Porch's permission, Silmi contacted Silveira and asked Silveira to

come to the location of the traffic stop and take possession of the cash and the phones.

According to Silmi, before Silveira arrived, Lucero appeared at the scene of the traffic

stop and told Silmi that he could take "what it is that I was trying to get to Silveira," to

him. Silmi declined the offer, and Lucero left. Silveira then arrived, placed the cash and

phones in the trunk of the car he was driving and left. Officer Porch took Silmi to jail.

     Authorities released Silmi from jail the following morning at approximately 6:30

a.m. Silmi sent a text message to Silveira at approximately 6:45 a.m., requesting that

Silveira pick him up from the jail.

     2.       The robbery and killing

     Meanwhile, at some point after leaving the location of the traffic stop, Lucero went

back to the barbershop and visited with Silveira throughout the rest of that night and into

the morning. At approximately 7:00 a.m., the following morning, Silveira agreed to give

Lucero a ride to his van on his way to pick up Silmi from jail. Silveira drove Lucero to

                                               4
his van. As he was exiting the car, Lucero pointed a gun at Silveira and told him to open

the trunk of the car. When Silveira attempted to drive away, Lucero shot him several

times.

     Alejandro Cardoso was driving his car near the scene of the shooting immediately

after the shooting occurred. Cardoso saw the car that Silveira was driving crash into a

house. Moments later, he observed Lucero run to a van parked nearby and drive away.

         At approximately 7:06 a.m., Officer Michael Bernholtz of the Fontana Police

Department arrived at the scene of the crash. Bernholtz saw that a vehicle had crashed

into a house and also saw a man, later identified as Lucero, standing in the front yard of

the house. When Lucero saw the officer, he yelled, "Oh, fuck" and ran across the street

to a parked black Honda. Lucero got into the Honda and drove off rapidly, with Officer

Bernholtz in pursuit. Shortly thereafter, Lucero crashed the Honda. Lucero got out of the

Honda and began to run. Lucero ran for about 15 feet and then surrendered as another

police officer approached.

     Authorities found Silveira in the driver's seat of the vehicle that had crashed into the

house. Silveira suffered a total of six gunshot wounds, all to his upper body and head.

Silveira died from the gunshots.

     3.        Lucero's police interview

         Approximately six hours after the killing, Fontana Police Detective Daniel

Delgado interviewed Lucero.3 During the interview, Lucero admitted calling Officer



3        The People played a video recording of the interview for the jury.
                                              5
Porch the night before the killing in order "to get [Silmi]." Lucero also acknowledged

going to the scene of Officer Porch's traffic stop of Silmi and asking Silmi if Silmi

wanted him to take possession of Silmi's Mercedes. According to Lucero, Silmi declined

the offer, explaining to Lucero that he had "drop-offs" from his business.

       Lucero told Detective Delgado that Silveira came and got Silmi's money. Lucero

explained that later that evening, he went back to the barbershop and visited with Silveira

for the remainder of the night. The following morning, at approximately 7:00 a.m., Silmi

called Silveira and asked Silveira to pick him up from jail. Lucero asked Silveira to drive

him to his van, which was parked around the corner from his home.

       When they arrived at Lucero's van, Lucero sat in his seat for a few seconds.

Silveira asked Lucero, " '[W]hat's up?' " Lucero then "turned on him," pulled out a .32

caliber handgun and told Silveira to " 'pop the trunk.' " Lucero started to get out of the

car. Silveira screamed and began to drive off. Lucero fired several gunshots at Silveira.

       Lucero watched the car Silveira was driving crash into a house. He then ran to his

van and drove home. He wrapped the gun in a towel and placed it on the back part of the

couch behind the house. Lucero stated that he then "figured, fuck I just killed him. And

now I've got to get the money, you know?"

     After changing shirts, Lucero drove back to the scene of the shooting in a Honda,

parked around the corner, and removed the license plates from the Honda. Lucero then

approached the vehicle Silveira was driving and saw that Silveira was dead. Lucero

reached inside a window of the car, unlocked the door, put the car in park, and grabbed

the keys. Lucero then removed bags of cash from the trunk of the car. At that point,

                                              6
Lucero saw a police officer, and said, " '[O]h[,] fuck.' " Lucero dropped the bags of cash,

ran to his Honda, and drove off. Shortly thereafter, he crashed the Honda and

surrendered to police.

     At one point in the interview, Lucero stated, "This was just fucking [the] answer to

all of my problems so fast. You know? Money is a bitch, dude."

     4.       Evidence of Lucero's use of methamphetamine prior to the killing

     During his interview with Detective Delgado, while discussing the killing, Lucero

said, "It was a mistake. A horrible mistake. A drug induced mistake." Lucero stated that

the night before the killing, he had been "smoking dope [methamphetamine] all night,"

and explained that he, together with Silveira and another person, had smoked a total of

two grams of methamphetamine. Lucero also said that recently, he had been "smoking it

all day."4

     Near the end of the interview, Lucero read a statement to Detective Delgado that he

had written after being taken into custody. In the statement, Lucero wrote that he had

been "heavy on drugs." Lucero also stated, "Meth is the worst thing that ever happened

to [ ]me. Today I felt out of body. I didn't have self conscious [sic] to stop. I

couldn't. . . . The dope still has me in a daze." Lucero also stated, "I haven't slept more

than [five] hours the last four days. . . . I lost control of myself between 7 pm and this

morning."



4     Detective Delgado stated during the interview that Lucero's family had
told Delgado that Lucero had been "wrapped up doing some dope for like about
[two] weeks."
                                              7
     After Lucero read his statement, Detective Delgado asked Lucero whether he would

like to see his wife. Lucero answered, "I can't . . . not like this." Detective Delgado

responded, "Well you're still high," and told Lucero, "Couple of days, sober up . . . she's

going to be able to visit you over there."

     Detective Delgado testified Lucero appeared to be drowsy and fell asleep while in

custody at the police station prior to the interview. Delgado also testified that he believed

that Lucero was still "high" during the interview because he was "having problems

speaking."5 Detective Delgado said that Lucero had difficulty reading his own

handwriting toward the end of the interview when Lucero read his statement to Delgado.

B.     Procedural background

       A jury found Lucero guilty of murder (§ 187, subd. (a)) (count 1), robbery (§ 211)

(count 2), unlawful possession of ammunition (§ 30305, subd. (a)(1)) (count 3),

possession of a firearm by a felon (§ 29800, subd. (a)) (count 4), and assault with a

firearm (§ 245, subd. (a)(2)) (count 5). In addition, with respect to counts 1, 2, and 5, the

jury found that Lucero personally and intentionally discharged a firearm causing bodily

injury or death within the meaning of section 12022.53, subdivision (d), personally and

intentionally discharged a firearm within the meaning of section 12022.53, subdivision

(c), and personally used a firearm within the meaning of section 12022.53, subdivision




5      The killing occurred at approximately 7:00 a.m. Lucero was taken into custody
shortly after the killing, and Delgado interviewed Lucero from approximately 1:00 p.m.
to 2:00 p.m. that same day.
                                              8
(b). The jury further found Lucero committed the murder during the course and

commission of a robbery.

       In a bifurcated proceeding, the trial court found that Lucero had suffered a prior

strike conviction (§§ 1170.12, subd. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony

conviction (§ 667, subd. (a)(1)).

       The trial court sentenced Lucero to a determinate sentence of 3 years and four

months, and an indeterminate sentence of 105 years to life.

                                             III.

                                       DISCUSSION

A.     Any error in failing to instruct on the lesser included offense of second degree
       murder was harmless and the trial court did not err in failing to instruct on the
       lesser included offenses of voluntary manslaughter and involuntary manslaughter

       Lucero claims that the trial court erred in failing to instruct the jury sua sponte on

the lesser included offenses of second degree murder, voluntary manslaughter, and

involuntary manslaughter to the charged offense of malice murder (count 1) (§ 187, subd.

(a)), given the evidence of his voluntary intoxication presented at trial.

       "We apply the independent or de novo standard of review to the failure by the trial

court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33

Cal.4th 1158, 1218 (Cole).) In considering whether the trial court had a sua sponte duty

to instruct the jury on lesser included offenses, we construe the evidence in the light most

favorable to appellant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5 (Turk).)




                                              9
       1.      The accusatory pleading

       The operative accusatory pleading in this case alleged that Lucero "unlawfully,

and with malice aforethought murder[ed] [Silveira] . . . ."

       2.      The trial court's jury instructions

       The trial court instructed the jury with respect to the charge of murder (count 1)

pursuant to a modified version of CALCRIM No. 540A in relevant part as follows:

            "The defendant is charged in Count 1 with murder, under a theory of
            felony murder. [¶] To prove that the defendant is guilty of first
            degree murder under this theory, the People must prove that:

            "1. The defendant committed or attempted to commit Second Degree
            Robbery;

            "2. The defendant intended to commit Second Degree Robbery;

            "AND

            "3. While committing or attempting to commit Second Degree
            Robbery the defendant caused the death of another person.

            "A person may be guilty of felony murder even if the killing was
            unintentional, accidental, or negligent. [¶] To decide whether the
            defendant committed or attempted to commit Second Degree
            Robbery, please refer to the separate instructions that I have given
            you on those crimes[.] You must apply those instructions when you
            decide whether the People have proved first degree murder under a
            theory of felony murder."

       The trial court did not instruct the jury on any other theories of murder, and did

not instruct the jury on any other homicide offense.




                                              10
       The trial court instructed the jury with respect to voluntary intoxication pursuant to

a modified version of CALCRIM No. 625 pertaining to the effect of voluntary

intoxication on the homicide crime charged in this case6 as follows:

          "You may consider evidence, if any, of the defendant's voluntary
          intoxication only in a limited way. You may consider that evidence
          only in deciding whether the defendant acted with the specific intent
          to take property by force or fear.[7] [¶] A person is voluntarily
          intoxicated if he or she becomes intoxicated by willingly using any
          intoxicating drug, drink, or other substance knowing that it could
          produce an intoxicating effect, or willingly assuming the risk of that
          effect. [¶] You may not consider evidence of voluntary intoxication
          for any other purpose."

       The court also instructed the jury pursuant to a modified version of CALCRIM

No. 3426 concerning voluntary intoxication. (See pt. III.B., post.) The modified version

of CALCRIM No. 3426 also informed the jury that it could consider the evidence of

Lucero's voluntary intoxication for the limited purpose of "deciding whether the

defendant acted with the specific intent to take property by force or fear."




6      The instruction refers to an element of the crime of robbery, which the People
were required to establish in order to prove felony murder premised on a killing occurring
during a robbery.
7      A separate jury instruction informed the jury that in order to find Lucero guilty of
second degree robbery (§ 211) (count 2), the jury was required to find that he took
property that was not his own and that he "used force or fear to take the property," among
other elements.
                                             11
       3.     Governing law

              a.      Relevant homicide crimes

                      i.     Murder

       Section 187 provides in relevant part, "(a) Murder is the unlawful killing of a

human being . . . with malice aforethought." Section 188 defines malice as follows:

"Such malice may be express or implied. It is express when there is manifested a

deliberate intention unlawfully to take away the life of a fellow creature. It is implied,

when no considerable provocation appears, or when the circumstances attending the

killing show an abandoned and malignant heart." In further defining implied malice, the

Supreme Court has stated, " 'Malice is implied when the killing is proximately caused by

" 'an act, the natural consequences of which are dangerous to life, which act was

deliberately performed by a person who knows that his conduct endangers the life of

another and who acts with conscious disregard for life.' " ' " (People v. Cravens (2012)

53 Cal.4th 500, 507.)

       Section 189 provides in relevant part, "All murder . . . which is committed in the

perpetration of . . . robbery . . . is murder of the first degree." Section 189 also provides

that all types of murder, other than those specified in section 189, are murders of the

second degree.

                      ii.    Manslaughter

       "Manslaughter is the unlawful killing of a human being without malice." (§ 192.)

Voluntary manslaughter occurs "when the defendant acts upon a sudden quarrel or heat

of passion on sufficient provocation (§ 192, subd. (a)), or kills in the unreasonable, but

                                              12
good faith, belief that deadly force is necessary in self-defense." (People v. Manriquez

(2005) 37 Cal.4th 547, 583.) Involuntary manslaughter includes killings that occur "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, or without due caution and

circumspection." (§ 192, subd. (b).)

                b.     The determination of whether an uncharged offense is a lesser
                       included offense

         Courts "have applied two tests in determining whether an uncharged offense is

necessarily included within a charged offense: the 'elements' test and the 'accusatory

pleading' test. Under the elements test, if the statutory elements of the greater offense

include all of the statutory elements of the lesser offense, the latter is necessarily included

in the former. Under the accusatory pleading test, if the facts actually alleged in the

accusatory pleading include all of the elements of the lesser offense, the latter is

necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-

1228.)

                c.     The duty to instruct on lesser included offenses

         "A trial court must instruct the jury sua sponte on a lesser included offense only if

there is substantial evidence, ' "that is, evidence that a reasonable jury could find

persuasive" ' [citation], which, if accepted, ' "would absolve [the] defendant from guilt of

the greater offense" [citation] but not the lesser.' " (Cole, supra, 33 Cal.4th at p. 1218.)

In other words, "[s]uch instructions are required only where there is 'substantial evidence'

from which a rational jury could conclude that the defendant committed the lesser


                                               13
offense, and that he is not guilty of the greater offense." (People v. DePriest (2007) 42

Cal.4th 1, 50.)

               d.     The admissibility of evidence of voluntary intoxication in a
                      criminal case

       Section 29.4 provides:

            "(a) No act committed by a person while in a state of voluntary
            intoxication is less criminal by reason of his or her having been in
            that condition. Evidence of voluntary intoxication shall not be
            admitted to negate the capacity to form any mental states for the
            crimes charged, including, but not limited to, purpose, intent,
            knowledge, premeditation, deliberation, or malice aforethought, with
            which the accused committed the act.

            "(b) Evidence of voluntary intoxication is admissible solely on the
            issue of whether or not the defendant actually formed a required
            specific intent, or, when charged with murder, whether the defendant
            premeditated, deliberated, or harbored express malice aforethought.

            "(c) Voluntary intoxication includes the voluntary ingestion,
            injection, or taking by any other means of any intoxicating liquor,
            drug, or other substance."

       Evidence of a defendant's voluntary intoxication is not "admissible to negate

implied malice." (Turk, supra, 164 Cal.App.4th at p. 1375.)

       4.      Application

               a.     Any error committed by the trial court in failing to instruct on the
                      lesser included offense of second degree murder was harmless

                      i.     We assume for purposes of this decision that the trial court
                             erred in failing to instruct the jury on second degree murder

       We assume for purposes of this decision that second degree murder was a lesser

included offense to the charged offense of malice murder under the accusatory pleading

test because the charging document charged malice murder, and did not specify felony

                                             14
murder. (People v. Campbell (2015) 233 Cal.App.4th 148, 159-160 (Campbell) [where

accusatory pleading alleged malice murder, pleading "gave rise to possible lesser

included offense[ ] of second degree murder"].)8 We also assume, in light of the

evidence in the record of Lucero's voluntary intoxication (see pt. II.A.4., ante), that the

jury could have found that he did not act with the specific intent to take property by force

or fear, and thus did not commit or attempt to commit second degree robbery. Lucero's

commission or attempted commission of second degree robbery was an element of felony

murder, the sole theory of murder presented to the jury. Thus, in light of the evidence of

Lucero's voluntary intoxication, we further assume that the jury could have reasonably

found that Lucero did not commit the greater offense of felony murder. However, in

light of the overwhelming evidence that Lucero committed the killing and since evidence

of Lucero's voluntary intoxication was inadmissible to negate implied malice, an element

of second degree murder, we further assume that the jury could have reasonably found

that Lucero was guilty of the lesser included offense of second degree murder.

Accordingly, we assume for purposes of this decision that the trial court erred in failing

to instruct the jury on second degree murder. (See Cole, supra, 33 Cal.4th at p. 1218

[trial court has duty to instruct on lesser included offense where there is substantial




8      We need not decide whether second degree murder is a lesser included offense of
felony murder under the statutory elements test. (People v. Banks (2014) 59 Cal.4th
1113, 1160 [concluding that second degree murder was lesser included offense under
accusatory pleading test and stating "[w]e . . . do not reach the question raised by the
Attorney General of whether second degree murder is a lesser included offense of felony
murder under the statutory elements test"].)
                                             15
evidence that " ' "would absolve [the] defendant from guilt of the greater offense"

[citation] but not the lesser' ".)

                       ii.    The assumed error in failing to instruct the jury on second
                              degree murder was harmless

       In People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman), the California

Supreme Court held, "The sua sponte duty to instruct fully on all lesser included offenses

suggested by the evidence arises from California law alone," and thus a trial court's error

in fulfilling this duty "must . . . be evaluated under the generally applicable California test

for harmless error . . . set forth in [People v. Watson (1956) 46 Cal.2d 818, 836

(Watson)]." (Id. at p. 176.) Under Watson, reversal is not warranted unless "it appears

'reasonably probable' the defendant would have obtained a more favorable outcome had

the error not occurred (Watson, supra, [at p.] 836.)" (Breverman, supra, at p. 178.)

       Lucero argues that "in order to hold appellant responsible for the killing, the jury

had no choice but to find appellant guilty of the robbery," because it was not instructed

on any other homicide offenses. Lucero contends that the jury "likely felt compelled" to

reach guilty verdicts on both the murder and robbery. In other words, Lucero suggests

that the jury would have found him not guilty of robbery, and thus not guilty of first

degree felony murder, if the jury had been given the option of finding him guilty of

second degree murder. We are not persuaded.

       To begin with, the jury found Lucero guilty of robbery, despite being instructed

that it could consider evidence of his voluntary intoxication in determining whether he

acted with the specific intent to take Silveira's property by force or fear. Even assuming


                                              16
the jury's guilty verdict on the robbery charge does not establish harmlessness, the verdict

is clearly relevant to our determination. (See Campbell, supra, 233 Cal.App.4th at p. 167

["a jury's determination on a factual issue under other instructions is relevant to

determining whether an instructional error is harmless[;] it does not categorically

establish that the error was harmless" (italics omitted)].)9

       Moreover, there was extremely strong evidence that Lucero acted with the specific

intent to take property by force or fear, and very weak evidence that Lucero's voluntary

intoxication prevented him from forming the specific intent to take Silveira's property by

force or fear. With respect to the evidence supporting Lucero's specific intent to take

property by force or fear, the People presented strong evidence that Lucero formulated a

plan to obtain Silmi's money the night prior to the robbery/killing after overhearing that

Silmi had deposits from his business in his car. Officer Porch testified that Lucero called

him the night before the robbery/killing and reported that Silmi was carrying something

illegal on his person. During Officer Porch's traffic stop of Lucero, Lucero arrived on




9       In People v. Gonzalez (March 30, 2016, B255375) ___ Cal.App.2d ___ [2016
Cal.App. Lexis 245, p. *41], the court concluded that "the jury's return of guilty verdicts
on felony murder charges and true findings on the robbery special circumstance
allegations necessarily resolved factual issues related to lesser included offenses of
malice murder against appellants." (Italics added.) The Gonzalez court disagreed with
Campbell to the extent that Campbell "suggests that the jury's guilty verdicts on felony
murder and its true findings on a robbery special circumstance allegation do not render
the failure to instruct on lesser included offenses of malice murder harmless . . . ."
(Gonzalez, supra, at p. ___ [2016 Cal.App. Lexis at p. *43].) In this case, for the reasons
stated in the text, any instructional error was harmless, even assuming the jury's guilty
verdict on the robbery charge did not necessarily establish a lack of prejudice.
                                             17
foot and offered to take Silmi's money. Lucero admitted during his confession to police

that he called Officer Porch in order to "get [Silmi]."

       Further, the People presented evidence that after being unable to obtain Silmi's

money through this ruse, Lucero formed another plan to obtain the money. Lucero

confessed that he formulated a plan to rob Silveira the following morning.10 Lucero

further confessed that, just before the killing, he pulled out a gun and told Silveira to

" 'pop the trunk,' " further evincing his intent to rob Silveira of the money contained in

the trunk of the car. In addition, Lucero admitted shooting Silveira, driving home,

disposing of his weapon, changing shirts, changing cars, returning to the scene of the

shooting, and removing license plates from the car he was driving before going back to

the car Silveira was driving to take the money from the trunk of the car. Lucero also

admitted that just after he took the money, he saw a police officer, yelled " 'oh fuck,' "

and dropped bags of cash before attempting to flee. Lucero repeatedly admitted during

his confession that he committed the killing in order to obtain Silmi's money, stating at

one point, that "[his] head was obsessed on getting money."

       Physical, eyewitness, and video evidence corroborated Lucero's confession. For

example, police recovered the gun used in the robbery/killing at Lucero's residence in the

location where Lucero had informed police that it would be found. Police also located

the Honda's license plates that Lucero confessed to having removed after the shooting,

inside the Honda. Just after the killing, Cardoso observed Lucero run to a van parked


10     Lucero stated that the plan to rob Silveira "popped into [his] head," approximately
half an hour before Silveira took Lucero back to his van.
                                              18
nearby and drive away. The jury also viewed surveillance footage from a nearby house

that showed portions of the incident occurring in a manner consistent with Lucero's

confession.

       In addition, while there was evidence that Lucero had used methamphetamine

prior to the robbery/killing, there was very little evidence that Lucero was so intoxicated

that he was unable to form the specific intent to take Silveira's property by force or fear.

Among other evidence, Lucero's confession that he formulated the plan to rob Silveira

prior to getting a ride back to the van, and that he executed that plan through a

complicated series of events including shooting Silveira, driving home, changing his

shirt, returning to the scene in a different car, removing the license plates from that car,

and then taking money from the trunk of the car Silveira was driving, are all inconsistent

with Lucero's claim that he was so intoxicated as to be unable to form the specific intent

to take property by force or fear.11 In light of this evidence, we conclude that there is not

a reasonable probability that the jury would have found Lucero not guilty of robbery, and

thus not guilty of first degree felony murder, if the court had instructed the jury on second

degree murder.




11     In addition, in his confession, Lucero provided numerous details of many of the
actions that he undertook with respect to each aspect of the plan that were not consistent
with him being so intoxicated as to be unable to form a specific intent. For example, in
describing how he gained access to the car Silveira was driving after the shooting, Lucero
explained that he reached inside a window of the car, unlocked the door, put the car in
park, and grabbed the keys. Lucero explained, "I wanted to get in the trunk."
                                              19
       Accordingly, we conclude that any error committed by the trial court in failing to

instruct on second degree murder was harmless.12

              b.     The trial court did not err in failing to instruct on the lesser included
                     offenses of voluntary manslaughter and involuntary manslaughter

       We assume for purposes of this decision that voluntary manslaughter and

involuntary manslaughter were lesser included offenses to the charged offense of murder

under the accusatory pleading test. (See Campbell, supra, 233 Cal.App.4th at pp. 159-

160) [where accusatory pleading alleged malice murder, voluntary manslaughter and

involuntary manslaughter were lesser included offenses].)

       As noted above, manslaughter, whether voluntary or involuntary, is "the unlawful

killing of a human being without malice" (§ 192, italics added), and evidence of a

defendant's voluntary intoxication is not "admissible to negate implied malice." (Turk,

supra, 164 Cal.App.4th at p. 1375.) Aside from referring to his voluntary intoxication,

which is not admissible to negate implied malice (ibid.), Lucero fails to identify any

evidence from which the jury could have found that he did not act with implied malice in




12      Lucero also requests that this court reverse the "robbery conviction[ ]." Although
Lucero does not present any separate argument as to why any error in failing to instruct
the jury on second degree murder would necessitate reversal of the robbery conviction, he
does contend that the jury felt "compelled" to convict him of robbery in order to find him
guilty of first degree murder on a felony murder theory.
        For the reasons discussed in the text, any error in failing to instruct the jury with
respect to second degree murder was harmless because there is no reasonable probability
that the jury would have found Lucero not guilty of robbery if the trial court had
instructed the jury on second degree murder. Thus, there is no basis for reversing
Lucero's robbery conviction based on the trial court's assumed error in failing to instruct
on second degree murder.
                                             20
committing the killing.13 Further, in light of the evidence discussed in part III.A.3.a.ii.,

ante, there was overwhelming evidence that Lucero acted with, at a minimum, implied

malice. Thus, there was no evidence from which the jury could reasonably have found

that Lucero had not committed a murder, but had committed manslaughter. Under these

circumstances, the trial court did not err in failing to instruct the jury on either voluntary

or involuntary manslaughter. (See Cole, supra, 33 Cal.4th at p. 1218.)

B.     The trial court properly instructed the jury that it could not consider Lucero's
       voluntary intoxication for purposes of determining the truth of the section
       12022.53, subdivisions (c) and (d) firearm enhancement allegations

       Lucero claims that the trial court erred in instructing the jury that it could not

consider his voluntary intoxication for purposes of determining the truth of the section

12022.53, subdivisions (c) and (d) firearm enhancement allegations attached to counts 1,

2, and 5. Lucero contends that "the mental state required for a true finding on the gun

allegation[s] is clearly one of specific intent," and thus, evidence of his voluntary

intoxication was admissible in determining the truth of such allegations. We review

Lucero's claim de novo. (See People v. Guiuan (1998) 18 Cal.4th 558, 569-570 [jury

instruction claim that involves the determination of applicable legal principles is

reviewed de novo].)




13     Lucero asserts, "[I]f the jury believed the evidence [of his voluntary intoxication]
and rejected any express malice, and found no implied malice, the fact of intoxication
could have reduced appellant's crime to involuntary manslaughter, had the jury been
property instructed." (Italics added.) However, he identifies no evidence in the record,
and we have found none, on which the jury could have found that Lucero committed an
unlawful killing, but that in doing so, he did not harbor implied malice.
                                              21
       The trial court instructed the jury pursuant to a modified version of CALCRIM

No. 3426 in relevant part as follows:

          "You may consider evidence, if any, of the defendant's voluntary
          intoxication only in a limited way. You may consider that evidence
          only in deciding whether the defendant acted with the specific intent
          to take property by force or fear. [¶] . . . [¶] You may not consider
          evidence of voluntary intoxication for any other purpose. Voluntary
          intoxication is not a defense to . . . any of the special allegations."14

       Section 12022.53, subdivision (c) provides a sentence enhancement for any person

who, in the commission of specified felonies, "personally and intentionally discharges a

firearm . . . ." Section 12022.53, subdivision (d) provides a sentence enhancement for

any person who, in the commission of certain specified felonies, "personally and

intentionally discharges a firearm and proximately causes great bodily injury, as defined

in Section 12022.7, or death, to any person other than an accomplice . . . ."

       "[E]vidence of voluntary intoxication is admissible on the issue of whether or not

a defendant actually formed a required specific intent . . . ." (People v. Mathson (2012)

210 Cal.App.4th 1297, 1312, italics added.) However, "[e]vidence of voluntary

intoxication is inadmissible to negate the existence of general criminal intent." (People v.

Atkins (2001) 25 Cal.4th 76, 81, italics added; see § 29.4, subd. (b) ["Evidence of



14     As noted in part III.A., ante, the trial court also instructed the jury concerning
voluntary intoxication pursuant to a modified version of CALCRIM No. 625. In that
instruction, the court also instructed the jury that it could consider evidence of Lucero's
voluntary intoxication for the limited purpose of determining whether he "acted with the
specific intent to take property by force or fear." The court also instructed the jury, "You
may not consider evidence of voluntary intoxication for any other purpose."
       In addition, the court instructed the jury that "the special allegations" required
proof of "general criminal intent."
                                             22
voluntary intoxication is admissible solely on the issue of whether or not the defendant

actually formed a required specific intent . . . ."].)

       " 'The distinction between specific and general intent crimes evolved as a judicial

response to the problem of the intoxicated offender' and the availability of voluntary

intoxication as a defense." (People v. Hering (1999) 20 Cal.4th 440, 445 (Hering).)

"When the definition of a crime [or an enhancement] consists of only the description of a

particular act, without reference to intent to do a further act or achieve a future

consequence, we ask whether the defendant intended to do the proscribed act. This

intention is deemed to be a general criminal intent. When the definition refers to

defendant's intent to do some further act or achieve some additional consequence, the

crime is deemed to be one of specific intent." (People v. Hood (1969) 1 Cal.3d 444, 456-

457 (Hood).) In addition, "when the Legislature intends to require proof of a specific

intent in connection with a sentence enhancement provision, it has done so explicitly by

referring to the required intent in the statute. (See, e.g., former § 12022.7, subd. (a), as

amended by Stats. 1994, ch. 873, § 3.)" (In re Tameka C. (2000) 22 Cal.4th 190, 198-

199.)15

       Section 12022.53, subdivisions (c) and (d) both provide for additional punishment

for a defendant who "personally and intentionally discharges a firearm" under specified

circumstances. Both subdivisions refer only to the description of a particular act—


15      The statute cited by the Supreme Court in In re Tameka C. provided in relevant
part, "Any person who, with the intent to inflict the injury, personally inflicts great bodily
injury . . . shall . . . be punished . . . ." (Former § 12022.7, subd. (a), as amended by Stats.
1994, ch. 873, § 3, italics added.)
                                               23
discharging a firearm—without reference to the defendant's intent to achieve any

additional consequence. Further, neither subdivision includes "language typically

denoting specific intent crimes, such as 'with the intent' or 'for the purpose of.' " (Hering,

supra, 20 Cal.4th at p. 446.) For instance, neither subdivision states that the discharge of

the firearm must be done with the intent to inflict injury. (Compare with section

12022.55 ["any person who, with the intent to inflict great bodily injury or death, inflicts

great bodily injury, as defined in Section 12022.7, or causes the death of a person, other

than an occupant of a motor vehicle, as a result of discharging a firearm from a motor

vehicle in the commission of a felony or attempted felony, shall be punished," italics

added].)

       We are not persuaded by Lucero's argument that the statute's specification that the

use of the word "intentionally" in section 12022.53, subdivisions (c) and (d) indicates that

the statue specifies a specific rather than a general intent. "An intentional use of a

firearm in the commission of a crime does not encompass any specific intent." (People v.

Wardell (2008) 162 Cal.App.4th 1484, 1494 [rejecting argument that a section

12022.5, subdivision (a) firearm use enhancement "requires proof that the perpetrator

specifically intended 'to facilitate the commission of the underlying crime' "].) In short,

because section 12022.53, subdivisions (c) and (d) "consist[ ] of only the description of a

particular act,"—i.e. discharging a firearm—"without reference to intent to do a further

act or achieve a future consequence," the enhancements require only proof of the

defendant's general intent. (Hood, supra, 1 Cal.3d at pp. 456-457.)



                                              24
       Accordingly, we conclude that the trial court properly instructed the jury that it

was not to consider evidence of Lucero's voluntary intoxication in determining the truth

of the section 12022.53, subdivisions (c) and (d) firearm enhancement allegations.

C.     The abstract of judgment must be corrected

       The People note that the abstract of judgment incorrectly states that Lucero was

sentenced to life without the possibility of parole. As noted in part II.B., ante, the trial

court sentenced Lucero to a determinate sentence of 3 years and four months, and an

indeterminate sentence of 105 years to life. The People request that we direct that the

abstract of judgment be corrected. We order the abstract of judgment corrected in

accordance with the People's concession.

                                              IV.

                                       DISPOSITION

       The judgment is affirmed. The trial court is directed to correct the abstract of

judgment in accordance with part III.C., ante, and to forward the corrected abstract of

judgment to the Department of Corrections and Rehabilitation.



                                                                         AARON, J.
WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.




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