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People v. Rizo4/24/2002
ll him were shouted outside prior to the shooting. Carrying, and shooting, a firearm during a violent physical altercation as in this case similarly establishes a conscious disregard for life.
Consequently, the jury could only have convicted of voluntary manslaughter had it found the homicide occurred in a sudden quarrel or heat of passion or unreasonable self-defense. We have already set forth our view that there was insufficient evidence of provocation to support a finding that the homicide occurred in a sudden quarrel or heat of passion. We similarly find insufficient evidence of unreasonable self-defense to create a reasonable probability of a favorable finding on that issue.
In this regard, it is important to note that the fact the court chose to instruct on unreasonable self-defense does not establish a reasonable probability that the jury would have found unreasonable self-defense, and therefore convicted of voluntary manslaughter, had it not been told voluntary manslaughter requires intent to kill. The evidentiary threshold for giving an instruction is lower than the showing necessary to establish prejudice under the reasonable probability test. As the Supreme Court has explained, an instruction on a lesser included offense is called for whenever a reasonable jury could conclude the lesser, but not the greater, offense was committed. To answer that question, a court determines only the bare legal sufficiency of the evidence, not its weight. (People v. Breverman (1998) 19 Cal.4th 142, 177.)
In contrast, appellate review under the reasonable probability standard "takes an entirely different view of the evidence. Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. Accordingly, a determination that a duty arose to give instructions on a lesser included offense, and that the omission of such instructions in whole or in part was error, does not resolve the question whether the error was prejudicial." (People v. Breverman, supra, 19 Cal.4th 142, 177-178.)
Here, Ivan did not claim he fired in unreasonable self-defense; he claimed the gun went off accidentally. This claim did not remove the issue of unreasonable self-defense from the jury's consideration, since instructions on lesser included offenses may be required even where they are inconsistent with the killer's defense. (But cf. People v. Sinclair (1998) 64 Cal.App.4th 1012, 1021-1022 [no duty to instruct where defendant's sworn testimony completely obviated any basis for finding a lesser included offense].) But it significantly reduced, for purposes of assessing prejudice, the probability Ivan's jury would find unreasonable self-defense.
Nor was it reasonably probable the blue jury would find unreasonable self-defense. Unreasonable self-defense requires that the defendant act "in the `honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.'" (People v. Seaton (2001) 26 Cal.4th 598, 664.) Here, both juries heard the evidence that Ivan said he was going to kill Galvan well before Galvan posed any conceivable threat to Ivan. Threats to kill Galvan were made later outside the night club, again well before Galvan was a threat to anyone. Defendants took time during the confrontation to arm themselves, ag
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