Opinion
H045042
09-24-2020
THE PEOPLE, Plaintiff and Respondent, v. DAMIAN MALIK BAXTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 15CR01145, F28562)
I. INTRODUCTION
In case No. 15CR01145, a jury found defendant Damian Malik Baxter guilty of voluntary manslaughter (Pen. Code, § 192, subd. (a)), assault with a semi-automatic firearm (§ 245, subd. (b)), unlawful possession of a firearm (§ 29800, subd. (a)(1)), and unlawful possession of ammunition (§ 30305, subd. (a)(1)), and found true the allegations that defendant personally used a firearm during the commission of the voluntary manslaughter and assault with a firearm offenses (§ 12022.5, subd. (a)). The trial court found that defendant was released on bail or his own recognizance when he committed the offenses (§ 12022.1) and that he had served three prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The verdict forms, clerk's minutes, and abstract of judgment provide an incorrect code section for the firearm-use allegations. We will therefore direct the trial court to correct the verdict forms, clerk's minutes, and abstract of judgment to reflect that the jury found defendant personally used a firearm during the commission of counts 1 and 2 within the meaning of section 12022.5, subdivision (a).
In case No. F28562, defendant pleaded guilty to evading an officer causing injury (Veh. Code, § 2800.3, subd. (a)), two counts of unlawful driving or taking a vehicle with three prior convictions for the same offense (Veh. Code, § 10851, subds. (a), (d)), leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), two counts of misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)), misdemeanor trespassing (§ 602.5, subd. (a)), misdemeanor possession of heroin (Health and Saf. Code, § 11350), evading an officer with willful disregard for safety (Veh. Code, § 2800.2), and misdemeanor hit and run (Veh. Code, § 20002, subd. (a)). Defendant also admitted that he had served three prior prison terms (§ 667.5, subd. (b)).
The trial court sentenced defendant to an aggregate term of 18 years 8 months.
Defendant contends that the trial court erroneously admitted gang and hearsay evidence, failed to properly instruct the jury on self-defense, and unlawfully imposed a fine and two assessments without considering his ability to pay. Defendant also contends that the prosecutor committed misconduct during argument, his counsel was ineffective for failing to contemporaneously object to the prosecutor's misconduct, and the case must be remanded for the trial court to exercise its newly enacted discretion to strike the firearm-use enhancements. In addition, defendant contends that he was prejudiced by the cumulative effect of the trial errors. Lastly, both parties assert that the section 667.5, subdivision (b) sentence enhancements must be stricken based on Senate Bill No. 136.
For reasons that we will explain, we will reverse the judgment, remand the matter for the trial court to consider whether to strike the section 12022.5, subdivision (a) firearm-use enhancements, and order that the section 667.5, subdivision (b) prior prison terms enhancements be stricken.
II. FACTUAL AND PROCEDURAL BACKGROUND
We do not summarize the facts in case No. F28562, where defendant pleaded guilty, because they are not relevant to the issues on appeal.
A. Prosecution Evidence
1. Events Preceding the Charged Incident
R.V. dated Jesse Rocha from 2002 until 2015. They had three children together, one of whom passed away.
During their relationship, R.V. saw Rocha carry a gun. Sometimes Rocha would stash the gun in their house. R.V. believed Rocha always had a gun nearby.
Around 2011 or 2012, Rocha became more distant and started spending a lot of time with "North Siders." The majority of the people who came to R.V. and Rocha's house were "North Side Watsonville" or "North Side Chicos."
At some point around 2012, R.V. and Rocha began using methamphetamine almost daily. R.V. and Rocha's relationship was "off and on." Rocha became paranoid, jealous, and abusive and stalked R.V. "constantly." Rocha hit R.V., causing bruises and swelling, and choked her almost to the point of unconsciousness. Rocha also kicked in locked doors to reach R.V. R.V. called the police a couple of times when Rocha was violent with her.
When Rocha suspected R.V. was dating someone else, he would threaten to be violent toward R.V.'s romantic interest. Rocha told R.V. that if he could not have her, no one could. Once, in 2015, R.V. was spending time with a male friend when Rocha showed up at the house. Shots were fired. Also toward the end of their relationship, Rocha put an unloaded gun to R.V.'s head, pulled the trigger, and laughed.
Rocha was unable to let R.V. go. R.V. and Rocha continued to break up and get back together. They broke up for the last time when Rocha went to jail.
R.V. began dating defendant in October 2015. While R.V. and defendant dated, defendant rented a room in his friend Dusty's apartment in Watsonville, and R.V. and defendant spent a lot of time there. Defendant was on crutches due to a leg injury that required surgery.
When Rocha learned of R.V. and defendant's relationship, R.V. was afraid Rocha might kill her. Rocha told R.V. that he robbed defendant at the Economy Inn and defendant "was shaking like a little bitch." Defendant was aware that Rocha had been violent with R.V. in the past.
Once, when R.V. and defendant were backing out of Dusty's driveway with defendant's friend "Whopper," Rocha arrived on his bicycle. Rocha told defendant, "[Y]ou can have that bitch," which was a sign of disrespect to both R.V. and defendant. Rocha also called defendant "a bitch."
Rocha kept coming by Dusty's place, showing up several times a week and sometimes more than once a day. Rocha would ask for defendant or R.V. and would threaten to shoot defendant. R.V. and defendant would turn off the lights and hide from Rocha.
Approximately two and a half weeks before the charged incident, R.V. went to speak with Rocha and asked him to stop coming by. Rocha threatened to pour gasoline on defendant and light him on fire. When their conversation ended, Rocha did not want R.V. to leave and told her that he was not going to give up on her. Rocha followed R.V. to her uncle's house and then insisted that he walk R.V. to Dusty's residence. When they got to Dusty's place, R.V. told Rocha to leave. Defendant came out of the house and R.V. started to walk toward him, but Rocha grabbed R.V. by her hair. Dusty came outside and a scuffled ensued between Rocha and R.V., Dusty, and defendant. Rocha grabbed defendant's crutches and struck defendant with them. R.V. tried to intervene and was also hit with the crutches. Rocha reached into his waistband, pretending to pull out a gun, and asked, " 'Do you want me to shoot this nigger? Do you want me to shoot this nigger?' " R.V. screamed, "[N]o, no." Rocha left, threatening to come back and shoot defendant.
About a week later, R.V. and defendant were going to bed when R.V. heard a window slide open. When R.V. went to close the window, Rocha grabbed R.V.'s hair through the blinds and tried to pull her out. R.V. screamed "let go" and tried to get away from Rocha. Rocha said something related to "his hood" and R.V. responded, "[Y]ou're not even from the hood no more." Rocha let go and R.V. locked the window.
On another occasion around the same time, Rocha showed up at Dusty's apartment drunk. R.V. and defendant were in defendant's room. Rocha threatened defendant from outside the apartment and then passed out in front of the residence. Defendant did not confront Rocha.
At some point, R.V. overheard defendant on the phone discussing Rocha's gang status. Defendant asked if someone could talk to Rocha because Rocha was "causing problems." The person on the phone said "there was nothing really that he could do, that they weren't really associating with [Rocha] no more, that he was just a smoker, [a]nd so, he wasn't from the hood no more." The person also said Rocha "was not from his 'hood -- from Northside no more" and "he's on his own."
R.V. testified on cross-examination that "smoker" means "tweaker" or someone who uses a lot of methamphetamine.
2. The Charged Incident
On November 17, 2015, Rocha walked into Dusty's apartment while R.V. was lighting a cigarette on the kitchen stove. Defendant was in his room with the door shut. Rocha did not have permission to be there, and R.V. immediately pushed him out the door and told him to leave.
Rocha walked toward the gate but then lingered at the property, pacing by Dusty's front window. Rocha and R.V. shouted at one another outside. Rocha yelled, "[W]here's your nigger at?" One of Rocha's hands was in a pocket of his sweater. Rocha said, "[M]y bitch ass nigger better not come out here," and stated that he had "something for him." R.V. told Rocha that he could not keep coming over. At some point, Rocha and defendant exchanged words through the window.
Rocha looked at the window, said something to defendant, and moved his free hand toward his sweater. "It looked [to R.V.] like [Rocha] was going to pull something out." R.V. heard two gunshots. Rocha bounced back a little, grabbed his left side, and said, "[O]h, fuck." R.V. screamed, "No. Damian, no." Rocha ran.
R.V. went back inside. Defendant was in the living room and looked scared and panicked. R.V. was screaming and crying and asked defendant why he did it. R.V. grabbed her things and walked out. R.V. asked a neighbor where Rocha went. R.V. told the neighbor that "[her] boyfriend Damian just shot him."
The neighbor testified that she heard a woman scream more than three times, " 'Why did you do this?' " The neighbor went downstairs and realized the woman was R.V. The neighbor asked R.V. what was going on, and R.V. responded, " 'He shot him' " and that " '[t]he [B]lack guy' " shot "her baby daddy."
R.V. and her uncle went to look for Rocha and found him being treated by paramedics. Police later told R.V. that Rocha was dead.
Whopper took R.V. to see defendant. R.V. was angry at defendant and wanted to know why he shot Rocha. After about five minutes, Whopper, R.V., and defendant headed to Castroville "to avoid getting caught by the police." R.V. spent time with defendant until defendant's arrest on November 24.
3. Police Response and Investigation
Police responded to a report of shots fired and found Rocha lying in a doorway. Rocha was gasping for air and mumbling, but no injuries were immediately apparent. Rocha was wearing dark, baggy clothing and gloves.
Police moved Rocha and saw that he had been shot. Rocha lost consciousness and the police performed CPR. Paramedics arrived and tried to resuscitate Rocha, but he died at the scene. A search of Rocha revealed he was unarmed.
Rocha had been shot twice. One shot entered Rocha's front left chest, which indicated that "he [was] positioned more face on with the shooter." The bullet passed through one of Rocha's ribs and traveled through his stomach, aorta, and liver before it lodged in a corner of his bowel. The other shot entered "the sidewall" of Rocha's chest, which suggested that Rocha was "turning more towards his right, now exposing his back." This shot caused a flesh wound. Rocha was likely shot from more than three feet away. Rocha's blood alcohol concentration was .02 percent. Rocha also had "a high amount" of methamphetamine in his blood.
Police searched the area for defendant and continued to look for him over the next several days, but were unsuccessful. During a search of Dusty's apartment, police recovered a live round on top of a nightstand and a magazine with two live rounds inside a drawer of the nightstand. Police found a prescription in defendant's name in the same drawer. A spent casing was found underneath a sponge by the kitchen sink. The kitchen sink was directly under the kitchen window.
Police interviewed R.V. regarding the incident several times. On November 24, R.V. indicated that defendant was in Greenfield. As police set up a perimeter around the apartment complex where they believed defendant was located, defendant fled out the back door, "hopping on one foot, running as fast as he [could]." Defendant traveled about 200 to 300 feet before he complied with an order to stop. Police placed defendant under arrest.
4. Gang Evidence
R.V. testified that defendant was a Norteño and a member of the "North Side Castroville." Defendant had "NSC" tattooed on the back of his head. Rocha was a member of the "North Side Chicos" at one point. Rocha had "NSW" for "North Side Watsonville" tattooed on his back. Rocha also had four dots tattooed on his elbows, which is a symbol associated with Norteños. Rocha was often called "Ghost" and was known to police as "Ghost from NSW."
Correctional Officer Kyle Ward testified that while defendant was housed in a restricted unit in the jail, defendant filed a grievance requesting to be moved to a unit in the general population that predominantly housed Northern gang members or affiliates. Other inmates housed in the unit were people who "could get along with [Northern gang members] safely." Defendant was not moved into the requested unit because it was uncertain he could be safely housed there. Defendant was moved to another restricted unit, but the unit had some Norteño gang members and affiliates. Defendant subsequently filed a request to come out of his cell for programming with Michael Escobar and Oscar Amezcua Cabrera. Escobar was in good standing with the Norteños. Cabrera was a Northside Watsonville gang member, a regiment commander, and the highest ranking Norteño in Watsonville.
Correctional Officer Ward testified that Michael Manning was an inmate in defendant's unit. Manning had "Fuck WPD" and "NSWC" tattoos. At one point Manning and defendant were housed together. Manning was in good standing with the Northside Watsonville Chicos.
Watsonville Police Detective Joseph Perez testified as an expert on Norteños and the Watsonville Norteño criminal street gang. Detective Perez stated that Norteño criminal street gang members identify with the color red, the numbers four and 14, and the Huelga bird. A tattoo of four dots represents the number 14 and is a typical Norteño tattoo. There are seven different Norteño gangs in Watsonville. One of the gangs is "North Side," which is denoted by "NSW" for "North Side Watson," "NSWC" for "North Side Watson Chicos," or just "NS." "Watson" is short for "Watsonville." Detective Perez opined that Rocha affiliated with the North Side Watsonville Chicos.
Detective Perez interviewed defendant on November 24, 2015. Defendant admitted he was an active member of a Norteño gang from Castroville. In addition to a "NSC" tattoo on the back of his head, defendant had "Castroville" tattooed on his hands. Defendant told Detective Perez that he could be housed in jail with North Side members and active Norteños. Defendant stated that "his name had already been cleared" by "the regiment in Watsonville." Defendant's statement indicated to Detective Perez that defendant would not suffer "bad consequences" for killing Rocha. In Detective Perez's opinion, defendant was cleared "pretty fast." Based on Detective Perez's training and experience, he would expect a person who killed a gang member to be "dealt with" and retaliated against in the jail.
Detective Perez testified that "[r]espect is everything" in gang culture. One of the ways gang members earn respect is by committing crimes, such as murder, to benefit the gang. A gang member can lose respect by not following the gang's rules, disrespecting or fighting with other members of the gang, or backing out of committing a crime. If a member is assaulted by another member of the same gang and he or she does not respond, he or she could lose other members' respect. It is expected that a gang member will retaliate in kind or more severely to disrespect. If one gang member is disrespected by another gang member, it could be a sign of weakness for the disrespected gang member not to retaliate.
According to Detective Perez, Norteños generally are not supposed to commit crimes against other Norteños. A "green light" means that a person has fallen out of grace with the gang and can be assaulted or killed by the gang. A high-ranking gang member authorizes a green light. When one Northerner harms another Northerner, the gang investigates to determine if the violence was justified. A Northerner can be cleared for harming another Northerner if he or she acted in self-defense. Because gang members do not want to be considered snitches, they will not talk to the police and will take matters into their own hands.
A gang member is "no good" when he or she is not in good standing with the gang. If someone is "not from the 'hood anymore" or is "on his or her own," it may mean that the gang is distancing itself from the person or no longer associating with him or her. The person will lose the gang's protection. Smoking methamphetamine is looked down upon in gang culture.
B. Defense Evidence
1. Defense Witnesses
Physician's assistant Anthony Caporaso testified that defendant had an external fixator on his lower left leg in October 2015. A fixator is an external frame with pins or rods going into a bone to keep the bone in alignment. Defendant had surgery on his leg in November 2015, and pins or rods were placed inside a bone. When Caporaso saw defendant in mid-November 2015, defendant could not place weight on his leg.
Forensic scientist Kenton Wong testified as an expert in firearms, crime scene reconstruction, and wound ballistics. Based on the autopsy report, the trajectories of the bullets that struck Rocha were from front to back and left to right. The difference between the two shots was attributable to a slight movement of the shooter's hand, Rocha's movement, or a combination of both. Based on the location of the gunshot wounds and the bullets' trajectories, Wong opined that the shots were fired in rapid succession.
Wong testified that a study examining officers' response times in firing a handgun found that an individual facing an officer with a firearm pointed at him or her could turn his or her body quicker than the officer could make the decision to fire the gun and pull the trigger. There was also a delay between an officer firing multiple rounds and determining that the threat had been neutralized. Another study found that 70 percent of officers fired an additional shot after receiving a signal that a threat had been neutralized and 17 percent fired two shots after the signal.
Cynthia Carroll testified that she called the police regarding a domestic disturbance in October 2014. She was outside when she overheard a heated argument between a man and a woman and what sounded like a very loud slap. Carroll called the police because the situation seemed to be escalating and she was concerned for the woman's safety. Carroll stated that after the woman had gone inside, Carroll told the man she was calling 911 and the man left. While Carroll waited for the police, the woman got into a car with an African-American man and drove away. The woman returned and spoke with the police.
Basilia Saldivar testified that he rented his garage to R.V. and Rocha in October 2014. Once, R.V. told Saldivar that Rocha hit her and asked Saldivar to call the police. When Saldivar called the police, Rocha pushed R.V. outside and ran. Saldivar was frightened.
Judith Stewart testified as an expert in forensic toxicology. Stewart stated that Rocha had a high, almost toxic, level of methamphetamine in his blood when he died. In Stewart's opinion, the concentration of methamphetamine in Rocha's blood suggested an extended period of use and a binge pattern of taking four to five doses daily. A high concentration of methamphetamine tends to make people irritable, aggressive, paranoid, and delusional. When asked a hypothetical question regarding behavior that mirrored Rocha's on the date of the offense, Stewart stated that the conduct was consistent with methamphetamine use.
Watsonville Police Officer Aaron Chavarria testified that when he located Rocha on November 17, 2015, he recognized Rocha as a suspect in an armed robbery that occurred in June 2015. During his investigation of the armed robbery, Officer Chavarria responded to a room at the Economy Inn and contacted defendant and a female companion. The door to the room and its dead bolt lock were damaged. A couple days later, Officer Chavarria interviewed Michael Manning regarding his involvement in the robbery. Manning stated that he was in good standing with the Northerners at the county jail.
Watsonville Police Officer Richard Delfin testified that he responded to the Economy Inn in June 2015 to investigate an armed robbery. The door to the room and its lock were damaged and it appeared that the door frame was "busted in some fashion," as if the door had been forced in.
Watsonville Police Detective Sergio Banuelos testified that he interviewed Rocha as part of the investigation into the armed robbery at the Economy Inn. Rocha told Detective Banuelos that he had stayed at the Economy Inn before. Rocha stated that he was a member of the North Side Watsonville and that he would not have trouble in a general population housing unit if he were arrested.
Former gang member Dr. Jesse De La Cruz testified as an expert in street gangs. Dr. De La Cruz stated that North Side Castroville and North Side Watson street gang members are considered Northerners. Northerners in prison follow the Nuestra Familia's rules or bonds. One rule is that a Northerner may not harm another Northerner unjustifiably. If a gang member is disrespected and is given permission to retaliate, the retaliation should be immediate. A gang member is not supposed to allow continued disrespect.
Another rule guarantees Northerners "due process," meaning, for example, that when a Northerner attacks another Northerner without permission, the attacker will be allowed to explain what happened and the gang will investigate the situation to determine "the sentence." Northerners are allowed to defend themselves and will be "cleared" if they act in self-defense. If a Northerner kills another Northerner in self-defense, the killer will go through the process to clear himself or herself and the process will continue inside the county jail. If a person had advance permission to retaliate against someone, due process is unnecessary.
Dr. De La Cruz testified that if someone refers to a person as "just a smoker" and states "we're not messing with [the person] anymore," that does not mean the person is no long a Northerner and can be killed. In Dr. De La Cruz's opinion, Rocha was still a Northerner when he died. In response to a hypothetical question with facts similar to this case, Dr. De La Cruz stated there was nothing to indicate the incident pertained to gangs or gang members and that it appeared to be a "personal thing."
Alonzo Carrera testified that he was friends with Rocha and R.V. and had known them for a few years. Carrera told a defense investigator that he had seen Rocha with a gun and that Rocha said he had robbed defendant at the Economy Inn. Shortly before Rocha died, Carrera listened to a voicemail message from Rocha intended for R.V. telling R.V. to stay away from defendant because "there could be a dangerous situation" or a "potential danger around [defendant]."
2. Defendant's Testimony
Defendant testified that in June 2015, he was staying in a room at the Economy Inn with his then-girlfriend. They sold small amounts of drugs to help pay for the room.
One day Rocha stopped by the room to wish defendant's girlfriend a happy birthday. Rocha asked defendant if he could make some counterfeit money in the room. Defendant refused. A few days later, Rocha came by again, asked if they had any drugs, and stated that he needed gas money. When he was told no, Rocha got "a little crazy" and said, " 'Oh, you're lucky I don't pistol-whip . . . you guys.' "
Defendant stated that later that night, Rocha and another man kicked down the door to defendant's room. Rocha pulled a gun from his pocket, cocked the hammer back, pointed it at defendant, and said, " 'Give me all your money.' " The other man had a butcher knife. Defendant's girlfriend handed Rocha $40. Defendant was afraid Rocha might shoot him.
Defendant testified that he contacted R.V. after someone mentioned her name and he remembered that she lived in his neighborhood a long time ago. Defendant and R.V. started dating soon afterwards. While they were dating, defendant rented a room in Dusty's house. Defendant had a broken leg while he was living there and his leg had bars going through it.
Defendant stated that one day when R.V. was in the shower and defendant was in his room with his friend Whopper, defendant heard someone outside yelling Dusty's name. The person then shouted defendant's name, and defendant found Rocha outside. Defendant told Rocha that he had not seen R.V. because defendant did not want any problems. Rocha told defendant that he was from Northside Watsonville and that if R.V. was in the house, "they were going to kick down the door and come get her." Defendant said, " 'Okay,' " went back inside, and told R.V. what happened. Defendant waited an hour and a half to make sure Rocha was gone before leaving with R.V. and Whopper. As R.V. was backing out of the driveway, Rocha came by on his bike. Rocha said, " 'You can keep that bitch,' " and Rocha and R.V. began to argue. Defendant stopped Whopper from getting out of the car to confront Rocha.
After that incident, Rocha began to show up at Dusty's place regularly, sometimes twice a day. Defendant would hear Rocha come to Dusty's window and talk to her, but defendant would not interact with Rocha because he did not want to start any trouble. Defendant would go into his room, turn off the light, and close his door and window. Every time Rocha came over, he asked for defendant or R.V. and said, " 'He better not be in there, Dusty. I'll kick down the door and come in and shoot him.' " By this point, defendant was aware of Rocha's history of violence against R.V. R.V. told defendant that Rocha would not let anyone else have her.
Another time, defendant and R.V. were smoking inside a car at Dusty's place. Rocha arrived and threw some pants on the trunk of the car, but defendant did not think Rocha saw them. Rocha said, "[R.V.] give this to your nigger," and left.
On another date, defendant heard Rocha yelling outside of Dusty's place. Defendant heard Rocha tell Dusty, " '[R.V.] is not going back in the house; she's coming with me.' " Defendant, on crutches, went outside and saw Rocha and R.V. arguing in the driveway. Defendant told R.V., " 'Come here.' " When R.V. began to walk toward defendant, Rocha grabbed R.V. by her hair. Dusty got in between Rocha and R.V. and defendant hit Rocha in the face with one of his crutches. Rocha let go of R.V. Defendant lost his balance and fell. Rocha grabbed his waistband as if he were going to shoot defendant and said to R.V., " 'I'm going to shoot this nigger.' " Rocha repeated the statement three or four times, yelling. R.V. got in between Rocha and defendant and said, " 'No, no, no.' " Rocha grabbed a crutch and began hitting defendant with it. R.V. was also hit by the crutch a couple of times. Defendant was able to get up when R.V. threw a drink at Rocha and Rocha backed away. Rocha yelled, " 'I'm going to come back and shoot that nigger.' "
Defendant went to Castroville for two or three days because he thought Rocha was going to kill him. R.V. told defendant that Rocha kept coming over and threatening to kill defendant.
Defendant testified that he did not have a gun before he left for Castroville, but he had one when he returned to Dusty's apartment because he thought Rocha was going to kill him and he did not feel like he was able to defend himself before. Defendant tried to find someone to talk to Rocha. At one point, defendant heard from someone on the phone that Rocha "was just a smoker and they weren't messing with him any more." Defendant thought that meant "they can't talk to him no more." Defendant did not understand it to mean that he had permission to kill Rocha or that Rocha was "no good." Defendant did not want to kill Rocha.
Rocha's threats against defendant became more aggressive. Rocha also threatened to kill R.V. and R.V. told defendant she was afraid Rocha was going to kill her. R.V. said that Rocha had never threatened to kill her before. R.V. also showed defendant text messages from Rocha saying that he was going to kill defendant and calling defendant "nigger this and nigger that." Whenever Rocha showed up at Dusty's, defendant and R.V. turned off the lights, closed the windows and blinds, and kept quiet.
Defendant testified that once, he and R.V. were about to go to sleep when he heard Rocha yelling outside and a window opening. R.V. got up to close the window, but someone reached inside, grabbed R.V. by her hair, and tried to pull her out. Defendant thought the person pulling R.V.'s hair was Rocha.
A day or two later, defendant heard Rocha outside slurring his words and asking for him. Rocha threatened defendant and said, " 'Nigger ass better not be in there.' " Rocha passed out outside and defendant tried to find someplace for Dusty to take him.
Defendant stated that the next time he saw Rocha was the day of the shooting. Defendant was lying on his bed in his room and R.V. was in the kitchen. Defendant heard R.V. start screaming and Rocha say, " 'Where is your nigger at? I got something for him.' " Rocha was shouting and it sounded to defendant like he was inside the house. Defendant was worried. Defendant opened the door to his room and saw the front door close. Defendant had a gun on him. Defendant carried the gun when he was home because he thought Rocha was "going to come in and shoot [him]." When defendant heard Rocha yelling inside the house that day, he thought Rocha was there to shoot him.
Defendant heard Rocha and R.V. arguing and thought that Rocha may have been hitting R.V. Defendant heard Rocha say, " 'Your nigger better not come out here.' " Defendant hopped to the kitchen window and peeked out the window to see if R.V. was okay, sticking his head all the way out the window. R.V. had her back to the door and Rocha was in front of her with his hand in his pocket. The pocket had a bulge. Defendant saw Rocha's head turn in his direction really fast. Defendant was concerned and backed up. Rocha walked toward defendant saying, "Nigger." Defendant thought that Rocha was threatening him and was concerned because Rocha was wearing a hoodie and gloves as if he planned to commit a crime.
Defendant saw Rocha reach his right hand toward his left side and thought Rocha was going to shoot him. Defendant shot Rocha twice as Rocha came toward him. Defendant had never shot a gun before and did not remember pulling the trigger twice but heard the gun go off a second time when Rocha was right in front of him. Defendant was scared. Defendant did not think Rocha had been hit twice or was fatally wounded. The gun was small and defendant shot down instead of directly at Rocha. At no point did defendant want to kill Rocha. Defendant would never have shot Rocha if he had not been in fear for his life.
After the second shot, Rocha ran. Defendant was scared because he thought Rocha or his friends would come back and shoot him. Defendant grabbed his crutches and looked out the window to see if Rocha or one of his friends was coming. Defendant left.
Defendant stated that he became part of the Northside Castroville gang in high school and still had friends who were Northside Castroville. Defendant did not talk to the police on the day of the shooting because he would have had problems if he had gone to jail since "you are not supposed to shoot another Northerner. . . . They could stab you for that." Defendant went to Castroville and talked to a friend about what happened. Defendant went through "[d]ue process . . . to get cleared," but he was unable to get the "paperwork" to bring into jail with him. Defendant planned to turn himself in once he got the paperwork.
Defendant told the police what happened once he was arrested. Defendant did not believe he was at fault. Defendant told the police he would not have problems in the general population even though he did not have the paperwork because he did not want to be placed in protective custody and be associated with snitches and rapists. Defendant went through the gang's investigation process and was cleared while he was in jail.
Defendant acknowledged that in 2009 he was convicted of felony evading the police; in 2010 he was convicted of felony driving a stolen car; in 2011 he was convicted twice of evading the police; in 2012 he was convicted of felony taking or driving a car without the owner's permission; and in 2015 he twice drove a stolen car and crashed it when he sped away from the police. In May 2015, when defendant evaded the police, he jumped out of his car and ran after he crashed it. Defendant's foot got caught between the bumper of the car and the curb and his ankle was "smashed." Defendant tried to hide from the police but was later arrested. In August 2015, defendant was arrested for possession of ammunition.
3. Other Evidence
On November 15, 2013 and October 14, 2015, a court ordered Rocha to have no contact with R.V. for three years.
The parties stipulated that on September 25, 2015, Rocha told jail authorities he was a member of Northside Watsonville.
C. Rebuttal Evidence
Two Santa Cruz police officers testified regarding their attempts to perform a felony car stop on a stolen vehicle on May 4, 2015. "[A] conga line of patrol cars" with their lights and sirens activated pursued the stolen vehicle as it evaded the officers. The driver of the stolen car traveled at a high rate of speed, failed to stop at multiple stop signs, and illegally passed a slow-moving vehicle. The car came to a stop when the driver failed to negotiate a turn and hit a utility pole.
Two Watsonville police officers testified regarding their pursuit of a stolen car on May 28, 2015. The driver of the vehicle, later identified as defendant, failed to stop for the police, ran multiple stop signs and red lights, drove on the wrong side of the road, and traveled 25 miles per hour over the speed limit. At some point, defendant crashed the stolen vehicle into another car and fled on foot. His then-girlfriend was found in the passenger seat of the stolen car. A police K9 found defendant inside a residence's garage. Defendant followed orders to surrender once the K9 grabbed defendant's pants.
Detective Perez testified that he used a "rapport building technique" to elicit information from defendant during defendant's police interview. Defendant never stated during the interview that he saw a bulge in Rocha's pocket.
D. Charges , Verdicts , Pleas , and Sentence
In case No. 15CR01145, defendant was charged with murder (§ 187, subd. (a); count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), unlawful possession of a firearm (§ 29800, subd. (a)(1); count 3), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 4). It was alleged that defendant personally and intentionally discharged a firearm causing death during the commission of count 1 (§ 12022.53, subd. (d)) and that he personally used a firearm and personally inflicted great bodily injury during the commission of count 2 (§§ 12022.5, subd. (a), 12022.7, subd. (a)). It was also alleged that defendant committed the offenses while released on bail or his own recognizance (§ 12022.1) and that he had served three prior prison terms (§ 667.5, subd. (b)).
A jury acquitted defendant of murder as charged in count 1, but found him guilty of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)). The jury found defendant guilty of the remaining charges and found true the allegations that defendant personally used a firearm during the commission of voluntary manslaughter and assault with a semiautomatic firearm (§ 12022.5, subd. (a)). The jury did not reach a decision regarding the great bodily injury allegation. The trial court found that defendant was released on bail or his own recognizance when he committed the offenses and had served three prior prison terms. The trial court made a "not held finding" on the great bodily injury allegation.
The jury left the verdict form blank regarding the great bodily injury allegation and the trial court did not inquire about it. It appears that the court inadvertently overlooked the jury's nonfinding. The judge who presided over the trial and sentenced defendant was not the judge who took the jury's verdict.
In case No. F28562, defendant was charged with evading an officer causing injury (Veh. Code, § 2800.3, subd. (a); count 1), two counts of unlawful driving or taking a vehicle with three prior convictions for the same offense (Veh. Code, § 10851, subds. (a), (d); counts 2, 8), leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count 3), two counts of misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); counts 4, 10), misdemeanor trespassing (§ 602.5, subd. (a); count 5), misdemeanor possession of heroin (Health and Saf. Code, § 11350; count 6), evading an officer with willful disregard for safety (Veh. Code, § 2800.2; count 7), and misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 9). It was also alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)).
Defendant pleaded guilty as charged in case No. F28562 and admitted the prior prison term allegations.
The trial court sentenced defendant to an aggregate term of 18 years 8 months, ordered restitution, and imposed various fines and assessments.
III. DISCUSSION
A. Admission of Prosecution's Gang Evidence
Defendant contends the trial court erred by admitting expert testimony on gangs, evidence of defendant's and Rocha's gang memberships, and defendant's statements regarding his jail housing and safety. Defendant asserts that the evidence was not relevant to the charged crimes, constituted impermissible character evidence, and was more prejudicial than probative. Defendant also claims that the admission of the gang evidence violated his Fourteenth Amendment rights to due process and a fair trial. The Attorney General counters that the trial court did not abuse its discretion when it admitted the gang evidence because the evidence was relevant to defendant's intent and motive and its probative value was not substantially outweighed by its prejudicial effect.
Defendant further contends that his federal constitutional right to an impartial jury was violated by the trial court's admission of the prosecution's gang evidence. However, defendant provides no argument in support of this assertion. We therefore treat any claim in this regard as waived. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "].)
1. Trial Court Proceedings
The prosecution moved in limine to present gang evidence, asserting that the evidence was relevant to prove defendant's motive to kill Rocha based on Rocha's disrespectful conduct towards him, to explain witnesses' fear of testifying against defendant, and to prove defendant's state of mind at the time of the murder. Defendant moved in limine to exclude gang evidence, contending that it was irrelevant and unduly prejudicial.
At the hearing on the in limine motions, the prosecution argued that the gang evidence was probative of motive and defendant's intent because it demonstrated defendant killed Rocha in retaliation for Rocha's earlier conduct against him rather than in self-defense. Defendant argued that all gang evidence should be excluded and that neither a lay witness nor an expert could testify to his state of mind. Defendant requested an Evidence Code section 402 hearing regarding the admissibility of the gang expert's testimony. The trial court granted defendant's request.
At the Evidence Code section 402 hearing, Detective Perez testified regarding Rocha's and defendant's gang tattoos, Norteño gang culture and the significance of disrespect, and Rocha's and defendant's gang memberships. Detective Perez stated that if a gang member is considered "no good," it means that the gang no longer backs the person and he or she can be alienated, assaulted, or murdered without retaliation by the gang. Detective Perez opined that a statement that a gang member was "on his own" meant that the gang was not associating with the person anymore "like [the gang] disowned him." Detective Perez testified that he would expect a person who murdered a gang member to be retaliated against by the gang in jail, but if the gang member was labeled "no good," the person "would not have any issues." Detective Perez opined that if an individual tells jail officials that he or she can be housed with the gang after he or she has killed a gang member, that indicates the individual knew the slain gang member was no longer in good standing with the gang or the individual received information that he or she would be fine in jail. Detective Perez also testified regarding requests to put money on an inmate's jail account.
At the conclusion of the hearing, defendant argued that any evidence of motive demonstrated by the gang expert's testimony was speculative and of little probative value because it pertained to defendant's state of mind. Defendant asserted that the evidence should be excluded under Evidence Code section 352 and that the prosecution should not be allowed to present gang evidence to "paint[] [defendant] as a bad person."
The trial court determined that some of the prosecution's proposed gang evidence was admissible as evidence of defendant's motive. The court stated, "The People are claiming that the reason [defendant] did what he did is separate and distinct from any alleged fear or intimidation from [Rocha] to [defendant]. [¶] [Defendant] is claiming the reasons he did what he did is strictly and solely because of imminent fear." The court ruled that it would allow evidence regarding gang culture, defendant's and Rocha's gang memberships and tattoos, a statement overheard by R.V. while defendant was on the phone that Rocha was " 'no good,' " and evidence regarding defendant's jail housing. The court disallowed the prosecution's request to present evidence of defendant's "friendly relationship with a ranking member of [Rocha's] gang," evidence of the gang association of family members and friends who put money on defendant's jail account, and evidence regarding R.V.'s statement in her police interview that she was expected to " 'do the time' for . . . defendant." The court found that evidence of a "friendly relationship" based on individuals putting money on inmates' jail accounts would be "very time-consuming [and] significantly more prejudicial than probative." The court "s[aw] a true prejudicial impact to walking those gentlem[e]n into court, just trying to put together a casual connection between those gentlemen and [defendant]."
At trial, as we detailed above, the court admitted evidence of defendant's and Rocha's gang tattoos and gang memberships, defendant's request to be housed in a jail unit that predominantly housed Northern gang members and affiliates, defendant's housing with a known gang member, defendant's request to participate in jail programming with two known gang members, and the statements overheard by R.V. while defendant was on the phone discussing Rocha's gang status at some point before the charged incident that Rocha "was not from his 'hood -- from Northside no more" and "he's on his own." The court also admitted Detective Perez's expert testimony on gang culture, including on the importance of respect. Detective Perez stated that "[r]espect . . . is something that they earn" and "[r]espect is everything." If disrespected, a gang member is expected to retaliate in kind or with more severity to avoid looking weak. Detective Perez testified to the meaning of defendant's statement during his police interview that "his name had already been cleared" by "the regiment in Watsonville," the significance of "a green light," and what it means when a gang member is considered to be "no good" by the gang.
Defendant testified that he did not believe he had permission to kill Rocha or that Rocha was "no good" with the gang. Defendant stated that he did not want to kill Rocha, he had been in fear for his life when he shot Rocha, and he went through the gang's "[d]ue process [investigation] to get cleared" after he killed Rocha. Defendant testified that he planned to turn himself in once he got "the paperwork" indicating he had been cleared by the gang.
2. Standard of Review
We "appl[y] the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 723 (Waidla).) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra), overruled on a different ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
3. Legal Principles
Generally, "all relevant evidence is admissible." (Evid. Code, § 351.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Relevant evidence " 'tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent or motive.' " (People v. Champion (1995) 9 Cal.4th 879, 922, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.)
Relevant evidence must be excluded "when its probative value is substantially outweighed by its prejudicial effect." (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran); Evid. Code, § 352.) " 'Evidence is substantially more prejudicial than probative . . . only if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (Tran, supra, at p. 1047.)
" 'Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced only to "show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]" ' " (People v. Coneal (2019) 41 Cal.App.5th 951, 964 (Coneal); see also People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran) ["gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect"].) The California Supreme Court has advised that "gang-related evidence 'creates a risk the jury will improperly infer the defendant has a criminal disposition' and that such evidence should therefore 'be carefully scrutinized by trial courts.' " (People v. Mendez (2019) 7 Cal.5th 680, 691.)
4. The Gang Evidence Was Relevant to Motive and Intent
Despite the lack of gang charges or allegations in this case, we conclude that the trial court did not abuse its discretion when it found the prosecution's gang evidence relevant.
To prove that defendant was guilty of murder, the prosecution had to establish defendant committed an "unlawful killing . . . with malice aforethought." (§ 187, subd. (a).) "Malice may be either express or implied. It is express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.' (§ 188.) It is implied . . . 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' [citation]." (People v. Lasko (2000) 23 Cal.4th 101, 107.) " 'Because express malice requires an intent to kill unlawfully, a killing in the belief that one is acting lawfully is not malicious.' " (People v. Elmore (2014) 59 Cal.4th 121, 134, fn. omitted.)
A person kills in perfect self-defense when he or she "actually and reasonably believe[s] in the necessity of defending [himself or herself] from imminent danger of death or great bodily injury." (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle), overruled on a different ground by People v. Chun (2009) 45 Cal.4th 1172, 1200.) "Imperfect self-defense . . . arises when a defendant acts in the actual but unreasonable belief that he [or she] is in imminent danger of death or great bodily injury." (People v. Duff (2014) 58 Cal.4th 527, 561.) When a defendant is charged with murder and there is evidence that he or she was acting in perfect or imperfect self-defense, the prosecution must prove beyond a reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. (People v. Rios (2000) 23 Cal.4th 450, 462-463; People v. Banks (1976) 67 Cal.App.3d 379, 384.)
Here, the prosecution's gang evidence "ha[d] a tendency . . . to prove" that defendant acted with malice when he killed Rocha, not in perfect or imperfect self-defense. (Evid. Code, § 210.) The evidence tended to demonstrate that defendant, a gang member, killed Rocha, also a gang member, not because he actually believed in the need for self-defense, but because Rocha had disrespected him, which under gang norms necessitated that defendant retaliate. The evidence was therefore probative of motive. Motive evidence is relevant because it "will usually be probative of proof of intent to kill." (People v. Smith (2005) 37 Cal.4th 733, 742; see also People v. Carter (2003) 30 Cal.4th 1166, 1194 [gang evidence "is admissible when relevant to prove . . . motive, if its probative value is not substantially outweighed by its prejudicial effect"].)
Defendant argues that evidence that Rocha had "repeatedly assaulted, disrespected and threatened" him was sufficient to establish defendant's motive to retaliate against Rocha, rendering the gang evidence irrelevant to the charged crimes. However, that defendant may have had a personal motive to kill Rocha did not render his gang-related motive to kill Rocha irrelevant. Detective Perez testified to the significance of disrespect in gang culture, explaining that if one gang member is disrespected by another gang member but does not retaliate, the lack of retaliation may be interpreted by the gang as a sign of weakness. The existence of dual motives bore on defendant's intent when he shot Rocha.
Defendant also asserts that evidence of his jail housing had "no nexus" to the shooting. The evidence, including defendant's requests to be housed in a unit with gang members and to participate in programming with two known gang members, tended to establish that defendant did not fear retaliation from the gang in jail, which supported the prosecution's theory that defendant killed Rocha once he learned Rocha was no longer in good standing with the gang, not because he believed he was in imminent danger of death or great bodily injury, and thus related to defendant's intent at the time of the killing. While defendant argues that the trial evidence showed that defendant "feared the gang and even went into hiding until he could clear himself with the gang," the prosecution presented evidence that defendant was in fact hiding from the police.
For these reasons, we determine that the trial court did not abuse its discretion when it found that the prosecution's gang evidence was relevant. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime."].)
5. The Gang Evidence Was Not Unduly Prejudicial
We also conclude that the trial court did not abuse its discretion when it determined that the probative value of the prosecution's gang evidence was not substantially outweighed by its prejudicial effect. (See Tran, supra, 51 Cal.4th at p. 1047.)
As we explained above, the gang evidence bore on the element of malice because it pertained to defendant's motive and intent and countered defendant's claim that he acted in perfect self-defense. The evidence therefore related to central issues in the case and was probative of defendant's guilt of the charged crime of murder.
While we are mindful that gang evidence " 'may have a highly inflammatory impact on the jury' " (Coneal, supra, 41 Cal.App.5th at p. 964), the gang evidence admitted here was not so inflammatory as to "create a substantial danger of undue prejudice" (Evid. Code, § 352). Although witnesses testified to defendant's gang membership, there was no testimony regarding the gang's specific criminal activities or any crimes committed by defendant on behalf of the gang. The trial court carefully weighed the proffered evidence and excluded evidence of defendant's family members or friends with gang ties putting money on defendant's jail account and evidence that R.V. was expected "to do the time" for defendant.
Defendant relies on Albarran, supra, 149 Cal.App.4th 214 to establish that the trial court abused its discretion under Evidence Code section 352, but we find that case distinguishable. There, in addition to gang evidence relevant to the defendant's motive and intent, "other extremely inflammatory gang evidence was admitted, which had no connection to the[] crimes." (Albarran, supra, at p. 227.) A police officer "testified at length about the identities of other [gang] members, the wide variety of crimes they had committed and the numerous contacts between the various gang members (other than [the defendant]) and the police. He described a specific threat [the gang] had made in their graffiti to kill police officers" and there were "references to the Mexican Mafia." (Id. at pp. 227-228, fn. omitted.) In contrast, here, the gang evidence all pertained to the prosecution's theory that defendant murdered Rocha in retaliation for Rocha's prior conduct against him once he learned that Rocha was no longer in the gang's good standing. There was no evidence regarding gang members' specific criminal activities or their police contacts.
We therefore determine that the trial court did not abuse its discretion under Evidence Code section 352 when it admitted the prosecution's gang evidence. (Guerra, supra, 37 Cal.4th at p. 1113.)
B. Admission of Hearsay Evidence
Defendant contends the trial court erred when it admitted statements by an unidentified declarant regarding Rocha's gang status because the statements were inadmissible hearsay. Defendant asserts that the statements' admission violated his right to confront witnesses against him and to a fair trial. The Attorney General counters that the statements did not constitute hearsay because they were offered for their effect on defendant's state of mind, not their truth.
1. Trial Court Proceedings
Defendant moved the trial court in limine to exclude as inadmissible hearsay R.V.'s anticipated testimony that "Rocha's friend stated that . . . Rocha was just a smoker and they were not 'messing' with him anymore." In its written response, the prosecution explained that R.V. would testify that she overheard these comments about Rocha while defendant was on the phone. The prosecution initially asserted that the statements were admissible under Evidence Code sections 1250 and 1251 as evidence of defendant's state of mind. The prosecution also argued that the evidence supported its theory that defendant did not shoot Rocha in self-defense, but rather "because at th[e] time of the murder, he knew there would be no retaliation."
Evidence Code section 1250 pertains to "evidence of a statement of the declarant's then existing state of mind." (Italics added.) Evidence Code section 1251 pertains to evidence of a statement regarding the declarant's previously existing mental or physical state. The statements admitted into evidence at trial involved Rocha's gang status, not the declarant's state of mind.
At a hearing on the in limine motions, the prosecution elaborated that R.V. would testify to statements she overheard during a phone conversation between defendant and someone else. Defendant argued that the statements and R.V.'s opinion regarding the statements' meaning were not "appropriate evidence for the jury."
At a subsequent hearing, the prosecution represented that while defendant was on the phone, R.V. heard that "they were not messing with [Rocha] any more; he was on his own." Defendant argued that R.V. would be testifying to statements by an unknown third party, the statements would be presented for their truth, and the fact that Rocha was "no good" could mean "any number of things." The trial court asked defendant to address why the statements constituted hearsay rather than statements offered for their effect on the listener's state of mind and why a gang expert's testimony regarding the statements' meaning was inadmissible. Defendant argued that even if the statements were admitted solely for their effect on his state of mind, the statements were inadmissible under Evidence Code section 352 because "there really is uncertainty as to exactly what was said and exactly what it means." Defendant questioned how the statements were relevant if they were not offered for their truth.
The trial court determined that the statements were probative and admissible. The court stated that it did not "see[] [the statements] as being excluded based on hearsay" and that it "believe[d] . . . the appropriate foundation is going to be laid to allow [the statements] into evidence over hearsay objections."
At trial, R.V. testified that she overheard a phone call between defendant and someone else where Rocha was discussed. R.V. stated that defendant asked the person if someone could talk to Rocha because Rocha kept coming over and causing problems. According to R.V., defendant did not "say anything about [Rocha's gang] status. The person on the phone did." R.V. testified that the person said "there was nothing really that he could do, that they weren't really associating with [Rocha] no more, that he was just a smoker, [a]nd so, he wasn't from the hood no more." When the prosecution asked whether the word "associated" was used, defendant "object[ed] to this portion of the questioning as hearsay." The prosecution responded that the testimony was offered for "[i]ts effect on [defendant]." The court found the testimony was "[n]ot being offered for the truth of the matter asserted. It's being offered for the effect upon [defendant]." At defendant's request, the court gave the jury a limiting instruction, stating that the evidence "is being accepted at this point not for the purpose of the truth of the matter asserted, but for the potential impact on this listener, in this case, [defendant]." Defendant did not request any additional information be included in the limiting instruction.
The prosecution asked R.V. what was "said about Northside Chicos associating with [Rocha]" and if R.V. "recall[ed] the specific word, unless it was associated." R.V. responded, "No. I don't know the specific word. But he basically said that he was not from his 'hood -- from Northside no more." The prosecution refreshed R.V.'s memory with a police interview transcript and asked, "[W]hat was said about [Rocha]?" R.V. testified, "That they weren't fucking with [Rocha] no more, or messing around with him, that he's just a smoker, that he's on his own." When asked whether the transcript refreshed her memory about "who said that," R.V. responded, "No." R.V. stated that the transcript did not reflect that defendant was the declarant. The prosecution later played a portion of R.V.'s police interview for the jury where R.V. stated, "And that the friend to not [sic] but after he told me that they said they're not fucking with [Rocha] no more. And that - that they had - that he's just a smoker. And that they're not messing with him no more. So, you know, basically he's on his own or whatever."
The prosecution's gang expert, Detective Perez, testified that "no good" means "what it sounds like. No good, like they're not good anymore with the organization, with the gang, that they are no good." Detective Perez stated that if someone is "not from that 'hood anymore," it could be considered "the same as being no good . . . we're kind of disowning you [or] no longer associating with you, we're distancing ourselves from you." Detective Perez explained that when a person is "ousted" or the gang has distanced itself from the person, the person loses the gang's protection, backup, and friendship. Based on Detective Perez's training and experience, "if there was information that [a] person was not in good standing, the sort of specter of [gang] retaliation would diminish significantly." Detective Perez was unaware of any evidence that Rocha was not in good standing with the gang apart from the statements that the gang was not messing with him anymore.
Defendant raised the hearsay issue again during his case-in-chief. Defendant clarified that he objected to R.V.'s testimony as hearsay and on confrontation clause grounds, arguing that the testimony was introduced for its truth and was unreliable and uncorroborated. Defendant asserted that "even a limiting instruction couldn't address the problem of letting in such an unreliable statement" because of the statement's prejudicial effect. Defendant asked the court to declare a mistrial. The court stated that it would rule on the mistrial motion at some later time.
Defendant subsequently testified that he contacted someone to ask Rocha to stay away, but he did not know who he spoke to on the phone. Defendant stated that he remembered R.V.'s testimony that the person on the phone said Rocha "was just a smoker and they weren't messing with him any more." When asked what he took the person's statement to mean, defendant testified, "That they can't talk to him no more." Defendant stated that he did not understand the statement to mean that he had permission to kill Rocha or that Rocha was "no good."
The trial court denied defendant's mistrial motion after both sides rested. The court found that the statements regarding Rocha's gang status before he was killed were "relevant and probative as to [their] potential effect upon [defendant]." The court noted that "[i]t remains with counsel to argue the significance or insignificance of that evidence, or the presence or absence of other evidence that supports or detracts from . . . Rocha's position at the time of this incident."
Defendant does not challenge the trial court's denial of his mistrial motion.
2. Legal Principles and Standard of Review
"[A] hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)" (People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).) "[A] statement 'offered for some purpose other than to prove the fact stated therein is not hearsay.' [Citations.]" (Ibid.)
"[A]n out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief. [Citation.] The nonhearsay purpose must . . . be relevant to an issue in dispute. [Citations.]" (People v. Montes (2014) 58 Cal.4th 809, 863 (Montes).) An out-of-court statement admitted for its effect on the listener does not constitute hearsay because the listener's reaction to the statement is the relevant fact to be proved—not the truth of the matter asserted in the statement.
We review a trial court's ruling on the admissibility of evidence, including a decision that turns on the hearsay nature of evidence, for an abuse of discretion. (Waidla, supra, 22 Cal.4th at p. 725.) As we stated above, "[u]nder this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1113.)
3. Analysis
We conclude that the trial court did not abuse its discretion when it admitted the statements regarding Rocha's gang status for the nonhearsay purpose of the statements' effect on defendant. Although R.V.'s testimony concerned out-of-court statements, the statements were not offered to prove the truth stated therein—that Rocha "was just a smoker," "he wasn't from the hood no more," and he was "on his own." Whether Rocha was in fact no longer on good terms with the gang when defendant killed him was of no relevance to the issues in this case. Rather, the statements' relevance was the effect of the imparted information on defendant. Thus, the statements did not constitute hearsay. (See Sanchez, supra, 63 Cal.4th at p. 675; Montes, supra, 58 Cal.4th at p. 863.)
Defendant argues that if the statements regarding Rocha's gang standing "were not being offered for the truth, then the statements were completely irrelevant." We conclude otherwise. As the trial court found, the out-of-court statements were relevant for their effect on defendant and probative of his subsequent conduct. The statements supported the prosecution's theory that defendant did not act in self-defense but rather killed Rocha once he learned that Rocha was no longer in good standing with the gang. R.V.'s testimony that someone stated during a phone conversation with defendant that Rocha "was just a smoker," "he wasn't from the hood no more," and he was "on his own," bore on that theory because the conversation occurred before defendant shot Rocha (and after other opportunities defendant had to harm him).
Defendant relies on People v. Sundlee (1977) 70 Cal.App.3d 477, but that case did not involve out-of-court statements admitted for their effect on the listener. There, the defendant did not object to the trial court's admission of a surveillance team's recorded conversations into evidence. (Id. at pp. 481-482.) The team was surveilling the defendant because he was suspected of setting fires. (Id. at p. 481.) The out-of-court statements included "descriptions of the suspect's movements and declarations identifying [the] defendant as the person under observation. The conversations also included statements . . . that [surveillance] team members had defendant in sight; that they were pursuing him; [and] that they had caught him" on the night the charged fire occurred. (Id. at pp. 481-482.) In response to the defendant's ineffective assistance of counsel claim on appeal, the Attorney General argued that the statements "were not offered for a hearsay purpose, but rather to 'set the stage' for the in-court testimony of members of the team." (Id. at p. 482.) The Court of Appeal disagreed, determining that the out-of-court statements "were aimed at convincing the jury that the events described in the conversations had in fact taken place. In statutory parlance, they were offered 'to prove the truth' of the matter stated. (Evid. Code, § 1200.)" (Ibid.) In other words, in contrast to the case at hand, the out-of-court statements in Sundlee—that the defendant was the person being surveilled and the person the team apprehended—were relevant for their truth.
Defendant argues that the out-of-court statements regarding Rocha's gang status " 'were aimed at convincing the jury that' the statements made during the conversation took place and were true." However, whether the out-of-court statements were made is separate and apart from whether the statements constituted hearsay, and defendant was able to cross-examine R.V. regarding the conversation she overheard. Moreover, defendant's own testimony confirmed that the conversation occurred.
For these reasons, we conclude that the trial court did not abuse its discretion when it admitted R.V.'s testimony on the out-of-court statements into evidence because the statements were not offered for their truth but for their effect on the listener, here, defendant. As such, the statements did not constitute hearsay. (See Montes, supra, 58 Cal.4th at p. 863.)
4. Confrontation Clause and Due Process
Defendant also contends that the trial court's admission of the out-of-court statements into evidence violated his Sixth Amendment right to confront witnesses against him. However, "[n]either the hearsay doctrine nor the confrontation clause is implicated when an out-of-court statement is not received to prove the truth of a fact it asserts. [Citations.]" (Sanchez, supra, 63 Cal.4th at p. 681.) As we explained above, the out-of-court statements at issue here were received to prove their effect on the listener, not to prove the truth of the facts asserted in the statements. We therefore reject defendant's Sixth Amendment claim.
Defendant further contends that the admission of the evidence violated his right to due process under the federal constitution. However, since we have not found that the admission of the out-of-court statements was error under state law, we need not decide "the consequences of that error, including . . . whether the error was so serious as to violate due process." (Partida, supra, 37 Cal.4th at p. 437.)
C. Self-Defense Instruction
Defendant contends the trial court erred when it failed to instruct the jury on self-defense by using the reasonable person standard found in CALCRIM No. 3429, which provides: "A person with a physical disability is required to (know what/use the amount of care that) a reasonably careful person with the same physical disability would (know/use) in the same situation." Defendant argues the instruction was required because he had a serious leg injury that impaired his movement and necessitated the use of crutches when the incident occurred. Defendant claims the error violated his constitutional right to a fair trial and to present a defense. The Attorney General asserts that the trial court properly rejected defendant's request.
1. Trial Court Proceedings
Defendant requested the trial court to instruct the jury with CALCRIM No. 3429. Defendant argued the instruction was warranted because his physical limitations "played into . . . his decision . . . that he needed a gun to protect himself, as well as the level of fear and the state of mind that he brings to that situation at the window."
The trial court declined defendant's request. The court determined that CALCRIM Nos. 505 and 571, the pattern instructions on justifiable homicide in self-defense and voluntary manslaughter in imperfect self-defense, "specifically describe the fact that the jury is to consider all the circumstances as they were known and appeared to . . . defendant." The court observed that CALCRIM Nos. 505 and 571 "allow counsel to argue to the jury the significance of [defendant's] injury."
As relevant here, the trial court instructed the jury on justifiable homicide in self-defense with CALCRIM No. 505 as follows: "The defendant is not guilty of murder or manslaughter if he was justified in killing someone else in self-defense. The defendant acted in lawful self-defense if; number one, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily jury; number two, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and, number three, the defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable, and he must have only acted because of that belief. [¶] The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed." (Italics added.)
As relevant here, the trial court instructed the jury on voluntary manslaughter committed in imperfect self-defense with CALCRIM No. 571 as follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. If you conclude that the defendant acted in complete self-defense, his action was lawful, and you must find him not guilty of any crime. [¶] The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if[] number one, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and, number two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but, three, at least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] A danger is imminent if, when the fatal wound occurred, the danger actually existed, or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future." (Italics added.)
2. Standard of Review
We review defendant's claim of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) "In conducting this review, we first ascertain the relevant law and then 'determine the meaning of the instructions in this regard.' [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court 'fully and fairly instructed on the applicable law . . . .' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" ' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
3. Analysis
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246 (Burney).)
CALCRIM No. 3429 provides the reasonable person standard for persons with physical disabilities. As we stated above, the instruction provides: "A person with a physical disability is required to (know what/use the amount of care that) a reasonably careful person with the same physical disability would (know/use) in the same situation." Relying on People v. Mathews (1994) 25 Cal.App.4th 89, 99-100 (Mathews), defendant argues that the instruction was required in conjunction with the self-defense and imperfect self-defense instructions because he had a leg injury that impaired his movement when he shot Rocha.
The defendant in Mathews, who was blind and hearing-impaired, was convicted of exhibiting a firearm in the presence of a peace officer after the trial court instructed the jury that it must decide whether the defendant "knew or reasonably should have known that the other person was a peace officer." (Mathews, supra, 25 Cal.App.4th at pp. 93-94, 98, fn. 2.) The Court of Appeal concluded that the trial court erred when it refused the defendant's request for an instruction holding him to the standard of a reasonable person with the same physical disabilities. (Id. at pp. 98-99.) The Court of Appeal recognized that under tort law " 'in determining the reasonableness of a person's conduct, his or her . . . physical disability can be considered in defining the standard which he or she must meet.' " (Id. at p. 99.) The court determined that this principle also applied to criminal law and may be required whenever a defendant with physical disabilities is held to the standard of a reasonable person. (Ibid.)
Unlike the jury instruction in Mathews, the trial court's instruction on self-defense here with CALCRIM No. 505 told the jury that "[w]hen deciding whether the defendant's beliefs [in the need for self-defense] were reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed." Similarly, the trial court's instruction on imperfect self-defense with CALCRIM No. 571 told the jury to "consider all the circumstances as they were known and appeared to the defendant" in evaluating defendant's beliefs in the need to use deadly force. Thus, the instructions directed the jury to apply the standard of a reasonable person in defendant's circumstances, which would have included defendant's physical limitations.
Based on the language of CALCRIM Nos. 505 and 571 as given here, we conclude that instruction with CALCRIM No. 3429 would have been cumulative and the trial court did not err in refusing defendant's request. (See Burney, supra, 47 Cal.4th at p. 246 [a trial court may properly refuse to give a duplicative instruction].) Because the trial court did not err, "we also reject defendant's claim that the alleged instructional error violated his due process rights under the United States Constitution." (People v. Moon (2005) 37 Cal.4th 1, 30.)
D. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during argument when she incorrectly defined the meaning of "abiding conviction" in the reasonable doubt standard. Defendant asserts that the misconduct violated his right to due process and a fair trial, as well as his right to an impartial jury. Alternatively, defendant contends that his trial counsel was constitutionally ineffective for failing to contemporaneously object to the prosecutor's misstatement. The Attorney General argues that the claim has been forfeited and is meritless.
1. Trial Court Proceedings
The trial court instructed the jury on the reasonable doubt standard with CALCRIM No. 220. As relevant here, the instruction stated: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."
The prosecutor addressed the reasonable doubt standard during her rebuttal argument, stating that "although it uses some antiquated language, an abiding conviction, which is typically something people don't say, it is a concept that people have worked with every day for hundreds of years. So . . . although it's unusual language, it is something . . . people work with." After commenting on the deliberative process, the prosecutor continued, "The point is with regard to an abiding conviction, you might think of that as it sits right in your gut. After you make your decision, it sits right." Defendant did not object.
Defendant raised the prosecutor's argument after the trial court gave its concluding instructions and the jury retired for deliberations. Defendant stated that he was "concerned . . . about the articulation of the standard of proof." Defendant argued it was inappropriate to characterize "it being just like a gut feeling." Defendant moved for a mistrial and requested the jury be given a curative instruction. The court denied defendant's mistrial motion and instructional request because the jury had been properly instructed on reasonable doubt and "the jury will be following that particular instruction."
2. Forfeiture
" 'A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) In People v. Peoples (2016) 62 Cal.4th 718 (Peoples), the California Supreme Court held there was no forfeiture where the defendant objected to the prosecutor's misconduct "before defense closing arguments began, thus providing the trial court with an opportunity to admonish the jury prior to the start of deliberations." (Id. at p. 801, italics added.) In People v. Jenkins (1974) 40 Cal.App.3d 1054 (Jenkins), in contrast, the Court of Appeal determined that the defendant's objections to the prosecutor's remarks and requests for admonitions were untimely because they were not raised "until after the jury had begun its deliberations." (Id. at p. 1057, italics added.)
Here, defendant did not object to the prosecutor's comments in rebuttal argument defining "abiding conviction" until after the jury had begun to deliberate. For that reason, we determine that the claim has been forfeited. (See Jenkins, supra, 40 Cal.App.3d at p. 1057; cf. Peoples, supra, 62 Cal.4th at p. 801.) Nonetheless, "[a] defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (Lopez, supra, 42 Cal.4th at p. 966.)
3. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a defendant must establish both that his or her trial counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Prejudice requires a showing of "a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." (Strickland, supra, 466 U.S. at p. 697.)
Here, we deny defendant's ineffective assistance of counsel claim because defendant has not demonstrated that he was prejudiced by his counsel's failure to timely object to the prosecutor's argument regarding the meaning of "abiding conviction."
The evidence in support of defendant's guilt of voluntary manslaughter, assault with a semi-automatic firearm, unlawful possession of a firearm, and unlawful possession of ammunition was strong. Defendant, an admitted felon, acknowledged shooting Rocha. Although defendant claimed self-defense, testifying that he thought Rocha was going to shoot him when he saw Rocha reach his right hand toward a pocket on his left side, neither defendant nor the prosecution witnesses saw a gun or any other weapon on Rocha. When police found Rocha collapsed in a doorway, Rocha was unarmed. While the evidence demonstrated that Rocha had threatened and assaulted defendant in the past, it was defendant who confronted Rocha immediately before the shooting by leaving his room, going to the kitchen window, and saying something to Rocha. Defendant shot Rocha from inside his residence while Rocha was standing outside. After the shooting, R.V., who saw the incident in its entirety and was aware of defendant and Rocha's history, repeatedly asked defendant why he had done it.
Further, the trial court correctly instructed the jury on the reasonable doubt standard with CALCRIM No. 220. The court also instructed that the attorneys' statements were not evidence and that the jury must follow the court's instructions even if the attorneys' comments conflicted with them. "In the absence of evidence to the contrary, we presume the jury understood and followed the court's instructions." (People v. Williams (2009) 170 Cal.App.4th 587, 635.)
For these reasons, we conclude that defendant has not established "a reasonable probability that . . . the result of the proceeding would have been different" had his counsel timely objected to the prosecutor's argument regarding the meaning of "abiding conviction." (Strickland, supra, 466 U.S. at p. 694.) We therefore must reject defendant's ineffective assistance of counsel claim. (See id. at p. 687.)
E. Cumulative Error
Defendant contends the judgment must be reversed due to cumulative prejudice from the trial court's errors. However, we have not found error. Because there are not multiple errors to cumulate, defendant's claim fails. (See In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
F. Sentencing Issues
Defendant contends the matter must be remanded for the trial court to exercise its newfound discretion under Senate Bill No. 620 to strike the section 12022.5, subdivision (a) firearm-use enhancements and that the trial court erred when it imposed a fine and two assessments without determining defendant's ability to pay. In addition, both parties agree this court must strike the section 667.5, subdivision (b) prior prison term sentence enhancements based on Senate Bill No. 136.
1. Sentencing Proceedings
The trial court sentenced defendant to an aggregate term of 18 years 8 months as follows. In case No. 15CR01145, the court imposed the midterm of six years on count 1 plus the upper term of ten years for the section 12022.5, subdivision (a) firearm-use enhancement. On count 2, the court imposed and stayed the midterm of six years plus the upper term of ten years for the section 12022.5, subdivision (a) firearm-use enhancement. On counts 3 and 4, the court imposed concurrent, midterm sentences of two years each. The court struck the section 12022.1 on-bail enhancement pursuant to section 1385. The court imposed and stayed one-year terms for each of the three section 667.5, subdivision (b) prior prison term enhancements. The court also imposed a $2,500 restitution fine (§ 1202.4, subd. (b)), a $160 court operations assessment (§ 1465.8), and a $120 court facilities assessment (Gov. Code, § 70373). The court imposed and stayed a $2,500 parole revocation restitution fine (§ 1202.45). The court ordered restitution in the amount of $8,248.40.
In case No. F28562, the trial court imposed a one-year eight-month consecutive term on count 1, which was one-third the midterm; a concurrent, midterm sentence of three years on count 2; a concurrent, midterm sentence of two years on count 3; 30-day concurrent sentences on counts 4, 5, and 6; a concurrent, midterm sentence of two years on count 7; a one-year consecutive term on count 8, which was one-third the midterm; a 60-day concurrent sentence on count 9; and a 30-day concurrent sentence on count 10. The court imposed and stayed one-year terms for each of the three section 667.5, subdivision (b) prior prison term enhancements. The court also imposed a $300 restitution fine, a $400 court operations assessment, a $300 court facilities assessment, and an $80 theft fine (§ 1202.5). The court imposed and stayed a $300 parole revocation restitution fine.
Although the trial court did not order restitution in case No. F28562, the clerk's sentencing minutes and the abstract of judgment incorrectly state that the trial court ordered $8,248.40 in restitution in case No. F28562. We will therefore direct the trial court to correct the clerk's sentencing minutes in case No. F28562 to reflect that no restitution was ordered and to correct the abstract of judgment to reflect that restitution was ordered in case No. 15CR01145, not case No. F28562.
Defendant did not object to the trial court's imposition of sentence or ask for a hearing on his ability to pay the imposed restitution fines or court assessments.
2. Amendment to Section 12022.5
As we detailed above, the trial court sentenced defendant to an additional 10 years in prison because he personally used a firearm in the commission of count 1 and imposed and stayed a 10-year sentence for defendant's personal use of a firearm in the commission of count 2. (§ 12022.5, subd. (a).) At the time of sentencing, the trial court lacked discretion to strike the firearm-use enhancements. (Former § 12022.5, subd. (c).)
Senate Bill No. 620 (S.B. 620), effective January 1, 2018, gives the trial court new discretion to strike firearm-use enhancements under section 12022.5. Subdivision (c) of section 12022.5 now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 1.)
Defendant contends the matter must be remanded to permit the trial court to exercise its newfound discretion to strike the section 12022.5, subdivision (a) firearm-use enhancements. The Attorney General concedes that S.B. 620 applies retroactively to cases not yet final on appeal, but argues remand is unnecessary here because there is no reasonable probability that the trial court would strike the enhancements.
We agree with the parties that the amendment to section 12022.5 applies retroactively to this case because the judgment against defendant is not final. (See People v. Zamora (2019) 35 Cal.App.5th 200, 207.)
Even though the amendment is retroactive, however, remand is not automatic. We must determine whether remand is required or if it would be an " 'idle act.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901 (Gamble).) Generally, "when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general rule is that "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.) However, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' " (Gamble, supra, at p. 901.)
In People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels), the Court of Appeal addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of [S.B.] 620." The court determined that "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (Ibid.) If the trial court "express[ed] its intent to impose the maximum sentence permitted," remand was not required "because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Id. at p. 427.)
People v. McVey (2018) 24 Cal.App.5th 405 (McVey) is illustrative of when remand for resentencing would constitute an idle act. There, in selecting the upper term of 10 years on the section 12022.5, subdivision (a) firearm-use enhancement, "the trial court identified several aggravating factors, including the lack of significant provocation, appellant's disposition for violence, his lack of any remorse, and his 'callous reaction' after shooting an unarmed homeless man six or seven times. These factors, the court said, far outweighed any mitigating factors." (Id. at p. 419.) The court also described the defendant's attitude as " 'pretty haunting' " and commented that " 'the high term of 10 years on the enhancement is the only appropriate sentence.' " (Ibid.) Based on the trial court's statements, the Court of Appeal concluded that remand for resentencing under S.B. 620 "would serve no purpose but to squander scarce judicial resources." (McVey, supra, at p. 419.)
Here, before imposing sentence, the trial court indicated that it would sentence defendant to 16 years in case No. 15CR01145. The court explained that it intended to select the midterm on count 1 because it found this was "a midterm case." Regarding the section 12022.5, subdivision (a) firearm-use enhancements, the court stated, "There is a triad for that, mitigated, aggravated, mid term. I feel the aggravated term should be imposed in that regard. The aggravated term of ten years consecutive is appropriate in light of the history that [defendant] presents. This is a gentleman that has a relatively consistent history with law enforcement, a history of being convicted. And I'm taking that into account in terms of the fact that he should have had no weapon, no ammunition, no nothing of that regard at the time of this tragic incident. I feel the aggravated term is appropriate." The court recognized that it had "the ability to add some additional time" to defendant's sentence in case No. 15CR01145 by, for example, imposing one-year consecutive terms for the prior prison term enhancements, but declined to do so. The court stated that it planned to impose a maximum consecutive sentence of two years eight months in case No. F28562. The court concluded, "I believe this sentence takes into account the circumstances surrounding this incident. It takes into account the jury's findings. It takes into [account] [defendant's] history. It takes into account all of the factors outlined within the Rules of Court . . . . And it is quite consistent with the recommendation offered by Probation."
After giving its indicated sentence, the trial court heard from the parties, including defendant's request that the court select the midterm of four years on the firearm-use enhancements. The court then imposed sentence consistent with its initial remarks, selecting the upper term for the firearm-use enhancement imposed on count 1 and imposed and stayed on count 2.
We conclude that remand is appropriate here. Although the trial court selected the upper term on the firearm-use enhancements, it showed defendant leniency by declining to impose the maximum sentence permitted in case No. 15CR01145, which differentiates this case from McDaniels where the trial court "express[ed] its intent to impose the maximum." (McDaniels, supra, 22 Cal.App.5th at p. 427.)
Accordingly, we remand the matter for resentencing. (Cf. McDaniels, supra, 22 Cal.App.5th at p. 425; McVey, supra, 24 Cal.App.5th at p. 419.) We express no opinion on whether the trial court should exercise its discretion to strike the enhancements.
3. Imposition of Restitution Fine and Court Assessments
Defendant challenges the trial court's imposition of a $2,500 restitution fine under section 1202.4, subdivision (b), a $160 court operations assessment under section 1465.8, and a $120 court facilities assessment under Government Code section 70373, all of which were imposed in case No. 15CR01145. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided after defendant was sentenced, defendant contends the trial court violated the due process clauses of the federal and state constitutions when it imposed the fine and assessments without determining his ability to pay. Defendant further contends that the fine and assessments violated the federal and state prohibitions against excessive fines. The Attorney General counters that defendant's claims have been forfeited and "fail[] because [defendant] has no constitutional right to an ability-to-pay hearing for the punitive restitution fine and because he failed to show an inability to pay the nonpunitive assessments in the trial court."
Defendant states that the trial court imposed a $120 assessment pursuant to section 1465.8. However, the record reflects that the court imposed a $160 court operations assessment pursuant to section 1465.8.
Defendant contends that the trial court's imposition of fines and assessments also violated the equal protection clause. However, defendant provides no " 'legal argument with citation of authorities' " in support of this assertion, and Dueñas was decided on due process grounds, not on equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1168 & fn. 4.) We therefore treat any claim in this regard as waived. (See Stanley, supra, 10 Cal.4th at p. 793.)
In Dueñas, the defendant at sentencing requested a hearing to determine her ability to pay various amounts that were imposed by the trial court. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) At a subsequent ability-to-pay hearing regarding attorney's fees, the court waived attorney's fees based on the defendant's indigence but rejected her constitutional claim that due process required the court to consider her ability to pay other fines and assessments. (Id. at p. 1163.)
The Court of Appeal held that under the federal and state constitutions, "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1168; but see People v. Adams (2020) 44 Cal.App.5th 828 ; People v. Petri (2020) 45 Cal.App.5th 82.) The court further held regarding restitution fines that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, at p. 1164.)
Significantly, however, "a defendant forfeits on appeal any 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' in the absence of objection below. [Citations.]" (People v. Wall (2017) 3 Cal.5th 1048, 1075.) Based on the facts of this case, we determine that defendant forfeited his due process and excessive fines claims.
The trial court imposed a $2,500 restitution fine, which was above the statutory minimum of $300. (§ 1202.4, subd. (b)(1).) Unlike the defendant in Dueñas, defendant did not object to the court's imposition of the fine or request an ability-to-pay hearing. Section 1202.4, subdivision (c) explicitly provides that a defendant's "[i]nability to pay may be considered . . . in increasing the amount of the restitution fine in excess of the" statutory minimum. Moreover, the statute mandates that in setting the restitution fine above the statutory minimum, "the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay." (Id., subd. (d).) The defendant "bear[s] the burden of demonstrating" an inability to pay. (Ibid.) Given these statutory provisions, by failing to object, defendant forfeited his claim that the trial court failed to exercise its discretion to determine his ability to pay the restitution fine. (See People v. Nelson (2011) 51 Cal.4th 198, 227 [ability-to-pay claim forfeited where the defendant could have objected at sentencing "if he believed inadequate consideration was being given to" the ability-to-pay factor for the restitution fine].)
Defendant argues that his ability-to-pay claim has not been forfeited because it "resulted in a legally unauthorized sentence," correctable at any time. However, an unauthorized sentence is one that " 'could not lawfully be imposed under any circumstance in the particular case' [citation]." (People v. Smith (2001) 24 Cal.4th 849, 852.) The error must present a pure question of law that is "correctable without referring to factual findings in the record or remanding for further findings." (Ibid.) Here, in contrast, defendant seeks a remand to the trial court for further findings regarding his ability to pay the fine and assessments. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen) [inability-to-pay issue requires factual determination]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting the defendant's contention that a $10,000 restitution fine was an unauthorized sentence without an ability-to-pay determination, concluding that the claim was forfeited].)
Defendant also asserts that the forfeiture rule does not apply because an objection at sentencing would have been futile. But, as we set forth above, section 1202.4 requires the trial court to consider a defendant's ability to pay in setting the restitution fine in excess of the statutory minimum. (§ 1202.4, subd. (d); see id., subd. (c).) Here, the trial court imposed a $2,500 restitution fine, which was $2,200 above the statutory minimum. (See id., subd. (b)(1).) "[Defendant] was thus obligated to object to the amount of the fine and demonstrate his inability to pay anything more than the [statutory] minimum. Such an objection would not have been futile under governing law at the time of his sentencing hearing. [Citations.]" (Frandsen, supra, 33 Cal.App.5th at p. 1154; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez ) [based on section 1202.4, "even before Dueñas a defendant had every incentive to object to imposition of a . . . restitution fine [above the statutory minimum] based on inability to pay"].)
We likewise determine that defendant's ability-to-pay claim regarding the $160 court operations assessment and the $120 court facilities assessment was forfeited by his failure to object to those assessments in the trial court. "[I]f [defendant] chose not to object to a [$2,500] restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional [$280] in fees." (Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Lastly, we conclude defendant's excessive fines claim was forfeited. While the United States Supreme Court determined after defendant's sentencing that the excessive fines clause of the federal constitution is "an 'incorporated' protection applicable to the States" (Timbs v. Indiana (2019) 586 U.S. ___, 139 S.Ct. 682, 686-687), California courts have long entertained challenges to fines under article 1, section 17 of the state constitution (see, e.g., People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; People v. Urbano (2005) 128 Cal.App.4th 396, 406). Thus, it was incumbent on defendant to raise an excessive fines objection in the trial court to preserve his claim. (See People v. McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional challenge to booking fee forfeited]; People v. Baker (2018) 20 Cal.App.5th 711, 720 [Eighth Amendment claim forfeited for failure to raise it below].)
For these reasons, we reject defendant's claims regarding the trial court's imposition of the restitution fine and the court assessments in case No. 15CR01145.
4. Amendment to Section 667.5 , Subdivision (b)
Senate Bill No. 136, effective January 1, 2020, amended the prior prison term sentence enhancement under section 667.5, subdivision (b) by limiting its application to prison terms that, unlike defendant's, were served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) We invited the parties to file supplemental briefing on whether the prior prison terms should be stricken based on Senate Bill No. 136. The parties agree that the amendment applies retroactively to defendant, and we concur. (See People v. Jennings (2019) 42 Cal.App.5th 664, 680-682.) We will therefore order the trial court to strike the section 667.5, subdivision (b) sentence enhancements imposed and stayed in case Nos. 15CR01145 and F28562.
IV. DISPOSITION
The judgment is reversed and the matter is remanded. On remand the trial court shall first consider whether to strike the Penal Code section 12022.5 enhancements under Penal Code section 1385. If the court strikes the Penal Code section 12022.5 enhancements, it shall resentence defendant. Whether or not the court strikes the Penal Code section 12022.5 enhancements, it shall:
(1) strike the six Penal Code section 667.5, subdivision (b) enhancements;
(2) correct the verdict forms and clerk's minutes to reflect that in case No. 15CR01145, defendant personally used a firearm during the commission of counts 1 and 2 within the meaning of section 12022.5, subdivision (a); and
(3) correct the clerk's minutes to reflect that the trial court ordered $8,248.40 in restitution in case No. 15CR01145.
If the trial court does not resentence defendant, it shall prepare an amended abstract of judgement reflecting these corrections and shall send a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.