Filed 6/16/14 P. v. Meza CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C068130

                   Plaintiff and Respondent,                                     (Super. Ct. No. 08F03721)

         v.

PEDRO MEZA,

                   Defendant and Appellant.




         Appealing from his convictions of voluntary manslaughter and attempted murder,
defendant Pedro Meza contends: (1) the trial court erred by not, as part of instructing on
attempted murder, also instructing on the lesser included offense of attempted voluntary
manslaughter based on heat of passion; (2) the court erred by not, as part of instructing on
murder, also instructing on misdemeanor involuntary manslaughter; and (3) substantial
evidence does not support one of the attempted murder convictions.                               We disagree with
defendant’s contentions and affirm the judgment.



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                                           FACTS
       In an interview with police three days after the killing, defendant described what
happened.1 He was formerly a member of the Brown Pride Sureño gang but was
“jumped out” his senior year of high school. On May 5, 2008, he and codefendant Luis
Serrato drove to a liquor store and purchased some beer. Defendant was carrying a Smith
& Wesson .38 Special revolver in his waistband. As the two left the store, a yellow car
pulled up and stopped. Its occupants started yelling at them, calling them “scraps” and
“fucking scrap.” Defendant saw four people in the yellow car, three males and one
female. He recognized the male driver as a Norteño gang member.
       Defendant and Serrato got into their own car. Defendant looked at the other car’s
occupants, and it appeared to him that “they started to reach for something.” While
telling Serrato to go, defendant pointed his gun towards the yellow car: “I seen a couple
of ‘em tryin to reach for something. I don’t know if they were -- what they were tryin to
reach for, so I was like man you sit there and laugh at my knife I can trump that right now
and I just shot.” “All I heard is scraps and I just got the gun out. I just pointed the gun at
‘em and I was like watch out Freddie man [Serrato], dog let’s go. Let’s go.” He said
Serrato could not turn the ignition: “[H]e couldn’t turn it on, he couldn’t turn it off, so
that’s when I got my gun out.” His hand “slipped the trigger” and he fired one shot.
“The first shot slipped,” he stated. Then, as Serrato’s car was backing up, he saw one
person get out of the yellow car who was going to throw something at him, so he shot at
him. As defendant and Serrato turned onto the street, he saw the driver exit the car, and
he shot at him. Defendant claimed he was not aiming when he fired the three shots, but
was just trying to scare them off.2


1      The interview was videotaped and played for the jury.
2     Testifying at trial, defendant stated he heard someone in the yellow car yell,
“Northside.” After getting into Serrato’s car, defendant thought he saw the front

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       Defendant’s first shot killed Johnny Brinsfield, who had been sitting in the yellow
car’s front passenger seat. The car’s driver was Anthony Amaro. Tanisha Felder and her
husband, David Hernandez, sat in the backseat, with Felder sitting behind the driver’s
seat. Police interviewed Felder on the day after the shooting.3 She said that on May 5,
Amaro, Hernandez, and Brinsfield had been drinking. Felder wanted to play bingo, so
she drove them all to the bingo parlor. They were there for only five minutes before
security told them to take Brinsfield and leave. Brinsfield was being rowdy and loud.
They went to Taco Bell and ate, and then Amaro drove them to the liquor store to buy
cigarettes.
       Felder stated they pulled in next to another parked car. Two Hispanic males were
walking to, and then got into, that car. It was obvious to Felder the two were
“Southerners.” Brinsfield yelled out, “Northside.” Felder looked down for a second, and
then looked up. The passenger in the other car pointed a gun at them and started
shooting. She thought she was going to be shot in the face. Glass hit Felder in her face.
She believed Brinsfield’s yelling out “Northside” probably triggered the shooting.4
       Police interviewed Hernandez after the incident. He denied ever affiliating with a
gang, but he acknowledged Amaro had, and he and Amaro were good friends.


passenger in the other car reach for something. He saw something chrome and thought it
was a gun. He stated he feared for his life, so he shot three times to scare the others off.
The first shot went off accidentally; he shot the others to get the two men back into their
car. On cross-examination, defendant admitted he had not told police detectives at his
interview that he heard someone say “Northside” or that he saw anything chrome. He
testified that he made up the statement about one of the passengers reaching for
something that was chrome.
3      Felder’s interview was videotaped and played for the jury.
4      At trial, Felder claimed not to recall much. She acknowledged the glass from the
broken window cut her face, chest, and leg. When shown a transcript of her interview,
she claimed not to recall her statements. She denied saying she heard Brinsfield say,
“Northside.”

                                             3
Hernandez recalled seeing a Hispanic male walk out of the liquor store and get into the
passenger side of the car parked next to the car he was in. The male gave Hernandez and
his friends a “kinda hard” look. Hernandez did not remember Brinsfield saying anything
to the male. Hernandez heard shooting and got down. He got out of his car as the other
car backed up quickly and fled the scene. He threw a cup of soda at the other car.
Hernandez said no one in his car had a gun.5
       Sheriff’s detectives arriving at the scene found Brinsfield’s body in the front
passenger seat of a gold Honda Accord, slumped over towards the driver’s side. The
Accord’s rear passenger window on the driver’s side was shattered. There was a bullet
hole in the store window and a bullet inside the store.
       The pathologist later determined Brinsfield died from a gunshot wound to the left
side of his back over his shoulder blade. The bullet passed through his left lung, hitting
the airway and pulmonary artery before lodging in the sac around his heart. There was
no exit wound. Brinsfield was not leaning back against the seat when he was shot; he had
to have been pulled forward and slightly rotated to his right to expose his left back to the
bullet coming from his left. No firearms were found in the victims’ car.
       Searching defendant’s bedroom, officers found indications defendant was
affiliated with the Sureño gang. His room was painted blue and white; blue is associated
with the Sureños. A blue bandana was on a shelf. CD’s in the room bore Sureño graffiti.
Pictures depicted defendant “throwing” Sureño gang signs.
       Sacramento County Sheriff’s Detective Jason Ramos was assigned to the gang
unit at the time of the shooting, and he testified as an expert on Hispanic street gangs. He
concluded defendant was a Sureño as of the day of the shooting. He stated defendant’s




5      At trial, Hernandez said he could not recall making most of his prior statements to
the police.

                                              4
shooting of Brinsfield was gang-related. He also said Amaro was a validated Norteño
gang member.
       Detective Ramos also explained gang culture. Most reasonable people, he said,
need an extreme act in order to commit a violent crime or to shoot somebody, but with
gang members, the “threshold is much, much lower. All you need is to be looked at the
wrong way, so to speak, disrespected or have somebody call you a scrap or a buster, or
low or cuz or something like that.” “Scrap” is a derogatory term used by Norteños
against Sureños. A Sureño called a scrap sees this as a challenge and is expected to
respond, especially if he is in the presence of other Sureños. Assaulting the speaker with
a weapon is not an entirely uncommon response.
                               PROCEDURAL HISTORY
       A jury acquitted defendant of murdering Brinsfield (count one), but it convicted
him on the lesser included offense of voluntary manslaughter. (Pen. Code, § 192, subd.
(a).)6 The jury also convicted him of attempting to murder Amaro, Felder, and
Hernandez (counts two through four). (§§ 664, 187, subd. (a).) The jury found true
allegations that defendant personally used a firearm (former § 12022.5, subd. (a)(1)
(counts one through four); § 1203.06, subd. (a)(1); former § 12022.53, subds. (b), (c),
(e)(1) (counts two through four)), and he committed all of the offenses for the benefit of a
gang (§ 186.22, subd. (b)(1)). The jury acquitted Serrato of all charges, and he is not a
party to this appeal.
       The trial court sentenced defendant to a state prison term totaling 68 years four
months, calculated as follows: 37 years on count two, attempted murder (the midterm of
seven years, plus 20 years for the gun enhancements and 10 years for the gang
enhancement); plus a consecutive six years eight months on count one, voluntary




6      Undesignated section references are to the Penal Code.

                                             5
manslaughter (two years, plus one year four months for the gun enhancement and three
years four months for the gang enhancement); plus consecutive terms of 12 years four
months each on counts three and four, attempted murder (two years four months, plus six
years eight months on the gun enhancements and three years four months on the gang
enhancements).
                                       DISCUSSION
                                              I
            Lesser Included Offense Instruction on Attempted Murder Counts
       A trial court must instruct on a lesser included offense if substantial evidence
indicates the defendant is guilty only of the lesser offense. (People v. Breverman (1998)
19 Cal.4th 142, 162.) Defendant requested the trial court, as part of instructing on
attempted murder, to instruct on the lesser included offense of attempted voluntary
manslaughter based on sudden quarrel or heat of passion. The trial court denied the
request, ruling “there was really no substantial evidence to justify giving that instruction
given all of the facts and all of the evidence.” The court did, however, instruct on the
lesser included offense of attempted voluntary manslaughter based on imperfect self-
defense.
       Defendant contends the trial court violated his due process rights by refusing to
instruct the jury on attempted voluntary manslaughter based on sudden quarrel or heat of
passion as a lesser included offense of attempted murder. He contends substantial
evidence supported giving the instruction, and the failure to give it was prejudicial. We
disagree.
       “ ‘[T]he factor which distinguishes the “heat of passion” form of voluntary
manslaughter from murder is provocation. The provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the victim [citation], or be
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

                                              6
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.]’ [Citation.]”
(People v. Manriquez (2005) 37 Cal.4th 547, 583-584, quoting People v. Lee (1999) 20
Cal.4th 47, 59 (Lee).)
        The test of adequate provocation is an objective one. The provocation “must be
such that an average, sober person would be so inflamed that he or she would lose reason
and judgment.” (Lee, supra, 20 Cal.4th at p. 60.) For example, a victim’s calling a
defendant a “mother fucker” and taunting him that if he had a weapon he should use it
did not justify an instruction on voluntary manslaughter, as the provocation was
insufficient to cause an average person to become so inflamed as to lose reason and
judgment. (People v. Manriquez, supra, 37 Cal.4th at pp. 585-586.) Indeed, insults and
gang-related challenges are insufficient provocation in an ordinary person to merit an
instruction on voluntary manslaughter. (People v. Enraca (2012) 53 Cal.4th 735, 759-
760.)
        There was insufficient evidence to support giving an instruction on heat of passion
attempted voluntary manslaughter as a lesser included offense to the attempted murder
charges. The provocation here -- being called a scrap, hearing “Northside,” seeing an
occupant of the car appear to begin to reach for something, seeing another occupant exit
the car after the first shot and throw something (a cup of soda) at defendant, and seeing a
third occupant exit the car after the second shot -- would not cause an average, sober
person to be so inflamed with rage that he would lose reason and judgment. As Detective
Ramos testified, gang members react more quickly to less extreme actions than an
average, sober person, and this is such a case.

                                             7
       The attempted murder victims in particular gave little provocation. They were
unarmed, and defendant was driving away from them to safety when he shot at them.
Indeed, defendant retained sufficient judgment in the situation to be able to tell Serrato to
get them out of there. At best, the evidence shows defendant feared for his safety, not
that he was provoked to such an extent he lost all reason and judgment and acted out of
inflamed passion. The trial court thus did not err by not instructing on heat of passion
attempted voluntary manslaughter as a lesser offense to attempted murder, as substantial
evidence did not support such an instruction.
                                              II
                         Lesser Included Offense on Murder Count
       Defendant contends the trial court erred when it did not instruct sua sponte on
misdemeanor involuntary manslaughter as a lesser included offense of the murder charge
and voluntary manslaughter conviction. He claims his testimony that he accidentally
fired the first shot after Serrato had difficulty starting the car was substantial evidence
supporting an instruction on involuntary manslaughter based on brandishing a gun. We
conclude such an instruction, even if given, would not have changed the verdict.
       It is error for a court not to instruct on involuntary manslaughter based on
brandishing where substantial evidence shows a person brandished a firearm during a
quarrel, and the gun accidentally discharged and killed someone. (Lee, supra, 20 Cal.4th
at p. 61.) Here, however, any possible error in not instructing the jury on this lesser
included offense to murder was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711.)
       The jury rejected defendant’s claim that he fired the first shot accidentally, and an
instruction on misdemeanor involuntary manslaughter would not have changed its
decision. The jury was instructed on murder and voluntary manslaughter. To convict
defendant of either crime, the jury had to find defendant’s intentional act resulted in the
victim’s death. If the jury believed defendant fired the first shot accidentally, it could

                                               8
only have acquitted him. The jury did not acquit, and thereby it rejected defendant’s
claim of accidental shooting. An instruction allowing the jury to convict on a lesser
offense based on the shooting being accidental would not have changed the outcome.
                                               III
                Sufficiency of the Evidence of Attempted Murder of Felder
       Defendant contends his conviction for attempting to murder Felder (count three) is
not supported by substantial evidence. He asserts that because the jury found he lacked
malice when he killed Brinsfield, he cannot also be convicted of attempted murder based
on the same gunshot towards Felder. He also claims he cannot be convicted of
attempting to murder Felder on a kill zone theory, as there was insufficient evidence he
created a kill zone. We conclude substantial evidence supports his conviction of
attempted murder. We need not address the kill zone argument.
       “Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citations.]”
(People v. Lee (2003) 31 Cal.4th 613, 623.) In this case, the prosecution had to prove
defendant acted with the specific intent to kill Felder.
       “ ‘The act of firing toward a victim at a close, but not point blank, range “in a
manner that could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.]” (People
v. Smith (2005) 37 Cal.4th 733, 741.) Indeed, where a defendant fires one shot at two
people who are in his line of fire, endangering both, a jury may infer the defendant
intended to kill both. (Id. at pp. 744-747.)
       The evidence was sufficient to establish defendant intended to kill Felder. He
fired his first shot through her window at very close range. Felder told detectives
defendant pointed his gun directly at her group and started shooting. It was close enough
she thought she would be shot in the face. The first bullet shattered her window, and the
broken glass cut her face, chest, and leg. Additionally, the evidence supports a jury

                                               9
finding that while defendant feared Brinsfield would use deadly force against him, he did
not actually fear the same from the others. Because Felder was in defendant’s line of fire,
and defendant did not feel the need to defend himself against her, the jury could have
reasonably concluded on this evidence defendant intended to kill Felder.
       Moreover, the fact the jury determined defendant did not have malice when he
killed Brinsfield does not prevent us from affirming the attempted murder conviction
based on the same evidence. At its core, defendant’s argument complains that the
verdicts are inconsistent. That is not a ground for reversing the attempted murder
conviction. “Consistency in the verdict is not necessary. . . . As was said in Steckler v.
United States [(2d Cir. 1925)] 7 F.2d 59, 60: ‘The most that can be said in such cases is
that the verdict shows that either in the acquittal or the conviction the jury did not speak
their real conclusions, but that does not show that they were not convinced of the
defendant’s guilt. We interpret the acquittal as no more than their assumption of a power
which they had no right to exercise, but to which they were disposed through lenity.’
[Citation.] [¶] That the verdict may have been the result of compromise, or of a mistake
on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry
into such matters.” (Dunn v. United States (1932) 284 U.S. 390, 393-394 [76 L.Ed. 356,
358-359].)
       Sufficient evidence supports defendant’s conviction of attempting to murder
Felder.
                                       DISPOSITION
       The judgment is affirmed.

                                                         NICHOLSON             , Acting P. J.

We concur:

      ROBIE                  , J.

      MURRAY                 , J.

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