Filed 1/21/14 P. v. Ross CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056871

v.                                                                       (Super.Ct.No. FBA1100478)

CHARLES EDWARD ROSS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed.

         John N. Aquilina, 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, and Lilia E. Garcia and Raquel M.

Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.




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       Following a jury trial, defendant Charles Edward Ross was convicted of

involuntary manslaughter. (Pen. Code,1 § 192, subd. (b).) The jury also found true the

allegation that he personally used a firearm. (§ 12022.5, subd. (a).) He appeals,

contending the trial court erred in failing to instruct the jury on the element of self-

defense or defense of others in relation to involuntary manslaughter.2

                                          I. FACTS

       Defendant’s aunt, Kathy Hunter, and Michelle Springfield were next-door

neighbors in a duplex located on Carson Street in Barstow. On August 2, 2011, at

approximately 3:00 or 4:00 p.m., Springfield’s sister, Sherell Allen, had an argument

with one of Hunter’s daughters (who is also defendant’s cousin).3 When Springfield

noticed the argument “was going to get physical,” she interjected herself between the two

and told them to “let it go.” Other females arrived, and the verbal fight escalated to a

physical fight. Springfield collected her children and left the area, as those remaining

were “yelling and screaming.”

       Hours later, about 9:00 p.m., Springfield returned with three women and her

brother to get some clothing and other items because she wanted to move out.

Springfield told her brother that everything would be all right, and he left. When the

       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2 Defendant has petitioned for a writ of habeas corpus in case No. E058958. We
ordered the writ petition to be considered with this appeal. By separate order, we
summarily deny the writ petition.

       3 Hunter claimed that Allen got into an argument with a friend of one of Hunter’s
daughters, and then Springfield joined in the argument.

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women were in the driveway, Springfield heard a gunshot. Springfield’s best friend,

Laticia Davis, was hit and fell down. Springfield heard approximately 15 shots, which

sounded as if they were coming from her yard. Neighbors testified the first shots were

from a shotgun, followed by sounds made by smaller caliber weapons. Davis died.

       At the crime scene, police found three shotgun shell casings and four .380 casings

corresponding to a handgun. Davis died from shotgun injuries to her neck, chest and

abdomen. The shooter fired at her from about 30 feet away, and “it was the left side of

her body that was essentially facing the barrel of the shotgun.”

       Angelica Webb4 told Detective Keith Libby of the Barstow Police Department

that defendant (“Booba”) had asked her for a ride to Walmart.5 In the car, defendant

removed a box of shotgun shells from his Walmart bag, pocketed some, and handed the

box to Marc Williams (“Deuce”) stating, “‘I need some of these,’” or “‘I need a couple of

these.’” Webb told the detective that when they returned from the store, as they

approached Hunter’s 6 house, she heard other people asking defendant if he had “gotten

any rounds for the shotgun.” Defendant nodded affirmatively. Springfield and her

companions did not have a gun.


       4Webb was on probation following her guilty plea on December 14, 2011, to
accessory to murder based on the instant shooting.

       5Prior to the trip to Walmart, defendant asked for a ride to the store to “get
ammunition for the Mossberg and to . . . ‘load up.’”

       6  Hunter pled guilty to being accessory to murder, was sentenced to 16 months in
state prison, and served the time in county jail for her involvement in the instant shooting.


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       Defendant testified that he arrived at the Hunter house after the physical

altercation between the women. Defendant said a red sport utility vehicle (SUV) with

three or four men arrived, asking “which niggas beat up their two females.” The men

“jumped in” Hunter’s and Steven Johnson’s7 faces, then left saying they would “be back

with . . . heat.” Defendant understood the men would come back “to do damage, kill,

shoot.” Defendant had a Mossberg shotgun in his trunk. He went to Walmart to buy

ammunition because he feared for his life and believed his family was in danger. When

he returned to Hunter’s house, he loaded his shotgun and placed it in his aunt’s closet in

her bedroom.

       Defendant, his wife, and grandchildren left for home. As soon as they turned onto

their street, one of Hunter’s daughters called, saying that someone was banging on the

door trying to get in. Defendant dropped off his wife and grandchildren and returned to

Hunter’s house. While inside Hunter’s house, Johnson banged on the door, saying,

“Open the door, open the door because these niggas got guns.” Defendant saw about 12

people arrive in three cars and run toward the house, yelling, “‘Bring your bitch asses

outside. We’ve got—we brought guns for that ass.”

       Defendant got the shotgun and went out into the backyard. He claimed he saw

someone’s arm go up with a gun in his hand, pointed toward Hunter’s house. Defendant

fired a shot in the air. He saw a man standing there who shot three times, and everyone

ran. Defendant fired another shot in the air. He told them to get off Hunter’s property.


       7   Johnson is defendant’s cousin.

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More shots were fired, and defendant fired a third shot into the air. In addition to his

three shots, defendant stated he heard “at least seven” other shots. He claimed that he

never aimed at anyone. When he heard that someone had been hit, he took off because

he was scared; however, he later turned himself in to the Moreno Valley Police

Department. Defendant told Detectives Libby and Angel Nevarez, “‘You know I didn’t

do it. You know I wasn’t even there[.]’”

    II. SHOULD THE TRIAL COURT HAVE INSTRUCTED THE JURY ON THE

     ELEMENT OF SELF-DEFENSE OR DEFENSE OF OTHERS IN RELATION

              TO THE CRIME OF INVOLUNTARY MANSLAUGHTER?

       Defendant faults the trial court for failing to instruct on self-defense or defense of

others as an element of the crime of involuntary manslaughter, of which he was

convicted. He argues that “[a]s a result of the trial court’s error in removing this essential

and critical element from the jury’s consideration, [he] was deprived of his constitutional

rights to a fair jury trial, the presumption of innocence, to present a defense, and due

process of law, as guaranteed him by the Fifth, Sixth, and Fourteenth Amendments and

article I, sections 7, 15, and 16 of the California Constitution.”

       A. Further Background Information

       Defendant was charged with murder in violation of section 187. While discussing

jury instructions, defense counsel requested that the jury be instructed with CALCRIM

Nos. 505 (Justifiable Homicide: Self-Defense or Defense of Another) and 571 (Voluntary

Manslaughter: Imperfect Self-Defense-or Imperfect Defense of Another—Lesser

Included Offense). The prosecutor objected on the grounds of insufficient evidence of

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self-defense, stating: “There’s been some statements that people were coming back with

guns, but no witness has testified that they saw anyone else with a gun.” The trial court

reserved ruling until the conclusion of all testimony.

       After the prosecution rested, defense counsel moved for acquittal (§ 1118.1) as to

the murder charge, on the ground there was no showing that defendant murdered the

victim with malice aforethought. The prosecutor opposed the request and the motion was

denied. Defense counsel then requested that the jury be instructed on voluntary

manslaughter based on sudden quarrel and imperfect self-defense. He argued, “[T]here’s

plenty of evidence to allow me to argue imperfect self-defense.” The court asked what

evidence was presented to support defendant’s thought process that he had to defend

himself or another. Defense counsel referred to the presence of children and defendant

inside Hunter’s house when the threats were made. The prosecutor disagreed, stating:

“As far as the sudden quarrel, the quarrel had been over for hours. The quarrel had taken

place between Angelica Webb and Michelle and Sherell Springfield. Hours before, that

quarrel had ended. The defendant—those threats had been made at that time and those

individuals had left the location. [¶] The . . . evidence has shown that the defendant

came over after. Upon hearing of the possible threats, rather than taking his family away

from the scene and protecting them in that way, he chose to go and get ammunition for a

firearm and set himself up in a location where he could not defend at the front door, but

shoot at anyone coming up the driveway. He wasn’t in a location to protect the children

inside the house. He was in a location to prevent anyone from approaching. [¶] The

evidence has also shown that other shots that may have been fired were fired after the

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defendant fired the shotgun. We have heard from at least two witnesses who testified that

they heard the shotgun blasts first, followed by handgun blasts after. People do not feel

that there has been a sufficient showing to justify self-defense, imperfect self-defense, or

sudden quarrel instructions or argument to the jury.”

       Following argument, the court stated, “California law requires trial court sua

sponte to instruct fully on all lesser necessarily included offenses supported by the

evidence. And in this case, the court finds there’s sufficient evidence for the court to

instruct on voluntary manslaughter for both theories of heat of passion as well as

imperfect self-defense. The instructions for those obviously include a cooling-off period.

So they will still be instructed on that issue. And that’s for the jury to determine, was

there a sufficient period of time for the defendant to have cooled off? [¶] And so I think

that based upon the circumstances that have been presented, at least one juror could come

to the conclusion that there was heat of passion.”

       Prior to presentation of the defense, defense counsel indicated “there might be an

involuntary verdict form following my client’s testimony . . . .” After defendant testified,

defense counsel formalized his request for an instruction on involuntary manslaughter.

The prosecutor objected, arguing the evidence was insufficient to support such instruction

because (1) defendant knew there was a large crowd of people; (2) he could not have

fired solely into the air, because the victim was shot; and (3) he intended to fire the gun.

Rejecting the prosecutor’s objection, the trial court stated: “The issue isn’t whether he

intended to fire the gun. The issue is whether, when he intended to fire the gun, he had

intent to kill, whether he had malice. If he is to be believed that he just fired the gun in

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the air, it would tend to lead to the counsel’s argument that he lacked malice. And when

a defendant lacks malice and evidence supports a lack of malice, the court has a sua

sponte obligation to instruct on involuntary manslaughter.”

       Although defendant was charged with murder (§ 187), the evidence supported

instructions on the lesser included offenses of voluntary manslaughter (§ 192, subd. (a))

and involuntary manslaughter (§ 192, subd. (b)). Thus, the jury was instructed with

CALCRIM Nos. 500 (Homicide: General Principles); 505 (Justifiable Homicide: Self-

Defense or Defense of Another); 520 (First or Second Degree Murder With Malice

Aforethought); 521 (First Degree Murder); 522 (Provocation: Effect on Degree of

Murder); 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included Offense); 571

(Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another—

Lesser Included Offense); 580 (Involuntary Manslaughter: Lesser Included Offense);

640 (Deliberations and Completion of Verdict Forms for Use When Defendant Is

Charged With First Degree Murder and Jury Is Given Not Guilty Forms for Each Level

of Homicide); and 970 (Shooting Firearm or BB Device in Grossly Negligent Manner).

       As it relates to involuntary manslaughter, the jury was told that to prove

defendant’s guilt, the prosecution had to prove he committed a crime with criminal

negligence and that his actions unlawfully caused the death of another person. (§ 192,

subd. (b); CALCRIM No. 580; People v. Cook (2006) 39 Cal.4th 566, 596.) Regarding

the underlying crime that was committed, namely, discharging a firearm in a grossly

negligent manner, the trial court instructed the jury that the prosecution must prove

defendant intentionally discharged a firearm with gross negligence, and that the shooting

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could have resulted in the injury or death of a person. (§ 246.3; CALCRIM No. 970;

People v. Robertson (2004) 34 Cal.4th 156, 167, overruled on other grounds as stated in

People v. Chun (2009) 45 Cal.4th 1172, 1200-1201.) However, the trial court omitted the

following language from CALCRIM No. 970: “The defendant did not act (in self-

defense/ [or] in defense of someone else).]” (CALCRIM No. 970 (2012).)

       B. Analysis

       “It is well settled that a defendant has a right to have the trial court . . . give a jury

instruction on any affirmative defense for which the record contains substantial evidence

[citation]—evidence sufficient for a reasonable jury to find in favor of the defendant

[citation]—unless the defense is inconsistent with the defendant’s theory of the case

[citation]. In determining whether the evidence is sufficient to warrant a jury instruction,

the trial court does not determine the credibility of the defense evidence, but only

whether ‘there was evidence which, if believed by the jury, was sufficient to raise a

reasonable doubt . . . .’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.)

CALCRIM No. 970 states that in order to convict of the crime of grossly negligent

discharge of a firearm, the People must prove that (1) the defendant intentionally shot a

firearm, (2) he did so with gross negligence, (3) the shooting could have resulted in injury

or death of a person, and (4) “[[t]he defendant did not act (in self-defense/ [or] in defense

of someone else).]” (CALCRIM No. 970 (2012).) The fourth element is optional;

however, the court must sua sponte instruct the jury that the People must also prove that

the defendant did not act in self-defense or defense of someone else when “there is



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sufficient evidence of self-defense or defense of another . . . .” (Bench Notes to

CALCRIM No. 970, p. 775.)8

       At issue then is whether the trial court’s error in not instructing the jury on this

fourth element (that defendant did not act in self-defense or defense of another) was

prejudicial. We conclude it was not.

       “[A]n erroneous instruction that omits an element of an offense is subject to

harmless error analysis under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d

705, 87 S.Ct. 824]. [Citations.] In general, the Chapman test probes ‘whether it appears

“beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained.” [Citations.]’ [Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 662-

663.) Thus, “even when jury instructions completely omit an element of a crime, and

therefore deprive the jury of the opportunity to make a finding on that element, a

conviction may be upheld under Chapman where there is no ‘record . . . evidence that

could rationally lead to a contrary finding’ with respect to that element. [Citations.]”

(People v. Davis (2005) 36 Cal.4th 510, 564.)




       8  While we proceed on the theory that the trial court erred, we question whether
the evidence, while sufficient to support an instruction on self-defense or defense of
others relating to murder or voluntary manslaughter, was sufficient to support instructing
the jury with the fourth element of CALCRIM No. 970 in regard to involuntary
manslaughter by shooting a firearm in a grossly negligent manner. We note there was no
evidence, other than defendant’s self-serving version of the facts, that anyone other than
defendant was the initial aggressor. Witnesses testified they heard the shotgun shots prior
to hearing shots from any other weapons. More importantly, under his own version of
events, defendant fired shots in the air, not at the crowd.

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       “On review, we examine the jury instructions as a whole, in light of the trial

record, to determine whether it is reasonably likely the jury understood the challenged

instruction in a way that undermined the presumption of innocence or tended to relieve

the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.

[Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)

       To begin with, defendant’s sole defense was that he acted in self-defense or

defense of others.9 Thus, in addition to being instructed on the charge of murder, and the

lesser offense of voluntary manslaughter, the jury received instructions on self-defense.

(CALCRIM Nos. 505, 571.) The jury learned that when defendant “kills with a legally

valid excuse or justification, the killing is lawful” and he “has not committed a crime.”

(CALCRIM No. 500.) Further, they were told it was the People’s burden to prove

beyond a reasonable doubt “that the killing was not justified,” and if they failed to do so,

then the jurors “must find the defendant not guilty of murder.” (CALCRIM No. 505.)

Also, they were told that if they found defendant “acted in complete self-defense or

defense of another, his action was lawful and [the jury] must find him not guilty of any

crime.” (CALCRIM No. 571.) Moreover, they were told to “[P]ay careful attention to

all of these instructions and consider them together.” (CALCRIM No. 200.)




       9  Defendant references “consistent instructions relating to self-defense and
defense of others as to the offenses charged and both of the lesser included offenses . . . .”
However, the fourth element of CALCRIM No. 970 requires the People to prove that
defendant did not act in self-defense and defense of others. This is inconsistent with his
defense theory that he did act in self-defense and defense of others, and it is inconsistent
with his request for instructions on self-defense and defense of others.

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       As defendant notes, the jury’s rejection of murder and voluntary manslaughter

implies it accepted his claim that he acted in self-defense. Thus, regarding the lesser

offense of involuntary manslaughter by shooting a firearm in a grossly negligent manner,

to have charged the jury with CALCRIM No. 970’s fourth element (i.e., that the

defendant did not act in self-defense or defense of others) would have been inconsistent

with defendant’s primary theory of the case, and it would have subjected defendant to the

possibility of being convicted of murder or voluntary manslaughter.

       Nonetheless, the jury was otherwise fully instructed on the issue of self-defense,

was told that if defendant acted in actual self-defense he was not guilty of any crime, and

to consider the instructions together. Although it perhaps would have been desirable to

include the fourth element regarding self-defense in CALCRIM No. 970, or to simply

state in the instruction that if defendant acted in self-defense he was not guilty of any

crime, including both charged offenses and lesser included offenses, the jury was

nevertheless instructed that if defendant acted in actual self-defense, he was not guilty of

any crime. The jury was instructed to “[P]ay careful attention to all of these instructions

and consider them together.” “Jurors are presumed able to understand and correlate

instructions and are further presumed to have followed the court’s instructions.

[Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) If the jury followed the

instruction to consider the instructions together, as we must presume that it did ( ibid.), it

is not plausible that including the fourth element in CALCRIM No. 970 would have

resulted in an all out acquittal. Accordingly, we conclude it was not reasonably probable



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that defendant would have obtained a more favorable outcome had the court not erred in

omitting the fourth element of CALCRIM No. 970.

                                    III. DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                            HOLLENHORST
                                                                      Acting P. J.
We concur:

      KING
                               J.

      MILLER
                               J.




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