Trial court had no duty to instruct on heat of passion voluntary manslaughter where an ordinary person of average disposition would not have acted rashly in response to victim’s acts. Robbins was found guilty of first degree murder by means of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15)) and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a), 189). A gun use enhancement was found true (Pen. Code, § 12022.53, subd. (d)). The offenses arose when Robbins went to a convenience store and his entry was barred by Jones, a security agent, because an employee shift change was underway. He became enraged, drove a short distance away and parked, intending to shoot Jones. Robbins mistakenly killed another employee, Olivera, who he thought was Jones. On appeal he argued the trial court erred by refusing to instruct on heat of passion voluntary manslaughter. Held: Affirmed in part. “Heat of passion is not an element of voluntary manslaughter,” but a theory of partial exculpation that may reduce murder to manslaughter by negating malice. A heat of passion theory has both objective and subjective components. The objective, or “reasonable person” component is satisfied if the accused’s heat of passion was due to sufficient provocation, i.e., such that would cause an ordinary person of average disposition to act rashly or without due deliberation, and from passion rather than judgment. The provocation must come from the victim. Jones’ act of barring Robbins from the store, holding the door closed, and perhaps swatting at Robbins’ hand, would not have caused an ordinary person of average disposition to act rashly. The trial court’s refusal to instruct on heat of passion voluntary manslaughter or attempted voluntary manslaughter was not error.

Substantial evidence supports defendant’s conviction for attempted murder. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act towards accomplishing the killing. It does not matter that Robbins fired a single bullet and killed Olivera, thinking it was Jones, because Robbins intended to kill Jones when he mistakenly shot at Olivera. Thus, he committed an ineffectual act towards killing Jones. When a person commits an act based on a mistake of fact, his culpability is determined as if the facts were as he perceived them to be. “Because defendant believed he was killing Jones, defendant is guilty of the attempted murder of Jones.” His mens rea created two crimes with a single bullet.

The transferred intent doctrine applies to the lying-in-wait special circumstance. A defendant is eligible for an LWOP sentence if he intentionally killed the victim by means of lying in wait. Robbins argued that transferred intent cannot apply if the statute requires an intent to kill the victim, as he did not intend to kill Olivera. The California Supreme Court has held that the deliberate intent associated with premeditation and deliberation can transfer if a defendant attempts to kill one person but mistakenly kills another. “Because lying in wait provides proof of the same type of deliberate intent associated with premeditation and deliberation, the intent associated with lying in wait transfers in the same manner as the intent associated with premeditation and deliberation.”

Defendant’s trial attorney was not ineffective for failing to request instructions on how provocation affects the degree of murder. To demonstrate ineffective assistance of counsel a defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that prejudice to the defendant resulted. The existence of provocation that is not adequate to reduce the offense from murder to manslaughter may nonetheless raise a reasonable doubt that the defendant premeditated the offense. The test for whether provocation or heat of passion can negate premeditation is subjective. Here, there was evidence that Robbins was intoxicated at the time of the offenses and intoxication can reduce a first degree murder to second degree by negating premeditation (Pen. Code, § 29.4, subd. (b)). The jury was instructed on how intoxication could reduce the degree of murder. The defense attorney could have reasonably decided to argue a theory of intoxication rather than rely on provocation. There was no ineffective assistance of counsel.

The case must be remanded to allow the trial court to decide whether to strike the gun use enhancement. On January 1, 2018, Penal Code section 12022.53, subdivision (h) became effective (SB 620). That subdivision provides that the trial court may, in the interest of justice pursuant to Penal Code section 1385, strike or dismiss a gun use enhancement. This provision, which gives the trial court discretion to impose a lesser penalty, applies to all cases not yet final (In re Estrada (1965) 63 Cal.2d 740). The sentence was reversed and the case remanded to allow the trial court to exercise its discretion under section 12022.53, subdivision (h).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E066284A.PDF