Opinion
E066277
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. TYRIES KEIMON BROOKS, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Teresa Torreblanca, and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1501532) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed in part, reversed in part with directions. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Teresa Torreblanca, and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant Tyries Keimon Brooks guilty on one count of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1), one count of shooting from a motor vehicle (§ 26100, subd. (c); count 2), one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 3), and one count of carrying a loaded firearm by an active participant in a criminal street gang (§ 25850, subds. (a), (c)(3); count 4). With respect to counts 1, 2, and 4, the jury found true allegations that Brooks committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). With respect to counts 1 and 2, the jury found true allegations that Brooks personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53). The jury acquitted Brooks of a fifth charged count, possessing a concealed firearm in a vehicle (§ 25400, subd. (a)(1)). The trial court imposed an indeterminate sentence of 40 years to life, plus a determinate sentence of seven years.
Further undesignated statutory references are to the Penal Code. --------
On appeal, Brooks contends that the trial court erred by failing to instruct the jury on attempted voluntary manslaughter under a sudden quarrel or heat of passion theory as a lesser included offense of attempted murder. He also argues that the gang enhancement related to count 4 should have been stayed pursuant to section 654. The People concede this issue. Finally, he argues that the matter should be remanded to allow the trial court to consider whether to strike the firearm enhancement related to count 1 under the new version of section 12022.53, subdivision (h), which took effect January 1, 2018.
We reject Brooks's claim of instructional error. We agree, however, with his other two arguments. The judgment therefore will be reversed in part, and affirmed in part as follows: The four-year term for the section 186.22, subdivision (b)(1) enhancement of count 4 is ordered stayed, and the abstract of judgment corrected accordingly. The matter is remanded for the trial court to consider striking the section 12022.53, subdivision (d), enhancement pursuant to sections 1385 and 12022.53, subdivision (h). The judgment is affirmed in all other respects.
II. FACTUAL AND PROCEDURAL BACKGROUND
The events giving rise to counts 1 through 3 occurred on the evening of April 17, 2015. Although the testimony of the witnesses and the victim differ in some details, they are largely consistent at a broad level. The victim, Nelson Davis, was driving in Rialto, near the intersection of Spruce Avenue and Lorraine Place, with a female passenger, Ursula Tillman. He stopped his car near the entry of an alleyway and conversed briefly with a female friend, Giselle Davis, who was walking from a nearby liquor store. As they were conversing, a car driven by Destinee Reed, with Brooks in the front passenger seat and Reed's three-year-old child (Brooks's niece) in the back seat, drove past the victim's car and down the alley.
Shortly thereafter, the two cars parked next to one another in parking spaces for the adjacent apartment complex a short distance down the alleyway; both pulled in facing forward, so that the passenger's side of Reed's car was adjacent to the driver's side of the victim's. Almost immediately, a verbal confrontation broke out between occupants of the two cars, during which Reed, Tillman, and the victim exited the vehicles, but Brooks did not. After a brief argument, Brooks said something to Reed—several witnesses heard something to the effect of "back up" or "back the car up," punctuated with profanities, but Reed testified that he was telling her "get . . . in the car." Reed got back in her car, and maneuvered it out of the parking space. As she did so, Brooks fired multiple shots from a handgun out the passenger window, hitting the victim three times; first in the hand, then in the back, then in the leg.
With respect to counts 4 and 5, the prosecution presented evidence that on April 25, 2015, Brooks was the passenger in a car stopped by police in a traffic stop. The car was searched, leading to the discovery of a loaded handgun on the passenger's seat, and a second loaded handgun tucked between the center console and the passenger's seat.
The prosecution presented evidence that in April 2015, Brooks was an active member of the Five Time Hometown Crips (Five Time gang), a criminal street gang. Reed, too, is associated with the Five Time gang; she pleaded guilty to a charge of active participation in a street gang (§ 186.22, subd. (a)), among other things, in connection with the shooting at issue here, and her child's father is Brooks's brother, who also has convictions on gang charges. The color associated with Five Time gang is blue. One of the main rivals of the Five Time gang is Hustla Squad; there have been numerous shootings in the last several years between the two gangs. Hustla Squad's associated color is red. The events of April 17, 2015, at issue in the present case took place within the territory of Hustla Squad. At the time of the shooting, the victim, Tillman, and Giselle Davis were all wearing red.
Brooks's trial was conducted in January and February 2016, and the trial court imposed sentence on June 13, 2016. The sentence consists of indeterminate terms of 15 years to life for count 1, and 25 years to life for the section 12022.53, subdivision (d) enhancement of count 1, plus three years for count 4, and four years for the section 186.22, subdivision (b)(1) enhancement of count 4. The trial court also imposed sentences for counts two and three, but stayed them pursuant to section 654.
III. DISCUSSION
A. The Trial Court Did Not Err by Failing to Instruct the Jury on Attempted Voluntary Manslaughter Based on Sudden Quarrel/Heat of Passion.
At trial, Brooks did not request that the jury be instructed on attempted voluntary manslaughter based on a sudden quarrel or heat of passion theory as a lesser included offense of attempted murder. On appeal, he argues that the trial court erred by failing to instruct the jury on that theory sua sponte. We disagree, and in the alternative find any error to be harmless.
1. Applicable law.
Attempted voluntary manslaughter due to a sudden quarrel or in the heat of passion is a lesser included offense of attempted murder. (People v. Beltran (2013) 56 Cal.4th 935, 942.) It has both an objective and a subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye); CALCRIM No. 570.) To satisfy the objective or reasonable person element of this form of voluntary manslaughter, the accused's heat of passion must be due to sufficient provocation, either caused by the victim or by conduct reasonably believed by the defendant to have been engaged in by the victim. (Moye, supra, at pp. 549-550.) The victim's conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (Ibid.) To satisfy the subjective element of voluntary manslaughter, the accused must be shown to have killed while under the actual influence of a strong passion induced by such provocation. (Id. at p. 550.)
A trial court must instruct the jury on all general principles of law relevant to the issues of the case, including defenses and lesser included offenses when they are supported by substantial evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866-867.) "[S]ubstantial evidence means evidence . . . from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist." (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
The appellate court reviews independently the question whether the trial court erroneously failed to instruct on defenses and lesser included offenses. (People v. Oropeza, supra, 151 Cal.App.4th at p. 78.) The failure to instruct sua sponte on voluntary manslaughter based on heat of passion or sudden quarrel is subject to the state law standard for evaluating prejudice. (People v. Breverman (1998) 19 Cal.4th 142, 165 (Breverman); accord Moye, supra, 47 Cal.4th at p. 556.) Thus, any error is harmless unless it is reasonably probable that the defendant would have obtained a more favorable result if the instruction had been given. (Moye, supra, at p. 556.) Our analysis here, however, does not depend on the difference between the state and federal standards for determining harmless error, as we would reach the same result under either standard.
2. Analysis.
Brooks contends that substantial evidence supported a finding of attempted voluntary manslaughter on a heat of passion or sudden quarrel theory. Among other things, he points to evidence that the victim initiated the confrontation that led to the shooting; that the victim's behavior was both verbally and physically aggressive, and he had a highly muscular, physically intimidating physique; that the confrontation occurred in a context of gang rivalry known to all parties, such that Brooks had a reasonable belief that physical violence was imminent; and that the whole confrontation occurred quickly, and in extremely close quarters. These circumstances, Brooks argues, caused him to experience fear and panic, and to simply react, without reflection.
Accepting for the sake of argument Brooks's characterization of the evidence, we are not persuaded that the trial court erred by failing to instruct on voluntary manslaughter based on heat of passion or sudden quarrel. The California Supreme Court has held that "a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching." (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) Even if the victim was agitated and "puffed up" in a fighting stance, there is no evidence that any blows were exchanged, or any other violent actions taken by any party, until Brooks opened fire as Reed was beginning to drive them both away from the scene. We are not persuaded that "[r]easonable people . . . become homicidally enraged" in such circumstances. (People v. Avila (2009) 46 Cal.4th 680, 706.)
Brooks points to Breverman as authority in support of the opposite conclusion. In Breverman, there had been a fight outside defendant's home, in which two young men were kicked and beaten, suffering minor injuries. (Breverman, supra, 19 Cal.4th at pp. 149-150.) The next evening, a group of 6-10 young men, including at least one who had been injured in the fight the night before, returned to the defendant's home "armed with dangerous weapons and harboring a specific hostile intent," specifically, "to have an even fight with those who had beaten [the two young men] the night before." (Id. at pp. 150, 163.) The defendant saw them coming, and retreated into his house. (Id. at p. 151.) The group trespassed on the defendant's property, challenged him to fight, and used the weapons "to batter and smash defendant's vehicle parked in the driveway of his residence, within a short distance from the front door." (Id. at p. 163.) The Supreme Court found that under the circumstances, "a reasonable jury could infer that [Breverman] was aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce such effects in a person of average disposition." (Id. at pp. 163-164.)
Similarly, in People v. Speight (2014) 227 Cal.App.4th 1229, there was evidence not only that the defendant had been challenged to a fight by the victim, who was outside his house and "angrily yelling at him to come outside and fight." (Id. at p. 1244.) There was also at least some evidence that the defendant believed the victim was armed with a gun, and was physically attacking ("jumping") the victim's aunt while Speight was retrieving his own weapon. (Id. at pp. 1244-1245.)
The facts of the present case are distinguishable from those of Breverman and Speight. However verbally and visually intimidating the victim's conduct (and that of Tillman) may have been, until Brooks opened fire there had been no physical violence, and no reason for Brooks to believe, even mistakenly, that there had been. Brooks was not holed up in his house, with someone outside challenging him to come outside to fight; he was in a car that was beginning to drive away from what had been, to that point, only an exchange of words. No additional instruction regarding sudden quarrel or heat of passion was warranted. (People v. Gutierrez, supra, 45 Cal.4th at p. 826.)
Furthermore, even if we were to accept that there was sufficient evidence of provocation to require instructing the jury on voluntary manslaughter based on heat of passion or sudden quarrel, the record demonstrates that any error was harmless. The trial court properly instructed the jury on self-defense and imperfect self-defense. But the jury rejected those claims, and there is no independent evidence that supports an inference that Brooks subjectively harbored such strong passion, or acted rashly or impulsively while under its influence, for reasons unrelated to his perceived need for self-defense. "[T]he jury having rejected the factual basis for the claims of reasonable and unreasonable self-defense, it is not reasonably probable the jury would have found the requisite objective component of a heat of passion defense (legally sufficient provocation) even had it been instructed on that theory of voluntary manslaughter." (Moye, supra, 47 Cal.4th at p. 557.)
Additionally, the verdict shows the jury refused to find defendant acted "rashly, impulsively, or without careful consideration of the choice and its consequences." (See CALCRIM No. 601.) The jury specifically found that defendant intended to kill when he acted, carefully weighed his decision and, knowing the consequences, decided to kill before completing the act of attempted murder. (CALCRIM No. 601.) "'Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to [the] defendant under other properly given instructions.'" (People v. Peau (2015) 236 Cal.App.4th 823, 830 (Peau), quoting People v. Lewis (2001) 25 Cal.4th 610, 646.)
In People v. Berry (1976) 18 Cal.3d 509, the court held that a first degree murder verdict did not render the failure to give a requested heat of passion instruction harmless. (Id. at pp. 512, 518.) However, as pointed out in Peau, the court in Berry only considered "whether the error was harmless because the jury received some instruction on the concepts of heat of passion and provocation, not whether the error was harmless because the jury found the murder was willful, deliberate, and premeditated and such a finding was inconsistent with a finding that defendant acted in a heat of passion." (Peau, supra, 236 Cal.App.4th at pp. 831-832.) The jury's verdict in the present case is entirely inconsistent with a finding that defendant acted in a heat of passion. Any error in failing to instruct sua sponte on heat of passion or sudden quarrel is harmless under any standard.
B. The Four-year Term for the Section 186.22, Subdivision (b)(1) Enhancement of Count 4 Should Have Been Stayed Pursuant to Section 654.
Brooks argues, and the People concede, the four-year term imposed by the trial court for the section 186.22, subdivision (b)(1) enhancement of count 4 should have been stayed pursuant to section 654. We agree.
Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 protects against multiple punishment rather than multiple conviction. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Its purpose "'is to insure that the defendant's punishment will be commensurate with his criminal liability.' [Citation.]" (People v. Norrell (1996) 13 Cal.4th 1, 6, superseded in part by statute on another ground as stated in People v. Kramer (2002) 29 Cal.4th 720, 722.) A defendant thus may not be punished for two separate crimes that arise either out of a single act or out of an indivisible transaction (People v. Ortega (1998) 19 Cal.4th 686, 693), unless the defendant's violent actions injure more than one victim (Deloza, supra, at p. 592).
Carrying a loaded firearm in violation of section 25850 is generally a misdemeanor, except under certain enumerated circumstances, when it is punishable as a felony. (§ 25850, subds. (1), (c)(7).) The enumerated circumstance applicable in the present case is described in section 25850, subdivision (c)(3): "Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22 . . . ." In addition, count 4 was accompanied by enhancement allegations pursuant to section 186.22, subdivision (b)(1), which provides for additional punishment when the underlying offense was "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) Thus, Brooks was punished twice—by elevating his misdemeanor violation of section 25850, subdivision (a), to a felony pursuant to subdivision (c)(3) of that statute, and by imposing the section 186.22, subd. (b)(1) enhancement—for a single physical act, namely, carrying a loaded gun while being an active participant in a criminal street gang. This is precisely the sort of multiple punishment that section 654 prohibits. (See People v. Jones (2012) 54 Cal.4th 350, 358 ["Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law."].)
The People suggest that section 654 also applies to prohibit count 4 from being elevated from a misdemeanor to a felony based on defendant's active gang participation under section 25850, subdivision (c)(3). Brooks disagrees, as do we. The act charged as active participation in a street gang in count 3 was the same physical act as that charged in count 1, namely, an attempted murder that occurred on April 17, 2015. The trial court therefore properly stayed the sentence imposed for count 3 pursuant to section 654. The count 4 charge of carrying a loaded firearm was elevated to a felony pursuant to section 25850, subdivision (c)(3), not based on the attempted murder on April 17, 2015, but because the jury found that on April 25, 2017, "[w]hen the defendant carried the firearm, the defendant was an active participant in a criminal street gang." Section 654 does not apply to prohibit multiple punishment in such circumstances, where the charges at issue arise from two separate criminal acts.
People v. Mesa (2012) 54 Cal.4th 191 (Mesa) does not require a different result. In that case, the Supreme Court found that a defendant cannot be punished both for the substantive offense of actively participating in a criminal gang in violation of section 186.22, subd. (a), and the felony that serves as the underlying offense of the section 186.22, subd. (a) conviction. (Mesa, supra, at pp. 197-198.) Applying this rule to the present case, the trial court properly stayed the sentence imposed for Brooks's conviction on count 3. But the rule has no application to count 4, which relates to a separate criminal act from the one charged in counts 1, 2, and 3, committed on a different day and as part of a separate course of criminal conduct.
C. The Case Must Be Remanded for the Trial Court to Exercise Its Newly Granted Discretion Under Section 12022.53 , Subdivision (h).
When Brooks was sentenced, the trial court was required to impose an additional and consecutive term of imprisonment of 25 years to life with respect to the section 12022.53, subdivision (d), enhancement of count 1. (See former § 12022.53, subd. (h) (effective Jan. 1, 2012) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."].) On October 11, 2017, the Governor signed Senate Bill 620, which amends section 12022.53 to give the trial court the authority to strike in the interests of justice a firearm enhancement allegation found true under that statute. Effective January 1, 2018, section 12022.53, subdivision (h), is amended to state: "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, § 2(h).)
In supplemental briefing on appeal submitted in December 2017, Brooks argued, and the People agreed, that the newly amended version of section 12022.53 would apply retroactively to cases not yet final on appeal, once it went into effect. (See In re Estrada (1965) 63 Cal.2d 740, 747-748.) The People disputed whether Brooks was entitled to relief, however, since the new version of the law had not yet gone into effect. But because this opinion will be issued after January 1, 2018, the People's arguments regarding ripeness are now moot.
The People also argue that we need not remand the case because the trial court would not have exercised its discretion to lessen Brooks's sentence. They cite to People v. Gutierrez (1996) 48 Cal.App.4th 1894, in which the Court of Appeal concluded that remand was unnecessary when the trial court erroneously believed it lacked the discretion to strike a prior conviction under the three strikes law. In that case, however, the trial court stated on the record that it would not have exercised such discretion in any event. (Id. at p. 1896.) Here, the trial court made no comparable statement with respect to the firearm enhancement at issue.
As the People note, the trial court did impose aggravated terms with respect to count 4 and its associated enhancement. We are not persuaded, however, that the trial court's analysis leading to the selection of a determinate sentence—particularly a relatively short determinate sentence—would necessarily coincide with its analysis of the interest of justice with respect to the imposing or striking of an indeterminate term of 25 years to life.
We express no opinion as to how the trial court should exercise its newly granted discretion under section 12022.53, subdivision (h), on remand. We conclude, however, that the trial court must exercise this discretion in the first instance.
IV. DISPOSITION
The judgment is reversed in part and affirmed in part as follows: The four-year term for the section 186.22, subdivision (b)(1) enhancement of count 4 is ordered stayed, and the abstract of judgment corrected accordingly. The matter is remanded for the trial court to consider striking the section 12022.53, subdivision (d) enhancement pursuant to sections 1385 and 12022.53, subdivision (h). The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.