Filed 4/27/16 P. v. Garcia CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

FELIPE GAR CIA,
Defendant and Appellant. B264294
(Los Angeles County Super. Ct. No. TA131927)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Schultz, Judge. Affirmed.

James Koester, under appointment by the Co urt of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer , Marc A.
Kohm and Abtin Amir
, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *2

Defendant Felipe Garcia shot his ex

- girlfriend’s romantic partner three times at close range and then shot at police officers attempting to arrest him. He used his 16

- month

- old son as a shield to stop officers from shooting at him. On appeal, he challenges the sufficiency of the evidence of one count of premed itated attempted murder and argues
that there was instruc tional error. We find no error and affi rm the judgment of
conviction.
F ACTS
Defendant once lived wi th and was romantically involved with Nancy Magana
, and they had one child together

. A t the beginning of January 2014, Magana began dating Miguel Ibarra. At the end of January 2014, defendant wanted to rekindle his romance with Magana

. Defendant told Ma gana “if I [ ( Magana ) ] wasn’t going to be with him, I [ ( Magana ) ] wasn’t go ing to be with somebody else.” On January 25, 2014, defendant saw Magana
, who was driving Ibarra’s truck.
D efendant took Magana’s keys. Although he returned the keys, he hit the tr uck with his bumper as Magana drove away

. On January 26, 2014, defendant wrote Magana a series of text messages. He told
her that he wanted to get b ack together with her

. Magana responded that she would think
about it. Defendant also cautioned her that “if you’re not mine you’re not going to b e anyone else’s .” Referring to Ibarra, d efendant further warned Magana : “I ’m going to break this guy.” Also on January 26, 2014 , Ibarra waited in his truck outside Magana’s home as she prepared to go dancing wit h him

. Defendant went to Magana’s home, walked up to Ibarra’s truck, asked Ibarra to lower the window, and then shot at Ibarra three times. One bullet hit Ibarra’s jaw and another hit his shoulder. The third did not hit Ibarra

. Ibarra testified that af

ter defendant signaled him to lower the w indow, Ibarra called Magana, referred to defendant as an “ asshole
, ” and saw Magana come outside near
his truck

. Ibarra testified that he did not argue with defendant

. As a result of the3

shooting, Ibarra lost four teeth, could eat only liquids for three months while his mouth
was wired sh u t, and lost mobility in his left arm

. Magana testified that defendant stood about three to four feet from Ibarra during the shooting

. Magana struggled with defendant to obtain hi s gun but was unsuccessful

. Magana testified that ju st prior to the shooting
, Ibarra referred to defendant as a “son of a
bitch” and told him to “fuck off .” After the incident defendant cried and warned Magana not to say anything

. Defendant said
, “don’t call the police, I got the baby with me .” Defendant was referring to his 16

- month

- old so n, who was not Magana’s child. Defendant left Magana’s residence

. When officers stopped him, defendant put his car in reverse and sped away. He led peace officers on a high speed chase , but they were
able to follow him with the assistance of a helicopter

. Defendant returned to Magana’s home. He exited his vehicle holding his gun in
one hand and holding his 16

- month

- old son as a shield in his other hand

. Defendant unsuccessfully tried to convince Magana and her family to allow him to enter the house. Nine peace officers had arrived at Magana’s home to assist in arresting defendant. Defendant ignored the peace officers’ commands to drop his weapon and release his
child

. Deputy Sheriff Jesus Rubio testified that defendant fired two rounds, including one directly at deputies

. Deputy Sheriff Michael Coberg watched as defendant pointed his gun and fired at deputy sheriffs

. Coberg testified that defendant shot at him

. Deputy
sheriff Carlos de la Torre also testified that defendant shot in his direction and in the
direction of the deputies who stood behind a white truck

. Deputy Sheriff Jaime Fernandez testified that defendant pointed his gun at him and his partner

. Fernandez
further testified that defendant aimed at him when he fired his first shot

. Deputy Sheriff Ernesto Castaneda testified that defendant pointed his gun at the deputies and shot in their
direction

. Defendant stipulated that all the deputy sheriffs present at Magana’s house were peace officers

.4 PROCEDURE Defendant was charged with three counts of attempted prem e di t ated murder (Ibarra, and two sets of peace officers ) , fals e imprisonment (defendant’s son) , child abuse (defendant’s son) , possession of a firea r m by a felon, nine counts of assault with a firearm on a peace officer, and possession of ammunition. As to the attempted murder of Ibarra, it was alleged that defendant personally discharged a firearm causing great bodily injury . A s to the othe r attem p ted murders and the assaults with a firearm it was alleged that defendant personally dischar g ed a firear m . I t further was alleged defendant suffered a prior strike and a prior serious felony conviction

. Defendant was tried by jury. The following translation of defendant’s text messages from January 26, 2014
, was admitted into evidence:
“FELIPE: Wat kan uanswer me 9:09 pm
“FELIPE: R u happy with him 9:10 pm
“NANCY: Leave me alone already! Remember I told u

. . N u didn’t care 9:13 pm

“FELIP E: Just remember what you told me if I’m not yours I won’t be anyone else’s And now I’m telling you if you’re not mine you’re not going to be anyone else’s 9:15 pm

“FELIPE: and that I swear on my kids 9:17 pm
“FELIPE: what you are not going to answer me 9 : 29 pm
“FELIPE: R u ok 10:05 pm
“NANCY: Yes why? Wat do u want 10:05 pm
“FELIPE: I’m out sis 10:06 pm
“FELIPE: I’m going to break this guy 10:08 pm” Defendant admitted the prior convictions

. No witness testified for the defense

. The court d enied defendant’s requested voluntary manslaughter instruction

. Juro r s were instructed that they had to determine whether the attempted murder “was done5

willfully and with deliberation and premeditation .” Jurors were further instructed: “ The
defendant a cted willfully if he intended to kill when he acted. The defendant de liberated if he carefully weigh t ed the consideration for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before

a cting .” Jurors found defendant guilty as charged except the jury did not fi nd one of the attempted murder s (of the peace officers) was premeditated and deliberate

. DISCUSSION
Defend ant argues that with respect to the attempted murder of Ibarra, the recor d
lack ed substantial evidence of premeditation and deliberation. He also argues that the court erred in refusing to instruct jurors on voluntary manslaughter. As we sh all explain,
we find no error.
1. Substantial Evidence Supported the Verdict
Defendan t argues no substantial evidence supported the premeditation finding. According to defendant, “there was no evidence of any preplanning or preparation prior
to the assault

. . . . ” Defendant cites People v. Anderson (1968) 70 Cal.2d 15, 26

- 27, which sugg ested a reviewing court consider the following factors in determining whether there is evidence of premeditation and deliberation : (1) prior planning activity; (2) motive; and (3) manner of the killing. These factors are not exclusive. ( People v. Perez (1992) 2 Cal.4th 1117, 1125.) Defendant’s argument is meritless.

“ ‘ When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to
determine whether it co ntains substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ’ [Citation.] We determin e ‘ whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ’ [Citation.] In so doing, a reviewing court ‘ presumes in support of the judgment the6

existence of every fact the trier could reasonably deduce from the evidence. ’ ” ( People v.
Avila (2009) 46 Cal.4th 680, 701 .) Contrary to defendant’s argument, ample evidence suggested preplanning activity. Defendant armed himself prior to going to Magana’s house. ( People v. Lee (2011) 51 Cal.4th 620, 636 [evidence defendant brought a loaded handgun suggested he “considered the possibility of a violent encounter”].) Just before the shooting
, defendant asked Ibarra to lower the window, supporting the inference that h e was planning to shoot Ibarra. Additionally, defendant warned Magana that she could not be with anyone else
, and his warning s upported the inference that he plann ed to kill Magana’s para mour. Additional evidence supported the jury’s premeditation findin g. The day of the shooting, defendant texted Magana letting her know “I’m going to b reak this guy.” Motive was clear as defendant wanted to hurt Ibarra and was jealous that Ibarra was dating Magana. The manner also supported premeditation as defendant f ired multiple shots from close range. The number of shots does not sugge st an accide nt or unplanned shooting. In short, t here was sufficient evidence from which the jury could have found
defendant committed the attempted murder of Ibarra with p remeditati on and deliberation.
2

. The Trial Court Properly Denied Defendant’s Request for an Instruction on Attempted Volunta ry Manslaughter

a. No Evidence Warranted an Attempted Voluntary Manslaughter Instruction Defendant argues the court should have instructed jurors on attempted voluntary
mansla u g h ter because there was evidence of provocation

. We disagree. The trial court was required to instruct jurors on attempted voluntary manslaughter only if substantial evidence supported the instruction. ( People v. Co le (200 4) 33 Cal.4th 1158, 1215.) “‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury
, ’ t hat is, evidence that a reasonable jury could find persuasive.”’” ( Ibid .)

“ ‘[T]he existence of “ any evidence, no matter how weak” w ill not justify instructions on
a lesser included offense

. . . . ’ ” ( People v. Moye (2009) 47 Cal.4th 537, 553.)7

Provocation distinguishes voluntary manslaughter from murder. ( People v. Avila
, supra , 46 Cal.4th at p. 7 05 .) “ ‘ The provocation which incit es 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. ’ [Citation

. ]

‘ [T]he victim must taunt the defendant or othe rwi se initiate the provocation.’ [Citations.]
The ‘ “heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances

. . . . ”’ [Citation.] ‘ “[I]f sufficient time ha s elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.” ’” ( Id. at p. 7 05 .) Here, interpreting the evidence in the light most favorable to defendant there was no substantial evidence of provocation. ( People v. Manriq u ez (2005) 37 Cal.4th 547, 585 [court should not determine credibility in deciding whether to give instruction on lesser included offense].) Ibarra did not taunt defendant. Ibarra remained seated in his vehicle throughout the interacti on with de fendant. At most, Ibarra referred to defendant as a “son
of a bitch
, ” an “ass hole
, ” and told him to “fuck off.” That name calling is not sufficient

to support heat of passion in the mind of an ordinarily reasonable person. ( Id. at p. 585 [cal ling someone a “mother fucker” insufficient to warrant h e at of passion instruction] ; People v. Lucas (1997) 55 Cal.App.4th 721, 739

- 740 [no heat of passion instruction warranted based on smirking and dirty looks] .) The fact that defendant was jealous of
I barra’s relationship with Magana also does not show that defendant acted in the heat of passion. ( People v. Hyde (1985) 166 Cal.App.3d 463, 473 [defendant’ s passion must be
the re s u lt of provocation, not jealousy over an ex

- girlfriend’s romantic partner]. ) Nor was there evidence defendant acted in the heat of passion , i.e.
, under the
actual influence of extreme emotion . There was no evidence d efendant exhibited anger or otherwise acted under the heat of passion. ( People v. Manr iquez, supra , 37 Cal.4th a t
p. 585.) Defendant did not testify and no witness support ed his c laim on appeal that he8

was distr aught, agitated, or “freaked out” when he shot Ibarra. 1 There was evidence that defendant cried after shooting Ibarra, but his tears
, which came with a war ning not to call the police, occurred after the shooting and do not support the inference that he was agitated and acting under the influence of an extreme emotion prior to the shooting.
b. Assuming Error, There Was No Prejudice in Failing to Instruct on Heat of
Passion The instruction defendant sought on heat of passion asked jurors to determine whether defendant “act[ed] rashly and without deliberation and reflection” or that he acted “without due deliberation and reflection.” (CALJIC No. 8.42 [ Sudden Quarrel or Heat of Passion and Provocation Explained ] ; CALCRIM No. 570 [ Voluntary
Man slaughter; Heat of Passion

— Lesser Included Offense ] .) Assuming t he instruction on heat of passion should have been given, the failure to give it was harmless beyond a

rea sonable doubt because the jury found the attempted murder of Ibarra was willful, deliberate and premedi t ated. ( People v. Pe au (2015) 236 Cal.App.4th 823, 832 ( Peau ) .)

“ ‘ Error in failing to instruct the jury on a lesser included offense is harmless when

t he jury necessarily decides the factual questions posed by the omitted instructions adversely to [the] defendant under other properly given instructions. ’ ” ( Peau, supra , 236 Cal.App.4th at p. 830. ) The jurors conclusion that defendant acted willfully and with

1 People v. Barton (1995) 12 Cal

. 4th 186 does not assist defendant. In Barton , an instruction on heat of passion was warranted because there was evidence the defendant and victim angrily confronted each other before the killing. ( I d . at p. 202.) There also was evidence the victim “taunted” the defendant. ( Ibid .) Further there was evidence the defendant was screaming and swearing prior to the shooting. ( Ibid .) No similar evidence was presented in this case. Defendant’s reliance on People v. Thomas (2013) 218 Cal.App.4th 630 is misplaced. In that case a voluntary manslaughter instruction was warranted because “minutes before he killed [the victim], [the defendant] had been involved in an argument and physical altercation” with t he victim and others. ( Id . at p. 645.) There was evidence the victim “lunged” at the defendant before he defendant pulled the trigger and that the defendant “fired because he was afraid, nervous and not thinking clearly.” ( Ibid .) No similar evidence wa s presented in this case.9

premeditation and deliberation forecloses his argument that he acted “rashly and without
due reflection and deliberation .” Jurors necessarily determined the factual question

— they determined defendant acted with premeditation not without reflection. ( People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1139 [a finding of premeditated attempted
murder inconsistent with heat of passion theory].) Defendant argues that our high court has held both that a finding of premeditation is not dispositive ( People v . Berry (1976) 18 Cal.3d 509, 512

- 518 ( Berry ) ) and that a finding of premeditation forecloses a heat of passion argument ( People v. Wharton (1991) 53 Cal.3d 522, 572 ( Wharton ) )

. Defendant further argues this court should follow Berry . Defendant’s argumen t was persuasively rejected by the First District. Peau
, supra , 236 Cal.App.4th at pages 831

- 832 , explained: “While we acknowledge that there is some tension between the holdings in People v. Berry, supra , 18 Cal.3d 509 and People v. Wharton, supra , 53 C al.3d 522, we believe they can be reconciled and that
Wharton ’ s more recent reasoning is directly on point in this case. The jury here was instructed that it could not return a verdict of first degree murder unless it found that Peau

‘ carefully weighed th e considerations for and against his choice and, knowing the consequences, decided to kill. ’ We agree that such a finding ‘ is manifestly inconsistent with having acted under the heat of passion. ’ ( Wharton , at p. 572.) Although Berry
refused to find an e rror in omitting a heat

- of

- passion instruction harmless, it did not even mention that first degree murder must be willful, deliberate, and premeditated. Instead, it focused only on the fact that the instruction distinguishing between first and second degr ee murder in that case ‘ made passing reference to heat of passion and provocation for the purpose of distinguishing between ’ the two types of murder. ( Berry , at p. 518.) We think this strongly suggests that the sole issue considered in Berry was whether the error was harmless because the jury received some instruction on the concepts of heat of passion and provocation, not whether the error was harmless because the jury found the murder was willful, deliberate, and premeditated and such a finding was inco nsistent with a finding that the defendan t acted in a heat of passion.”10

Here, just a s in Peau , jurors were instructed that defendant deliberated “if he carefully weighted the consideration for and against his choice and, knowing the

consequences , decided to kill .” To the extent that Berry and Wharton are inconsistent,
we conclude that the more recent case Wharton forecloses defendant’s argument that he suffered prejudice from the failure to instruct o n voluntary manslaughter because defendant fails to exp lain how he could both weigh the consideration of his choice and act rashly. In short, defendant demonstrates neither instructional error nor prejudice from
the alleged error.
DISPOSITION The judgment is affirmed.

FLIER, J.
WE CONCUR:

BIGELOW , P. J.

RUBIN, J.