Opinion
A168731
07-25-2024
THE PEOPLE, Plaintiff and Respondent, v. JOEY HARRIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 20-SF-010494-A)
STREETER, Acting P. J.
On the evening of September 7, 2020, defendant Joey Harris shot and killed his girlfriend, Cynthia Mose. In his ensuing trial for first degree murder, Harris conceded he shot Mose to death but contended he did so in the heat of passion, justifying at most a conviction for voluntary manslaughter. The jury rejected the argument and found Harris guilty of first degree murder.
Prior to trial, Harris pled no contest to being a felon in possession of a firearm, and following the return of the jury's verdict he admitted having suffered a prior strike conviction. Based on the guilty verdict, the no contest plea, and the prior strike conviction, the trial court sentenced Harris to an aggregate prison term of 75 years to life.
Harris now argues the trial court prejudicially erred by (1) failing to state in its murder instruction that the prosecution had the burden of disproving provocation, (2) implying in its voluntary manslaughter instruction that the defense bore the burden of proving voluntary manslaughter, and (3) denying a motion to dismiss his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We conclude Harris's arguments lack merit and affirm.
I. BACKGROUND
A. The Charges Against Harris
In July 2022, the San Mateo County District Attorney charged Harris in an amended information with two counts: murder (Pen. Code, § 187, count 1), accompanied by enhancement allegations, including that he personally discharged a firearm causing death (§ 12022.53, subd. (d)); and felon in possession of a firearm (§ 29800, subd. (a)(1), count 2). The district attorney also alleged Harris had suffered a prior felony strike conviction in 1995 for conspiracy to commit robbery (§§ 667, 1170.12, subd. (b)).
B. Witness Testimony at Trial
At the time of her death, Mose, then 56 years old, and Harris, then 55 years old, had been romantically involved for about three years and lived together in Stockton, California. On the day of the shooting, Harris attended a birthday party for Mose at the East Palo Alto apartment of Mose's close friend, Agnes Jones, which was about an hour and a half away by car from Stockton. Harris left the party early and returned a few hours later, asked Mose to come with him outside and, after arguing with her, shot her twice, once in her chest and once in her back, killing her.
A number of witnesses testified about events leading up to the shooting, some details bearing on how the shooting happened, and the immediate aftermath. Early in the morning, Jammesie Jones, Agnes's cousin and Mose's friend, drove with Mose from Stockton to Agnes's apartment with Harris following behind them in a separate vehicle. They all set things up for the party. Harris then went to see family to talk about preparations for the funeral of his father, who had died a few days before. Mose and Jammesie went to a celebration of life event for a friend. The two returned to Agnes's apartment at 2 p.m. or 3 p.m. that day, Harris returned a few minutes later, and the party began.
We refer to Agnes Jones and Jammesie Jones by their first names for clarity's sake. We mean no disrespect by doing so.
One of the party guests, Albert Davis, testified that he grew up with Mose, was friends and "playful" with her, but was never romantically involved with her. At the party, Harris confronted him and wanted him to go outside. He refused. Davis knew Harris had a pistol that belonged to Mose, and Davis "wasn't going out there anyway." According to Davis, Harris was acting "a little mean," was "tripping," and was "staring at [Mose] hard." He "kept on talking about [Mose], talking about me and her was messing around and things like that." Davis decided to go home, leaving around 6:00 p.m. or 7:00 p.m.
Agnes testified that Mose and Harris danced together at the party, seemingly happy. Harris was the first to leave the party. He told Agnes that Mose told him to leave and that he had to go to work the next day. Jammesie testified that Harris left around 6:00 p.m. or 6:30 p.m., saying he had to go to work.
Agnes further testified that Harris returned about three hours later, entering her apartment without knocking. Jammesie testified that Harris returned "a few hours" after he left, and that his demeanor was "very antsy, antsy, just kind of looking around in a different way, like something I had never seen." Another party guest testified that Harris seemed to be "bothered" upon his return.
According to Agnes, Harris walked over to Mose and, referring to a man at the party, asked her," '[W]ho is that?'" Mose said he was her classmate. Harris then asked Mose to go outside and the two left. "[A] few moments" later, Agnes said, she heard" 'bam, bam'" and went outside. She saw Harris by a gate and Mose on the ground by the stairs. Agnes yelled and ran inside to say Harris had shot Mose; when she went back outside Harris was gone.
A neighbor who lived in an apartment building across from Agnes's building testified that he went out on his balcony that night after hearing "lots of yelling and commotion." He saw a man and a woman arguing at the base of the stairs of the apartment building across the parking lot. There was "loud yelling" and "some . . . big hand gestures. And the man pulled out a weapon and shot the woman." She turned away as if to run, was shot again, and fell at the base of the stairs. After a pause, the man sprinted down the street.
Another neighbor saw Harris running from the area holding what looked like a gun. ShotSpotter, a gunfire detection system used by law enforcement, detected gunshots in the area at 11:10 p.m.
Harris's younger brother, Alonzo Harris, testified that Harris called him in the early morning hours after the shooting. Over a number of phone calls, Alonzo convinced Harris to come to Alonzo's home in Stockton. There, Harris was apologetic and said he had" 'messed up,'" and that" 'I don't even know what . . . I've done.'" The two had a few drinks. Harris said Mose was cheating on him with someone else, which he had found out sometime before that day. He used his laptop to show Alonzo nude pictures of Mose that she had sent to someone on an internet dating site. Harris also discussed the struggles he was going through because of the recent deaths of his father and a brother who had died the previous Thanksgiving.
We also refer to Alonzo Harris by his first name for clarity's sake.
Eventually, Alonzo, with Harris's agreement, drove Harris to the police department and gave the police Harris's weapon. Alonzo told police in a recorded interview that was played for the jury that Harris told him Mose had cheated on him and given him gonorrhea. He said Harris had been aware of Mose's cheating for about two months prior to the shooting.
A coroner who performed Mose's autopsy testified her body had gunshot wounds in the upper right chest and upper left back. Both wounds had powder stippling around them, indicating they resulted from shots fired from between two inches and two feet away.
C. Harris's Statements to Police
At around 6:00 a.m., Harris approached an officer at the Stockton Police Department, who testified that Harris seemed "upset, crying at some points." Harris said he had killed his wife, needed to talk to someone, and "didn't mean to do this shit." After being told his Miranda rights, police interviewed Harris. His interviews were recorded and played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
Harris told police about preparing for Mose's birthday party at Agnes's apartment, leaving, and then returning to find Davis there although the party had not yet begun. Harris said Mose went outside with Davis to smoke "weed" and showed off a gift upon her return. She "danced right in front of [Davis] while he sat down" like she was "putting on a show," so Harris went over and danced with Mose, which caused her to become "pissed off." It was obvious to Harris that Davis and Mose were having an affair.
Harris said he and Mose were "estranged." Recently, she had an affair with a Stockton police officer. Her dating other men and going on dating apps caused things to build up in Harris and he "thought about hurting her," although he did not know if he meant physically. He added that things would "come out my mouth," such as, "I'll kill you type of shit." He confronted Mose about seeing someone else, and she told him that he should be "grateful."
Harris told police he asked Davis at the party what was going on between him and Mose and why Davis had asked Mose for pictures of her "pretty ass titties." Davis replied that nothing was going on and that Mose was his best friend, and he eventually left the party. Harris left for home after that, telling Mose he had to go to work the next day and was tired. Mose told him at some point," 'If you're gonna have an attitude you don't need to be here.' "
Harris said he called Mose from home, but his call was forwarded to her voice mail. On an Apple Watch linked to Mose's cell phone, he saw text messages indicating she was planning to meet with someone that evening. He also saw text messages indicating that Mose had spent time elsewhere earlier that day with Davis. He went back to the party, thinking Mose could be having a "turnabout" with Davis and planning to "confront" Davis.
Harris drove back feeling "clear" and "angry." At the party, he asked Mose about a man there and then "told her to step out." Outside, he asked why she did not answer her phone. She said," 'You know, I don't have to answer to you,'" and," 'I ain't gonna tell you a goddamn thing. You a shit starter.'" She referred to his earlier confrontation with Davis, saying Jammesie had told her about it, which he thought was a lie. He told Mose she was" 'full of shit'" and that she had" 'been fuckin' with this dude ever since.'" Mose replied," 'Fuck you' yada yada" and" 'I don't want you-I don't want you around here. Get the fuck away from here.'" "And that was it," Harris said. "I shot her."
Harris told police he shot her twice with a .38 he had in his back pocket, which he had brought with him because of the text messages between Mose and Davis that he had read. It was Mose's gun, which she kept in a closet in their house. He had it with him that whole day, but had kept it in the car the first time he was at the party. He intended to scare Davis by brandishing it at him. But, he told police, if Mose and Davis had been outside together when he returned, "Maybe I would've just pulled the gun out on-on them . . ., I don't know." He added that he "wanted to hurt" Davis and "maybe" wanted to hurt them both. He wanted his own pain "to end and I wanted to end him." He said, "So I don't know. You can call it premeditated, whatever you want to call it." He did not stop himself from shooting Mose because he "was so filled up with rage." He "chose to do it out of anger and rage."
Harris also said he did not know what he was going to do with the gun when he returned to the party and whether Davis was going to be there. He did not think he was going to do what he did, but also said, "I think I told myself in anger I will kill ya-I will kill you both, in my brain." He thought Mose's reaction to him indicated she was cheating on him. He shot her "[c]ause she said 'Fuck you,'" " 'Fuck outta here,'" and" 'I don't want you here no more' and I was so rejected I guess." He referred to the loss of his brother and father, and also the loss of his mother, who had died three years before. He said he did not have any feeling after shooting Mose, and "just walked off." He regretted everything he did.
D. The Verdicts, Sentencing, and Appeal
After a few hours of deliberation, the jury convicted Harris of the first degree murder of Mose and found that he personally and intentionally discharged a firearm which caused her death. Prior to trial, Harris pleaded no contest to being a felon in possession of a firearm, and following the return of the jury's verdict he admitted suffering a prior strike conviction. The court denied Harris's Romero motion to dismiss his prior strike conviction. It sentenced him to a total prison term of 75 years to life, which included a doubling of his 25-year-to-life term for first degree murder because of his prior strike conviction, and 25 years to life for his personal discharge of a firearm in the course of murdering Mose.
Harris timely appealed from the conviction and the sentence.
II. DISCUSSION
A. The Court Did Not Commit Instructional Error
On appeal, Harris attacks his conviction on the ground that the trial court erred in instructing the jury. There are two strands to his instructional argument, one pertaining to the murder instruction and one pertaining to the manslaughter instruction. First, he argues, the court's murder instruction, based on CALCRIM No. 520, was facially defective because it failed to state as an element of murder that the prosecution had to show Harris did not kill Mose as a result of a sudden quarrel or heat of passion, or that the jury should consult any other instruction before returning a murder verdict. Second he argues, the court's voluntary manslaughter instruction, based on CALCRIM No. 570, was legally incorrect because it stated that murder was "reduced" to voluntary manslaughter, thereby inverting the burden of proof. The People contend Harris has forfeited these claims by not raising them in the trial court, and in any event that they lack merit.
We reject the People's forfeiture argument. A failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected. (Pen. Code § 1259; People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).) Here, Harris claims the purportedly defective instruction violated his federal Constitutional rights to due process. Because this assertion, if meritorious, would affect Harris's substantial rights, his instructional claims are not forfeited. (Mitchell, at p. 580.) We therefore turn to the merits.
1. Relevant Proceedings Below
The court gave a standard murder instruction based on CALCRIM No. 520. The CALCRIM No. 520 instruction did not refer to the court's separate instruction on voluntary manslaughter or to anything in the manslaughter instruction.
Defense counsel requested seven pinpoint jury instructions regarding voluntary manslaughter. The trial court concluded the first five were addressed in the standard voluntary manslaughter instruction, CALCRIM No. 570, and decided to give the other two. It later gave counsel its voluntary manslaughter instruction, modified to include this pinpoint language, and both sides agreed to that instruction.
2. Legal Standards
"A claim of instructional error is reviewed de novo. An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (Mitchell, supra, 7 Cal.5th at p. 579 [cleaned up].)
Further, "[j]urors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case." (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220 [cleaned up] (Hajek and Vo), disapproved in part on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) They also are presumed to be able to correlate instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
3. Analysis
a. The Murder Instruction
Relying on People v. Schuller (2023) 15 Cal.5th 237 (Schuller), Harris correctly points out that when provocation such as sudden quarrel or heat of passion is at issue, the prosecution must prove beyond a reasonable doubt its absence to show malice murder. (Id. at pp. 253-254.) He argues the trial court's murder instruction was defective because it did not state this, thereby omitting a necessary element of malice, and did not even refer to any other instruction. Harris further contends that some jury instructions other than CALCRIM No. 520 refer to other instructions that should also be considered, implying this should be the rule.
We agree that Schuller is indirectly relevant, but conclude it does not establish there was instructional error here. In that recent case, our Supreme Court held the trial court erred by not instructing on the law of imperfect self-defense where substantial evidence supported the theory. (Schuller, supra, 15 Cal.5th at p. 243.) The court noted, "California law recognizes two circumstances where 'a finding of malice may be precluded, and the offense limited to manslaughter, even when an unlawful homicide was committed with intent to kill' [citation]: (1) when a person kills '" 'in a "sudden quarrel or heat of passion" [citation], or . . . [(2) when a person] kills in "unreasonable self-defense"-the unreasonable but good faith belief in having to act in self-defense [citations].'" '" (Id. at pp. 252.)
" 'These mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter "by negating the element of malice that otherwise inheres in such a homicide [citation]."' [Citation.] The circumstance at issue in this case, imperfect self-defense, 'obviates malice because that most culpable of mental states "cannot coexist" with an actual belief that the lethal act was necessary to avoid one's own death or serious injury at the victim's hand.'" (Schuller, supra, 15 Cal.5th at p. 252.) The Schuller court further explained that "the relationship between murder and voluntary manslaughter . . . is somewhat 'unique' in our criminal law." (Id. at p. 253.) "While 'closely resembl[ing] an affirmative defense' [citation], imperfect self-defense is 'not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter . . . is not a defense but a crime ....'" (Ibid.)
The court held, "[w]hen imperfect self-defense is at issue, the malice element of murder requires the People to show the absence of that circumstance beyond a reasonable doubt. [Citation.] Thus, when there is substantial evidence to support the theory, the failure to instruct on imperfect self-defense amounts to an incomplete instruction on an actual element of murder, namely malice. In the absence of such an instruction, jurors would have no reason to conclude they cannot find malice (and thus cannot return a verdict of murder) if they harbor a reasonable doubt as to whether the defendant acted in the actual, but unreasonable, belief in the need for self-defense." (Schuller, supra, 15 Cal.5th at pp. 243-244.)
The primary issue addressed in Schuller was whether, on appellate review, a trial court's erroneous failure to instruct on imperfect self-defense should be considered under the reasonable probability of a better outcome prejudice standard for state law error set forth in People v. Watson (1956) 46 Cal.2d 818, or the more demanding harmless beyond a reasonable doubt standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18. Because the form of misinstruction presented in Schuller-failure to instruct on imperfect self-defense where there is substantial evidence to support the instruction-"precludes the jury from making a finding on a factual issue that is necessary to establish the element of malice, it qualifies as federal error" under Chapman. (Schuller, supra, 15 Cal.5th at pp. 243-244.)
Although Schuller is an imperfect self-defense case, there is no question its holding applies in heat of passion cases as well. The court explained, "Our holding . . . appl[ies] to other forms of voluntary manslaughter, i.e., heat of passion and imperfect defense of others, which operate identically to imperfect self-defense by negating the malice element of murder. (See [People v.] Rios [(2000)] 23 Cal.4th [450,] 461; People v. Randle (2005) 35 Cal.4th 987, 997 [as with imperfect self-defense, one who kills in imperfect defense of others is 'guilty of manslaughter, not murder, because he lacks the malice required for murder' (italics omitted)].) Thus, when the record contains substantial evidence of heat of passion or imperfect defense of others, the failure to instruct on those theories is likewise subject to review under the Chapman standard." (Schuller, supra, 15 Cal.5th at p. 260, fn. 7, italics omitted.)
While Schuller is indirectly relevant here because this is a heat of passion case, that is as far as the logic goes. Harris's attempts to persuade us that Schuller exposes a facial defect in the CALCRIM 520 instruction are unpersuasive. Nothing in Schuller states or implies that a trial court errs by instructing the jury on malice murder without including in that particular instruction the prosecution's burden of proving the absence of provocation in order to prove malice. To the contrary, the discussion we have quoted from Schuller, in which the court both noted that the absence of an imperfect selfdefense instruction and commented that the standard instruction for that crime properly instructs on the People's burden, strongly suggests the court thought the murder instruction itself need not include a reference to the prosecution's burden to disprove provocation.
This reading of Schuller is consistent with the high court's discussion in Mitchell that a challenged instruction must be "viewed in the context of the instructions as a whole" (Mitchell, supra, 7 Cal.5th at p. 579 [cleaned up]), and also with People v. Lewis (2001) 25 Cal.4th 610 (Lewis), which the People rely on here. In Lewis, the court considered the claim that a voluntary intoxication instruction was in error for failing to include the standard instruction's description of the specific intent necessary for robbery or burglary. (Id. at p. 649.) The court wrote, "In assessing defendant's claim of error, we consider the entire charge to the jury and not simply the asserted deficiencies in the challenged instruction. A trial court is not obliged to condense the required explanation of a legal rule or concept in a single instruction; a charge is not erroneous . . . simply because a required explanation is given in two instructions rather than one." (Ibid. [cleaned up]; see also People v. Mataele (2022) 13 Cal.5th 372, 419 [it is a "familiar proposition that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction" [cleaned up]].)
Harris argues Lewis is distinguishable because the argument was never made there that the specific jury instruction at issue affirmatively misstated the law, when here he contends, based on Schuller, that the murder instruction was incorrect as a matter of law because the trial court did not state regarding malice that the People were required to disprove provocation. This argument is unpersuasive, both based on the high court case law we have just discussed and, further, because Schuller, unlike the present case, involved a circumstance in which there was no instruction on voluntary manslaughter (in that case, based on an imperfect self-defense theory). (Schuller, supra, 15 Cal.5th at p. 249.) Here, the trial court did give a voluntary manslaughter instruction, which included that the prosecution was required to disprove provocation in order to prove malice murder as follows: "The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." Under Schuller, Mitchell, Lewis, and People v. Mataele, this was sufficient to properly instruct the jury on the elements necessary to prove murder.
Further, the trial court gave other instructions in this case that ensured the jury would consider provocation. It instructed on provocation, based on CALCRIM No. 522, immediately following its murder instruction, explaining that "[p]rovocation may reduce a murder from first degree to second degree" and told the jury to "consider the provocation in deciding whether the defendant committed murder or manslaughter." The court also told the jury to "[p]ay careful attention to all of these instructions and consider them together."
We are therefore satisfied that Harris has shown no error, facially or as applied on this record, in CALCRIM No. 520. The law presumes that a reasonable juror understands the court's instructions as a package, and on appeal we will consider each instruction together with other instructions, not as isolated directives divorced from context. When we review asserted instructional error on appeal, we always begin from the premise that jurors "are intelligent people capable of understanding and correlating all jury instructions and applying them to the facts of the case." (People v. Campbell (2020) 51 Cal.App.5th 463, 493.) Here, reading the trial court's instructions as a whole, as we must (Lewis, supra, 25 Cal.4th at p. 649; Mitchell, supra, 7 Cal.5th at p. 579; People v. Mataele, supra, 13 Cal.5th at p. 419), we conclude that the court properly instructed the jury on murder and provocation and the interplay between them.
In an apparent attempt to use to his advantage the principle that we read jury instructions as a whole, Harris argues jurors could well have misconstrued the court's murder instruction because of another instruction they were given, based on CALCRIM No. 640, which instructed the jury regarding its deliberations and completion of the verdict forms for each level of homicide. Based on this instruction, Harris argues that "the jurors would have known that they could not return a manslaughter verdict at all unless they first addressed the viability of murder by applying CALCRIM No. 520 to the evidence. The analysis of the case was consequently funneled toward the structure provided by CALCRIM No. 520-a structure that conspicuously omitted the analysis of provocation."
This variation on Harris's Schuller argument is unpersuasive for three reasons. First, the instruction told the jury it could consider whether the killing was murder or voluntary manslaughter in whatever order it wished.Second, as we have discussed, the instructions read as a whole correctly and completely informed the jury of the law it was to consider. On appeal, suggested unreasonable readings a juror could have drawn from other instructions do not undermine the principle that we presume jury instructions will be read and understood as a package. (People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1247.)
Specifically, the CALCRIM No. 640 instruction as given states, "For each count charging murder, you have been given verdict forms for guilty and not guilty of first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. [¶] You may consider these different kinds of homicides in whatever order you wish, but I can accept a verdict of guilty or not guilty only if all of you have found the defendant not guilty of first degree murder and I can accept a verdict of guilty or not guilty of lesser included offenses-voluntary manslaughter or involuntary manslaughter only if all of you have found the defendant not guilty of both first and second degree murder."
Third, we not only view the instructions as a whole, but also examine the record in determining whether there is a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. (Mitchell, supra, 7 Cal.5th at p. 579.) The record supports the conclusion that there is not a reasonable likelihood the jury misapplied the challenged murder instruction. The court read all its instructions to the jury after closing arguments and before the jury began its deliberations, thereby making the jury aware of the prosecution's burden to disprove provocation in order to prove malice murder before the jury began any of its deliberations. Also, the court gave the jury four copies of its instructions, ensuring they were readily available to all the jurors.
Further, we "must consider the arguments of counsel in assessing the probable impact of the instruction on the jury" (People v. Young (2005) 34 Cal.4th 1149, 1202) because "any theoretical possibility of confusion" by the jury about its instructions may be "diminished by the parties' closing arguments." (Hajek and Vo, supra, 58 Cal.4th. at p. 1220 [cleaned up]; see People v. Bedolla (2018) 28 Cal.App.5th 535, 548 [prosecutor's closing argument "reinforced a correct understanding of the instructions"].) Here, closing arguments made clear to the jury that the prosecution was required to disprove provocation beyond a reasonable doubt in order to prove malice murder.
Most significantly, defense counsel began his closing argument by telling the jury, without objection from the prosecution, "The bottom line on this case is that the government has to prove two things. Number one, is this a murder? But also, they actually have to prove that this is not a heat-of-passion killing....
"It's not enough that they can say this is a murder. They also have to prove the negative, that this is not a heat-of-passion killing. It's straight out of the jury instruction.
"When you get these instructions, you will read the very last line in the manslaughter instruction which says, 'The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion.'
"So they have to prove he did not kill under a sudden quarrel or heat of passion.
"If you find that the People have not met this burden, you must find the defendant not guilty of murder. That's the law. That's what it says."
Defense counsel then focused on his contention that Harris killed Mose in the heat of passion. This included his reminder to the jury that, "again, the question specifically for this case is: How are they going to prove a murder? But equally as important is: How are [the People] not going to prove this was a manslaughter? Two questions that need to be asked."
In addition, the prosecutor argued not only that evidence showed Harris had committed first degree murder, but that the evidence did not support a voluntary manslaughter conviction.
Harris focuses on two aspects of the prosecutor's closing argument to argue, unpersuasively in light of all that we have discussed, that it could have led the jury to misapply the court's murder instruction. First, he notes the prosecutor referred to CALCRIM No. 640 and urged the jury to "sign the first" verdict form, which was for first degree murder. Harris contends this indicated the prosecutor told the jury it did not need to consider any lesser offenses, such as voluntary manslaughter, if it found Harris guilty of first degree murder.
Second, Harris contends the prosecutor was too dismissive of the defense's voluntary manslaughter theory and also argued as an example of heat of passion that "[a] father walks in on their child getting molested and beats the perpetrator to death," exactly the prosecutorial argument found to be overstating the law in People v. Najera (2006) 138 Cal.App.4th 212 because it suggested the standard for the defense of others needed to be met in order to prove provocation. (Id. at p. 222.)
In sum, we disagree with Harris that the prosecutor's arguments could have invited the jury to ignore the court's voluntary manslaughter charge. Based on (i) the instructions read as a whole, (ii) the court's reading of all of the instructions to the jury before it began any deliberations and providing of multiple copies of the instructions to the jury, (iii) defense counsel's repeated emphasis in closing argument on the prosecution's burden to prove beyond a reasonable doubt that Harris did not kill Mose in the heat of passion, and (iv) the prosecutor's argument why voluntary manslaughter did not apply here, we conclude the jury was properly instructed on the murder count and there is no reasonable likelihood the jury misunderstood the instructions bearing on that count.
b. The Voluntary Manslaughter Instruction
Next, Harris contends the trial court's voluntary manslaughter instruction, based on CALCRIM No. 570, was legally incorrect because it states, "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." (Italics added.) According to Harris, this italicized language inverts the burden of proof by telling the jury that "a manslaughter verdict is the product of jury lenience toward what would be 'otherwise' [] treated as 'murder' rather than the prosecution's failure to prove that murder occurred in the first place."
Harris again relies on Schuller for his argument. He cites two passages in Schuller: one refers to Mullaney v. Wilbur (1975) 421 U.S. 684, which found unconstitutional on due process grounds a Maine homicide law that placed the burden of proving provocation as a means of negating the malice of murder on the defendant (Schuller, supra, 15 Cal.5th at pp. 253-254, citing Mullaney v. Wilbur, at pp. 684, 685, 696-698, 699, 703, 704), and the other passage distinguishes California law from a one-time New York affirmative defense of" 'extreme emotional disturbance'" that, if proved by the defendant, would reduce the crime of murder to manslaughter. (Schuller, at pp. 258-259.) He argues the trial court's instruction here was incorrect because "there is no specific support in the caselaw at all for the notion that a killing that occurs in the heat of passion would 'otherwise be murder.' "
This argument is no more persuasive than his attack on the first degree murder instruction. As we note above, the court's voluntary manslaughter instruction itself expressly states, "If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter." The same instruction's opening sentence does nothing to contradict this provision. Its reference to murder being "reduced" to voluntary manslaughter because of a sudden quarrel or in the heat of passion is innocuous in light of the instruction read as a whole, and the presumption that the jury understood and followed the court's instructions. (Hajek and Vo, supra, 58 Cal.4th at p. 1220; People v. Sanchez, supra, 26 Cal.4th at p. 852.)
Further, the court's "reduced" language is consistent with our Supreme Court's instruction in Schuller, after it referred to" '" 'sudden quarrel or heat of passion,'" '" that" '[t]hese mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter "by negating the element of malice that otherwise inheres in such a homicide [citation]." '" (Schuller, supra, 15 Cal.5th at p. 252, italics added, quoting People v. Rios, supra, 23 Cal.4th at p. 461; see also Schuller, at p. 253 [indicating that in California, as in Maine, heat of passion operates "to negate malice and reduce the crime to manslaughter," but Maine placed the burden of proof on the defendant (italics added)].) Our high court has also stated elsewhere, "Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (People v. Beltran (2013) 56 Cal.4th 935, 942, italics added.)
Harris further argues the prosecutor's closing argument likely confused the jury for the same reasons it purportedly confused the jury regarding the trial court's murder instruction. Harris also points to the prosecutor's statement that voluntary manslaughter is a" 'yeah but' kind of law" as compared to murder, contending this too suggests the defense has the burden of proving voluntary manslaughter rather than murder applies. We again disagree for the reasons we have already discussed regarding the murder instruction. We see no reasonable likelihood that the jury could have applied the voluntary murder instruction in an impermissible way.
In short, Harris's argument that the court erred in its voluntary manslaughter instruction also lacks merit.
B. The Court Did Not Abuse Its Discretion by Denying Harris's Romero Motion
Finally, Harris attacks his sentence on the ground that the trial court erred by denying his motion, made under Romero, supra, 13 Cal.4th 497, to dismiss his prior felony strike conviction.
1. Relevant Proceedings Below
In a Romero motion prior to sentencing, Harris argued that (1) his prior felony strike conviction in 1995 for conspiracy to commit robbery was 28 years before and, therefore, very remote; (2) although he had committed several other crimes in his youth, he had turned his life around and lived crime-free for almost 20 years; (3) he readily admitted his guilt and expressed extreme remorse for killing Mose; and (4) he suffered from several mental health disorders, including depression, anxiety, and schizophrenia, was currently under the care of several mental health professionals at the jail, and had presented evidence of his mental health issues at a pre-trial hearing that led to the trial court allowing some evidence of his mental health issues to be introduced at trial. At the sentencing hearing, Harris's counsel also referred to "some competency issues" raised earlier in the case because Harris "was feeling a tremendous sense of guilt" and was having "visions" of Mose in his cell.
The trial court began its ruling on Harris's Romero motion by indicating it had read Harris's written motion. After referring to the legal standards it was to apply, the court noted that Harris, in addition to his 1995 strike conviction, had been convicted several times-of a violation of Health and Safety Code section 11359 in 1986; a violation of Health and Safety Code section 11352 in 1989 for which he was sentenced to three years in prison; a violation of Vehicle Code section 2800.2 in 1993, for which he was sentenced to 16 months in prison; a violation of Health and Safety Code section 11350 in 2001 that resulted in another prison sentence; and a violation of that same statute in 2002 and found to have a prior conviction, for which he was sentenced to 32 months in prison. The court further noted that Harris's 1995 strike conviction involved a serious and violent crime, and that he was sentenced to prison for it after violating probation.
The court also indicated that Harris's 1995 strike conviction implicated the "remoteness" factor. Also, Harris appeared to have "turn[ed] his life around as a productive member of society" after his convictions and by all accounts had engaged in "stable work" and been "a hard[-]working person from all accounts."
The court explained, "I'm also going to . . . look at the nature and circumstances of the new offense and the factors in mitigation and aggravation as listed in the Rules of Court. In so doing, I have to look at the facts of the case and I have to say that I agree with [the prosecutor's] rendition of the facts that it is hard to imagine a domestic violence first degree murder with premeditation and deliberation with more premeditation and deliberation that was used in this case. The defendant was in a relationship with the victim. There was a party in East Palo Alto. He left. He drove all the way back to Stockton, California some hour and a half, got further upset[,] . . . got a gun and came back and lured the victim out of the apartment and shot her at close pointblank range. That is a violent and extremely brutal type of killing. So I do look at the nature and circumstances of the new offense, and I find those to be particularly egregious."
The court concluded, "[I]n light of the present offense and the defendant's criminal history in weighing all those factors that I have recited I do not believe that the defendant should be sentenced outside of the spirit of the three strikes law, his prior strike experience and now he has been convicted of the most serious of crimes."
2. Legal Standards
California's "Three Strikes" law is intended" 'to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses.'" (People v. Sasser (2015) 61 Cal.4th 1, 11, quoting Pen. Code § 667, subd. (b).) However, as recognized in Romero, Penal Code section 1385 authorizes trial courts to strike prior conviction allegations in cases brought under the Three Strikes law if doing so will further the interests of justice.
In deciding whether to do so, trial courts must consider whether," 'in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.) This consideration must be individualized and take into consideration "the entire picture." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981, 978.) "[T]he Three Strikes law establishes a 'strong presumption' in favor of a harsher sentence ...." (People v. Salazar (2023) 15 Cal.5th 416, 428.)
3. Analysis
We review a trial court's Romero motion ruling for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 373.) Harris does not challenge the particulars of the trial court's analysis. Rather, he argues the court failed to properly exercise its discretion because it did not consider his mental health issues in ruling on his Romero motion, going into more detail regarding those issues than his counsel did in his motion papers below or at the sentencing hearing. His argument is unpersuasive for three reasons.
First, Harris is wrong in contending that the trial court did not consider these matters. At the hearing on his Romero motion, the court specifically stated that it had read Harris's motion papers, in which he raised his mental health issues.
Second, "[t]he trial court is not required to state reasons for declining to exercise its discretion to strike a strike. We presume the trial court has considered all relevant factors in the absence of an affirmative record to the contrary." (People v. Edwards (2022) 76 Cal.App.5th 523, 529.) In other words, the court, the record having indicated that it had considered Harris's contentions about his mental health issues, had no obligation to specifically refer to them.
Finally, a trial court has the discretion to decline to dismiss a prior strike allegation when the defendant alleges a" 'documented and lengthy history of chronic and severe mental disorders, symptoms of which were evident at the time of his prior and current offenses.'" (Edwards, supra, 76 Cal.App.5th at p. 529.) Here, the trial court could reasonably conclude that Harris's mental condition at the time he killed Harris was not so significant as to require that it strike the prior strike allegations. Harris ultimately was found competent to stand trial, and the record suggests that at least some of Harris's mental health conditions arose after he murdered Mose, further supporting the trial court's decision.
The trial court did not abuse its discretion in denying Harris's Romero motion.
III. DISPOSITION
Both the judgment and the sentence are affirmed.
WE CONCUR: GOLDMAN, J, DOUGLAS, J. [*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.