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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Johnny VICTOR, Defendant and Appellant.

No. F009567.

Decided: September 27, 1989

Charles M. Bonneau, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., David A. Rhodes and Clayton S. Tanaka, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


An information was filed June 10, 1987, charging appellant, Johnny Victor, with attempted murder in violation of Penal Code sections 664/187.1  Seven penalty enhancements were alleged with count I.   Appellant was also charged with assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1).   Six penalty enhancements were alleged as to count II.   On October 20, 1987, a first amended information was filed adding one additional penalty enhancement to count II.

The case went to trial on October 20, 1987.   All enhancement allegations which involved prior felony convictions were bifurcated.   The trial proceeded as to counts I and II with the great bodily injury and weapon use enhancements joined.   The jury returned guilty verdicts as to both counts and found true the joined enhancements.   A jury trial held on the remaining enhancements involving prior felony convictions resulted in verdicts which found the allegations to be true.

Appellant was denied probation and sentenced to state prison for a life term on count I.   A one-year term was imposed for enhancement No. 1, use of a deadly weapon.   As to enhancement No. 4, prior conviction of attempted arson, an additional five-year term was imposed pursuant to section 667, subdivision (a).   As to enhancement No. 3, habitual offender status, the court imposed a minimum prison term prior to parole of 20 years.   The remaining enhancements were stayed pursuant to section 654.   Appellant filed a timely notice of appeal.


In March of 1987, appellant and his wife, Valerie Victor, lived in a trailer on a ranch outside of Winton, California, owned by appellant's brother, Manual Victor.

At approximately 8 p.m. on the evening of March 11 of that year, appellant expressed a desire to use Valerie's car to go to a bar.   Valerie refused because appellant had already been drinking alcohol.   An argument ensued and Valerie went to the home of Manual Victor, who resided in a house on the property.   She was crying.   She had removed the distributor cap and coil wires from her vehicle in order to keep appellant from taking the car.   Shortly after telling Manual of her argument with appellant, she returned to her trailer where she hid her car keys in the bedroom.   As she walked out of the bedroom, she saw appellant holding a large kitchen knife.   She yelled, “No, Johnny” and ran from the trailer.   She could hear his footsteps behind her.   She recalled nothing subsequent of the incident.

Carol Vargas testified appellant came to her house with a “fairly large knife” in his hand.   He said he stabbed his wife.   Cindy Victor testified she went outside with Carol Vargas to find Valerie lying on the ground, face up, with blood on her chest and blood flowing from the mouth.   They wrapped her in a blanket and drove her to the hospital.   Several other people testified they heard appellant admit stabbing his wife.

Valerie was brought to the hospital comatose, blue, and gasping for breath.   There were two stab wounds in her back.   Her condition was stabilized and she was transferred to the Merced Community Medical Center.   One of the stab wounds penetrated five inches into the chest cavity and entered one lung.   One-third of that lung had to be surgically removed.   She suffered from “anoxic anoxemia,” the loss of oxygen to the brain with resulting partial brain damage and suffered a stroke.   She is partially paralyzed and lost a fetus she was carrying at the time.

Appellant was arrested shortly after midnight when he appeared at the Merced Community Medical Center.   A pair of coveralls which he was wearing was found to contain three blood stains, too small to categorize as to blood type.

Eddie Vargas, who had taken possession of the knife in question, returned to his house and threw the knife into a lagoon located on his property.   He later accompanied a detective in an unsuccessful search for the knife.

A sheriff's detective twice sought to obtain a blood sample from appellant during May of 1987.   On each occasion, appellant refused.

At the bifurcated proceeding dealing with the prior felony conviction enhancements, evidence was presented to support those allegations.   No challenge to the sufficiency of that evidence is made.



Appellant complains the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of attempted second degree murder.   Appellant contends the trial court was under a sua sponte duty to so instruct since the defense focused on the lack of malice required for attempted murder and did not waive its right to an instruction on attempted second degree murder.   Attempted second degree murder is an attempt to kill a human being with malice but without premeditation.  (People v. Dillon (1983) 34 Cal.3d 441, 462–472, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279;  see CALJIC No. 8.31.)  According to appellant's argument, the error was prejudicial since the stabbing occurred during a family quarrel with little time for reflection, and premeditation cannot be assumed on these facts.

 In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.   The general principles of law governing a case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   However, the court need only give the instruction if the accused proffers evidence sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded’ that the particular facts underlying the instruction did exist.”  (Id. at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1.)   Even though instructions may have been given incorrectly, by considering the findings necessarily made on other counts where convictions resulted, the conviction may be affirmed.  (People v. Murtishaw (1981) 29 Cal.3d 733, 765, 175 Cal.Rptr. 738, 631 P.2d 446.)   In Murtishaw, although there was instructional error, the California Supreme Court held because the jury found the defendant guilty on three counts of first degree murder on the same facts and rejected his diminished capacity defense, it was virtually certain the jury found the defendant intended to kill the victims.   (Ibid.)  The facts also clearly established a specific intent to kill which could be rejected only on a finding of diminished capacity.   The same intent to kill was presumed present as to the fourth victim who survived.  (Ibid.)

In the instant case, the jury was instructed in the language of CALJIC No. 8.66 (1987 new) on the attempt to commit murder, as follows:

“Defendant is charged in Count 1 of the information with the commission of the crime of attempt to commit murder in violation of Section[s] 664 and 187 of the Penal Code.

“Murder is the unlawful killing of a human being with malice aforethought.

“Any person who attempts to murder another human being is guilty of a violation of Sections 664 and 187 of the Penal Code.

“In order to prove the commission of attempted murder, each of the following elements must be proved:

“1. That a direct but ineffectual act was done by one person towards killing another human being, and

“2. That the person committing such act harbored such express malice aforethought, namely, a specific intent to kill unlawfully another human being.

“In determining whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other.   Mere preparation, which may consist of planning the killing or of devising, obtaining, or arranging the means, is not sufficient to constitute an attempt;  but acts of a person who intends to kill another person will constitute an attempt where they themselves clearly indicate [a] certain unambiguous intent to kill, and, in themselves, are an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.”

At the time of the trial in question, the use note to CALJIC No. 8.66 read in pertinent part as follows:

“Where it is also charged in the information that the attempted crime was willful, deliberate, and premeditated murder, give CALJIC 8.67 (1987 new).   Murder is divided into degrees, and the degree of the crime affects penalty, Penal Code, section 664(4).   Other instructions must be given which can be adapted from the murder series, usually by inserting ‘attempted’ before ‘killing’ or ‘murder.’   Modified CALJIC 8.70, 8.71, 8.72, 8.73, and 8.74 should be given to enable the jury to determine the degree of attempted murder.”  (Use Note, 1 Cal. Jury Instns., Crim. (4th ed.1987 supp.) No. 8.66, p. 118.) 2

Contrary to the provisions of the quoted use note, the trial court instructed only in the language of CALJIC No. 8.72 on where there was reasonable doubt that the crime committed was murder or manslaughter, then the jury is to give the defendant the benefit of such doubt and find it to be manslaughter rather than murder.

As appellant points out, “ ‘[a]lthough the evidence was sufficient to justify a finding of deliberation and premeditation, such a finding was not compelled.’  (People v. Wickersham, supra, 32 Cal.3d at p. 330, 185 Cal.Rptr. 436, 650 P.2d 311.)   Upon the evidence here, the jury could have found that appellant did not premeditate but rather acted upon a sudden and unconsidered impulse.  (Ibid.)”

Thus, appellant is correct in his contention that the jury should have been instructed, sua sponte, on the elements of attempted murder in the second degree.   Even the trial court indicated to the attorneys, prior to instructing the jury, that attempted murder in the second degree was a lesser included offense in the instant case.

 Respondent counters that the appellant's trial counsel made the tactical decision to pursue a strategy by which he merely emphasized the differences between attempted murder and attempted manslaughter rather than distinguishing attempted first degree murder and attempted second degree murder.   Defense counsel argued in closing that appellant could be convicted of only attempted first degree murder or attempted manslaughter.   Respondent submits that trial counsel “implicitly expressed a deliberate tactical purpose in not requesting a specific instruction as to attempted second degree murder.  (See People v. Wickersham, supra, 32 Cal.3d 307, 333, 185 Cal.Rptr. 436, 650 P.2d 311.)”   While respondent may be correct in his assertion as to defense counsel's strategy, the doctrine of invited error is inapplicable here.   The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.   If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.   However, because the trial court is charged with instructing the jury correctly, it must be clear from the record that defense counsel made an express objection to the relevant instructions.   In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.  (People v. Wickersham, supra, 32 Cal.3d 307, 330, 185 Cal.Rptr. 436, 650 P.2d 311.)   Case law has required the tactical purpose be expressed on the record and has heretofore failed to recognize an “implicitly” expressed tactical purpose as coming within the invited error doctrine.  (Ibid.)

The trial court instructed the jury, inter alia, on attempted manslaughter (CALJIC No. 6.00), voluntary manslaughter (CALJIC No. 8.40), sudden quarrel or heat of passion (CALJIC No. 8.42), murder and manslaughter distinguished (CALJIC No. 8.50), murder or manslaughter—cooling period (CALJIC No. 8.52), and doubt whether murder or manslaughter (CALJIC No. 8.72).   Specifically, the jury was instructed:

“To reduce an intentional felonious homicide from the offense of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character and degree as naturally would excite and arouse such passion, and the assailant must act under the smart of that sudden quarrel or heat of passion.

“The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinary reasonable person under the same circumstances.   A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless with circumstances in which he was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable man faced with the same situation.   The question to be answered is whether or not 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 rationally and without deliberation and reflection, and from such passion rather than from judgment.

“If there was provocation but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed such provocation and had all the elements of murder ․, the mere fact of slight or remote provocation will not reduce the offense to manslaughter.”

On this basis, respondent submits the instructions given made it clear that key elements of attempted first degree murder are willful, premeditated and deliberate actions.   Because the jury, according to respondent's argument, was required to make a specific finding that the killing was willful, deliberate and premeditated, “it is difficult to conceive how appellant was prejudiced by the failure to provide a specific instruction as to attempted second degree murder.”   Thus, according to respondent, because the factual question of malice and premeditation was resolved adversely to appellant, the lesser offense of murder in the second degree was rejected by the jury and appellant suffered no prejudice.

We are not persuaded by respondent's argument.

There was evidence of drinking and a domestic quarrel over the use of the couple's vehicle.   Appellant contends there was a reasonable doubt in the instant case that defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.   The jury may have reasonably concluded that there was no premeditation and therefore no first degree attempted murder;  they may equally have reasonably concluded that the provocation in question was of a nature not normally sufficient to arouse passion or that sufficient time elapsed when Valerie visited her brother-in-law between the provocation and the stabbing for passion to subside.   Then, if this be the case, the trial court's instruction in the language of CALJIC No. 8.42 directed the jury to conclude that if they so find and all the elements of murder are present, the mere fact of remote flight or remote provocation will not reduce the offense to manslaughter.

The jury was thus constrained by the fact that the prosecution and defense had chosen to focus on certain theories.

“Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.  (People v. St. Martin [ (1970) ] 1 Cal.3d 524, 533 [83 Cal.Rptr. 166, 463 P.2d 390].”  (People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913].)

To have instructed the jury in attempted murder, second degree, would have avoided the possibility of an “unwarranted all-or-nothing choice for the jury and [would have] ensure[d] that the verdict is no harsher or more lenient than the evidence merits.”  (People v. Wickersham, supra, 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311.)   Here the jury may well have determined that there was no premeditation and therefore the choice of attempted murder in the first degree was inappropriate irrespective of the fact they also decided that the provocation was unjustified or too remote in time and therefore attempted voluntary manslaughter was inappropriate.   In other words, properly instructed, the jury may have found appellant guilty of only second degree attempted murder.

As stated in Wickersham:

“In the present case, no instruction presented the jury with a theory of intentional homicide which was not premeditated and deliberate.   Once the jury found that the killing was intentional, it had no choice but to return a verdict of first degree murder.   Hence, ‘the factual question posed by the omitted instruction’—whether appellant had acted with malice and intent, but without premeditation and deliberation—was not ‘necessarily resolved adversely to the defendant under other, properly given instructions.’  (Sedeno, supra, 10 Cal.3d at p. 721 [112 Cal.Rptr. 1, 518 P.2d 913].)  Since the jury was not required to decide specifically whether appellant had committed an intentional but nonpremeditated, nondeliberate murder, the trial court's error in failing to instruct on second degree murder cannot be deemed to be harmless.   The judgment must be reversed.”  (Id. 32 Cal.3d at p. 336, 185 Cal.Rptr. 436, 650 P.2d 311, fn. omitted.)

However, the instant case is distinguishable from Wickersham.   There, the trial court convicted defendant of first degree murder, following a jury trial, in the shooting death of her husband.   The trial court instructed on first degree murder and involuntary manslaughter, but failed to instruct on the lesser included offenses of second degree murder and voluntary manslaughter.   The defense theory was that the victim had been accidentally shot during a sudden scuffle while defendant had been attempting to keep her husband away from the gun.   As indicated above, the Supreme Court reversed.   While the evidence was not sufficient to obligate the trial court to instruct the jury sua sponte as to voluntary manslaughter, it was error to not instruct sua sponte on second degree murder.

 In the instant case the jury was instructed on attempted first degree murder and attempted voluntary manslaughter, which was not improper upon the evidence, but was not instructed on attempted second degree murder.   Thus, as we shall explain, although appellant's conviction cannot stand, it does not necessarily follow that the judgment must be unconditionally reversed.

“ ‘An appellate court is not restricted to the remedies of affirming or reversing a judgment.   Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.  (See Pen.Code, § 1260;  People v. Harris (1968) 266 Cal.App.2d 426, 434–435 [72 Cal.Rptr. 423]․)’ ”  (People v. Edwards (1985) 39 Cal.3d 107, 118 [216 Cal.Rptr. 397, 702 P.2d 555].)

Section 1260 provides:

“The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

Appellant complains of the trial court's failure to instruct on attempted murder second degree.   The jury clearly rejected the attempted voluntary manslaughter argument based on sudden quarrel or heat of passion.   Therefore, if properly instructed, at best the jury could have concluded no premeditation occurred and found appellant guilty of second degree attempted murder.   Appellant has, at most, shown he is entitled to a reduction to that crime.   However, we are not suggesting there was insufficient evidence upon which to base a conviction of attempted murder first degree.   Therefore, the People are entitled to retry appellant on these charges, should they so choose.   On the other hand, the prosecution may decide that it is satisfied with attempted murder in the second degree.   Our disposition will preserve those options.  (Ibid.;  People v. Garcia (1972) 27 Cal.App.3d 639, 648, 104 Cal.Rptr. 69.)

II.—VII. ***


Appellant contends he was improperly sentenced to six years of enhancement penalties consecutive to his indeterminate life term for habitual offender status.   The court imposed an enhancement of one year pursuant to section 12022, subdivision (b) (use of a deadly weapon) and five years pursuant to section 667, subdivision (a) (prior felony conviction) as enhancements consecutive to the habitual offender term of twenty years to life.   Appellant argues that these enhancements, totaling six years of consecutive prison term, violated the plain language of section 667.7, subdivision (a)(1), which provides as follows:

“A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046, whichever is greatest.   The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time.”

Appellant argues the statute first directs the sentencing court to determine the highest minimum term under the alternate sentencing scheme set forth in the statute.   Appellant stands convicted of attempted first degree murder which carries a minimum term of seven years pursuant to section 3046.   By adding the enhancements, the minimum term is raised to 19 years.   Twenty years is the higher minimum term and therefore prescribed by section 667.7.

It is appellant's position that section 667.7 does not authorize the sentencing court to run any enhancements consecutive to the 20–year minimum term but rather to impose whichever sentence carries the highest minimum term.   In discussing sections 667 and 667.7, the Third District Court of Appeal stated in People v. Lobaugh (1987) 188 Cal.App.3d 780, 784, 233 Cal.Rptr. 683:

“In deciding whether section 667 applies, the court should not, as defendant argues, make an internal comparison of the component sentences.   Rather, the court should determine whether the total term to be imposed, including the section 667 enhancement, is longer than that resulting from other provisions of law.   If not, section 667 is inapplicable.  (See § 667;  Ballot Pamp. analysis of Prop. 8 by Legis. Analyst as presented to voters, Primary Elec. (June 8, 1982) pp. 54–55.)   For example, section 667.7 specifically provides for a life imprisonment enhancement with no parole for 20 years (as contrasted to the 5 years under § 667, subd. (a)) in an instance where great bodily injury has been inflicted in committing the underlying offense and the prior felony is one enumerated in the section.   In such instance, the ‘other provisions' of section 667.7 providing for the greater punishment would prevail over the lesser five-year enhancement under section 667, subdivision (a).  (See also § 667, subd. (b) providing for a 10–year enhancement under specified conditions.)”

 Respondent counters that section 667.7 provides an alternative term for parole eligibility and not an alternative for the term of life which is specified as punishment.   According to respondent, the section imposes a life term with parole eligibility in not less than 20 years.   The trial court then needs to determine which sentence it would impose if it could impose a determinate term on the count under section 1170.1.   If that term plus any applicable enhancements would exceed 20 years, then parole eligibility will be delayed until the expiration of the longer period and the abstract of judgment should so state.   Since the determinate term herein, including enhancements, would not exceed 20 years, the term specified in the statute is imposed.   Respondent's position is supported by the Second District Court of Appeal, Division 2, in its opinion of People v. Gonzalez (1988) 201 Cal.App.3d 811, 247 Cal.Rptr. 501, when it determined that by its terms section 667.7 provides for selection of the maximum period before eligibility for parole, not of the maximum sentence.  (Id. at p. 814, 247 Cal.Rptr. 501.)

Respondent makes the point that the purpose of the habitual offender statute is to deter recidivism and when its deterrent purpose has failed, as in the instant case, the statute imposes a more severe sentence upon each offense subsequently committed.   Therefore, appellant should not be rewarded for his status as a habitual offender by precluding punishment for his enhancements.

Lastly, respondent relies on section 669 which authorizes imposition of enhancement on the habitual offender sentence:

“․ [L]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another or with any other term of imprisonment for a felony conviction.   Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to Sections 1170, 1170.1, 667, 667.5, 12022, 12022.2, 12022.4, 12022.5, 12022.6, 12022.7, 12022.75, and 12022.9, the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole as calculated pursuant to section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole.”

Thus, we conclude that the respondent's position is correct.   However, in view of our conclusions in part I of this opinion, the matter must be remanded to the trial court for either retrial or, alternatively, resentencing.

The judgment is reversed with directions as follows:  If the People do not bring appellant to trial within 60 days after the filing of the remittitur in the trial court pursuant to section 1382, subdivision (b), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of attempted murder in the second degree and shall resentence appellant accordingly.


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

2.   This use note was omitted in the fifth edition of the California Jury Instructions, Criminal, volume 1, pages 361–362.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

ARDAIZ and GEO. A. BROWN,† JJ., concur.