Opinion
F072207
09-25-2018
THE PEOPLE, Plaintiff and Respondent, v. DYLAN NICHOLAS MCNABB, Defendant and Appellant.
Scott N. Cameron, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion herein filed on September 25, 2018, be modified as follows:
At page 55, the paragraph beginning with "In order to elevate and go up to first-degree murder, ..." is deleted and replaced with the following paragraphs and accompanying footnote:
The prosecutor continued: "So what does that tell us? You at least, at a minimum, have second-degree murder because you have malice aforethought. [¶] Remember, if you look at the instructions, all murders are at least second degree because you've got either express malice, an intent to kill. 'Take her out.' Come home to kill her. Picks up the gun. Those are all express malice intending to kill."
The prosecutor subsequently argued: "In order to elevate and go up to first-degree murder, you can only find it by the malice aforethought of specific intent to kill. Conscious disregard for human life does not apply. So if you find express malice, if you decided he intended to kill her, you have express malice and that takes you to first." (Italics added.)
In response to defendant's petition for rehearing filed on October 4, 2018, we have modified this opinion to include this paragraph in the prosecutor's closing argument. Defendant's petition argued this paragraph supported his appellate claim that the prosecutor relied on an express malice theory of second degree murder. As we explain below, however, this paragraph was followed by the prosecutor's additional statements that if the jury found defendant acted with express malice, then he was guilty of first degree murder, and that a second degree murder verdict was only based on an implied malice theory.
This modification requires the renumbering of all subsequent footnotes.
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
POOCHIGIAN, J. WE CONCUR: LEVY, Acting P. J. SNAUFFER, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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. (Kern Super. Ct. No. BF151050A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Scott N. Cameron, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Dylan Nicholas McNabb was charged with first degree premeditated murder for killing his grandmother after he fired a single rifle shot into her head. Defendant was 19 years old. Defendant's grandmother had lived with defendant and his father, and tried to help defendant stop using designer drugs known as "bath salts."
Defendant was arrested shortly after the homicide and told the police during a lengthy postarrest interview that he used bath salts that day and intentionally killed his grandmother because he heard voices telling him to do so. By the time of trial, defendant changed his story and claimed he lied about everything he said in his postarrest interview. Defendant testified at trial that he had not used bath salts before the homicide, he never heard voices, and he made up that story because he thought his best chance was to appear crazy during his postarrest interview. Defendant testified that what really happened was that he had just been examining the rifle and did not realize it had a "hair trigger," and he did not intentionally kill her. However, he admitted that he aimed the rifle at his grandmother and placed her face in the scope's crosshairs.
Defendant's blood sample tested positive for marijuana and negative for "bath salts." As we will discuss below, a toxicologist testified that the blood sample had not been preserved in the specialized manner required to test for "bath salts." Both the prosecution and defense firearm experts testified the trigger pull weight on the rifle was approximately two pounds.
After a jury trial, defendant was found not guilty of first degree premeditated murder, and instead convicted of second degree murder as a lesser included offense. He was sentenced to 15 years to life, plus 25 years to life for a firearm enhancement. Issues on appeal
On appeal, defendant contends the court erroneously denied his motion to instruct the jury on excusable homicide based on accident. He further contends that while the court properly instructed on involuntary manslaughter as a lesser included offense of murder, the instruction erroneously failed to clarify the knowledge and intent required for the offense - that he could have been convicted of involuntary manslaughter even if he believed the rifle was loaded.
Defendant also raises several claims of prosecutorial misconduct that allegedly occurred in closing argument. He asserts the prosecutor misstated how voluntary intoxication affects a murder charge; misstated the defense expert's testimony about the rifle's trigger pull weight and whether there could have been an unintentional firing of the rifle; improperly discussed the concept of accident even though the trial court refused to instruct on accident; and misstated the evidence about whether defendant's blood sample was properly preserved in order to test for the presence of "bath salts."
Defendant also raises two sentencing issues. Defendant contends, and the People concede, the matter must be remanded for the trial court to conduct a hearing to preserve the record for a future parole eligibility hearing since defendant was 19 years old at the time of the murder. Defendant further contends that on remand, the trial court must consider whether it would strike the firearm allegations given the subsequent enactment of Senate Bill 620.
We will remand for the sentencing issues and otherwise affirm.
FACTS
Lewis McNabb (Lewis) had two sons: defendant and Jacob. As of 2013, defendant was 19 years old and Jacob was 22 years old. Lewis and defendant lived in the family house in Bakersfield. Jacob had grown up in Lewis's house, but lived in Shafter at the time of the homicide. Jacob still went to his father's house every day. Bath salts
Given the common last names, we will refer to certain witnesses by their first names for ease of reference.
Lewis and Jacob knew that defendant had a drug problem, and that he regularly used marijuana. They testified that defendant also used drugs that were called "bath salts" and "spice." Lewis and Jacob testified that these drugs looked like crystals and were packaged in small vials. Jacob had seen defendant smoking these drugs in a pipe.
At defendant's trial, toxicologist Bill Posey testified for the People that bath salts are "designer" drugs that are chemically manufactured and looked like crystallized salts that are normally used in the bath.
Sergeant Kroeker, the lead investigator, testified that he had very little experience with drugs known as bath salts prior to this case. It was "very, very rare" that the police came into contact with "bath salts."
Lewis testified he knew when defendant was using bath salts because he would find crystal residue and empty packages from the drugs around the house, and defendant would act different and talk a little crazy. Lewis was more concerned about defendant using bath salts than marijuana. Defendant "was a lot better" when he used marijuana. Lewis would go with defendant to get marijuana just to keep him off "bath salts."
Jacob testified that defendant was usually nice. When he was using drugs, defendant would go on "tangents about stuff that didn't make sense." Defendant would make bad decisions when he was high.
Jacob testified defendant's pattern was to use drugs when his friends were at the house. Defendant was usually clean and sober when his friends were not around.
Jacob was present when their father told defendant that bath salts were not good for him. Defendant replied that " 'they just help me ... see the world in a good point of view.' "
Jacob was more cautious and scared of defendant when he was using "bath salts." Jacob had seen the wrappers for bath salts around the house; they were small and had faces on them. Guns in the house
Jacob testified it was common to have guns and ammunition in his father's house, and they had grown up around firearms. When they were younger, defendant and Jacob had played with BB guns and Airsoft guns.
Jacob had never taken a gun safety course and testified Lewis had forged his hunting license. Lewis taught Jacob about firearms and safety.
Jacob testified that it was common for defendant "to stupidly point guns at people."
Lewis told the police they were " 'a little sloppy' " with firearms and ammunition in the house because " 'we were a bunch of guys....' " Imogene moves into the family house
At the sentencing hearing, Lewis advised the court that his wife died when his sons were children, and he raised the boys by himself with help from their grandmothers.
On or about October 1, 2013, Imogene McNabb (Imogene) moved into Lewis's house. Imogene was Lewis's mother, and the grandmother of defendant and Jacob. She was approximately 76 years old and had been living in a retirement home in Shafter. At Lewis's request, she agreed to move in with Lewis and defendant. She was primarily there to watch defendant and help keep him accountable about his drug use.
Jacob testified that defendant wanted Imogene to be there, and she was the only person he would listen to. When Imogene saw defendant use drugs in the house, she would "nag" defendant, tell him that he should not be doing that, and ask if he really wanted to be doing that. In response, defendant would go into another room and use his "stuff," instead of using the drugs around her. Jacob would stay quiet on these occasions and not create any animosity with defendant. Imogene would tell Lewis when she saw defendant use drugs.
Jacob told an investigating officer that Imogene was "snitching" on defendant because of his drug use, and defendant was not happy about that. Jacob told the officer that defendant developed a hatred for Imogene.
Lewis testified that Imogene was defendant's "best friend at that time." They argued with each other, but "they loved each other, and she was there for him and he was kind of there for her." Lewis did not believe that defendant hated his grandmother.
THE HOMICIDE
The morning of October 6 , 2013
Around 3:00 a.m. on October 6, 2013, Lewis was asleep in his bedroom when defendant walked in and turned on the light. Lewis testified that defendant said, " 'Well, it's a done deal.' " Lewis asked what he meant. Defendant said, " 'I'm going to get $7.3 billion because my blood's the cure of all diseases.' " Defendant said that his friend was going to get $7.9 trillion. Lewis asked why the friend would get more. Defendant replied, " 'Because he's the son of Christ.' "
Lewis told defendant that he was "'full of crap,'" and to turn off the light and "get the hell out of my room."
Around 6:00 a.m., Lewis left the house for work. After he drove away from the house, he realized he forgot his cell phone and turned around. When he reached the house, he discovered their truck was gone. Lewis believed defendant took the truck and went to a cigarette store in Oildale that sold "bath salts." Lewis thought defendant had been clean for 20 days at this time.
Lewis drove to the cigarette store and it was closed. He waited and defendant arrived in the truck. Lewis told defendant to go home and he did.
Lewis drove home and met defendant there. He briefly spoke to defendant, said he loved him, and then left for work. Imogene was still asleep.
Later that morning, Lewis called the house and briefly spoke to Imogene. Jacob arrives at the house
Lewis testified there were several firearms in the house when he left for work that morning. The rifle that defendant later used to kill Imogene was in the living room. The rifle had belonged to Lewis's grandfather and it was at least 70 years old. Lewis believed the rifle was already loaded because he had just been pig hunting with Lewis's brother, Glenn, and defendant; Glenn had used the gun during their hunting trip.
Around noon, Jacob arrived at Lewis's house. Defendant and Imogene were the only people there. They were sitting on adjoining couches in the living room and appeared to be watching television. They were not arguing.
Jacob noticed there were several guns in the living room, but that was not unusual. A dismantled shotgun was on the floor; it had been taken apart and was not ready to be fired.
Imogene made small talk with Jacob. Defendant was silent and did not say anything. He did not appear angry. Jacob testified that he did not see defendant use drugs or "talk nonsense" that day.
Defendant got up and used the bathroom. He returned to the living room and sat down on the same couch. Defendant got up again. He grabbed a pack of cigarettes from a table next to Imogene and walked out of the front door without saying anything.
Jacob stayed in the living room and continued talking with Imogene, and then went into the kitchen and got a soda. Jacob hears the racking of the rifle
Jacob testified that about 30 minutes after defendant left, he returned to the house through the front door. Defendant did not say anything.
Jacob walked toward the living room. He was looking down and texting on his cell phone. Jacob did not see defendant pick up a gun but heard "the noises of a gun ... like ejecting a bullet or loading a bullet," that was "like a racking."
During trial and while Jacob was on the stand, the investigating officer "racked" the unloaded rifle, identified as the firearm that defendant used to shoot Imogene. Jacob testified that was the sound he heard. Jacob was not worried when he heard the racking sound because "we play with guns in our family." Defendant kills Imogene
Jacob testified that immediately after he heard the racking sound, Imogene said, " 'Don't point that at me.' " Jacob looked up and saw that Imogene was still sitting on the couch. Defendant was holding the rifle with the butt on his shoulder, and he was looking through the rifle's scope.
Jacob testified defendant did not say anything. Defendant fired one shot that killed Imogene. The pathologist testified the single gunshot entered the left side of Imogene's face near the mouth, went through her head, and exited through the back of her neck. She suffered a massive, gaping wound and died instantly. Jacob goes for help
Jacob glanced at defendant after the shot was fired. Defendant did not say anything, and Jacob did not see any emotion on his face.
Jacob panicked and ran outside while defendant was still in the living room. Jacob was afraid defendant might shoot him too.
Don Lundgren lived across the street from Lewis's house. Around 1:30 p.m., Lundgren was in his house and heard a gunshot. He looked out the window and saw Jacob leave Lewis's house. Jacob appeared distraught. He knelt down, screamed "no," and went to Benny Juarez's house.
Juarez lived next door to Lewis's house. Around 1:30 p.m., Juarez was outside and heard a loud bang. Jacob ran out of Lewis's house and went to Juarez for help. Jacob was crying and hysterical and told Juarez that defendant had shot his grandmother.
Juarez and Jacob went into Juarez's house. Juarez locked the door for their safety and called 911. Jacob's 911 call
The 911 recording was played for the jury. Jacob was crying and told the 911 operator that he needed an ambulance because his brother shot his grandmother in the face. He identified defendant and said: "Tell the police he's unstable." The 911 operator asked if defendant was on drugs. Jacob said yes, that defendant was "on bath salts."
At trial, Jacob testified that he told the 911 operator that defendant was on bath salts because he "just assumed" defendant had used drugs.
As Jacob described defendant to the operator, he looked out the window of Juarez's house and saw defendant was walking down the street. Defendant was just acting casual. Juarez also saw defendant walking down the street like "a normal kid," as if nothing happened. Lundgren, who was still at his own house, saw defendant walk out of Lewis's house like "he was just going for a walk."
Jacob stayed on the line with the 911 operator and reported that defendant was walking down the street and he was not holding a gun. Jacob said defendant had used "a big rifle" to shoot his grandmother and thought it might be a .22-caliber hunting gun.
The 911 operator asked if they had been fighting. Jacob said no, that "he just came in crazy. I don't even know." Jacob told the operator that defendant "picked up the gun off the floor and he loaded it." Jacob said that his grandmother asked defendant if he was loading the gun, "and as soon as he said it, he shot her."
THE INVESTIGATION
At 1:38 p.m., officers from the Bakersfield Police Department responded to Lewis's home and found defendant walking away from the area. Defendant's demeanor was calm. The officers approached defendant and ordered him to get on the ground. Defendant complied and was taken into custody.
Officer Sandrini entered Lewis's house. He saw Imogene's body on the couch and immediately realized she was dead. A cigarette was still in her hand. There was blood and body matter splattered around the living room and kitchen.
A projectile from the fatal bullet was found embedded in the couch where Imogene was sitting.
The stem from a glass pipe, commonly used to smoke narcotics, was found on the sidewalk by Lewis's house. A plastic vial was found in a trash can in the master bedroom.
As we will explain below, the police looked for the vial and the broken glass pipe in these precise locations, based defendant's statements during his postarrest interview.
There were a couple of grams of marijuana on the living room table, along with a marijuana pipe and smoking papers.
The officers did not find any bath salts or crystal substances in or around the house. The rifle
The officers found ammunition and about 30 firearms in various places around Lewis's house. The rifles and shotguns were easily accessible and not secured in any way. A disassembled shotgun was on the living room floor.
A bolt-action .270-caliber rifle was found leaning against the wall in the master bedroom. Based on defendant's postarrest statements, the officers determined that defendant used this rifle to kill Imogene. Lewis testified this rifle had been loaded and it was in the living room when he left the house that morning.
Sergeant King testified that when he initially examined this rifle, it was in the "fire" position. King explained that after a shot is fired from such a rifle, the expended round is extracted from the chamber when the bolt is pulled to the rear, and one of the live rounds from the internal magazine will elevate up. When the bolt is pushed forward, the live round is pushed into the chamber.
When Sergeant King activated the bolt on this rifle, he removed one expended shell casing and found three live rounds in the rifle's internal magazine.
Sergeant King examined the other weapons in the house and did not find any firearm that contained a spent shell casing. Defendant's blood test
A blood sample was taken from defendant at 8:55 p.m. on October 6, 2013, with defendant's consent. After it was drawn, the blood sample was placed in a refrigerator pursuant to applicable protocols.
Prior to trial, defense counsel moved to exclude the results of the blood test and claimed the blood sample was taken from defendant without consent or a warrant. The court denied the motion.
Bill Posey, the owner of Central Valley Toxicology, testified as the prosecution's toxicologist. Posey testified that on November 12, 2013, he received defendant's blood sample. On November 20, 2013, he tested defendant's blood for both THC (marijuana) and bath salts.
Posey testified defendant's blood tested positive for cannabinoids or marijuana, and the parent compound THC. The nature of the results indicated defendant was "a chronic user and just borderline of a heavy chronic marijuana user."
Posey testified it was possible to test for bath salts, but it was difficult to do so because of the designer drug's instability and chemical composition, and it required very sensitive mass spectrometers. In response to enforcement measures by the Drug Enforcement Administration (DEA), the manufacturers of designer drugs were constantly manipulating the chemical compounds "so that the DEA can't pick it up readily and it gets back out on the market again as something else...." It was easy to "pick up" the drug in its solid form. Once the altered compound was consumed, however, "the metabolism of that drug is not well known" and it was difficult to find the "parent compound" in the metabolized form of the drug. "[W]e may not have the molecular formula or this new spinoff, and so the instrument may see something there but not be able to identify it."
As we will discuss below, defendant contends the prosecutor committed misconduct and allegedly misstated the evidence when she discussed the toxicologist's ability to test for bath salts.
Posey testified that bath salts stay in a person's blood for eight to 12 hours. Once the person's blood sample is collected, however, the designer drug's stability becomes very poor because the compound breaks down, "and if it's not frozen you may lose detection of it within one to three days."
In response to a hypothetical, Posey testified that if a person used bath salts at 8:00 a.m. and that person's blood was collected 12 hours later, it was preserved in a medically-approved way, and the sample was not tested for a month, then the "window of being able to detect that drug" had substantially decreased, especially if the sample had not been frozen. Most legal blood draws are preserved in a manner that do not preserve designer drugs like bath salts and are not required to be frozen.
Posey testified he did not find the presence of any bath salts in defendant's blood. "The bath salts we were able to look for, we did not find any presence of them...." Posey also tested for the parent compound, known as MDPV, and it was negative.
Posey testified the negative results did not necessarily mean that bath salts were not present in the blood sample. The ability to detect bath salts had been affected by the delay between collection of the sample and testing, how it was collected and preserved, and it was not frozen. "You decrease your window of being able to detect that drug substantially, especially if that a month to, say, a month and a half the sample had not been frozen. Even if it's in a preserved vial, which most of our legal draws are, they're in in a sodium fluoride vial which preserves ... most drugs, but not this drug." "[I]f it's not frozen you may lose detection of it within one to three days."
DEFENDANT'S POSTARREST INTERVIEW
As we will set forth below, defendant testified at trial that he did not intentionally kill his grandmother, and he lied when he made contrary statements during his postarrest interview. As a result of that testimony, the prosecution introduced Sergeant Kroeker's testimony about defendant's prior inconsistent statements and a redacted recording of defendant's postarrest interview as rebuttal evidence. Given that background, we include his postarrest statements in the sequence of the investigation.
Sergeant Kroeker conducted a recorded interview with defendant at 6:42 p.m. on October 6, 2013, a few hours after the homicide. Kroeker began the interview by advising defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 486. Defendant waived his rights and agreed to answer questions.
Sergeant Kroeker talked with defendant about where he went to high school and that his father said he had been a good athlete. Kroeker asked defendant about what started his "downward spiral." Defendant replied that he started doing "bath salts." Defendant said the bath salts were also called "molly."
Sergeant Kroeker asked defendant to tell him about bath salts because they were a "new thing." Defendant said they were "evil." He started using bath salts two years earlier with high school friends. He smoked bath salts in a glass pipe and they looked like crystal methamphetamine. Defendant said he used them on and off and would start using them again if one of his buddies had some. He had not used bath salts for two weeks prior to the day of the homicide. Defendant said he had last smoked "spice" three days earlier and had also used a pipe.
Sergeant Kroeker asked defendant where he bought bath salts. Defendant said he bought them from a cigarette store on Oildale Drive. A package with 1.5 grams of bath salts was $20. He could take 30 "hits" from that amount and it would last him for one day.
Defendant said bath salts made him feel high, like he was on methamphetamine, but they were stronger. He also felt a little paranoid, like "every sound that you hear, you always have to look at it or something." The high would last a couple of hours. He usually felt like sleeping when he came down, and it was not as bad as when he used methamphetamine.
Sergeant Kroeker asked defendant how his friends acted when they were on bath salts. Defendant said they acted like they were possessed and "evil can come out of it but I never really felt that way."
Sergeant Kroeker asked defendant about his relationship with his grandmother. Defendant said it was good. When she told him not to use drugs, he told her that he was "old enough [to] choose what I want to do myself."
Sergeant Kroeker asked defendant if he went into his father's room early that morning and said something about getting money. Defendant said he heard something on the "radio waves," thought he heard his friend's voice in his head, and they said he would get $4.5 trillion dollars for something.
Sergeant Kroeker asked defendant what happened that day. Defendant said he used marijuana around 7:30 a.m. At 8:00 a.m., he used the truck and drove to the cigarette store. He bought bath salts and returned home. His father was already at work. Defendant went into his room, smoked the bath salts in a glass pipe, and took two hits.
In closing argument, the prosecutor noted that Lewis testified he drove to the cigarette store, the store was closed, met defendant there, and made defendant go home. Defendant told Sergeant Kroeker that he bought the bath salts from the cigarette store that morning. The prosecutor was not sure how to reconcile these conflicts, and suggested defendant may have gone back to the same store later.
Defendant said the bath salts he bought that morning were different, that "they gave me different stuff today and it was ... real scary ... it wasn't the normal stuff that I got and I started seein' like lines shootin' across and stuff." Defendant said within a few minutes of taking the hits, he saw and heard weird things. He was sitting on his bed and heard his grandmother yell "evil things like I was gonna burn in hell." He heard his grandmother say that he and his girlfriend were going to burn in hell, and she was going to kill them. Defendant heard these voices for a couple of hours.
Defendant said he felt different and scared, like something very bad was about to happen. Defendant poured the package of bath salts in the toilet, threw the packaging material into the trash in his father's bedroom, and threw the glass pipe over the fence and it broke.
Based on defendant's statements during the postarrest interview, the investigating officers looked in the trash can in Lewis's bedroom and found the packaging material and looked on the street over the fence and found the broken glass pipe.
Defendant said after he threw away the bath salts, he walked to a nearby park. He thought he saw "pixels or something ... shootin' across and it looked like strings were ... grown from the ground." Defendant was "trippin' out," and he thought something bad was going to happen.
Sergeant Kroeker asked if he usually felt this way from bath salts. Defendant said he felt completely different this time, like "someone was trying to trap me in hell." He felt "way different" than in the past, even though he bought the bath salts from the same place and it looked the same as before.
Defendant walked back to the house. Jacob and his grandmother were sitting in the living room and talking. Defendant went into his bedroom for a while, then went into the living room.
Defendant said he heard his uncle's voice telling him that he had to kill his grandmother, she was going to burn them in hell, " 'you gotta take her out, she's gonna try and shoot you, you gotta kill her before she shoots you.' " Defendant felt his whole family was going to be trapped in hell.
Lewis testified that Glenn McNabb, defendant's uncle, had been at the house a few days earlier, when he went hunting with Lewis and used that same rifle. There is no evidence that defendant's uncle was in the house on the day of the homicide.
Defendant said that while he was in the living room, he never spoke to his grandmother and tried to avoid eye contact.
Sergeant Kroeker asked defendant how he shot his grandmother. Defendant said that his grandmother said she was going to kill him. He thought she was going to reach for a gun, but she was kind of slow about it. There was a gun that was sitting right there, and "I pulled the bolt open and there's a bullet and I was just like ... I mean I'm so scared I don't know if she's gonna kill me ... I didn't know what to do."
Sergeant Kroeker asked defendant what kind of gun he used. Defendant said he used a .270-caliber rifle that had belonged to a grandfather. He grabbed it because he figured it had a bullet in it. Defendant's father did not usually leave bullets in his guns, but "I kind of got lucky I thought."
At trial, defendant admitted that he laughed when he made this comment about getting lucky. As we will explain below, defendant testified that he lied about everything during his postarrest interview, including when he laughed about getting lucky with the loaded rifle.
Sergeant Kroeker asked if there was already a round in the chamber or he had to manipulate the bolt. Defendant said he just had to "cock it, pull it back, cock it back in and it was loaded."
Defendant said Jacob was standing next to him when he manipulated the bolt. His grandmother was sitting on the couch. She started to reach for something, "acting like she had an invisible gun in her hand or something." Defendant said he thought, " 'Okay, here's my chance.' " His grandmother kept moving around like she was going to do something "sneaky."
As set forth above, Jacob testified that he heard defendant "rack" the bolt on the rifle immediately before he shot their grandmother. At trial, defendant testified he never racked the bolt, and Jacob mistakenly heard another sound when defendant was playing with a disassembled shotgun.
Sergeant Kroeker asked defendant if he was left or right handed. Defendant said he was left handed and the gun was on his left shoulder. He looked through the scope and placed the crosshairs on his grandmother's face "[l]ike my Uncle told me to." Defendant could not see his uncle but felt like his uncle was right behind him and telling him what to do. His uncle said that he was the only one who could kill her.
Defendant said he made the decision to kill his grandmother. He could see her face clearly through the scope. When he shot her, he saw what happened to her face and figured she was dead. Jacob screamed and ran out the door.
After defendant shot her, he heard his grandmother's voice thank him for getting her out of it. Defendant walked into his father's bedroom, put the rifle against the wall, and lay down in the bathtub. He got up and thought he had to get out of there. He was walking down the street when the police arrived.
Sergeant Kroeker asked defendant how he felt about his grandmother now. Defendant felt she was not herself, and that she was going to hurt defendant, Jacob, or someone else in the family. Kroeker asked if she looked directly at him and said she was going to kill him. Defendant said yes, and she said that she was going to shoot him.
Sergeant Kroeker asked defendant if he thought his grandmother would still be alive if he had not smoked bath salts that morning. Defendant said he thought his grandmother, his father, and everyone had used his bath salts because they were "trapped," and he heard them screaming and begging him to help them from hell. Defendant said he would not have killed anyone else because only his grandmother had created "an evil tension like that around me," and she said that she wanted to kill him. It freaked him out because in the past, he had heard peaceful voices that never told him to hurt anyone. He heard different voices that day, that told him to release people from hell.
Defendant said he heard voices all the time, even when he was not using bath salts. Since he heard voices, he threw away his phone because he had a phone "built into my head." He felt bath salts made him gain the ability to talk to his friends without a phone. Defendant said his grandmother had used some of his bath salts, and that's why she acted strangely. He also believed his father, uncle, and brother stole his bath salts and used them.
DEFENDANT'S TRIAL TESTIMONY
Defendant's trial testimony about the homicide was substantially different than his statements during the postarrest interview.
Defendant testified that at the time of the homicide, he suffered from an immune condition and Valley Fever, and these conditions made him feel lethargic. He had a prescription to use and grow medical marijuana.
Defendant admitted prior use of bath salts. His friends had "turned him on" to the drug. At the time of the homicide, defendant was trying not to use bath salts anymore to improve his health.
Defendant testified he did not hate his grandmother, he loved her, and they were good friends. She moved into the house to help him stay away from friends and stop using bath salts. She was "okay with me smoking weed."
Defendant testified he had grown up with guns around his father's house. His father often worked on his guns in the house. Defendant had never taken a gun safety course and had never been taught to assume a gun was loaded. His father got a hunting license for him, even though he never took a gun safety class, by falsifying a form and claiming defendant's license had been lost in the washing machine. Defendant also had a crossbow and learned it use it through his own "common sense."
Defendant testified that on the morning of the homicide, he got up around 7:30 a.m. After his father left for work, defendant drove the truck to the cigarette store to get bath salts. He had bought bath salts at that store about 20 times. He wanted to buy some that day because he was bored and his friend was supposed to come over. The store was closed when defendant arrived. His father showed up and told him to go home. Defendant went home, watered his marijuana garden, and smoked two or three marijuana joints. He did not purchase or use bath salts that day.
Defendant testified he went inside after he watered his garden. Jacob was already in the house and talking with their grandmother. Defendant sat down in the living room with Jacob and Imogene. Defendant picked up a shotgun that was on the floor and took apart the barrel. He did not grab a pack of cigarettes from Imogene. The homicide
Defendant testified that he put down the disassembled shotgun. He picked up the rifle that was leaning against the wall in the living room. Defendant was familiar with that rifle, but he had never fired it. The rifle was an "heirloom" that belonged to his father's grandfather, and it was usually kept in the gun safe. Defendant thought his father left the rifle in the living room after he went hunting with his uncle.
Defendant picked up the rifle, but he did not load it. Defendant did not think the rifle was loaded, and Imogene never asked if he was loading it.
Defendant testified he was left-handed, and the rifle's bolt action and trigger were for a right-handed user. Defendant had never handled this rifle before and he was curious about it. He examined the rifle's scope and played with it.
Defendant testified he did not rack the rifle. Defendant thought Jacob heard him manipulate the dissembled shotgun and mistakenly believed he had racked the rifle before it was fired.
Defendant testified he pointed the rifle at the family dog and trophy heads mounted on the wall above the couch. He also pointed it at Jacob and his grandmother. Defendant realized it was rude to point the rifle at them, but he was "stupid, negligent."
In issue I, post, we will address defendant's contention that the court erroneously relied on his testimony that he was "negligent" when it refused to instruct the jury on excusable homicide based on accident.
Defendant testified he stood behind a recliner. He leaned the rifle on the top of the recliner and looked through the scope. Imogene told him, " 'Don't point that gun at me.' " Defendant testified: "It startled me when she said that, and I kind of like - I think I flinched," and "I accidentally grazed the trigger." The bullet hit Imogene's head and there was a "gruesome" scene on the couch.
Defendant testified he did not intentionally kill Imogene, and he did not know why the gun went off. By the time of trial, defendant had learned the rifle had been examined and someone determined it had a "light" trigger. Defendant testified he did not know the rifle had a "hair trigger" when he was playing with it.
We will address the testimony of the prosecution and defense firearm experts below.
After the gun went off, defendant did not yell out that he did not mean to pull the trigger or that it was an accident, because he was stunned and shocked about what happened. Defendant walked into his father's bedroom. He left the rifle in the bedroom and laid down in his father's bathtub. After a few minutes, he got up, walked out of the house, and headed down the street. He was not going anywhere in particular. The police stopped him, and he was arrested.
Defendant did not throw away the broken glass pipe that the police later found on the sidewalk. He believed the pipe was found where his uncle had parked his car the previous day. Postarrest interview
Defendant testified that several hours after he was arrested, Sergeant Kroeker interviewed him at the police department. While he was waiting for the interview, defendant guessed his family was telling the police that he was on drugs and bath salts.
Defendant testified Sergeant Kroeker never asked if the homicide was an accident or he had a motive to kill his grandmother. Instead, Kroeker asked about bath salts and defendant thought "that's what he was fishing for," and "so I just went along with what I thought he was trying to get out of me." Defendant went along with whatever Kroeker asked him about his drug use.
Defendant said he fabricated the story that he told Sergeant Kroeker about why he shot his grandmother. He got the story from a movie he had recently seen on Netflix, "where the grandma turned out to be the devil." He told Kroeker what happened using a story similar to what he saw in the movie. "I was just making things up as I went along," and "I said some pretty crazy things."
CROSS-EXAMINATION OF DEFENDANT
On cross-examination, the prosecutor extensively impeached defendant with his prior inconsistent statements from his postarrest interview. Defendant admitted his trial testimony about his drug use and the homicide was very different from the postarrest statement he gave to Sergeant Kroeker. Defendant testified he was not under the influence and had a clear mind when he was interviewed; he explained that he lied about everything when he spoke to Kroeker but his trial testimony was truthful. Defendant's knowledge of guns
Defendant knew how to handle a rifle and a shotgun and how to use a rifle's bolt action and operate a slide. His father taught him how to aim and look through a scope. He knew how to line up a target using a scope and crosshairs. His father forged the paperwork to get hunting license for both defendant and Jacob and falsely claimed they had taken gun safety classes. Defendant renewed his hunting license every year and never took a gun safety class.
Defendant testified his father taught him about gun safety.
"[The prosecutor]. So you are aware that you never point a gun unless - at something unless you intend to shoot; right?
"A. No, I never heard that rule.
"Q. Isn't that common sense, though? Would you think that that would be common sense?
"A. Yeah."
Defendant testified his own rifle had the bolt action on the left side since he was left-handed. It was more complicated for him to use a right-handed bolt action because he had to reach across the top of the weapon with his left hand.
Defendant testified he went pig hunting with his father and uncle a few days before the homicide, and he used a shotgun. Either his father or uncle used the rifle and left it in the living room when they got home.
Defendant "assumed" the rifle was not loaded, even though it had just been used on the hunting trip. Defendant admitted that in his postarrest interview, he said that he just "got lucky" that the rifle was loaded and laughed about it. He "completely fabricated" that statement during the postarrest interview and didn't mean anything when he said it. Defendant's use of bath salts
Defendant testified he had previously bought bath salts from several cigarette stores, and the drug was commonly known as "molly." At the time of the homicide, there was only one cigarette store that still sold it. Defendant either snorted bath salts or smoked them in a glass pipe. The resulting high would last a couple of hours.
Defendant testified he had not used bath salts for two weeks before the homicide, and he did not buy or use any that day. Defendant admitted that during the postarrest interview, he said that he bought bath salts around 8:30 a.m., just a few hours before the homicide, and used the drugs that morning. Defendant also told Sergeant Kroeker that the batch was different from the prior types he had used before; he started feeling paranoid, and he threw away the vial in his father's trash can.
Defendant testified these statements were all lies, and he only used marijuana that day. Defendant lied about bath salts because Sergeant Kroeker was "fishing for that kind of a response," and he wanted to please him.
The prosecutor asked defendant whether he changed his story about using bath salts because he learned his blood test was negative for that drug. Defendant denied that he changed his story because of the negative test results or after hearing the toxicologist's testimony about how difficult it was to test for bath salts. Defendant's relationship with his grandmother
Defendant claimed his grandmother moved into the family's house so his father did not have to pay for the retirement home. Defendant admitted that she also moved in to help him with his drug problem. His grandmother, father, and brother were trying to get him off bath salts. His grandmother "wouldn't really nag me" if he was using drugs, but they would have "casual conversations" about it. He did not care if she told his father about his drug use because his father was "well aware" that he used bath salts.
Defendant admitted that in his postarrest statement, he said that his grandmother would tell him not to use bath salts, and he would tell her "I'm old enough to choose what I want to do myself." Defendant's prior statements about the homicide
Defendant testified that during his postarrest interview with Sergeant Kroeker, he "concocted" a story about the homicide in a couple of minutes, and "I was just saying things as it came to my mind and just ... trying to make the most psychotic, unusual story I could thing of."
Defendant never told Sergeant Kroeker that he accidentally shot his grandmother because Kroeker only asked him about bath salts. Defendant made up his postarrest statements about using bath salts because "I thought that my best way to get out of trouble would be to seem insane."
Defendant admitted that he told Sergeant Kroeker that he heard voices telling him he had to "take her out," but this statement was another lie. He never heard voices, he was not hallucinating, and he did not hear his uncle say that he had to "take her out." He lied when he said that he hallucinated that his grandmother was the devil.
Defendant lied when he told Sergeant Kroeker that he cocked the rifle. Defendant testified that Jacob was mistaken when he testified that he heard that sound. Defendant knew more about guns than Jacob. Defendant might have cocked the disassembled shotgun that he was working on, and Jacob might have heard that sound. Defendant admitted the disassembled shotgun had nothing to do with the homicide.
Defendant testified that he pointed the rifle at his dog, his brother, and the hunting trophies. He admitted the rifle did not go off when he pointed it at them. It only went off when he pointed the rifle at his grandmother.
Defendant admitted that he pointed the gun at Imogene. He did not remember that she said, " 'Are you loading that?' " Defendant remembered that she said, " 'Don't point that gun at me.' " When asked why she would say that to him, defendant testified that it was because he was pointing the rifle at her. Defendant knew it was dangerous to human life to point a gun because someone could get killed, and it did it anyway, but he was "negligent" at the time.
On cross-examination, defendant initially denied he put his finger on the trigger and pulled it but admitted that the trigger did not just go off by itself. Defendant admitted he put his finger on the trigger and pulled it, but it was not intentional. Defendant admitted that he looked through the scope and put the crosshairs on his grandmother's face.
Defendant testified he lied when he told Sergeant Kroeker that he just got lucky with that gun and laughed about it. He denied hearing voices. Defendant's statements to the news reporter
Defendant testified the day after he gave the statement to Sergeant Kroecker, he gave an interview to a news reporter while he was in jail. Defendant admitted he told the reporter that he had "no regrets" about what had happened, and he felt like he had saved his family from hell. Defendant testified he lied when he made the statements to the reporter. Defendant was trying to be "convincingly crazy" during the interview, but he knew he was not crazy.
REDIRECT EXAMINATION OF DEFENDANT
"[Defense counsel]: Dylan, fair to say that unintentionally shooting your grandma has made you realize how dangerous guns are?
"A. Yes."
ADDITIONAL DEFENSE EVIDENCE
"Molly" stickers/labels
An investigator for the district attorney's office testified that when she searched Lewis's house, he directed her to multiple stickers in different places. Lewis said they were "molly" stickers that were from the packages for bath salts. The investigator found the stickers and took photographs of them. Defense expert's examination of the rifle
William Moore testified as a firearms expert for the defense. In May 2015, he examined the Remington model 721 bolt-action rifle that used .270-caliber ammunition, that defendant used when he killed Imogene. The model was produced between 1948 and 1962; he could not determine the exact age of this particular rifle. He believed it did not originally come with a scope.
Moore testified the trigger pull weight is the amount of actual force required to cause the trigger to allow the striker to fall and detonate a cartridge. This rifle had a screw "responsible for adjusting the actual weight of pull." Moore was not able to obtain precise figures from the manufacturer, but based on his experience, this type of rifle should have had a trigger pull between five to seven pounds "out of the box."
After Moore tested this rifle, however, he determined it required an average of "very close to two pounds of pressure," which is very low for the trigger pull. Moore had reviewed a report from the district attorney's crime laboratory, which determined the trigger pull was slightly under two pounds.
Moore testified the trigger pull increased to three pounds if the screw was rotated clockwise and decreased to one pound if rotated in the opposite direction. He believed someone had adjusted the rifle's pull weight from its original setting down to two pounds.
Moore testified that someone who was unfamiliar with the rifle, and unaware about the reduced trigger pull weight, could have unintentionally discharged it. It was possible the gun could have gone off if used by an experienced shooter, who was not experienced with a light trigger pull.
Moore's testimony about accidental firings
Moore testified that he tested the gun for accidental firings by positioning "the level safety box in the fire and in the safe position and jarred the rifle against the ground numerous times with significant force, and in no instance would the firearm discharge without actually pulling the trigger."
In part V, post, we will address defendant's claim that the prosecutor committed misconduct when she addressed Moore's testimony about an unintentional discharge and whether it was an accident.
On cross-examination, Moore testified that his report concluded that " 'an unintentional discharge would not occur.' " He said that an unintentional discharge would not occur without pulling the trigger.
"[The prosecutor]. ... So you have to put your finger on the trigger and pull at whatever weight in order for it to fire; correct?
"A. Correct."
Also, on cross-examination, Moore testified that someone who had experience with hunting rifles would know how to cock or chamber the rifle; and that putting someone in the cross-hairs and pointing a rifle at another person is dangerous to human life.
"Q. ... And would you say that if you do all that, pick up a gun, chamber it, point it, aim it, put the crosshairs on someone - on an object, that person would know that the natural and probable consequences of their actions was dangerous to human life?
"A. Yes."
Moore had never met defendant but had read the police reports. Moore knew that defendant admitted in his postarrest statement that he intentionally shot and killed his grandmother.
"Q. ... Does that change - I mean, so you wouldn't classify this, then, as an unintentional shooting, would you?
"A. I never did."
On redirect examination, Moore testified he was only retained to examine the rifle and not to reach any conclusions about the homicide.
REBUTTAL
Sergeant Kroeker
Sergeant Kroeker testified that on the day of the homicide, he interviewed Lewis and Jacob before he spoke to defendant. Jacob never said that defendant also pointed the rifle at the dog and himself before defendant shot his grandmother.
Sergeant Kroeker conducted the postarrest interview with defendant and testified that defendant's trial testimony was completely different from the statements he made during that interview.
Sergeant Kroeker testified that during the postarrest interview, he asked defendant why he shot his grandmother. Defendant said it was because she was going to burn in hell, or she was going to shoot him. Defendant never said anything about getting the idea from a Netflix movie, or that it was an accidental shooting or misfire.
As explained above, the prosecution introduced the redacted recording of defendant's postarrest interview after Sergeant Kroeker's testimony as further rebuttal evidence.
Based on defendant's statements, Sergeant Kroeker asked officers to look for packaging material and the pipe. They found the packaging material in the trash can located in the master bedroom and the broken glass pipe stem on the sidewalk by Lewis's house.
Defense counsel asked Sergeant Kroeker whether he called the district attorney's crime laboratory to determine if defendant's blood sample tested positive for bath salts. Kroeker confirmed he made the call on October 9, 2013, to determine if defendant was on bath salts "since it was a new test, kind of something that's new, we don't deal with on regular basis as far as law enforcement, if they had the capabilities of even performing such a test." Prosecution expert's examination of the rifle
In part VII, post, we will address defendant's assertion that the prosecutor committed misconduct when she discussed whether defendant's blood could have been tested for bath salts.
Chris Snow, a criminalist for the Kern County Regional Crime Laboratory, testified the rifle functioned normally. He conducted tests to determine if the rifle would accidentally fire. He "cocked the firearm and dropped it on its butt several times and also dropped it on the muzzle, and the firearm did not discharge."
Snow determined the rifle's trigger pull weight was either two pounds or less. He did not believe that figure was anything out of the ordinary.
PROCEDURAL HISTORY
Defendant was charged with first degree premeditated murder (Pen. Code, § 187, subd. (a)). It was further alleged that defendant personally and intentionally discharged a firearm that proximately caused death (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On October 29, 2014, after defendant was held to answer, the court declared a doubt as to defendant's competence, suspended the criminal proceedings, appointed experts and ordered a psychiatric examination pursuant to sections 1367 and 1368.
On December 14, 2014, the court reviewed the experts' reports, found defendant was competent, and reinstated criminal proceedings. Jury trial
On June 23, 2015, defendant's trial began with jury selection.
On July 2, 2015, the court instructed the jury on homicide, first and second degree murder, involuntary manslaughter, and voluntary intoxication.
The court denied defendant's motion for CALCRIM No. 510, excusable homicide based on accident.
Homicide , murder , and malice instructions
The court instructed the jury with CALCRIM No. 500, the general principles of homicide:
"Homicide is the killing of one human being by another. [¶] Murder and involuntary manslaughter are types of homicide. [¶] The defendant is charged with murder. [¶] Involuntary manslaughter is a lesser offense to murder.
"A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, the killing is lawful and he has not committed a crime. If there is no legally valid excuse or justification, the killing is unlawful, and depending on the circumstances, the person is guilty of either murder or involuntary manslaughter. [¶] You must decide whether the killing in this case was unlawful and, if so, what specific crime was committed. [¶] I will instruct you on the different types of murder and involuntary manslaughter."
The court gave CALCRIM No. 520, defining the charged offense of first degree murder and the lesser included offense of second degree murder, and express and implied malice:
"The defendant is charged in Count 1 with murder, in violation of Penal Code Section 187.
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant committed an act that caused the death of another person; and, (2) When the defendant acted, he had a state of mind called 'malice aforethought': and, (3) He killed without lawful excuse or justification.
"There are two kinds of malice aforethought: express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
"The defendant acted with express malice if he unlawfully intended to kill.
"The defendant acted with implied malice if: (1) He intentionally committed an act; (2) The natural and probable consequences of the act were dangerous to human life; (3) At the time he acted, he knew his act was dangerous to human life; and (4) He deliberately acted with conscious disregard for human life...." (Italics added.)
CALCRIM No. 520 further defined malice and causation, and if the jury decided defendant "committed murder, you must then decide whether it is murder of the first or second degree."
CALCRIM No. 521 defined the charged offense of first degree premeditated murder:
"The defendant has been prosecuted for first-degree murder under one theory; the theory is the murder was willful, deliberate, and premeditated. [¶] You may not find the defendant guilty of first-degree murder unless all of you agree that the People have proved that the defendant committed murder.
"Deliberation and premeditation. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [¶] The defendant acted willfully if he intended to kill. [¶] The defendant acted deliberately if he carefully weighed the considerations for and against choice and, knowing the consequences, decided to kill.
"The defendant acted with premeditation if he decided to kill before completing the acts that caused death...."
After further defining premeditation and deliberation, CALCRIM No. 521 stated: "The requirements for second degree murder based on express or implied malice are explained in CALCRIM No. 520, first- or second-degree with malice aforethought. That was the prior instruction that I just read."
Involuntary manslaughter
The court gave CALCRIM No. 580, involuntary manslaughter as another lesser included offense of first degree murder:
"Involuntary manslaughter, a lesser included offense:
"When a person commits an unlawful killing but does not intend to kill, and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.
"The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his actions created, and consciously disregarded that risk.
"An unlawful killing caused by a wilful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder.
"Voluntary manslaughter is not an option for you. It's either first-degree, second-degree, involuntary manslaughter or nothing. Those are your options.
"An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.
"The defendant committed involuntary manslaughter if, (1) The defendant committed a lawful act in an unlawful manner; (2) The defendant committed an act with criminal negligence; and, (3) The defendant's acts unlawfully caused the death of another person.
"The 'act' is pointing a loaded rifle at Imogene McNabb.
"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: (1) He acts in a reckless way that creates a high risk of death or great bodily injury; and (2) A reasonable person would have known that acting in that way would create such a risk.
"In other words, a person acts with criminal negligence ... when the way he acts is so different from the way an ordinarily careful person would act in the same situation that his act amounts to disregard for human life or indifference to the consequences of that act.
"An act causes death if the death is the direct, natural and probable consequence of the act, and the death would not have happened without the act.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
"In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence...." (Italics added.)
In part II, post, we will address defendant's argument that the involuntary manslaughter instruction failed to explain the required intent and knowledge, and the italicized sentence should have clarified that he could have been convicted of involuntary manslaughter even if he thought the gun was loaded.
The jury also received CALCRIM No. 252, that involuntary manslaughter required general criminal intent, and the jury must find the defendant "must not only commit the prohibited act, or failed to do the required act, but must do so with wrongful intent. [¶] A person acts with wrongful intent when he ... intentionally does a prohibited act or fails to do a required act. However, it's not required that he intend to break the law. [¶] The act required is explained in the instruction for that crime...."
Voluntary intoxication instructions
The court granted defendant's motion to instruct the jury with CALCRIM No. 625, voluntary intoxication and its effect on homicide crime.
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance, knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose." (Italics added.)Verdict
In part IV, post, we will address defendant's argument that the prosecutor committed misconduct in closing argument when she discussed the impact of voluntary intoxication on the murder charges.
Also, on July 2, 2015, the parties made their arguments to the jury.
On July 7, 2015, the jury asked the court to explain how voluntary intoxication affects "conscious disregard." The court instructed the jury to refer to CALCRIM No. 625 about voluntary intoxication and ask additional questions if necessary.
On July 7, 2015, the jury found defendant not guilty of first degree murder, and guilty of the lesser included offense of second degree murder. The jury found both firearm enhancements true. Sentencing
The court sentenced defendant to 15 years to life for second degree murder, plus 25 years to life for the section 12022.53, subdivision (d) firearm allegation. The court stayed the 10-year term for the section 12022.5, subdivision (a) firearm enhancement.
DISCUSSION
I. Denial of Defense Instruction on Accident
Defendant contends the court erroneously denied his request for CALCRIM No. 510, excusable homicide based on accident. Defendant argues this instruction was supported by the evidence that he had never handled the rifle before, he did not realize the rifle had "a hair-trigger," and the rifle "discharged unexpectedly."
Defendant further asserts the court improperly denied the accident instruction because it relied on his trial testimony that he was "negligent" with the rifle. Defendant argues his own lay opinion about his conduct was insufficient to negate the other evidence of accident.
In order to address this issue, we will examine the elements of murder and manslaughter, compared to an excusable homicide based on accident, and whether defendant's request for a pinpoint instruction was supported by substantial evidence.
A. Murder
As set forth above, the jury was instructed on the charged offense of first degree premeditated murder, the lesser offense of second degree murder, and express and implied malice.
"Murder is the unlawful killing of a human being ... with malice aforethought." (§ 187, subd. (a).) A murder committed with premeditation and deliberation is first degree murder; all other kinds of murder are of the second degree. (§ 189.)
"Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. [Citations.]" (People v. Knoller (2007) 41 Cal.4th 139, 151; People v. Elmore (2014) 59 Cal.4th 121, 133.)
Malice may be express or implied. (People v. Swain (1996) 12 Cal.4th 593, 601.) Express malice exists "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) "Malice is implied ... when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 596.)
As we will discuss in part IV, post, the jury was instructed on both express and implied malice, but the prosecutor made a clear election that she was relying on an express malice theory for first degree murder, and an implied malice theory for second degree murder.
B. Involuntary Manslaughter
The jury was also instructed on involuntary manslaughter as another lesser included offense of first degree murder. "Involuntary manslaughter is a lesser offense of murder, distinguished by its mens rea. [Citation.] The mens rea for murder is specific intent to kill or conscious disregard for life. [Citation.] Absent these states of mind, the defendant may incur homicide culpability for involuntary manslaughter. [Citations.] [T]here are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. [Citation.]" (People v. Butler (2010) 187 Cal.App.4th 998, 1006.)
"[C]riminal negligence is the governing mens rea standard for all three forms" of involuntary manslaughter. (People v. Butler, supra, 187 Cal.App.4th at p. 1007.) "Criminal negligence is defined as conduct that is ' "such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to [the] consequences." ' [Citation.] Criminal negligence is also described in terms of objective foreseeability, that is, one acts with criminal negligence when a person 'of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm.' [Citation.] It is not necessary that a defendant subjectively appreciate the risk and consciously disregard it - that would be the more serious offense of second degree murder. [Citation.] A defendant can be convicted of involuntary manslaughter despite a good faith belief that the conduct posed no risk, if that belief was objectively unreasonable under the circumstances. [Citation.]" (People v. Luo (2017) 16 Cal.App.5th 663, 670-671; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1140-1141; People v. Butler, supra, 187 Cal.App.4th at p. 1008.)
" 'Implied malice contemplates a subjective awareness of a higher degree of risk than does gross [(i.e., criminal)] negligence, and involves an element of wantonness which is absent in gross negligence. [Citations.]' [Citation.] 'A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]' [Citation.]" (People v. Mehserle, supra, 206 Cal.App.4th at pp. 1141-1142, italics in original.)
An unintentional shooting resulting from the brandishing of a weapon can be murder if the jury concludes that the act was dangerous to human life and the defendant acted in conscious disregard of life. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 108-109; In re Russell H. (1987) 196 Cal.App.3d 916, 920-921; People v. Thomas (2012) 53 Cal.4th 771, 814-815.)
There are also "several instructive California involuntary manslaughter cases involving the negligent handling or discharge of a firearm. (See, e.g., In re Dennis M. (1969) 70 Cal.2d 444, 449, 461 ... [defendant, knowing his handgun had recently been loaded and uncertain whether he had emptied it of all bullets, pointed it at the victim's head and deliberately pulled the trigger twice while hugging the victim], disapproved on another, unrelated ground as recognized in In re Joseph G. (1970) 7 Cal.App.3d 695, 704 ...; People v. Carmen (1951) 36 Cal.2d 768, 776-777 ... [murder conviction; defendant entitled to involuntary manslaughter instruction because he testified he had no intent to shoot anyone; was carrying a gun with a round in the firing chamber, pointed forward, while approaching an occupied vehicle; and stumbled and the gun went off]; People v. Cazares (1987) 190 Cal.App.3d 833, 835, 837-838 ... [defendant fired handgun through closed door into a crowded dancehall]; [citation.]" (People v. Mehserle, supra, 206 Cal.App.4th at p. 1142.)
C. Excusable Homicide
"Homicide, the killing of one human being by another, is not always criminal. In certain circumstances, a killing may be excusable or justifiable. [Citations.]" (People v. Elmore, supra, 59 Cal.4th at p. 132, fn. omitted.)
"In general, in every crime there must exist a union or joint operation of act or conduct and criminal intent or criminal negligence. (Pen. Code, § 20.) As a further general proposition of criminal law, persons who commit an act through misfortune or by accident with no evil design, intention, or culpable negligence are not criminally responsible for the act. (Pen. Code, § 26, subd. Five.)" (People v. Guinn (1983) 149 Cal.App.3d Supp. 1, 9.) "California law recognizes that one person may cause another's death by conduct which is not criminally culpable, for it absolves those who commit ... the act through misfortune or by accident when there was no evil intention or culpable negligence. [Citations.]" (Somers v. Superior Court (1973) 32 Cal.App.3d 961, 969-970.)
Section 195 defines the circumstances where homicide is excusable:
"Homicide is excusable in the following cases:
"1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.
"2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner." (Italics added.)
Defendant's claim of accident was apparently based on the first paragraph of section 195, as italicized above. "Generally, the claim that a homicide was committed through misfortune or by accident 'amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.' [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 674, italics added; People v. Anderson (2011) 51 Cal.4th 989, 998; People v. Bohana (2000) 84 Cal.App.4th 360, 370.)
" 'Criminal negligence means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care....' " (People v. Jennings, supra, 50 Cal.4th at p. 674, fn. 25.) " '[W]ithout gross negligence' means 'ordinary negligence.' " (People v. Bussel (2002) 97 Cal.App.4th Supp. 1, 8.)
"For a killing to be 'accidental,' a defendant must act without negligence. [Citations.]" (People v. Mehserle, supra, 206 Cal.App.4th at p. 1138.) "[A] careful individual is not guilty of criminal negligence, whereas an individual who engages in aggravated and reckless conduct is culpable under the law." (People v. Velez (1983) 144 Cal.App.3d 558, 568, fn. omitted.)
D. CALCRIM No . 510
Defendant requested CALCRIM No. 510, excusable homicide based on accident. The pattern instruction states:
"The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if:
"1. The defendant was doing a lawful act in a lawful way;
"2. The defendant was acting with usual and ordinary caution; [¶] AND
"3. The defendant was acting without any unlawful intent.
"A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation.
"The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter)." (Italics added.)
E. The Court's Instructional Ruling
The court and the parties discussed the instructions in chambers. When the court returned to the record, defense counsel said he had requested CALCRIM No. 510, excusable homicide based on accident. The court denied the defense request.
"THE COURT: [F]irst of all, the Court does not have a sua sponte duty to instruct on accident, and then secondly, it does not appear from the evidence that there's any evidence of usual and ordinarily caution by the defendant regardless of the theory that the jury may adopt as prevailing.
"[Defendant's] testimony in court indicates that he wasn't being cautious, he said that himself, words to that effect. This is not a situation where a firearm was being held and it was dropped or something along those lines. Based on the evidence, based on the review of [CALCRIM No.] 510, and based on the bench notes authority, I'm not going to give it...." (Italics added.)
F. The Court's Duty to Give Pinpoint Instructions
The court denied defendant's requested instruction on excusable homicide. Excusable homicide based on accident is not an affirmative defense but instead negates the intent element of malice. Thus, excusable homicide based on accident is a pinpoint instruction. (People v. Gonzalez (2018) 5 Cal.5th 186; People v. Anderson, supra, 51 Cal.4th at p. 998.)
The court need not give a requested pinpoint instruction if it is argumentative, duplicative, or not supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.) A requested instruction on excusable homicide/accident must be supported by substantial evidence. (People v. Gonzalez, supra, 5 Cal.5th at p. 199, fn. 3; People v. Anderson, supra, 51 Cal.4th at pp. 997-998; People v. Jennings, supra, 50 Cal.4th at p. 675.)
"In deciding whether defendant was entitled to the instructions urged, we take the proffered evidence as true, 'regardless of whether it was of a character to inspire belief. [Citations.]' [Citation.] ' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." [Citations.]' [Citation.] Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that 'deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded" ' that the specific facts supporting the instruction existed. [Citation.]" (People v. Petznick (2003) 114 Cal.App.4th 663, 677, italics in original.) The court need not give instructions based solely on conjecture and speculation. (People v. Young (2005) 34 Cal.4th 1149, 1200.)
The court's failure to give a requested instructed is subject to de novo review. (People v. Licas (2007) 41 Cal.4th 362, 366.)
G. Analysis
Defendant asserts the court improperly denied his request for CALJIC No. 510 because it relied on his trial testimony that he was "negligent." Defendant asserts the instruction should have been given because his description of his conduct as negligent does not negate his trial testimony that the homicide was an accident and he did not intentionally fire the rifle.
The entirety of the record, however, shows that defendant's instructional request was not supported by substantial evidence, and the court's decision not to give the instruction was not solely based on defendant's use of the word "negligent."
William Moore, the defense expert, testified the rifle functioned as designed but the trigger pull weight had been reduced to approximately two pounds. Moore tested the gun and determined it did not accidentally fire when dropped or jarred. Moore concluded the rifle would not discharge "without actually pulling the trigger," even at the reduced trigger pull weight. Moore testified an "unintentional discharge" would not occur unless someone put his finger on the trigger and pulled it.
Jacob, defendant's brother, testified that shortly before the homicide, he was looking down at his cell phone and heard noises consistent with defendant "racking" the rifle. Jacob heard his grandmother say, " 'Don't point that at me.' " Jacob looked up and saw his grandmother sitting on the couch. Defendant was holding the rifle with the butt on his shoulder. He was looking through the scope, and Jacob heard the single gunshot that instantly killed his grandmother.
When defendant was interviewed after his arrest, he said racked the rifle and got lucky that it was already loaded, and he intentionally shot his grandmother in the face. In contrast, defendant testified at trial that he picked up the rifle and did not think it was loaded. He was not familiar with the rifle and played with the scope, but it was awkward since he was left-handed. Defendant further testified Jacob was mistaken about hearing the "racking" sound, and he never loaded or racked the rifle. Defendant testified he pointed the rifle at the family dog, the trophy heads on the wall, Jacob, and his grandmother.
Defendant testified that he leaned the rifle on top of the recliner, looked through the scope, pointed the rifle at his grandmother, and put the crosshairs on her face. His grandmother told him not to point it at her. Defendant claimed she startled him and the shot was fired because he "accidentally grazed the trigger."
Defendant admitted that the rifle did not go off when he pointed it at his brother and the dog, and it only went off when he aimed it at his grandmother.
"[The prosecutor]. So you are aware that you never point a gun unless - at something unless you intend to shoot; right?
"A. No, I never heard that rule.
"Q. Isn't that common sense, though? Would you think that that would be common sense?
"A. Yeah."
Defendant realized it was "rude" to point the rifle at Jacob and his grandmother, but testified that he was "stupid, negligent."
"[The prosecutor]. ... Why would [Imogene] say, 'Don't point that gun at me'?
"A. Because I was pointing [the rifle] at her.
"Q. And why do you not point a gun at somebody?
"A. Because you're not supposed to.
"Q. Why?
"A. Because it's dangerous.
"Q. Why?
"A. I just told you why.
"Q. Because you can kill somebody; right?Defendant insisted he did not put his finger on the trigger.
"A. Yes.
"Q. Okay. So you know that if you point a gun at someone it is dangerous to human life; right?
"A. Yes. And I say that I was negligent at the time. [¶] ... [¶]
"Q. You know that it's dangerous to a human life to point a gun at somebody; right?
"A. Yes.
"Q. And you did it anyway; right?
"A. Yes." (Italics added.)
"[The prosecutor]. Well, the trigger just doesn't go off by itself.
"A. Yeah, it doesn't. [¶] ... [¶]
"Q. You put your finger on the trigger; yes?
"A. Yes, and then—
"Q. Okay. And then you pulled, however so slightly, but you pulled; right?
"A. Not intentionally.
"Q. Okay. 'Yes' or 'no' did you pull the trigger? I'm not asking if it was intentionally or not. You pulled the trigger.
"A. No, I don't believe I did.
"Q. How did it - it's not a magical trigger, it doesn't just pulled itself, right?
"A. Okay. Well, I didn't intentionally pull it.
"Q. Okay. But you did pull it?
"A. Yeah." (Italics added.)
Defendant's testimony thus showed there was no substantial evidence to satisfy paragraph 1 of section 195, defining excusable homicide, that he acted with "usual and ordinary caution" when he handled the rifle. Defendant admitted that he placed the rifle on his shoulder and the barrel on top of the recliner, aimed at his grandmother, and put her face in the crosshairs of the scope. Defendant admitted that he intentionally did these acts and did not accidentally aim the rifle at his grandmother and place her face in the crosshairs. (See, e.g., People v. Bohana, supra, 84 Cal.App.4th at p. 371.)
Defendant initially claimed that he did not touch the trigger but admitted that he pulled it, but he did not intend to. Nevertheless, defendant's testimony raises the obvious inference that his finger was on the trigger as he aimed the rifle at his grandmother and placed her face in the crosshairs.
The court's decision not to instruct on accident was not based on defendant's use of the word "negligent," but on the entirety of defendant's trial testimony that completely negated any inference that he used "usual and ordinary caution" as he aimed the rifle at his grandmother, placed her face in the scope's crosshairs, and put his finger on the trigger.
Defendant admitted that he knew that pointing the gun at someone and putting that person's face in the crosshairs was dangerous to human life because someone could get killed, but he did it anyway. Defendant's trial testimony did not provide substantial evidence for the "usual and ordinary caution" required for an excusable homicide under section 195. Instead, his testimony supported the instruction for involuntary manslaughter based on criminal negligence, along with the instruction for second degree murder based on implied malice and deliberately performing an act with conscious disregard for life.
In part II, post, we will address defendant's claim that the involuntary manslaughter instruction was incorrect; and in part IV, post, that the prosecutor allegedly misstated the impact of voluntary intoxication on the murder charges.
Having found that CALCRIM No. 510 was not supported by substantial evidence, we also reject defendant's constitutional and due process claims about the court's decision not to give the instruction, or that defense counsel should have moved to "strike" defendant's trial testimony that he was negligent.
II. The Involuntary Manslaughter Instruction
The court granted defendant's motion to instruct the jury about involuntary manslaughter as a lesser included offense of the charged crime of first degree premeditated murder. As we will explain, the instruction stated that defendant was guilty of involuntary manslaughter if he committed an act with criminal negligence, and the underlying act was "pointing a loaded rifle" at Imogene. Defendant did not object to this language.
The jury found defendant was not guilty of first degree premeditated murder, and guilty of second degree murder as a lesser included offense.
Defendant now contends the involuntary manslaughter instruction misstated the law and failed to clarify he could be convicted of the lesser offense even if he knew the rifle was loaded. Defendant acknowledges the jury found him guilty of second degree murder. Nevertheless, defendant contends the involuntary manslaughter instruction failed to specify the intent and knowledge elements because the jury might have mistakenly determined that involuntary manslaughter required him "to believe the firearm was not loaded." (Italics added.)
A. Involuntary Manslaughter
As set forth above, "[t]he mens rea for murder is specific intent to kill or conscious disregard for life. [Citation.] Absent these states of mind, the defendant may incur homicide culpability for involuntary manslaughter. [Citations.] [T]here are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. [Citation.]" (People v. Butler, supra, 187 Cal.App.4th at p. 1006.)
"The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony. That is, when a defendant commits a misdemeanor in a manner dangerous to life, the defendant's conduct 'qualifies as gross negligence,' and culpability for involuntary manslaughter is warranted because the defendant has performed an act ' "under such circumstances as to supply the intent to do wrong and inflict some bodily injury." ' [Citations.] Similarly, when a defendant commits a lawful act or a noninherently dangerous felony with criminal negligence, the defendant is presumed to have had an awareness of, and conscious indifference to, the risk to life, regardless of the defendant's actual belief. [Citations.]" (People v. Butler, supra, 187 Cal.App.4th at p. 1008.)
"Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. [Citations.] Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved. [Citation.] In contrast, involuntary manslaughter merely requires a showing that a reasonable person would have been aware of the risk. [Citation.] Thus, even if the defendant had a subjective, good faith belief that his or her actions posed no risk, involuntary manslaughter culpability based on criminal negligence is warranted if the defendant's belief was objectively unreasonable. [Citations.]" (People v. Butler, supra, 187 Cal.App.4th at pp. 1008-1009, fn. omitted.)
B. Defense Motion for Involuntary Manslaughter Instruction
Defendant filed a motion for the court to instruct the jury on involuntary manslaughter as lesser included offenses of murder. Defendant's motion argued the court should specify that his claim of involuntary manslaughter was based on his commission of a misdemeanor violation of section 417, subdivision (a)(2)(b), brandishing a firearm.
Defendant's motion also requested a voluntary manslaughter instruction as another lesser included offense. The court denied defendant's motion and found voluntary manslaughter was not supported by the evidence. Defendant has not challenged this ruling on appeal.
Defendant submitted the following version of CALCRIM No. 580, which followed the pattern instruction for involuntary manslaughter and criminal negligence, with the italicized proposed modification about brandishing a firearm:
"The defendant committed involuntary manslaughter if:
"1. The defendant committed a crime;
"2. The defendant committed the crime with criminal negligence; AND
"3. The defendant's acts caused the death of another person.
"The People allege that the defendant committed the following crime[s]: PC 417(a)(2)(B). Instruction 580 [sic] tells you what the People must prove in order to prove that the defendant committed PC 417." (Italics added.)
Defendant's proposed modification to CALCRIM No. 580 erroneously referred back to the same instruction for the definition of misdemeanor brandishing in violation of section 417, subdivision (a)(2). CALCRIM No. 983 defines the offense of misdemeanor brandishing and states: "It is not required that the firearm be loaded."
C. The Court's Instructional Ruling
As explained above, the court discussed the instructions in chambers and then placed the parties' discussions on the record.
As to defendant's request for CALCRIM No. 580 on involuntary manslaughter, the court stated it would give the instruction and the parties had a very detailed discussion "as to what the appropriate language would be."
"THE COURT: ... And CALCRIM 580 has different bracketed sections after 1, 2, and 3 items are listed. The first bracketed section has to do with the People alleging the defendant committed the following crimes.
The People aren't alleging that. And then the second bracketed section has to do with the People allege that the defendant committed the following lawful acts.
"After conferring with each counsel, ... it should not reference 'the People allege,' because that's not correct, it would just reference and define what the act is so that there's no confusion by the jury and would reference the act is the act being what's referenced in Item 2, 'Pointing a loaded rifle at Imogene McNabb." (Italics added.)
Defense counsel agreed with the court's reasoning to give CALCRIM No. 580. Defense counsel said he had also requested an instruction on brandishing a firearm, in violation of section 417, as the basis for the involuntary manslaughter claim. The court acknowledged the request but did not give the additional instruction on brandishing.
Defendant did not request any further modifications to CALCRIM No. 580 and did not object to the court's addition about pointing a "loaded" rifle at Imogene.
D. CALCRIM No . 580
As set forth above, the court gave CALCRIM No. 580, involuntary manslaughter as a lesser included offense. As relevant to this issue, the instruction stated in relevant part:
"An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.The instruction continued with the correct definitions of criminal negligence and natural and probable consequences.
"The defendant committed involuntary manslaughter if, (1) The defendant committed a lawful act in an unlawful manner; (2) The defendant committed an act with criminal negligence; and, (3) The defendant's acts unlawfully caused the death of another person.
"The 'act' is pointing a loaded rifle at Imogene McNabb." (Italics added.)
E. Analysis
Defendant asserts that while the jury was instructed that the lawful act required to be proven as an element of involuntary manslaughter was "pointing a loaded rifle" at Imogene, the jury should have been instructed that "it was free to determine whether, under these facts, pointing a loaded rifle, known to be loaded, was 'criminally negligent' and thus involuntary manslaughter." (Italics added.) Defendant further asserts that without this language, the jury was "free to erroneously conclude that involuntary manslaughter was only an option available if [he] ... thought the firearm was not loaded."
Defendant further argues that the jury's possible confusion was compounded by the prosecutor's alleged misconduct in closing argument. We will address this argument in part IV, post.
Defendant acknowledges that defense counsel did not object to the instruction but argues the error has not been forfeited because the court improperly denied his motion to instruct on brandishing a firearm as the underlying act, and the court had a sua sponte duty to fully instruct on the elements of the lesser included offense.
1. Failure to Instruct on Brandishing
We begin with defendant's argument that the court should have granted his motion to instruct on brandishing a firearm as the underlying act for involuntary manslaughter.
As explained above, "there are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. [Citation.]" (People v. Butler, supra, 187 Cal.App.4th at p. 1006.)
Defendant's motion specifically sought an instruction that the underlying act was brandishing in violation of section 417, subdivision (a)(2)(B). Section 417, subdivision (a)(2)(B) defines a misdemeanor offense for "[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel ...." (Italics added.) "The weapon need not have been pointed directly at a victim. [Citation.]" (People v. Sanders (1995) 11 Cal.4th 475, 542.) There is no requirement that the victim must be aware of the brandishing. (People v. McKinzie (1986) 179 Cal.App.3d 789, 794.)
"The misdemeanor of brandishing a weapon is committed when a person draws or exhibits a firearm, in the presence of another person, 'in a rude, angry, or threatening manner.' [Citation.] A killing without malice 'in the commission of an unlawful act, not amounting to [a] felony' is involuntary manslaughter. [Citation.] Accordingly, an accidental shooting that occurs while the defendant is brandishing a firearm in violation of section 417 could be involuntary manslaughter. [Citations.]" (People v. Thomas, supra, 53 Cal.4th at p. 814.)
However, there must be substantial evidence to support a requested defense instruction. In People v. Gana (2015) 236 Cal.App.4th 598 (Gana), the defendant was convicted of the first degree murder of her husband and attempted murders of her two children. On appeal, she argued the court had a sua sponte duty to instruct on involuntary manslaughter based on misdemeanor brandishing a firearm in violation of section 417, subdivision (a). (Gana, supra, at pp. 601-602.)
Gana held the instruction was not supported by the evidence:
"To support an instruction on involuntary manslaughter based on brandishing a firearm there had to be evidence defendant 'dr[e]w or exhibit[ed] a []firearm ... in a rude, angry, or threatening manner.' [Citation.] Cases holding the evidence supported a brandishing charge involve scenarios where the crime was preceded by a quarrel or confrontation between the participants. (People v. Lee (1999) 20 Cal.4th 47, 61, 82 Cal.Rptr.2d 625, 971 P.2d 1001 ['defendant used his gun in the quarrel' where he and his wife were arguing and pushing each other]; People v. Rivera (2003) 114 Cal.App.4th 872, 875-876, 8 Cal.Rptr.3d 141 [defendant pointed gun at the victim when he attempted to intervene in a fight with a girlfriend,]; People v. Mercer (1980) 113 Cal.App.3d 803, 805-806, [ordered to surrender his firearm, defendant assumed a classic gunfighter stance and told officer to come and take it].)
"The evidence at the trial in this case is distinguishable. Defendant acknowledged Antonio Gana had been a good husband. The children testified defendant was in the bedroom alone and there was no fight, quarrel, argument, or struggle between her and her husband that preceded the shooting. When Antonio and the children reached the bedroom after the first shot, they saw defendant sitting on the bed holding the gun. Without saying anything, she shot her husband while still several feet away from him before chasing after the children shooting at and striking at least one of them. Under these circumstances, the trial court did not err in refusing to give the requested involuntary manslaughter instruction based on a misdemeanor-manslaughter theory." (Gana, supra, 236 Cal.App.4th at pp. 606-607.)
As in Gana, the trial court in this case correctly declined defendant's motion because there was no evidence to support misdemeanor brandishing as the underlying act for involuntary manslaughter. There was no evidence from the trial testimony of defendant or Jacob, or defendant's postarrest statements, that defendant drew the rifle in a rude, angry, or threatening manner, or that there had been any type of quarrel between defendant and his grandmother immediately before he killed her.
2. Knowledge
Defendant asserts the court had a sua sponte duty to fully instruct on knowledge and intent as an element of involuntary manslaughter, and it failed to do so by not clarifying that he could be guilty of involuntary manslaughter even if he knew the rifle was loaded.
The court has a sua sponte duty to fully instruct on all lesser included offenses supported by the evidence, including the intent and knowledge required for those offenses. (People v. Breverman (1998) 19 Cal.4th 142, 148-149; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v. Alvarado (2005) 125 Cal.App.4th 1179, 1185.) 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 a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
The entirety of the instructions show that the jury was properly instructed on the elements of involuntary manslaughter. CALCRIM No. 580 stated: "An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter." It fully and correctly defined criminal negligence as "more than ordinary carelessness, inattention, or mistake in judgment," and acting "in a reckless way that creates a high risk of death or great bodily injury" where a "reasonable person would have known that acting in that way would create such a risk." "In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act." The jury was also instructed about the general intent required for involuntary manslaughter.
In the midst of this language, CALCRIM No. 580 stated that defendant's act that unlawfully caused the death was "pointing a loaded rifle at Imogene McNabb." The instruction stated that in order to find defendant guilty of involuntary manslaughter, "[a] reasonable person would have known that acting in that way would create such a risk" only if that person knew he was aiming a loaded rifle at the victim.
The very definition of the act presupposes the actor knew he was pointing a rifle that was loaded at the victim. The jury was thus instructed that it could find defendant guilty of involuntary manslaughter based on criminal negligence, even if he knew the rifle was loaded when he pointed it at Imogene.
The jury's verdict of not guilty on first degree murder, and guilty for second degree murder, indicates it rejected defendant's claim of criminal negligence and instead found him guilty based on his intentional commission of an act with conscious disregard for human life.
III. Prosecutorial Misconduct: Closing Argument
Defendant raises several claims of prosecutorial misconduct that allegedly occurred in closing argument. As we will explain, defendant did not object to most of these claims.
We begin with the well-settled principles applicable to claims of prosecutorial misconduct. "When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 462; People v. Masters (2016) 62 Cal.4th 1019, 1052.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) The court must consider the challenged statements in the context of the argument as a whole to make its determination. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)
As we will explain, defendant raises four claims of prosecutorial misconduct, but only raised an objection to one of these assertions. "As a general rule, ' "[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." ' [Citations.] The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 674.)
In the alternative, defendant asserts counsel was prejudicially ineffective for failing to object to the three claims of misconduct that he now raises on appeal. " '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.' [Citation.] ... [The defendant] bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. [Citations.]" (Centeno, supra, 60 Cal.4th at p. 674, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citation.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission. [Citations.]' [Citation.] '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one ....' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' [citation]." (Centeno, supra, 60 Cal.4th at pp. 674-675.)
With this background in mind, we turn to defendant's claims of prosecutorial misconduct.
IV. Prosecutorial Misconduct: Voluntary Intoxication
Defendant's first claim of prosecutorial misconduct is that the prosecutor misstated the law by arguing that voluntary intoxication could not be a defense to second degree murder. Defendant notes the jury was instructed on first and second degree murder, and both express and implied malice. Defendant argues the prosecutor's misstatement of the law was prejudicial because voluntary intoxication was a defense to a second degree murder theory based on express malice.
Defendant did not object to the prosecutor's argument but raises ineffective assistance as an alternative claim.
As we will explain, the prosecutor's closing argument was not misleading or prejudicial because she elected the theories of guilt in this case: first degree premeditated murder based on express malice and the intent to kill, to which voluntary intoxication was applicable to potentially negate premeditation and express malice; or second degree murder based on implied malice and defendant's actions in conscious disregard for human life, and voluntary intoxication was not applicable to the alternate prosecution theory.
A. The Prosecutor's Closing Argument
In her closing argument, the prosecutor addressed defendant's contradictory statements about whether he used bath salts shortly before the homicide, and whether defendant used bath salts was for the jury to decide.
The prosecutor argued that defendant was lying when he told Sergeant Kroeker that he was hearing voices that day, and defendant's attempt to claim he was insane to get out of trouble was "an insult to those individuals who truly suffer from mental illness." Defendant also lied when he testified that he was just messing with the rifle and the shooting was unintentional. Defendant admitted that when his grandmother told him to stop using drugs, he said that he was old enough to choose what he wanted to do.
The prosecutor argued the evidence supported first degree premeditated murder: defendant knew how to operate guns, he intentionally grabbed the rifle, Jacob heard him rack the rifle, defendant admitted he placed the crosshairs on Imogene's face that showed it was "deliberate and specifically intending to shoot at that location," and he intentionally murdered his grandmother in a cold and calculated manner.
The prosecutor explained express malice meant an intent to kill, and sometimes it was "really hard" to prove express malice because you could not look into a person's brain and see what was going through their mind. Instead, the jury had to "look at all the evidence" and behavior and "what they were doing."
"And in this case, though, [defendant] specifically said, 'I got to go take her out.' I don't know how much more clear a specific intent to kill could be."
The prosecutor said defendant's actions also demonstrated his intent to kill.
"Picking up the gun, cocking it, chambering it, pointing it, target, pull the trigger. All of those steps. When you pick up a gun and you point, you intend to kill."
The prosecutor explained that implied malice meant an intentional act, the natural and probable consequences of which were dangerous to human life. "We have this, too, in this case," based on defendant's admission that he knew that he could kill someone if he pointed a gun at the person, but he did it anyway. "That is implied malice." "In this particular case, you actually have both."
"In order to elevate and go up to first-degree murder, you can only find it by the malice aforethought of specific intent to kill. Conscious disregard for human life does not apply. So if you find express malice, if you decided he intended to kill her, you have express malice and that takes you to first." (Italics added.)
The prosecutor further explained that the jury also had to find the murder was "willful, meaning it was intentional - it wasn't on accident - and he premeditated and deliberated. So you have to find these additional elements for you to convict on a first-degree murder. [¶] That is the only theory that applies here." (Italics added.)
The prosecutor argued the evidence showed defendant committed a premeditated and deliberate murder.
"I throw -- and I put in here 'voluntary intoxication' because there's been a lot of discussion about bath salts and how do they play in this whole incident.
"It's not a defense to murder. You can't say, well, he was intoxicated. Maybe, maybe not. We don't know. But let's just assume he was. You can't go from murder to involuntary manslaughter on that. No. It's not a defense to murder.
"The only way that you can use intoxication is if it was mitigated down from first to second. That's all it does. Only to decide whether he acted with intent to kill or with deliberate and - deliberation and premeditation. You only use intoxication in a very limited way in trying to decide, 'Okay, is there a mitigating factor, then, from first to second?' " (Italics added.)
The prosecutor argued there was no evidence that defendant was under the influence, but it was up to the jury "how to use that."
"[I]t's only used if you find that there was mitigation. It only gets you to second. Okay? Because then - remember, second, you have the implied malice theory."
The prosecutor discounted involuntary manslaughter because he intentionally killed her and "[t]his case is a first-degree murder case."
Defense counsel did not object to the prosecutor's argument.
B. Defense Counsel's Argument
In his argument, defense counsel asserted the jury had three possible verdicts: (1) first degree premeditated murder; (2) involuntary manslaughter based on criminal negligence, which is what the defense was asking for, because defendant's hand brushed against the hair trigger, and (3) "second-degree implied malice murder," which is what "the prosecutor's office is really looking for."
Defense counsel argued the prosecutor could not prove first degree premeditated murder because she needed to show defendant was on bath salts and that he hated his grandmother, and there was no evidence for these issues.
Defense counsel asserted there was no evidence of implied malice, because he did not know the gun was loaded and he did not intentionally pull the trigger. Counsel argued defendant was not guilty of second degree murder because the prosecutor failed to prove implied malice. Instead, defendant acted with criminal negligence and was guilty of involuntary manslaughter.
In part II, ante, we addressed defendant's argument that the involuntary manslaughter instruction should have explained that he could have been guilty of that lesser offense even if he knew the rifle was loaded. In closing argument, defense counsel argued there was no evidence defendant knew the rifle was loaded.
C. The Prosecutor's Rebuttal Argument
In rebuttal, the prosecutor refuted defense counsel's claim there was no evidence of first degree murder without "bath salts and ... hate."
"For first-degree murder, you need express malice, specific intent to kill, willful premeditation and deliberation."
The prosecutor asserted that she did not need to prove defendant's motive or that he hated his grandmother.
"[W]hen I explained the voluntary intoxication instruction ..., and I said, 'Okay. It's not a defense to murder.' And I explained it does not take it from murder to involuntary manslaughter.
"I said you use it in a limited way because if you find he was under the influence, then it negates it from first to second.
"I'm not saying find that he was under the influence so that it can first-degree. That's in opposite of the law, because voluntary intoxication is a mitigating factor. It ... brings it down. If you think he was, then it's not first, it's second." (Italics added.)
The prosecutor asked the jury to find defendant guilty of first degree premeditated murder.
"If you meet and you decide there's no specific intent to kill, there's no premeditation, no deliberation, then it's what's called a 'lesser.' Then it's second-degree [murder]."
The prosecutor argued involuntary manslaughter did not apply on these facts.
D. Homicide and Voluntary Intoxication
Defendant contends the prosecutor misstated the impact of voluntary intoxication on first and second degree murder when she said that it was not a defense to murder.
As set forth above, " '[m]urder is the unlawful killing of a human being ... with malice aforethought.' [Citation.] Malice aforethought may be express or implied. [Citation.] 'Express malice is an intent to kill.... Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 941 (Beltran).)
"A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder. [Citation.] 'Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.' [Citation.]" (Beltran, supra, 56 Cal.4th at p. 942.)
There are three theories of second degree murder: unpremeditated murder with express malice, implied malice murder, and second degree felony murder (which is not at issue in this case). (People v. Swain, supra, 12 Cal.4th at p. 601.) "The primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not. [Citation.]" (People v. Soto (2018) 4 Cal.5th 968, 976 (Soto).)
As applicable to these homicide theories, "[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b), italics added.) However, "evidence of voluntary intoxication is not admissible on the question of implied malice, that is, to prove that defendants did not know of the danger they were creating by their actions, or that they did not consciously disregard that danger." (Soto, supra, 4 Cal.5th at p. 977; People v. Martin (2000) 78 Cal.App.4th 1107, 1114; People v. Turk (2008) 164 Cal.App.4th 1361, 1375; People v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40.)
Evidence of voluntary intoxication "is irrelevant to proof of the mental state of implied malice or conscious disregard." (People v. Timms (2007) 151 Cal.App.4th 1292, 1300.) "By prohibiting evidence of voluntary intoxication to negate implied malice," the Legislature concluded that "a defendant who acts with conscious disregard for life should be punished for murder regardless of whether voluntary intoxication impaired his or her judgment." (Soto, supra, 4 Cal.5th at pp. 977-978, italics in original.)
In some circumstances, voluntary intoxication may reduce a murder to involuntary manslaughter if the person was so grossly intoxicated as to have been rendered "unconscious." (People v. Ochoa (1998) 19 Cal.4th 353, 423-424; People v. Abilez (2007) 41 Cal.4th 472, 516.) Defendant has not raised this issue on appeal.
E. Analysis
Defendant is correct that the prosecutor stated that voluntary intoxication was not a defense to murder, even though voluntary intoxication was a defense to second degree murder based on express malice. However, we have extensively quoted from the parties' closing arguments to show that the prosecutor did not commit misconduct when she discussed voluntary intoxication and murder.
As demonstrated above, the prosecutor asked the jury to find defendant guilty of first degree premeditated murder based on express malice: "So if you find express malice, if you decided he intended to kill her, you have express malice and that takes you to first," and "[t]hat is the only theory that applies here." The prosecutor further argued that second degree murder in this case was only based on "the implied malice theory." The prosecutor discounted any evidence of involuntary manslaughter.
Defense counsel similarly argued there were three possible verdicts: first degree premeditated murder, second degree murder based on implied malice, and involuntary manslaughter based on criminal negligence.
Finally, the prosecutor again said in rebuttal that voluntary intoxication only reduced first degree murder to second degree murder and clarified that if the jury decided there was no specific intent to kill, i.e., no express malice, then defendant was guilty of second degree murder based on implied malice.
Defendant asserts that the prosecutor's argument was prejudicial because the jury was instructed about both express and implied malice, and the instructions permitted the jury to find defendant guilty based on an implied malice theory of second degree murder. However, it is well settled that jury instructions are not considered in isolation, but rather in the context of the entire charge and the parties' arguments. (People v. Young, supra, 34 Cal.4th at p. 1202.)
Given the entirety of the prosecutor's closing argument, she was clearly electing for a conviction of first degree premeditated murder based on express malice and defendant's intent to kill Imogene. The prosecutor argued that if the jury did not find express malice and an intent to kill, it should find defendant guilty of second degree murder based on implied malice, and voluntary intoxication was not a defense to that charge. The instructional language was definitional in nature and intended to distinguish between express and implied malice. Both the prosecutor and defense counsel discussed the differences between the two forms and malice, and both focused on second degree murder based on an implied malice theory.
We thus conclude that defense counsel was not ineffective for failing to object to the prosecutor's argument. The prosecutor clearly sought a second degree murder conviction based on implied malice, defense counsel similarly focused on implied malice as the only possible theory for second degree murder, and the prosecutor did not misstate the law because voluntary intoxication is not a defense to second degree murder based on implied malice.
V. Prosecutorial Misconduct: Defense Expert's Testimony and Accident Claim
Defendant raises two claims of prosecutorial misconduct based on the following sequence: that the prosecutor allegedly misstated testimony from William Moore, the defense firearms expert, about whether there could have been an "unintentional" discharge of the rifle; and the prosecutor's rebuttal argument improperly referred to the absence of an accident, even though the court denied defendant's motion to instruct on excusable homicide based on accident.
A. The Prosecutor's Initial Argument
The prosecutor addressed Moore's testimony about the condition of the rifle:
"He sounds like he's very experienced and knowledgeable. But even their own gun expert made the opinion after he inspected this firearm that an unintentional discharge would not occur. Remember, he testified. Tried dropping it. Tried manipulating it. Tried to do all that. It didn't accidentally go off. There was no unintentional discharge when he tried to manipulate it and do it.
"Then I thought what was interesting, I asked him, he said the gun would not fire without pulling the trigger. You have to pull the trigger to get it to fire.
"Now, whether that's a two-pound trigger or something heavier, does it really matter? You still have to pull the trigger. And the firearm mostly is in its original design except for the scope, and even to me it looks new, but it functions [as] it's supposed to. It functions as it's designed." (Italics added.)
Defendant did not object to the prosecutor's argument. He now claims the italicized phrase misstated Moore's testimony.
B. Defense Counsel's Argument
While defense counsel did not object, he used his closing argument to reply to the prosecutor's discussion about Moore's testimony.
"[The prosecutor] really focuses on the fact that - that my expert said that this gun - this gun will not - will not misfire. Well, she - she really does overlook the direct testimony of Mr. Moore ... who said ... [¶] Quote: 'If somebody is unfamiliar with this feature' -this feature being a trigger pull that's under two pounds ... -- is there a high likelihood that the gun will go off without the actual possessor of the gun meaning it to?' [¶] Answer: 'Yes. Certainly.' " (Italics added.)
Defense counsel argued that while the prosecutor focused on Moore's testimony that someone needed to put their finger on the trigger for it to go off, Moore also testified that the trigger pull weight was so dangerous that defendant's hand "did brush across the trigger" and the rifle fired, but he did not intentionally pull it.
C. The Prosecutor's Rebuttal
In rebuttal, the prosecutor responded to defense counsel's arguments about Moore's testimony:
"[Defense counsel] also talked about accidental is almost as though it's equal to unintentional. Okay. Again, use of words. Literal. If it's an accident, it's no crime.
"You don't have any instruction on accidental shooting that he actually committed no crime. Why? Because, legally, an accident is different from unintentional. They don't mean the same thing. If it's an accident, it's no crime. You were not instructed on that at all because this is not an accidental shooting. And they don't mean the same.
"[Defendant] ... wants you to believe he didn't intend to shoot her. Of course not. Because, like I said, it's easier to tell yourself that over and over and over again to be able to get up every morning and look yourself in the mirror and say, 'I didn't mean to do it.' " (Italics added.)
Defendant did not object.
D. Analysis: Alleged Misstatement of Moore's Testimony
Based on this sequence, defendant asserts the prosecutor misrepresented Moore's testimony in her initial argument, when she said that Moore's opinion was that "an unintentional discharge would not occur." Defendant points to other portions of Moore's testimony, when he addressed the reduced trigger pull weight and testified that an unintentional discharge could have occurred if an experienced shooter was unaware the trigger pull weight had been reduced.
"A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 726, People v. Dykes (2009) 46 Cal.4th 731, 768.) Defendant correctly notes that Moore testified about how the trigger pull weight had been reduced to two pounds, which was very low. Moore testified someone unfamiliar with the modification could have unintentionally discharged it, even if that person was an experienced shooter.
However, the prosecutor's arguments about an unintentional discharge constituted fair comment on the entirety of Moore's testimony. Moore also testified that he tested the rifle for accidental firings by jarring and dropping it, and "in no instance would the firearm discharge without actually pulling the trigger." Moore further testified that an unintentional discharge would not occur unless someone put his finger on the trigger and pulled at whatever weight was required.
Defense counsel was not prejudicially ineffective for failing to object to the prosecutor's fair comments on Moore's testimony. Indeed, defense counsel used his closing argument to undermine the prosecutor's assertions about Moore's testimony, and focused on the trigger pull and a possible unintentional discharge.
E. Analysis: Reference to Accident
Based on this same sequence, defendant argues the prosecutor committed another act of misconduct in her rebuttal argument, as italicized above. Defendant contends the prosecutor referred to matters not in evidence by "by informing the jury that the trial court denied the accident instruction," and she was "clearly signaling" that the court "made a determination that no accident occurred and thus there was a crime. In other words, the trial court determined that [defendant] must be guilty of something."
We first note that the prosecutor never said that defendant had moved for an instruction based on accident, the court had denied the instruction, or any reasons for the court's denial of the instruction. Instead, the prosecutor sought to respond to defense counsel's argument that Moore's testimony supported an unintentional or accidental discharge of the firearm.
While the court properly denied defendant's request for the instruction on excusable homicide based on accident, the jury was instructed about the general principles of homicide in CALCRIM No. 500: "If a person kills with a legally valid excuse or justification, the killing is lawful and he has not committed a crime. If there is no legally valid excuse or justification, the killing is unlawful, and depending on the circumstances, the person is guilty of either murder or involuntary manslaughter. [¶] You must decide whether the killing in this case was unlawful and, if so, what specific crime was committed...." (Italics added.)
Thus, CALCRIM No. 500 potentially allowed the jury to find the homicide was lawful and he did not commit a crime. The prosecutor's argument did not "focus[] the jury's attention on irrelevant matters and divert[] the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. [Citation.]" (People v. Bemore (2000) 22 Cal.4th 809, 846.) Instead, the prosecutor's rebuttal comments amounted to fair argument to respond to defendant's trial testimony and defense counsel's attempts to characterize defendant's conduct as unintentional or accidental: "If it's an accident, it's no crime." Taken in context of the parties' arguments about Moore's testimony, the language of CALCRIM No. 500, and defense counsel's insistence that the shooting was not intentional, the prosecutor simply stated in rebuttal that the jury had not been instructed about an accident and argued there was no evidence that the homicide resulted from an accidental shooting or unintentional shooting. Defense counsel was not ineffective for failing to object to the prosecutor's rebuttal argument.
Finally, defendant argues there was "plenty of evidence" that would have supported a defense argument that the homicide was an accident, but "the prosecutor put an end to the jury's right to consider this evidence by informing the jury that the trial court had already decided that there was no accident as indicated by the lack [of] an 'accident' instruction." We have already explained that defendant's motion for an instruction for excusable homicide based on accident was not supported by substantial evidence. If defense counsel had argued that the shooting was accidental, the homicide was excusable, and defendant was not guilty of any offense, the prosecutor would have objected, and the court would presumably have stricken such an argument.
VI. Prosecutorial Misconduct: Defendant's Blood Test
Defendant's final claim of misconduct is that the prosecutor improperly used closing argument to "vouch" for the competence of the officers who obtained and preserved defendant's blood sample, relative to her argument about whether defendant's blood could have been tested for "bath salts."
A. The Prosecutor's Argument
The prosecutor initially discussed bath salts and cited Posey's testimony that "they are difficult to test for," and that Posey and Sergeant Kroeker testified that bath salts were not common and "[t]here is not a lot that we know," but "they're started to be more educated about it."
The prosecutor further argued that the jury heard Posey's testimony about how the "metabolism of the bath salts is really unknown," the DEA had trouble regulating the drugs because the chemical ingredients were constantly being changed, and it was unknown about how the parent compound broke down because the main ingredients are not stable.
The prosecutor continued:
"So what do we do with that? Scientifically, we don't know whether or not the defendant was under the influence of bath salts. We just don't know. ... Because the blood was tested about a month later, and it was ---
the blood was drawn about 12 hours after he'd allegedly taken the substance. [¶] And you heard Bill Posey. He said, you know, somewhere between 8 and 12 hours, the metabolism has already started to dissipate. It's already started to reduce. So, scientifically, we just don't have that answer here."
Defense counsel did not object.
B. Defense Counsel's Argument
Defense counsel also addressed Posey's testimony and the negative results of defendant's blood test for bath salts.
"Now, [the prosecutor] will say, 'Well, the lab came back negative because of the delay in the testing.'
"She wants you to prove that her office's delay proves that he was on bath salts. That's not fair. That's not fair that when Detective Kroeker gives the blood sample to the Kern County District Attorney's office, and the [KCDA's office] sits on it for more than a month and just says, you know—and then has an expert come up here and say, 'Because of the delay, we'll never know.' "
Defense counsel argued the police assumed defendant was on bath salts based on his family's statements.
"And they let [the blood sample] sit. And they bring it to you a year-and-a-half later and be, like, 'See, it's so new. We don't know.'
"That's not fair. And, in fact, Mr. Posey stated that it is likely that the toxicologist would know that you need to freeze a sample before testing for bath salts.
"Why did we not hear from anybody from [the district attorney's office] that they can test for bath salts. We heard from nobody. The delay is caused by her office. The lab tells us nothing. You must accept the lab as my client's version of the events. You must. The lab breaks to him. The tie goes to the runner. It goes to the defendant. The lab proves he was not on bath salts." (Italics added.)
C. The Prosecutor's Rebuttal Argument
In rebuttal, the prosecutor argued that they did not know if defendant was on bath salts.
"[The prosecutor]: Yes, I wish we had a crystal ball that said, 'Get it to the lab sooner because it's that' - you know what? If you think about it, if the DEA can't even get in front of this drug, I mean, think about it. We send it out to a specialized toxicologist, and then he still says you did it wrong. And now he says, well, don't blame him because he waited a year and a half to decide that it's gonna be a new story or it's going to be something else. Well, you can't have it both ways.
"The officers did everything they knew what to do. Our crime lab doesn't test bath salts.
"[Defense counsel]: Objections; misstates the testimony. Vouching.
"THE COURT: Sustained as to vouching. [¶] Overruled otherwise. [¶] Once again, ladies and gentlemen, this is argument. You decide what the evidence is based on what you heard and what you've seen in the exhibits....
"[The prosecutor]: Bill Posey is a specialist in toxicology.... The bath salts were sent to him for testing as a specialized toxicologist. And I will say no more." (Italics added.)
There were no further objections.
D. Analysis
Defendant argues the prosecutor committed misconduct when she made the statements in rebuttal argument, italicized above, because there was no evidence the crime laboratory did not test for bath salts, and the statements were prejudicial and intended to "soften the botched preservation" of defendant's blood sample. Defendant acknowledges that the court sustained counsel's vouching objection, but asserts the argument was highly prejudicial by reference to his assertions about the prosecutor's alleged misconduct when she asserted defendant's voluntary intoxication could not be used a defense to murder.
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971; People v. Caldwell (2013) 212 Cal.App.4th 1262, 1269-1270.)
While the court sustained defense counsel's vouching objection, there was some evidence to support the prosecutor's argument. Based on the testimony from Sergeant Kroeker and Posey, defendant's blood sample was properly obtained based on existing protocol, but the officers were apparently unaware of the more specialized requirements to obtain and preserve a sample to test for a designer drug. There was no evidence the officers were aware of these protocols and ignored them. Kroeker's rebuttal testimony also provided some evidence to support the prosecutor's statement that the crime laboratory did not test for bath salts.
In any event, the court sustained defendant's objection and properly instructed the jury. The prosecutor's statement was not prejudicial, particularly as we have explained that the parties agreed that the only possible second degree murder theory was based on implied malice, and voluntary intoxication was not a defense to implied malice.
VII. Sentencing Issues
Defendant raises two issues regarding sentencing. First, he contends the matter must be remanded for the trial court to conduct a hearing to preserve the record for a future parole hearing.
Second, defendant asserts that on remand, the court must consider whether it would strike the term imposed for the firearm enhancement based on the enactment of Senate Bill 620. (2017-2018, Reg. Sess., S.B. 620, Stats. 2017, ch. 682.)
A. Background
On August 4, 2015, the court convened the sentencing hearing. Defense counsel moved to continue the hearing in order to present evidence and preserve the record for defendant's future parole hearing. The court denied the motion to continue but advised defense counsel that he could provide any additional information for the file, and it would be submitted to the California Department of Correction and Rehabilitation for future purposes, along with the statements that were going to be made by defendant's family.
Defendant's father and his aunt spoke on his behalf and forgave him for what happened. Defendant's father stated that Imogene had tried to help him in a spiritual battle "at the cost of her own life, to defeat the demons that he allowed to surround him and take over his thoughts because of his continual use of bath salts and spice."
The trial evidence had established that defendant was 19 years old at the time of the murder. At the sentencing hearing, the court noted that defendant had just turned 21 years old.
"... I can't speak for the family because what they've said they've articulated very well and in a meaningful way, but I don't think any parent would ever expect that this would happen or anticipate or could do anything different than what was done.
"[Lewis] articulated his comments very well in one specific area that I want to highlight, and that has to do with bath salts and spice. They're evil. The effects of use of that led to the tragedy that happened involving [Imogene]. And for those that listened or read or view what we're doing here today, maybe that's the one thing they can take from this, if anything.
"Given the sentence prescribed by the legislature, factors in aggravation and mitigation frankly don't affect the decision because this is an indeterminate sentence and a sentence that the Court must follow...."
The court calculated defendant's custody credits and then continued:
"... I did consider comments that I heard today. I did preside over the trial, so obviously I heard the evidence. I considered [defense counsel's] comments and most importantly, in addition to the presentence
investigative report from Probation, the comments of both family members that spoke today.
"Honoring the jury's verdict, in regard to Count 1, Penal Code section 187(a), second-degree murder, probation is denied...."
The court sentenced defendant to "the term prescribed by law" of 15 years to life for second degree murder, plus 25 years to life for the section 12022.53, subdivision (d) firearm allegation. The court imposed and stayed the 10-year term for the section 12022.5, subdivision (a) firearm enhancement.
B. Remand for Franklin Hearing
At the sentencing hearing, defense counsel moved for a continuance to prepare and present evidence for a future parole hearing. The court denied the motion but invited defense counsel to submit additional documents and they would be placed in defendant's file. The court also agreed to place the statements from defendant's family in the file.
Defendant contends that defendant is entitled to a limited remand to determine if he had a sufficient opportunity to make a record of information relevant to a future eventual youthful offender parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) and, if not, to be provided that opportunity.
Defendant was 19 years old at the time of the murder. He committed the offense in 2013, and he was tried and convicted in 2015. As originally enacted, section 3051 provided that a juvenile who was under the age of 18 at the time of his crime had to be provided with a youth offender parole hearing during the 15th, 20th, or 25th year of his incarceration, depending on his controlling offense. (Former § 3051, subds. (a) & (b); Stats. 2013, ch. 312, § 4.) In 2015, the statute and related provisions were amended, effective January 1, 2016, to apply to offenders sentenced to state prison for crimes committed when they were "under 23 years of age" at the time of the controlling offense. (Former § 3051, subds. (a) & (b); Stats. 2015, ch. 471, § 1 (S.B. 261).) On October 11, 2017, section 3051 was again amended, effective January 1, 2018, to extend youth offender parole hearing eligibility to persons who were "25 years of age or younger" at the time of the offense. (§ 3051, subds. (a) & (b); Stats. 2017, ch. 675, § 1.)
The People concede defendant is entitled a remand in this case. The matter shall be remanded for that purpose.
C. Senate Bill 620
Defendant next contends that on remand, the court must consider whether it would strike the term imposed for the section 12022.53 firearm enhancement and imposed and stayed for the section 12022.5 firearm enhancement, based on the subsequent enactment of Senate Bill 620.
The People concede that the sentencing provisions of Senate Bill 620 are retroactive since defendant's case is not yet final. However, defendant asserts that remand is not appropriate because the record indicates the court would not have exercised discretion to impose a lesser sentence in this case and striking the enhancements would not be in the interests of justice.
At the time of the sentencing hearing in this case, imposition of an enhancement under sections 12022.5 and 12022.53 were mandatory, and they could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)
On October 11, 2017, the Governor signed Senate Bill 620, effective January 1, 2018. (Stats. 2017, ch. 682, § 2.) As relevant to this case, Senate Bill 620 amended sections 12022.5 and 12022.53, to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Both sections now 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." (§ 12022.5, subd. (c); § 12022.53, subd. (h).)
Both defendant and the People agree that Senate Bill 620's amendments apply retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) They disagree as to whether the matter must be remanded for the court to consider whether to exercise its discretion in this particular case.
At the sentencing hearing, the trial court stated that since "the sentence [was] prescribed by the legislature, factors in aggravation and mitigation frankly don't affect the decision because this is an indeterminate sentence and a sentence that the Court must follow...."
Since the court did not have discretion to strike either of the firearm enhancements, it did not address or consider whether imposition of the enhancements under the facts and circumstances of this case would be in furtherance of justice pursuant to section 1385.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous 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. [Citations.] Defendants 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. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
The court was statutorily prohibited from considering whether to exercise its discretion when it imposed the section 12022.53 enhancement and imposed and stayed the section 12022.5 enhancement. It did not make any discretionary sentencing findings that would eliminate the need for a remand in this case.
We therefore conclude that when the matter is remanded for the Franklin hearing, the court should also determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancements in this case under section 12022.53, subdivision (h) and/or section 12022.5, subdivision (c). By remanding the matter, we do not find that the court must strike the enhancement, but only that the court must consider whether to exercise its discretion pursuant to the newly-enacted provisions of these two statutes.
DISPOSITION
Defendant's substantive challenges to his conviction are without merit and his second degree murder conviction is affirmed.
The matter is remanded for a hearing pursuant to Franklin, and for the court to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) and section 12022.5, subdivision (c).
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SNAUFFER, J.