P. v. Pham

Filed 11/30/05 P. v. Pham CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. CHIEN DINH PHAM, Defendant and Appellant.

G034625 (Super. Ct. No. 02NF1656) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Chien Pham of second degree murder (Pen. Code, § 187; all statutory references to this code unless noted) and found he used a firearm (§ 12022.53). He claims the trial court and the prosecution violated his due process rights by refusing to grant immunity to a key defense witness, who then refused to testify. He also claims the trial court committed various evidentiary and instructional errors. Finding these contentions without merit, we affirm.

I

Factual and Procedural Background

On May 18, 2002, the Ritz dance club in Anaheim entertained a near capacity crowd to hear a popular local singer. As a precaution, several security guards used a metal detector and patted down most of the patrons as they entered the nightclub. By 1:30 a.m., most of the patrons had departed. Two groups totaling approximately 40 people remained. Members of the “Tiny Rascals” gang (TRG) congregated at one table, while other patrons, including defendant, sat at a different table.

A fight erupted when a man tossed a bottle of cognac onto the TRG table. The combatants threw chairs and broken bottles at each other during the melee. At the outset of the fight, defendant was struck near his eye by flying glass when he turned toward the TRG table. Angry, frustrated, and bleeding, defendant sat at the table and did not join in the brawl.

Security guards moved to quell the disturbance by macing the combatants and expelling the non-TRG group, some of whom were aligned with the Oriental Playboys or O.P.B. gang, through the front door of the club. Several TRG partisans, including 28-year-old victim Tinh Le (Tinh), departed out the emergency back door of the establishment and proceeded around to the front. As the two groups converged, guards intervened to restrain two TRG men who moved toward another man in an aggressive manner.

Defendant approached Tinh on the sidewalk in front of the club. According to the Ritz’s security supervisor, Atour Evaz, the two spoke in Vietnamese for approximately 20 to 30 seconds. To Evaz, defendant appeared “kind of mad,” but Tinh remained calm. The surveillance videotape showed Tinh had nothing visible in his hands or waistband and did not make a move toward his waistband. Tinh lifted his hands in an “open-handed” gesture. When Tinh turned towards the approaching security guard, defendant removed a gun and fired at Tinh’s torso from about three or four feet away. He fired twice more as the victim reeled back; one shot struck Tinh’s head. Evaz ran into the club and defendant fled down an alley to the north of the building. Evaz heard multiple gunshots, perhaps as many as 40, seemingly from “everywhere.”

Based on casings found at the scene, assailants fired at least four guns during the melee. Police recovered the pistol used to kill Tinh in the street adjacent to the parking lot in front of the club. The crime lab identified defendant’s DNA on the grip of the gun. The FBI arrested defendant September 1, 2002, in Las Vegas. He provided a false identity card, but his wallet contained his California driver’s license with his real name. Defendant explained he kept the false identification because of “club fighting” in California. Shown a video of the incident, defendant denied he was the shooter and did not claim anyone had threatened him with a gun inside or outside the Ritz.

Defendant produced evidence that Tinh had a gun on his person at the time he was shot. Several of his TRG cohorts removed the weapon after defendant shot the victim and fled. Tinh’s hands had gunshot residue on them, obtained from either handling a weapon or proximity to one that had been fired.

Defendant testified he attended the club with friends and relatives. He claimed he became intoxicated after drinking cognac throughout the evening. Toward the end of the night, a fight broke out when someone flung a glass or bottle at the TRG table. Defendant was struck in the face by a glass or bottle thrown from the TRG table. The area around his left eye began to bleed. It was too dark and crowded to identify his assailant. While the two groups fought, he sat down because the injury he sustained was painful. During the brawl, he spotted someone holding a gun, but did not recognize the individual. Frightened and frustrated by the injury, he ran out the front door to the parking lot to locate a friend for a ride home. He did not see his friends as people rapidly departed from the club. Defendant asked to borrow a gun from a man named Do. When Do hesitated, defendant grabbed the weapon and tucked it behind his waist. He approached Tri Le (Tri), a member of the TRG group whom defendant knew, because he wanted to learn why he had been hit and explain he was not involved with either of the groups. Defendant admitted he was angry, but did not plan to shoot anyone for revenge. He felt safer or more confident with the gun.

Defendant walked up to a group that included Tinh, who took a couple of steps toward him. Defendant asked why he had been hit. Tinh appeared angry and cursed at him, “Mother f-----, I am going to beat you up.” Tinh’s hands went up. Defendant believed Tinh had a gun because of the bulge in Tinh’s shirt at his waist. Defendant thought the group planned to attack him to beat him up. As Tinh raised his hands, defendant, frightened, pulled out the gun, and fired at Tinh. Defendant shot Tinh so he could escape and did not want to kill him. He fled west down the alley toward the back parking lot. Someone fired at him from the back parking lot and from the alley. He returned fire down the alley, and the person ran away.[1] He reversed course and ran back down the alley and to the street, firing shots into the air to scare others away, and then tossed the gun into the street.

Following a July 2004 trial, a jury acquitted defendant of first degree premeditated murder with special circumstances (lying in wait, gang benefit theories), and a substantive gang charge and gang enhancements. The jury convicted defendant of second degree murder as a lesser included offense and found the allegation he used a weapon to be true.[2] The court imposed a 15-year-to-life prison term for the murder and added 25 years for use of the firearm. This appeal followed.

II

Issues Concerning Potential Witness Tri

Defendant raises several issues concerning Tri, a TRG gang member and percipient witness who refused to testify at trial. Before turning to these issues, we summarize the factual and procedural background defendant cites to support his argument.

Tri, a leading member of TRG known as “T-bone,” accompanied Tinh to the Ritz and stood nearby when defendant shot Tinh. He also was next to another TRG gang member, Tri Huynh, when Huynh removed the handgun from Tinh’s body, and later was seen running towards the alley holding a semiautomatic handgun behind his back.

Investigators interviewed Tri on five occasions. In three of the interviews, Tri admitted Tinh had a gun inside the Ritz, but his description of Tinh’s conduct varied. In one account, Tri stated Tinh displayed the weapon so that everyone could see it, including defendant. In a later pretrial interview, Tri claimed he prevented Tinh from pulling out the handgun and displaying the weapon.

In April 2003, based on the investigation surrounding Tinh’s homicide, the Orange County District Attorney charged Tri with possession of a firearm by a felon and active gang participation. By the time of defendant’s trial in July 2004, federal authorities had detained Tri on money laundering and narcotics charges.

Before federal authorities intervened, Tri and defendant’s prosecutor arrived at a tentative agreement to have Tri testify for the prosecution. Federal agents returned Tri to local custody for defendant’s trial. After further interviews, the prosecution decided not to call Tri as a witness because he gave several conflicting accounts of his observations. Defense counsel, however, wanted Tri’s testimony primarily to show that the victim brandished a handgun during the fight inside the nightclub.

Tri, represented by counsel, testified at a hearing held outside the jury’s presence. Tri acknowledged he was at the Ritz when the shooting occurred, but when asked if he had seen himself in the video, his lawyer intervened and requested to confer with Tri. When the hearing resumed, Tri announced that he did not want to testify further. The trial court permitted defendant’s counsel to continue, and counsel asked Tri whether he observed Tinh with a firearm inside the Ritz. Tri responded “No.” When counsel pressed Tri further, asking if Tinh displayed a handgun before the fight, Tri declared, “I don’t want to testify no more.” The court construed Tri’s refusal to answer questions as an invocation of his Fifth Amendment privilege against self‑incrimination and prohibited further questioning.

Defendant’s counsel accused the prosecutor of bad faith in failing to grant Tri immunity and requested the court provide judicial immunity to the witness. When the court declined, defendant moved for a mistrial, which the court also denied. Finally, the court denied defendant’s request to admit Tri’s statements to investigators for the truth of the matters asserted. Defendant introduced the substance of these statements while cross‑examining the prosecution’s gang expert, but the court instructed the jury the statements were received only for the limited purpose of testing the basis of the expert’s opinion.

Defendant raises several due process claims, and argues the trial court erred when it declined to admit Tri’s out-of-court statements for their truth. We discuss, in turn, each of defendant’s claims.

A. The Prosecutor Did Not Deny Defendant Due Process By Refusing to Grant

Tri Use Immunity

Defendant claims the prosecutor’s failure to offer Tri use immunity constituted “overreaching” and violated his due process right to a fair trial. He argues the prosecutor obtained “a tactical advantage through discriminatory use of immunity grants to suppress material, exculpatory, and non-cumulative facts from the jurors.” We disagree.

A prosecutor has a duty to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game. (People v. Hunter (1989) 49 Cal.3d 957, 975.) Due process is violated when a prosecutor selectively uses immunity grants “for the purpose of suppressing essential, noncumulative exculpatory evidence.” (Ibid.)

Here, the prosecutor’s immunity decision did not result in the suppression of noncumulative exculpatory evidence. Defendant’s counsel sought Tri’s testimony to demonstrate the victim had brandished a handgun during the melee inside the Ritz, and therefore defendant acted in self-defense because he feared Tinh would reach for the weapon he had displayed earlier during the fight inside. The trial court endured several lengthy discussions on how this evidence exonerated defendant of murder charges, but defendant rendered these discussions moot when he testified he could not identify the person brandishing the weapon during the brawl inside the club. Defendant may have had other reasons to be wary when he confronted the victim outside, but according to his own testimony, he shot Tinh because he feared the victim would reach for a handgun under the bulge in his waistband, not because he spotted Tinh displaying the weapon during the fight inside the Ritz. Because defendant did not identify Tinh as the person with the gun during the fight, Tri’s statements that the victim displayed a handgun inside the club do not qualify as exculpatory evidence.

Nor did the prosecutor exercise bad faith in deciding not to extend Tri use immunity. As the prosecutor explained, she decided against immunity because Tri provided several conflicting versions of the incident to investigators: “Well, Tri [] has always been a mixed bag. And what he wound up doing was lying and giving a different story to subsequent officers; every time he spoke to them, something new came up. [¶] And when he sat down with us at a proffer and told us he was giving a truthful statement, he said that he was an associate of TRG; he said that he had shot at the defendant in the alleyway one time, and it turns out, of course, that neither the gang expert [nor the physical evidence] supported that story . . . . [¶] And so he has been ever shifting in his story telling . . . . The only thing the People could have done was immunize this person and proffer this witness; then sanction this liar to come into court in exchange for a break on a state prison case, a second strike case . . . .” Defendant’s lawyer conceded Tri lied when he claimed he shot his semiautomatic handgun only once. Thus, the record demonstrates the prosecutor did not deny Tri use immunity to suppress exculpatory evidence or gain a tactical advantage.

B. The Prosecutor Did Not Threaten or Intimidate Tri into Asserting His Privilege

Against Self-Incrimination

Defendant complains the prosecutor intimidated Tri into not testifying and took “the laboring oar to create a finding of Fifth Amendment privilege for a third-party who was represented by silent counsel making no such claim or effort.” He asserts the “prosecutor’s objections and obstructionist activity were improper for this represented witness.”

Prosecutorial interference with the defendant’s right to call witnesses violates a defendant’s right to compel the attendance of witnesses under the Sixth Amendment and the right to due process under the Fourteenth Amendment. (People v. Lucas (1995) 12 Cal.4th 415, 456 (Lucas).) To prevail on this claim, defendant must establish three elements: (1) the prosecutor’s misconduct transformed a defense witness willing to testify into one unwilling to testify; (2) the prosecutor’s misconduct was a substantial cause in depriving defendant of the witness’s testimony; and (3) the testimony must be material to the defense. (Id. at p. 457.) Defendant fails to satisfy any of these elements.

The record does not show the prosecutor threatened or intimidated Tri into asserting his right against self-incrimination. At the hearing outside the jury’s presence, the record reflects Tri conferred with his lawyer immediately before declining to testify further. The prosecutor made no comment or argument concerning Tri’s decision other than to object to defense counsel making an offer of proof in front of the witness. Defendant complains that the prosecutor arranged for delivery of Tri’s court file containing the pending charges against him, but defendant’s lawyer did not object and the prosecutor’s action merely anticipated the trial court’s desire to examine the file. Nor did the prosecutor commit misconduct by objecting to judicial immunity for Tri. We decline to construe these actions as misconduct. Finally, as discussed above, Tri’s testimony was not material to the defense.

C. The Trial Court Correctly Concluded Tri Invoked His Right Against Self-

Incrimination When He Refused to Testify

Defendant contends the trial court erred in concluding Tri invoked his privilege against self-incrimination when he announced, “I don’t want to testify no more.” We disagree. Under the circumstances here, we do not see how the trial court could come to any other conclusion.

The privilege against self-incrimination is properly invoked whenever the witness’s answers “‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a criminal offense.” (People v. Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).) To find an invocation of the privilege, “‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” (Ibid.) A trial court may compel the witness to answer only if it “clearly appears to the court” the proposed testimony “cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404.)

Here, the court reasonably concluded the witness invoked his Fifth Amendment privilege not to testify. Considering the setting, with Tri represented by counsel, no other conclusion is warranted. And it did not “clearly appear” Tri’s testimony about the brawl inside the Ritz would not tend to incriminate him. His association with Tinh and other TRG gang members tended to show he was an active gang participant. We discern no error.

D. The Trial Court Did Not Err in Refusing to Grant Judicial Immunity

Defendant contends the trial court abused its discretion in declining to grant Tri judicial immunity, and complains the court mistakenly believed it lacked the power to take this action on its own. Defendant is wrong on both counts.

Nothing in the record supports defendant’s claim the trial court misunderstood the extent of its powers. The veteran trial judge was amply familiar with the law restricting the use of judicial immunity, and denied defendant’s request based on Lucas, supra, 12 Cal.4th at pp. 459-461. There, the California Supreme Court observed that “‘the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has “inherent power” to confer immunity on a witness called by the defense.’” (Id. at p. 460.) Lucas noted only one jurisdiction had concluded the judiciary could confer immunity to a witness but only if (1) the proposed testimony is “‘clearly exculpatory’”; (2) the testimony is essential; and (3) there is no strong governmental interest weighing against an immunity grant. (Ibid.) Assuming the trial court could authorize immunity under the limited test above, defendant failed to make the requisite showing. As discussed above, Tri’s proposed testimony was not clearly exculpatory or essential. Moreover, there existed a strong governmental interest against an immunity grant. Tri faced charges of being an active gang participant based on the events surrounding the homicide. Had Tri received use immunity, the district attorney would have been required to prove the evidence offered at Tri’s trial was not derived from Tri’s immunized testimony at defendant’s trial. (People v. Stewart (2004) 33 Cal.4th 425, 469.) To avoid jeopardizing the case against Tri, the prosecution would have narrowed the scope of its cross-examination to prevent Tri from later claiming the prosecution’s case against him was tainted. (Id. at p. 470.) Accordingly, we conclude the trial court did not err in rejecting defendant’s judicial immunity request. Defendant also moved for a mistrial based on the court’s rulings. Because none of defendant’s claims concerning immunity, prosecutorial misconduct and Tri’s assertion of his right against self-incrimination have merit, the trial court correctly denied his mistrial motion.

E. The Trial Court Did Not Err in Prohibiting Defendant from Commenting on the Prosecution’s Failure to Call Tri as a Witness

Defendant next complains the trial court should have permitted comment on the prosecution’s failure to call Tri as a logical witness. He acknowledges that counsel may not comment on a witness’s invocation of the right against self-incrimination (People v. Ford (1988) 45 Cal.3d 431, 444), but distinguishes this rule because “the defense here did not seek to comment on the witness, but rather sought to comment on the fact the prosecution did not call a logical witness who was within its power to produce.” Not so. As we discussed earlier, Tri invoked his Fifth Amendment right and the prosecution did not commit misconduct when it declined to offer Tri use immunity. Defendant’s contention is therefore without merit.

F. The Trial Court Did Not Err in Excluding Tri’s Hearsay Statements

Defendant contends that Tri’s statements concerning Tinh’s conduct inside the Ritz qualified as a declaration against interest under Evidence Code section 1230, and therefore should have been admitted as an exception to the hearsay rule. We disagree.

Evidence Code section 1230 provides that “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” The proponent of this evidence must show the declarant is unavailable, the declaration was against the declarant’s penal or social interest when made, and the declaration carried sufficient reliability to warrant admission. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) We review the trial court’s ruling under an abuse of discretion standard. (People v. Lawley (2002) 27 Cal.4th 102, 153.)

Here, Tri’s statements that he persuaded Tinh to put his gun away during the fight at the Ritz did not qualify as a declaration against interest. No reasonable person would conclude the statement exposed the declarant to criminal liability. Nor would the statement subject Tri to ridicule or disgrace with his gang cohorts because they could conclude Tri based his statement on gangland tactics rather than a desire to avoid conflict.

Defendant argues that if Tri’s statement supported the invocation of his Fifth Amendment rights, it must also qualify as a declaration against interest. Defendant is mistaken. As discussed earlier, a witness may invoke his Fifth Amendment rights if testifying would furnish a link in a chain of incriminating evidence or if the statement would tend to incriminate the witness. In other words, the privilege protects apparently innocuous statements that might become incriminating when considered with other evidence. (Cudjo, supra, 6 Cal.4th at p. 617.) In contrast, the proponent of a declaration against interest must establish the statement was against the declarant’s penal or social interest to qualify as a hearsay exception under Evidence Code section 1230. Defendant failed to meet this burden.

Defendant also argues the statement was against Tri’s interest because it jeopardized his tentative agreement for immunity and lenient consideration in his pending case because his observation Tinh had a handgun made his testimony less appealing for the prosecution. Essentially, defendant argues Tri’s statement should have been admitted because it was reliable. The fact remains Tri’s statement was not a declaration against his interest. The trial court did not abuse its discretion in ruling Tri’s statements inadmissible.

III

Character Evidence of Victim

Defendant contends the trial court erroneously excluded evidence of Tinh’s aggressive character on a prior occasion similar to the incident at the Ritz. We disagree.

Evidence of the victim’s violent character is relevant to show defendant’s apprehension of danger. Even if defendant was unaware of the victim’s violent nature, the evidence nevertheless tends to show the victim was probably the aggressor. (People v. Brophy (1954) 122 Cal.App.2d 638, 647.) Evidence Code section 1103 expanded this rule to apply to the victim of any crime. The section provides the defendant may offer evidence “of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted” to prove “conduct of the victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd. (a)(1).) The trial court has broad discretion in determining the relevancy of the evidence and whether to exclude it under Evidence Code section 352. (People v. Stitely (2005) 35 Cal.4th 514, 547-548.)

Defendant relies on evidence showing that Tinh attempted to aid his friends embroiled in a fistfight at a nightclub. At a hearing outside the jury’s presence, Ritz security supervisor Evaz testified that approximately two years before the incident at the Ritz, several of defendant’s friends exchanged blows with another group of men in an altercation at the Club Can in Garden Grove. Tinh acted as if would join the fray, but stopped when a security guard placed a hand on him.

The trial court rejected this evidence, observing: “I think this incident . . . really doesn’t describe any type of violence. I think its probative value is minimum, outweighed by time consumption and prejudicial value. . . . [¶] If he had been in a fight, if he was throwing punches, I think that fits 1103. When I look at the relevance as it applies to this case, I have been watching the video, I think it hasn’t relevance and minimal probative value.”

The evidence was not relevant. Evidence the victim refrained from joining a fight to aid his friends does not demonstrate the victim’s violent character and therefore acted as the aggressor when confronted by defendant. Even if marginally relevant, the slight probative value of the evidence was outweighed by the risk it would confuse the issues and unduly consume trial time. In sum, the trial court did not abuse its discretion.

IV

Jury Instructions

A. No Error Occurred When the Trial Court Instructed on Imperfect Self-Defense Using CALJIC No. 5.17

The trial court instructed the jury on imperfect self-defense as defined in CALJIC No. 5.17. This instruction provides that a homicide committed in the actual but unreasonable belief in the need to defend against imminent peril to life or great bodily injury is voluntary manslaughter rather than murder. The court defined imminent peril or danger as one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. The last paragraph provided the following: “However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”[3]

Defendant objected to the last paragraph, arguing there was no evidence that the victim attempted to use force against defendant. The trial court overruled defendant’s objection, explaining that because defendant approached Tinh armed with a gun and displayed an intent to harm, “there [was] some evidence that caused . . . [¶] . . . Tinh [] to pull [out] a weapon.” Defendant varies the same theme on appeal, arguing no evidence supported the notion defendant took hostile acts toward the victim.

The trial court found that the jury reasonably could infer that the victim’s hand motion was an initial attempt to respond aggressively to what the victim perceived as a possible assault stemming from defendant’s angry and belligerent demeanor. In other words, defendant’s wrongful conduct provoked Tinh and therefore created the circumstances defendant later claimed justified his use of force. (See In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [“wrongful conduct” includes acts initiating a physical assault].) The jury also could have found the last paragraph of CALJIC No. 5.17 inapplicable. The court informed the jury as follows: “Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist.” Thus, defendant fails to demonstrate that instructing the jury with the last paragraph of CALJIC No. 5.17 denied him a fair trial.

Finally, defendant argues the terms “wrongful,” “unlawful” and “legally justified” found in CALJIC No. 5.17’s last paragraph are vague and undefined. Although he concedes the instruction correctly states the law (see People v. Hardin (2000) 85 Cal.App.4th 625, 635), he argues the trial court should not have given the instruction because “[t]he lay juror could not apply any sort of meaning” to these terms. But defendant did not seek to clarify or define these terms. It is “defendant’s obligation to request any clarifying or amplifying instruction . . . .” (People v. Kimble (1988) 44 Cal.3d 488, 503; People v. Lang (1989) 49 Cal.3d 991, 1024 [defendant may not object on appeal that an instruction correctly stating the law and responsive to the evidence was too general or incomplete unless defendant requested clarifying language].) Having failed to do so, defendant cannot now raise the issue. The trial court did not err when it instructed the jury on the last paragraph in CALJIC No. 5.17.

B. No Substantial Evidence Supported Lesser Included Offense Instructions on Involuntary Manslaughter

Defendant contends the court should have instructed sua sponte on involuntary manslaughter as a lesser included offense to murder under multiple theories: misdemeanor manslaughter, criminal negligence, and an unintentional killing in the exercise of imperfect self-defense. We disagree.

Involuntary manslaughter exists where there is an unlawful killing of a human being without malice (1) in the commission of an unlawful act, not amounting to a felony or (2) in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. (§ 192, subd. (b).) Involuntary manslaughter generally is considered a lesser included offense to murder (People v. Prettyman (1996) 14 Cal.4th 248, 274), but the trial court has no sua sponte duty to instruct on lesser included offenses that are not supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)

Relying on People v. Wilson (1967) 66 Cal.2d 749 (Wilson), defendant contends the court erred in refusing to instruct the jury on misdemeanor manslaughter on the theory he brandished a deadly weapon (§ 417). In Wilson, the defendant denied intending to assault the victims, testifying he entered an apartment with a shotgun intending only to scare the occupants. Based on this evidence, the Supreme Court concluded defendant was entitled to involuntary manslaughter instructions because the jury could have found the killings occurred without malice while defendant brandished the weapon, and therefore was an unlawful act not amounting to a felony. (Wilson, supra, at p. 758.)

Here, defendant presented no evidence he intended merely to brandish a firearm. Unlike the defendant in Wilson, there was no evidence defendant intended to scare Tinh; rather, it was undisputed he intended to shoot him.

Defendant also cites People v. Penny (1955) 44 Cal.2d 861 to argue the court should have instructed on manslaughter as a criminally negligent act: “[Defendant] was seeking to escape a terrorist street gang which appeared to him to be moving in to beat him. He was confronted by [Tinh] who made what [defendant] feared to be a menacing gesture. He knowingly fired at [Tinh’s] body, without an intent to kill, to deter harm to his person. Any objective view of shooting a person in the body must conclude the fatal consequence of the negligent act could reasonably have been foreseen in the sense of negligence law.”

Defendant’s argument is based on the assumption he acted negligently in shooting the victim several times. But no evidence supports this assumption. Defendant did not testify he negligently mishandled the firearm. (See, e.g., People v. Carmen (1951) 36 Cal.2d 768, 776 [defendant, carrying gun with cartridge in firing chamber, pointed forward, accidentally discharged the weapon when he stumbled approaching occupied vehicle]; People v. Clark (1982) 130 Cal.App.3d 371, 382-383.) Defendant intentionally fired three times directly into Tinh. Consequently, there was no factual basis for negligent manslaughter instructions.

Finally, defendant argues the court should have instructed on negligent manslaughter on a theory of imperfect self-defense without intent to kill. In People v. Blakeley (2000) 23 Cal.4th 82, the Supreme Court held that a defendant commits voluntary manslaughter when acting with conscious disregard for life and the knowledge that the conduct is life-endangering, unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self-defense. (Id. at p. 85.) The majority, responding to a dissent, stated it had no “quarrel with th[e] view” that “a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter.” (Id. at p. 91, italics added.) In other words, involuntary manslaughter may apply when a defendant kills in unreasonable self-defense, but lacks an intent to kill or conscious disregard for life. Defendant argues his conduct falls within this exception. We disagree.

Defendant fired three gunshots into the victim’s chest at close range, demonstrating an intent to kill or conscious disregard of life. True, defendant testified he did not intend to kill, but his hope the victim would survive does not warrant an involuntary manslaughter instruction. Indeed, for murder based on implied malice, the prosecution need not prove defendant intended his life-endangering act would result in death. Rather, the prosecution must prove defendant deliberately performed an intentional act defendant knew was life endangering. (See CALJIC No. 8.31.) Here, defendant offered no evidence he was unaware that shooting the victim three times, once in the head, was an act dangerous to human life. Accordingly, no evidence supported an involuntary manslaughter instruction.

C. Providing the Jury with the Mutual Combat Instruction Does Not Mandate Reversal

The trial court, on its own motion, instructed the jury on mutual combat per CALJIC No. 5.56. The court instructed as follows: “The right of self-defense is only available to a person who engages in mutual combat if he has done all of the following: [h]e has actually tried, in good faith, to refuse to continue fighting; [¶] . . . [h]e has clearly informed his opponent that he wants to stop fighting; [¶] . . . [h]e has clearly informed his opponent that he has stopped fighting; and [¶] . . . [h]e has given his opponent the opportunity to stop fighting. After he has done these four things, he has the right to self-defense if his opponent continues to fight.” We agree with defendant the instruction did not apply, but conclude any conceivable error was harmless.

In People v. Quach (2004) 116 Cal.App.4th 294 (Quach), a panel of this court held this version of CALJIC No. 5.56 (since amended), “transmogrified the requirement of a good faith endeavor to decline further combat into a categorical denial of the defense to anyone who has not succeeded in clearly informing his opponent that he is no longer fighting and wishes to stop. . . . [w]e cannot find such a rule in Penal Code section 197.” (Id. at p. 301.) Quach also faulted the instruction for failing to mention that a victim may not respond to a simple assault with deadly or excessive force, and if he does the defendant may respond with like force. And if the victim’s counter assault is so sudden and perilous there is no opportunity to decline “or to make known to his adversary a willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.” (People v. Hecker (1895) 109 Cal. 451, 463- 464; see Quach, supra, at pp. 301-302.)

CALJIC No. 5.56 expressly applies only to “a person who engages in mutual combat.” The instruction contemplates a non-deadly fight that escalates when the defendant’s adversary resorts to deadly force. Defendant and his victim exchanged words, but not blows, before defendant shot the victim. Thus, the instruction did not apply because there was no evidence defendant and the victim engaged in mutual combat.

Reversal is not required, however. The court instructed the jury to “disregard any instruction which applies to facts determined by you not to exist.” We presume the jurors followed the court’s instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852) and did not apply CALJIC No. 5.56 because no evidence showed defendant and the victim engaged in mutual combat. Where the court gives an irrelevant instruction, the error “is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’” (People v. Rollo (1977) 20 Cal.3d 109, 123.) Any error in providing CALJIC No. 5.56 was harmless by any standard.

D. The Court Properly Instructed that Voluntary Manslaughter Was a Lesser Offense to Murder

Finally, defendant asserts the written instruction defining voluntary manslaughter contained an error. On the version of CALJIC No. 8.40 provided, the court handwrote the first sentence: “In the lesser included offense to count [?] namely voluntary manslaughter . . . .” Defendant interprets the “?” as a “2.” Count 2 was the attempted murder of Tommy Tran. He asserts: “The emphasized number is a handwritten number that appears to be a ‘2’ and should be a ‘1.’ This may simply be careless penmanship, but upon first viewing and then later examination it appears to be a ‘2’ with a loop on the bottom.” He complains the jury was thus not instructed that voluntary manslaughter was a lesser included offense of the murder of Tinh charged in count 1.

The point lacks merit; any purported ambiguity would have been quickly resolved by the jury. The reporter’s transcript reflects that the court read the instruction, “[i]n the lesser included offense to count I.” (Italics added.) The written instruction referred to one who “unlawfully kills another human being” (italics added), not one who unlawfully attempts to kill. The court provided a separate instruction on attempted voluntary manslaughter for count 2: “In the lesser included offense to count 2 namely attempt voluntary manslaughter.” There was no indication the jury was confused. We discern no error.

V

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

[1] The prosecution charged defendant with attempted murder of Tommy Tran, a victim of a gunshot wound found lying in the alleyway. The jury acquitted defendant of this charge.

[2] The jury initially deadlocked on the murder count. The court provided CALJIC No. 8.71 (doubt as to degree compels second degree murder verdict) at the request of the prosecution, and the jury subsequently returned its verdict.

[3] The complete instruction reads: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. [¶] This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. [¶] Such an actual but unreasonable belief is not a defense to the crime of voluntary . . . manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate, and must be instantly dealt with or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”