Opinion
H042931
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW DANIEL RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1473134)
Defendant Andrew Daniel Rodriguez shot and killed Pedro Hernandez after Hernandez used his pickup truck to hit defendant's parked car. A jury convicted defendant of second degree murder (Pen. Code, § 187) and found true an allegation that he had personally discharged a firearm causing death (§ 12022.53, subd. (d)). He was sentenced to a total term in prison of 40 years to life. On appeal, defendant argues: (1) the trial court erred when it denied his motion for acquittal because insufficient evidence supports his conviction, (2) the trial court erred when it admitted excessive and unnecessary gang evidence, (3) the trial court erred when it instructed the jury on the defense of self or another, and (4) cumulative errors denied him due process of law. For the reasons set forth below, we reject defendant's claims of error.
Unspecified statutory references are to the Penal Code.
Defendant has also submitted a supplemental brief arguing that Senate Bill No. 620, which amended section 12022.53, subdivision (h), applies retroactively to his case, and his conviction must be reversed so the trial court may exercise its discretion to strike or dismiss his firearm enhancement. The People concede, and we accept their concession. Therefore, we reverse and remand the judgment for the limited purpose of resentencing on the enhancement imposed under section 12022.53.
BACKGROUND
1. The Information
On July 31, 2014, defendant was charged by an information with murder (§ 187, count 1) and carrying a loaded firearm in a vehicle while not in lawful possession (§ 25850, subd. (a), count 2). It was alleged as to count 1 that defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (b)-(d)). It was also alleged as to both counts that defendant acted for the benefit of, at the direction of, and in association with a criminal street gang with the intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A) & (b)(1)(C)).
2. The Trial
A. The Prosecution's Case
i. The Shooting
Defendant lived in Hayward at the time of the crime. On November 15, 2013, defendant, who was driving his mother's Toyota Camry, went out with his brother, Vincent Rodriguez, his cousin, Anthony Rodriguez, and two friends, Alejandro and Francisco, to celebrate Anthony's birthday. The group drove down to Stuft Pizza in Santa Clara. After having pizza, they drove to a nearby liquor store and purchased several cans of Four Lokos, an alcoholic beverage. They then drove and parked in front of Jeans Palace in San Jose. The group went inside Jeans Palace to shop.
Francisco and Alejandro were minors at the time the crime was committed, so we refer to them by their first names. We refer to Vincent and Anthony by their first names for clarity.
Two men and a woman entered Jeans Palace while defendant and his friends were inside. One of the men, later identified to be the victim, Pedro Hernandez, had tattoos, including an "S" tattoo on his neck and three dots on his face. Hernandez "mad dogged" or "mean mugged" defendant and his friends while they shopped. Defendant told his companions to "just go about [their] business." Francisco and Vincent said they knew that Hernandez's tattoos were related to the Sureno criminal street gang. Alejandro said he did not know what Hernandez's tattoos meant.
"Mad dogging" or "mean mugging" is looking at someone angrily or with a dirty look.
After they finished shopping, all of the men, except for Anthony, returned to the Camry and got inside the car. Anthony went next door to a marijuana dispensary. Defendant sat in the driver's seat of the car. Alejandro, Francisco, and Vincent sat in the backseat. While they waited for Anthony to return, Hernandez and his two companions left Jeans Palace. Hernandez got inside a black pickup truck that was parked next to the Camry. He backed the pickup truck out of the parking space and hit the Camry with his truck. He then backed the pickup truck and hit the Camry a second time, forcing the Camry over a concrete parking barrier to its front.
What happened next is unclear. Francisco said that he, Vincent, and Alejandro got out of the Camry and ran behind a support pillar on the sidewalk next to Jeans Palace. Alejandro said that he left the Camry and threw a can at the pickup truck before running. He also said he saw Vincent get out of the Camry and go towards the front of the car. Later, Alejandro said he first ran close to Jeans Palace, stood next to a support pillar, then moved closer to the Camry. Vincent said he got out of the Camry and went to the sidewalk to the left of the Camry while Alejandro and Francisco moved either to the front of the Camry or behind a pillar near Jeans Palace.
Francisco said that defendant tried to start the Camry after it was struck by the pickup truck. However, the car would not start. Francisco said he, Vincent, and Alejandro all ran after they saw defendant step out of the Camry. Francisco denied seeing anything in defendant's hands and insisted that defendant did not look like he was angry when he got out of the car. Francisco said he heard approximately four gunshots by the time he reached the corner of the building. He did not look back to see who was shooting the gun and just kept running. Alejandro said he was a few feet away from defendant when he heard the gunshots, but he did not see defendant shooting a gun. He claimed he ran away with Francisco and Vincent. Vincent said that when defendant got out of the Camry, he yelled something like "what's your problem" or "what's going on." Vincent looked over and saw that defendant was holding a gun. Defendant looked scared; he did not look angry. Vincent explained he had never seen defendant hold a gun before. Defendant told Alejandro and Francisco to take Vincent away. Vincent said he froze and saw defendant fire the gun at the pickup truck. Francisco, Alejandro, and Vincent all denied knowing that there was a gun inside the Camry.
Francisco, Alejandro, and Vincent ran to a coffee shop that was in the direction of a clinic where Vincent and defendant's mother worked. On the way, Vincent called his mother and asked her to pick him up. Vincent did not tell his mother specific details about what had happened. Vincent's mother told him that defendant had called her. Based on the conversation he had with her, Vincent believed his mother knew they were in some type of trouble. The three men hid behind a nearby dumpster and waited. Later, the police found them and took them in for questioning.
ii. Other Witnesses' Accounts
San Jose Police Officer Charles Castillo was driving in his police car at approximately 7:27 p.m. on November 15, 2013, when he heard tires squealing from the direction of Jeans Palace. Several seconds later, he heard four gunshots. Castillo looked toward the direction of the gunshots and saw a man running across the street. He stopped the man and asked him to lay on the ground. The man identified himself as Victor Torres. Torres did not have any weapons on him. Castillo went toward the shopping center and secured the crime scene. Approximately an hour later, Castillo was approached by Lili Anzueto. Anzueto and Torres were the individuals that had accompanied Hernandez at Jeans Palace that day.
Jaime Cardiel was shopping inside Jeans Palace at the time the shooting occurred. He heard gunshots and tires squealing. Shortly after, a woman ran into the store saying, "He got shot. He got shot." Cardiel called 911. He went outside with the woman and saw a man who appeared to be dead slumped over in a black pickup truck.
Richard Parker was across the street from Jeans Palace at a restaurant the night of the crime. He heard a commotion, which he described as "a little bit of yelling." Parker turned toward the noise but did not see anything in particular. He heard several gunshots and approximately 45 seconds to a minute later saw a truck collide into another vehicle. He did not see the shooter, but he saw two men running down the street afterwards.
David Wasson was having dinner with his family at a restaurant located in the same plaza as Jeans Palace that same evening. He heard approximately three or four gunshots in rapid succession. His back was towards the window of the restaurant so he did not see the shooting. He went outside and saw that a pickup truck had hit a parked car that had damage to its windshield. Wasson opined that it looked like the pickup had careened, not rammed, into the parked car.
iii. The Subsequent Investigation and Defendant's Arrest
San Jose Police Officer Mark Pimentel was approximately half a mile away from Jeans Palace when the shooting occurred. He responded to the report of the shooting and secured the crime scene. When he arrived, he saw a man, later identified as Hernandez, slumped inside a pickup truck. Hernandez was not breathing. Officer Michael Ceballos also responded to the report of the shooting. While canvassing the area for evidence, he discovered a gun in the bushes around the corner of the building.
San Jose Police Sergeant Amir Khalighi arrived at the scene the night of the crime. He saw a pickup truck and a black Toyota Camry in the shopping plaza. It looked like the pickup truck had hit the Camry, because the Camry's front wheels were over the concrete curb stop of the space that it was in. Khalighi saw there was a man with a large wound on his head inside the pickup truck. While Khalighi was at the scene, emergency responders arrived and began administering first aid. The Camry was unoccupied. Khalighi stayed at the scene until the homicide unit and crime scene unit took over the investigation.
Officer Michael O'Brien was an investigator for the homicide unit's crime scene on November 15, 2013. He reported to the scene at the Jeans Palace shopping plaza that evening. While there, he began documenting the evidence. The pictures taken at the crime scene showed that the Camry had been pushed over a concrete barrier at the front of the car. The pickup truck was about a foot away from the Camry at its closest point. The pickup truck had bullet holes in its front windshield and its headlights were on. There were scratches and scuff marks on the right side of the Camry's bumper. There were no cracks or crush damage to the car. The truck's bumper had some damage to it, but it was unclear if it was from hitting the Camry. It appeared that there had been previous attempts to fix the damage on the truck, so the damage may have been old. The Camry's center console was open. The compartment that was open was not the usual storage compartment used for the car. Exposed wiring could be seen inside the compartment.
A substance consistent with Four Lokos was found inside the pickup truck; however, a criminalist who examined the liquid could not confirm whether it was indeed Four Lokos. The driver's side of the pickup was covered in glass fragments and blood. Officers retrieved bullets from the driver's seat headrest, Hernandez's upper right back, and Hernandez's head. The shot that killed Hernandez may have been fired as close as within two feet of him, but it could also have been fired from further out.
A can of Four Lokos was in the cup holder of the Camry, and another can of Four Lokos was on the ground next to the pickup truck. The passenger side window of the Camry was partially open. The Camry's driver's side door was open and the other doors were closed. Three vertical lines and a line crossing them were drawn on the dust of the pickup truck's hood. It was unclear what the drawing represented.
The gun that was found in the bushes was a .44-caliber revolver. The revolver had six chambers. Five chambers had been spent and the sixth was empty. The gun was relatively large; it was approximately a foot long from the butt to the end of the barrel.
Michael Whittington, an investigator for the Santa Clara County District Attorney's Office, attempted to find Anzueto and Torres, the two individuals who had accompanied Hernandez that day, after the shooting occurred. He was unable to locate either of them. Both were parolees at large who had absconded from parole. Whittington knew Torres was a Sureno gang member and had previously had personal contacts with him. He was unable to form an opinion about whether Anzueto was a gang member.
On November 26, 2013, officers executed a search warrant at the home in Hayward where defendant lived with his mother, Anthony, and Vincent. Defendant shared a bedroom with Vincent, and Anthony slept in the garage. Officers found two billiard balls in the garage, one was a red ball with the number 7 and another had the number 14. Officers also found a bowie knife and a map of California. The map had a line drawn through the center of the state. There was an arrow pointing to the northern half of the state with the words, "where it's at." There was another arrow pointing to the southern part of the state with the words, "target practice." Officers also searched defendant's bedroom. Inside his bedroom, officers found a speaker box that had a "14" with dots and a red "T." There were also some hats and drawings that were associated with the Flannery Street and Homeridge Park neighborhoods in Santa Clara and to northern California in general. Officers did not find any red clothing, guns, or gang photos inside the house.
On January 10, 2014, officers learned that defendant was in Fortuna, a city in Humboldt County, California. They drove up north to the city and arrested him. At the time of his arrest, defendant had several tattoos: four dots on his left arm and a tattoo with the words "Mission City," with an "X" above the "I" in "Mission City" and a "V" beneath it. According to Officer Justin De Oliveira, who testified at trial as a gang expert, these tattoos signified Norteno gang membership.
iv. Evidence of Gang Membership
After defendant's arrest, he was booked into the county jail. At the time, he told the classification staff at the jail that he was a "northerner" from San Jose and Santa Clara. Vincent, however, testified that defendant was not affiliated with Nortenos. Yet he had previously told officers that he believed defendant was affiliated with Nortenos.
Vincent himself denied he was a member of any gang. He did not believe anybody else in the group he was with that night was a member of a gang. He said that he was aware of both Nortenos and Surenos because of where he grew up.
Alejandro denied being a gang member and also denied associating with other gang members. However, Investigator Whittington opined that Alejandro was a member of the Barrio True Nortenos, a subset of the Norteno gang. Whittington based his opinion on Alejandro's Facebook page, which had been subject to a search warrant in an unrelated case. Alejandro's Facebook page displayed several items that appeared to be gang-related, including a drawing of the letter "T" and a red San Jose Sharks logo. There were also photos depicting Alejandro with other young men wearing Texas Ranger hats and making hand signs, which Alejandro denied were gang-related. Defendant appeared in several photos on Alejandro's Facebook page. In one photo, defendant is seen holding up four fingers, which can be interpreted as a Norteno sign for the number 14. Defendant also appeared in photos that were titled "BTN Barrio True nortenos," "hood," and "ESSJ Truenortenos." Additionally, a Facebook account with the name "ESSJ Truenortenos" had been created using an e-mail address that had Alejandro's first and last names. Alejandro denied creating the e-mail address and the Facebook account.
Like Alejandro, Francisco also denied being a gang member and denied associating with other gang members. However, Francisco had previously admitted during an earlier criminal investigation in February 2010 that he "banged" and had been a member of "BTN" or "Barrio True Nortenos" for about a year. At the time he made this admission, Francisco was wearing clothing indicating gang membership. At trial, Francisco denied he previously admitted to being a gang member.
Officer Justin De Oliveira testified for the prosecution as an expert in the area of criminal street gangs. He explained that criminal street gangs perpetrate crimes like homicides, car jackings, assaults with deadly weapons, drive-by shootings, kidnappings, carrying loaded firearms, and selling drugs.
According to Officer De Oliveira, there are two primary Hispanic criminal street gangs operating in the City of San Jose, the Nortenos and the Surenos. Surenos means "Southerner" or "South sider." Surenos associate with the color blue and the number 13. The number 13 is related to the Mexican Mafia prison gang, which is associated with the Surenos, because the letter "m" is the 13th letter of the alphabet. Traditionally, Surenos have a stronghold in Southern California. In San Jose, Surenos are usually first or second generation Mexican immigrants that live in lower socioeconomic areas in apartment complexes or other "small geographic areas." A tattoo of three dots may indicate Sureno membership; members sometimes have this tattoo because it represents the number 13.
The primary rival of the Surenos are the Nortenos. Nortenos associate with the color red and the number 14. The number 14 is related to the Nuestra Familia or Nustra Raza prison gang, which the Nortenos associate themselves with, because the letter "n" is the 14th letter of the alphabet. Santa Clara County is traditionally a stronghold for Nortenos, and Nortenos outnumber Surenos.
Officer De Oliveira described the general process for identifying gang members. Typically, the San Jose Police Department identifies someone as a gang member by examining certain criteria—including presence of gang clothing or gang tattoos, self-admission of being a gang member, and being in a known gang territory. A determination is then made based on the totality of the circumstances. Not all gang members will have prior arrests or police contacts. De Oliveira opined that the Nortenos are an ongoing criminal group, committing crimes ranging from graffiti to homicides.
Officer De Oliveira testified about three predicate offenses to establish the Nortenos as criminal street gang. First, he testified about a Norteno who possessed a concealed firearm. Next, he testified about a Norteno who assaulted a victim, a known Sureno, with a deadly weapon. Lastly, he testified about a murder of a Sureno by several Nortenos, who stabbed the victim to death.
Once someone joins a gang, it is difficult to leave. Gang members can be assaulted for cooperating with police. According to Officer De Oliveira, weapons are the tools of the trade for gang members. Having a firearm generates a lot of respect for a gang member, and guns are very valuable to gangs.
Officer De Oliveira also testified about retaliatory gang violence. De Oliveira testified that gang members are encouraged to put in work for a gang by committing violence that benefits the gang. De Oliveira testified that gang members can put in work by shooting or stabbing rival gang members or perceived rival gang members. These retaliation missions enhance a gang member's reputation within the gang. Gang members lose respect if they are disrespected by a rival gang member and do nothing about it. Disrespect between rival gang members is usually met with violence. Gang members are also expected to accept challenges from rival gang members and are not supposed to back down. De Oliveira also testified that in his experience investigating gang crimes, it is not uncommon for Mexican nationals to be assaulted by Nortenos because they are perceived to be Surenos.
According to Officer De Oliveira, gang tattoos must be earned. Only members of a gang can wear tattoos affiliated with the gang. A gang member risks being assaulted if he wears a tattoo he has not earned.
There are Norteno and Sureno subsets near the area where Jeans Palace is located. Officer De Oliveira was familiar with the victim, Hernandez, and believed he was an active Sureno member at the time of his death. Hernandez had previously admitted being a Sureno member and had tattoos consistent with Sureno membership.
Officer De Oliveira opined that defendant was an active Norteno member. De Oliveira based his opinion on the circumstances of the case, such as the fact that some of defendant's friends were wearing red clothing and that Hernandez had "mean mugged" defendant and his friends. De Oliveira described Jeans Palace as a store where both Surenos and Nortenos go to purchase gang clothing. De Oliveira found defendant's tattoos, including his tattoo of four dots on his left elbow, and a tattoo on his arm of the words "Mission City" with "XIV" incorporated into the words, to be indicative of gang membership. De Oliveira also considered a previous 2008 police report where defendant and another documented Norteno gang member had committed gang vandalism. At that time, defendant had admitted to an officer that he was an active Norteno gang member. Additionally, when defendant was arrested for this case, he indicated for jail classification purposes that he was "northerner gang member from the cities of San Jose and Santa Clara." Some of Alejandro's Facebook photos that included defendant also indicated gang membership, and some of the items found in defendant's home tended to show gang membership.
Officer De Oliveira believed that Alejandro and Francisco were Nortenos. He based his opinion on the clothes they were wearing at the time the shooting occurred, Alejandro's Facebook page, Francisco's tattoos, and Francisco's 2010 admission that he was a member of the gang. When the shooting occurred, Alejandro was wearing a red and black striped polo shirt, a white jacket, a red and gray baseball hat with the letter "T" on the front, and red shoes. Francisco was wearing a red football jersey.
B. The Defense's Case
i. Defendant's Testimony
Defendant testified on his own behalf. Before he was arrested, he lived in Hayward with his mother, his mother's partner, his brother Vincent, and his cousin Anthony. His family previously lived in Santa Clara. At the time of the shooting, he had been employed by a temp agency. He said he did not go out with friends that often and either saved the money he earned or gave the money to his mother. He frequently spent time with Alejandro and Francisco. He tried to make sure they went to school and stayed away from drugs.
On November 15, 2013, defendant made plans to meet with Alejandro, Francisco, and Vincent to celebrate Anthony's birthday. Defendant drove the group down to Stuft Pizza in Santa Clara using his mother's car, a Toyota Camry.
After eating, the group went to a liquor store. Anthony bought cigarettes and two cans of Four Lokos. Defendant then drove them over to Jeans Palace. He parked the car directly in front of the store, and the group went inside. Shortly after, two men and a woman walked into the store. One of the men, Hernandez, had tattoos. Defendant recognized one of the tattoos—the three dots on Hernandez's face—as indicating Sureno membership. Hernandez gave the group a dirty look and smiled, which made defendant uncomfortable. Defendant tried not to look at him. He also told Alejandro and Vincent not to look at him, because Hernandez already seemed confrontational and defendant did not want to cause trouble.
After they finished at Jeans Palace, Anthony decided to go to the marijuana dispensary next door. Defendant, Alejandro, Francisco, and Vincent got inside the Camry and waited. Defendant opened the car window so he could smoke a cigarette. Hernandez and his two companions left Jeans Palace and walked to a pickup truck that was parked next to the Camry. Hernandez gave defendant a look, made some sort of hand signal, and said something to his companions. He then got inside the pickup truck.
Hernandez backed the pickup truck and hit the Camry. When the pickup truck hit the Camry, defendant put his foot on the brake. However, Hernandez reversed the pickup truck and hit the Camry again, causing the Camry to roll forward. Vincent, Alejandro, and Francisco jumped out of the car. Defendant became frightened and was not sure what Hernandez would do next. Acting out of instinct, he grabbed the gun he had stored inside the Camry and got out of the car. He tripped as he stepped outside, because the pickup truck had pushed the Camry over a concrete barrier. Defendant saw his brother, Vincent, to his right. He was not sure where Alejandro or Francisco were. All he could see were headlights. Scared and afraid for himself and his brother, defendant fired several shots at the pickup truck. He did not know where the shots went but continued to fire because the pickup truck was still coming towards him. He did not know how many shots he fired, but he estimated he fired the gun around four times. He insisted he just wanted to protect himself and his brother. He did not want to kill Hernandez; he just wanted the pickup truck to stop. He did not think he had enough time to flee.
When defendant was first arrested, he initially told officers that everybody had run away when he started firing the gun and no one was there when he started firing. He changed his story and later said that Vincent, Alejandro, and Francisco were standing next to him when he pointed the gun at the truck.
After the shooting, defendant saw the truck had stopped and was rolling. He also saw Vincent start to run. He still did not see where Alejandro or Francisco were. Defendant ran out of the parking lot toward a high school around three blocks away. He threw the gun towards the back of Jeans Palace after he saw a police officer turn on the street towards the shopping plaza. He did not want the police officer to stop him while he was carrying a gun, because he was familiar with how San Jose police officers operate and was afraid he would get shot. Defendant said he ran away because he was scared of everything—including what the police officers would do if they found him. At the time, he did not know he had shot a Sureno gang member.
When defendant reached the high school, he borrowed someone's phone and called his mother. He did not specifically tell her about the shooting but told her something had happened and he was not sure if Vincent was okay. He tried calling her again several times throughout the night, but she did not answer.
That night, defendant stayed at a friend's house in San Jose. Defendant denied his friend was associated with Nortenos. He then decided to go north to Fortuna, a city in California. He chose Fortuna, because he felt like he had run out of options and was scared and confused. He had never been to Fortuna before. While there, he lived off the cash he had brought with him. He did not try to find a job.
Approximately two months later, he was arrested. When he was booked into jail, he said he would rather not be housed with Surenos, because he surmised that Hernandez had been a Sureno gang member. Although defendant was not a gang member, he was more affiliated with Nortenos at the time.
Defendant denied ever being in a gang. He said the speakers that were found in his room that had gang indicia on them belonged to his cousin Anthony. Defendant acknowledged he had been arrested before, including a previous arrest for spray painting graffiti. Defendant claimed he was with another juvenile at the time, and the juvenile was the one who drew the graffiti. He denied admitting to the police at that time that he was a Norteno.
Defendant explained he had tattooed himself when he was around 13 or 14 years old. He gave himself tattoos because he wanted to fit in, and he had friends that had similar tattoos. Defendant said his tattoos were not gang related, but he had been asked in the past by Nortenos and Surenos to explain his tattoos. When asked, he told them that the tattoos did not mean anything to him anymore. He was never confronted further about his tattoos. At the time the shooting occurred, he was trying to have the tattoos removed.
Defendant acknowledged he was in several photos on Alejandro's Facebook page. He denied the pictures were gang related. He explained that the pictures had been taken after the group watched a boxing event on television. He admitted he was holding up four fingers in one of the photos. However, he denied that this was a gang sign and said he could not remember making the hand gesture. He insisted he did not know that other people in the picture were making hand signs at the time.
Defendant said he had purchased the gun he had used to shoot Hernandez about two weeks before the shooting. A man he had never met approached him at a gas station, struck up a conversation, and offered to sell him a gun. He bought the gun because the seller was offering it at a cheap price. He wanted to sell the gun to make money.
ii. Character Testimony from Defendant's Family and Friends
Defendant's mother, Christine Rodriguez, acknowledged that defendant had some behavioral problems when he was younger. He had gotten into trouble with the police. However, she insisted that defendant had stopped misbehaving and was trying to get his tattoos removed. She said neither defendant nor Anthony were gang members.
Several other members of defendant's family testified, including his grandfather and his aunt. Defendant's grandfather said defendant was not involved in any gang activity. Defendant's aunt insisted that defendant was not a violent person. A family friend also testified that defendant was a nonviolent person.
iii. Anthony's Testimony
Anthony testified that after the group left Jeans Palace, he went inside a marijuana dispensary located next door. While inside the store, he heard tires screeching. He heard the sound of a car hitting another car. When he ran outside, he saw Vincent, Alejandro, and Francisco running away while a pickup truck rear-ended the Camry. He saw defendant get out of the Camry. As defendant was trying to get out of the Camry, the pickup truck hit the Camry again. He saw defendant fire at the pickup truck while running backwards. Defendant looked "confused and scared." Anthony ran back inside the marijuana dispensary and later returned home using public transportation. Anthony did not initially tell officers he had seen the shooting, because he "wanted to mind [his] own business."
Anthony was interviewed by officers a few weeks after the shooting. At that time, he said he did not see cars crashing into each other or anyone fire a gun. He also admitted he had seen a gun in the garage of defendant's home.
Anthony denied being a gang member. He admitted the map of California with the target over Southern California that was found in defendant's home was his, but denied it had any gang significance. He denied putting any writing on the speaker found in defendant's bedroom. He said he did not think defendant was in a gang.
iv. Defense Gang Expert
Jesse De La Cruz, a former Nuestra Familia gang member, testified for the defense as an expert on gangs. He opined that although there is a Norteno prison gang, there is no such thing as a "Norteno criminal street gang." De La Cruz explained that there are many street gangs, but street gangs are not connected to each other and there is no overarching organization or control between various street gangs.
De La Cruz explained that there are some individuals that may use gang signs or get gang-related tattoos but are not members of a gang. He said these individuals may be asked to cover their tattoos but would not be assaulted by gang members. De La Cruz opined that defendant was not a gang member. He insisted that if defendant was a gang member, he would have continued to get into trouble as a teenager. However, there was no evidence defendant continued to commit crimes after he was arrested for vandalism. Furthermore, many gang members come from dysfunctional families where other family members are in gangs. In contrast, defendant came from a loving family.
De La Cruz said he would not change his opinion even if it was established that Francisco and Alejandro were gang members. He explained that many police officers fabricate gang admissions. He also did not believe the pictures taken from Alejandro's Facebook page, which depicted defendant making hand signs that could be interpreted as gang-related, strongly indicated that defendant was a member of a gang. De La Cruz thought that basing a gang determination based on these types of photos would be too subjective. The other individuals in the photos making hand signs could simply be posing. De La Cruz opined that defendant could have been in the photos merely because he was an associate of the gang, not a member.
De La Cruz was given a hypothetical scenario that closely tracked the facts of the current case. De La Cruz opined that based on the hypothetical, the shooting was not committed for the benefit of a criminal street gang.
v. Hernandez's Prior Acts
San Jose Police Officer Cirilo Paredes testified that on October 22, 2012, he responded to a report of a disturbance at a convenience store in San Jose. The victim reported that she and her male companion were verbally and physically assaulted by several men. One of the men punched her companion. That man was later identified to be Hernandez. When the victim tried to intervene and pull Hernandez off her companion, Hernandez came towards her. She ran away, and Hernandez and another man hit her car with a skateboard, causing damage.
3. Verdict and Sentencing
On May 5, 2015, the jury found defendant not guilty of first degree murder, but found him guilty of second degree murder and found the allegation that he personally discharged a firearm causing death (§ 12022.53, subd. (d)) to be true. The jury also found the allegations the crimes were done for the benefit of, at the direction of, or in association with a criminal street gang not to be true as to both counts.
On October 16, 2015, the trial court denied defendant's motion for a new trial and sentenced him to a total term of 40 years to life in prison, consisting of 15 years to life for second degree murder, 25 years to life for the enhancement under section 12022.53, subdivision (d), and a concurrent term of two years for carrying a loaded firearm. Defendant appealed.
DISCUSSION
1. Sufficiency of the Evidence and Defendant's Motion for Acquittal
On appeal, defendant argues the jury convicted him of murder based on insufficient evidence, and the trial court erred when it denied his motion for acquittal (§ 1118.1).
a. Overview and Standard of Review
Section 1118.1 provides in pertinent part that "[i]n a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
" 'The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] 'The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review." (People v. Stevens (2007) 41 Cal.4th 182, 200.)
b. Sufficiency of the Evidence
On appeal, defendant argues his motion for acquittal should have been granted, because the prosecution failed to present sufficient evidence that the killing was unlawful and committed with malice aforethought.
Before we examine defendant's claims in detail, we briefly review the law governing murder, perfect and imperfect self-defense, and manslaughter. Under section 187, subdivision (a), murder is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." Murder is divided into first and second degree murder under section 189. " 'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder.' " (People v. Chun (2009) 45 Cal.4th 1172, 1181.) "Malice exists, if at all, only when an unlawful homicide was committed with the 'intention unlawfully to take away the life of a fellow creature' (§ 188), or with awareness of the danger and a conscious disregard for life." (People v. Rios (2000) 23 Cal.4th 450, 460 (Rios).)
"Homicide, the killing of one human being by another, is not always criminal." (People v. Elmore (2014) 59 Cal.4th 121, 132 (Elmore).) For example, a defendant can be exonerated of murder for killing in self-defense. Self-defense exists when "the defendant . . . actually and reasonably believe[s] in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable. . . . [F]or either perfect or imperfect self-defense, the fear must be of imminent harm. 'Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' " (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.) A killing committed in imperfect self-defense, i.e., committed with an unreasonable belief that it was necessary to avert an imminent threat of death or great bodily injury, is not justifiable but is an offense no greater than manslaughter. (Elmore, supra, at p. 134.)
"[T]he prosecution must prove every element of a charged offense beyond a reasonable doubt. The accused has no burden of proof or persuasion, even as to his defenses. [Citations.] However, once the prosecution has submitted proof that permits a finding beyond [a] reasonable doubt on every element of a charge, the accused may obviously be obliged to respond with evidence that 'raises' or permits a reasonable doubt that he is guilty as charged." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214-1215, italics omitted, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 694.) Thus, "[i]n one sense, justification and excuse are affirmative defenses, in that the defendant has the burden of raising them. In another sense, however, their absence is an element of the crime, in that, provided there is at least some evidence of justification or excuse, the People bear the ultimate burden of persuasion on the issue. [Citations.] Thus, lack of justification or excuse has been called 'a negative rather than an affirmative element' of the crime." (People v. Curtis (1994) 30 Cal.App.4th 1337, 1353.) In other words, it is the prosecution's burden to prove the killing was unlawful and not justified.
Imperfect self-defense is " 'not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter.' " (Elmore, supra, 59 Cal.4th at p. 134.) "Manslaughter, a lesser included offense of murder, is an unlawful killing without malice." (Id. at p. 133.) Section 192 establishes three kinds of manslaughter: voluntary, involuntary, and vehicular. Only voluntary manslaughter is at issue in here. Voluntary manslaughter can occur when a defendant acts in unreasonable self-defense, as previously described, or in the heat of passion. (Ibid.)
The heat of passion requirement has both an objective and subjective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Subjectively, the defendant must have killed under the heat of passion. Objectively, the provocation giving rise to the killing cannot be trivial; the circumstances must be sufficient to provoke an ordinarily reasonable person to act rashly and without deliberation, from passion rather than from judgment. (People v. Cruz (2008) 44 Cal.4th 636, 664.) "This passion must be a ' " ' "[v]iolent, intense, high-wrought or enthusiastic emotion." ' " ' " (People v. Beltran (2013) 56 Cal.4th 935, 950 (Beltran).) There is no specific type of provocation required, and verbal provocation may be sufficient. (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved of on a different point as stated in People v. Barton (1995) 12 Cal.4th 186, 201; People v. Verdugo (2010) 50 Cal.4th 263.) However, the defendant cannot have been the source of provocation. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) The proper standard is not whether provocation was sufficient such that an average person would have killed; rather, the question is "whether the average person would react in a certain way: with his reason and judgment obscured." (Beltran, supra, at p. 949.)
"If the issue of provocation or imperfect self-defense is . . . 'properly presented' in a murder case [citation], the People must prove beyond [a] reasonable doubt that these circumstances were lacking in order to establish the murder element of malice." (Rios, supra, 23 Cal.4th at p. 462.)
i. Lack of Justification or Unlawfulness of the Killing
First, defendant claims there was insufficient evidence that he did not act in self-defense or in defense of Vincent when he fired the shots at the pickup truck, killing Hernandez. We disagree. " ' "[W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine." ' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1044 (Nguyen).) Based on the evidence presented at trial, a jury could have reasonably concluded that defendant did not act in perfect self-defense or defense of another.
Although Hernandez's truck hit defendant's Camry and pushed it over a concrete barrier, the prosecution presented evidence that the damage to the Camry was relatively minimal. There were scratches and scuff marks but no cracks or crush damage to the Camry. One of the witnesses who saw the scene of the crime after the shooting occurred described that it looked like the truck had merely careened—not rammed—into the Camry. The jury could have reasonably inferred that Hernandez had not been driving the pickup truck at a high speed and would not have caused either defendant or Vincent great bodily harm.
There was also additional evidence that undermined defendant's claim he acted in defense of Vincent. There was conflicting testimony about where Vincent was at the time Hernandez rear-ended the pickup truck into the Camry. Francisco said that he, Vincent, and Alejandro got out of the Camry and got behind a support pillar on the sidewalk next to Jeans Palace. Thus, the jury could have reasonably believed that Vincent was not in imminent danger at the time defendant fired the shots.
For these same reasons—the minimal damage to the Camry and the evidence that Vincent may have run behind a support pillar—there was also evidence from which a jury could infer that any fear of imminent harm or danger was not objectively reasonable under the circumstances.
Defendant's behavior after the shooting also tended to indicate he did not have a good faith belief his or Vincent's life was in danger. Instead of waiting for the police to arrive so he could explain his behavior, defendant fled on foot, discarded the gun, and traveled up north to a city that he had never visited, where he stayed until he was arrested approximately two months later. The jury could have reasonably inferred that if defendant did in fact believe his actions were justified, he would have stayed behind to explain his actions to the police.
Additionally, the jury could also have reasonably concluded that defendant could not claim perfect self-defense or defense of another, because he did not act on the basis of fear alone but also on his desire to retaliate against Hernandez for disparaging or disrespecting him as a rival gang member. Under section 198, "a bare fear" is insufficient to justify homicide; rather, "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Italics added.) There was evidence that defendant yelled at Hernandez after the Camry was struck. Although Francisco and Vincent testified that it did not appear that defendant looked angry at the time, the jury could have reasonably found their testimony not to be credible because of their relationship to defendant and the inconsistencies in their testimonies. The prosecution also presented evidence that Hernandez had given defendant and his companions a dirty look while inside Jeans Palace, giving rise to the inference that defendant may have yelled and shot at the pickup truck out of anger and not fear.
In sum, there was sufficient evidence for the jury to find that the killing was unlawful and unjustified.
ii. Malice
Next, defendant argues there was insufficient evidence that he did not act in imperfect self-defense (unreasonable self-defense). An individual that kills another based on an unreasonable belief that he or she was in imminent danger of death or great bodily injury kills without malice and cannot be guilty of murder. (Elmore, supra, 59 Cal.4th at p. 134.)
As we previously explained, there is sufficient evidence from which a reasonable jury could have concluded that defendant did not shoot at the pickup truck out of fear. Again, there was minimal damage to the Camry. Witnesses also reported that defendant shouted something after the truck hit the Camry. There was conflicting testimony about where Vincent was standing at the time the truck hit the Camry, and the jury could have believed that defendant did not act out of fear for Vincent's life when he fired the gun at Hernandez.
Defendant, however, argues the People failed to meet its burden to prove he did not act out of the heat of passion, which also negates the malice requirement for murder. Heat of passion has both objective and subjective components. The victim's conduct "must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Enraca (2012) 53 Cal.4th 735, 759.) Subjectively, " 'the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation.' " (Ibid.) Defendant argues it is undisputed Hernandez provoked him by hitting his Camry with the pickup truck, and it is also undisputed that defendant acted under the influence of the provocation as only a few seconds elapsed between the collision and the shooting.
Essentially, defendant suggests the circumstances presented in his case were sufficient as a matter of law to constitute the provocation required for a conviction of voluntary manslaughter. We agree with defendant that by using his pickup truck to hit defendant's car, Hernandez did provoke defendant. Multiple witnesses confirmed that some sort of collision precipitated the shooting. However, " '[t]he existence of provocation and its extent and effect, if any, upon the mind of defendant in relation to premeditation and deliberation in forming the specific intent to kill, as well as in regard to the existence of malice [citation], constitute questions of fact for the jury.' " (People v. Wright (2015) 242 Cal.App.4th 1461, 1494.) In other words, it is up to the jury to determine whether Hernandez's actions would cause a reasonable person to act out of passion and not out of judgment.
Based on the evidence presented at trial, we cannot hold that no reasonable jury could have concluded Hernandez's acts did not sufficiently provoke defendant, rendering the killing a voluntary manslaughter. As previously discussed, there was evidence that defendant's car suffered minimal damage despite the repeated collisions. There was also evidence, based on the positioning of the two cars and the conflicting testimonies about defendant's and Vincent's whereabouts, that none of the occupants of the car were at risk of bodily harm. Defendant and his friends were not injured in any way due to the collision.
Accordingly, it was not patently unreasonable for a jury to conclude that the prosecution met its burden to prove beyond a reasonable doubt that defendant did not act in the heat of the passion. The passion required for a killing to be committed in the heat of the passion must be so violent and intense as to cause an ordinary person to act rashly, not out of due deliberation or judgment. A jury could have concluded that Hernandez's actions could not have provoked such an intense emotion from a reasonable person.
In sum, we find there was sufficient evidence for a jury to conclude the prosecution met its burden to prove that defendant did not act in the heat of the passion. Therefore, the trial court did not err when it denied defendant's motion for acquittal.
2. Evidence of Predicate Gang Offenses and Retaliatory Gang Violence
On appeal, defendant argues his due process rights were violated when the trial court admitted excessive and unnecessary gang evidence from the prosecution's gang expert, Officer De Oliveira. During the trial, De Oliveira testified about several crimes committed by Norteno gang members and about retaliatory gang violence. For the reasons set forth below, we conclude the trial court did not err when it admitted the evidence. And in any event, defendant's failure to object to De Oliveira's testimony about retaliatory gang violence forfeited his claims regarding that particular evidence.
a. Background
Defendant was charged with two gang allegations under section 186.22. On March 11, 2015, defendant filed a motion in limine seeking to limit Officer De Oliveira's testimony as a gang expert under Evidence Code sections 350, 352, 1101, subdivision (a), and 1200, subdivision (b), the Due Process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and the right to confrontation under the Sixth Amendment of the United States Constitution. In part, he argued the prosecution should be limited to introducing only two predicate offenses, because he did not dispute the Norteno gang is a criminal street gang within the meaning of section 186.22, subdivision (f). He claimed admission of additional predicate offenses would be more prejudicial than probative under Evidence Code section 352, and the evidence would permit the jury to believe defendant had a propensity to commit violent crimes as prohibited under Evidence Code section 1101, subdivision (a). Defendant also requested a limiting instruction that any evidence regarding these predicate offenses could be considered only as to the issue of whether the Norteno gang is a criminal street gang under section 186.22.
At a hearing on April 20, 2015, the trial court denied defendant's request to limit the number of predicate offenses to be presented by the prosecution. The court concluded the probative value of the additional predicate offenses was not outweighed by their prejudicial effect. The court noted the prosecution only intended on introducing three predicate offenses, and asserted that its analysis might be different if the prosecution intended to introduce four, five or six predicate offenses. The trial court also expressly stated it believed introduction of the predicate offenses would not violate Evidence Code section 1101. It clarified that it would provide the jury with an instruction precluding it from using the predicate offenses as evidence of defendant's bad character or propensity to commit the charged crimes. Defendant stated he was willing to stipulate that the primary activities of the Norteno gang were the predicate offenses. The prosecution, however, declined the stipulation.
b. Admission of the Evidence Was Not an Abuse of Discretion
Defendant was charged with two gang enhancements, which requires that the prosecution prove he commit the substantive offense "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b).) A "criminal street gang" is defined under section 186.22, subdivision (f) as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities" certain specified criminal acts, and "having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." A "pattern of criminal gang activity" is defined as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" certain enumerated offenses as set forth under section 186.22, subdivision (e) "committed on separate occasions, or by two or more persons." (Ibid.) The enumerated offenses described in section 186.22, subdivision (e) are called " 'predicate offenses.' " (People v. Gardeley (1996) 14 Cal.4th 605, 617, disapproved of on another point in People v. Sanchez (2016) 63 Cal.4th 665.)
A trial court may admit evidence of predicate offenses so long as it is not more prejudicial than it is probative or unduly cumulative under Evidence Code section 352. (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Under Evidence Code section 352, a trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues or of misleading the jury." " 'The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286.) We review the trial court's ruling to admit or exclude expert testimony under Evidence Code section 352 for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
First, defendant notes that he offered to stipulate that the primary activities of the Norteno gang were the predicate offenses offered by the prosecution. The prosecution, however, declined to accept the stipulation, which was their prerogative. " 'The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness.' " (People v. Chism (2014) 58 Cal.4th 1266, 1307.) A trial court cannot force the prosecution to accept a stipulation, and " '[a] criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.' " (People v. Rogers (2013) 57 Cal.4th 296, 330.)
Here, the court examined the three predicate offenses offered by the prosecution and determined that their probative value outweighed their prejudicial effect. This was not an abuse of its discretion. For example, in People v. Hill (2011) 191 Cal.App.4th 1104, the appellate court upheld the admission of eight predicate offenses committed by gang members over the defendant's Evidence Code section 352 objections. (People v. Hill, supra, at pp. 1138-1139.) The court concluded the admission of the eight predicate offenses did not create a " 'street brawl' " or " 'endless discussions' " on the subject of gangs. (Id. at p. 1139.)
Defendant argues that In re Wing Y. (1977) 67 Cal.App.3d 69 is applicable. In Wing Y., the minor was accused of robbing a liquor store. The appellate court held that evidence of a gang's criminal activity and its asserted membership in the group by the minor was irrelevant to prove the disputed facts of the case, such as the identity of the person who committed the robbery. (Id. at pp. 78-79.) The court noted that "[m]embership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion. . . . It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the minor . . . was guilty of the offense charged on the theory of 'guilt by association.' " (Id. at p. 79.) Defendant's reliance on Wing Y. is misplaced, as it is readily distinguishable. Unlike in Wing Y., the offense charged here was alleged to be gang related and committed for the benefit of the gang. Thus, admission of evidence of predicate offenses was relevant to the disputed issues at trial.
Next, defendant claims Officer De Oliveira's testimony regarding retaliatory gang violence should have been excluded. The People argue that defendant has forfeited his argument on this point, because he failed to raise a specific objection to the retaliatory gang violence evidence below. (People v. Alexander (2010) 49 Cal.4th 846, 905 [failure to object to evidence based on prejudicial impact forfeited claim that court abused discretion under Evid. Code, § 352].) We agree with the People. Below, it appears defense counsel objected solely to the prosecution's attempt to proffer evidence of predicate offenses. Defense counsel's motion in limine and his argument to the court during the hearing on the motion in limine focused on the prosecution's introduction of predicate offenses. Defense counsel did not specifically object to the admission of other gang evidence, including the retaliatory gang evidence at issue here.
Defendant argues that if he forfeited his argument, his trial counsel rendered ineffective assistance. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.)
We find defendant's claim of ineffective assistance of counsel fails, because the trial court did not err in admitting the evidence. Evidence of gang membership and conduct associated with that membership is relevant if the evidence tends to logically, naturally, and by reasonable inference establish a motive in a gang-related crime. (People v. Williams (1997) 16 Cal.4th 153, 193.) " '[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' " (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
Thus, admission of evidence pertaining to retaliatory gang violence was probative to the issues presented in this case. The prosecution's theory of murder was based in part on evidence that defendant had shot at Hernandez in retaliation for disrespecting him as a rival gang member when he "mean mugged" defendant at Jeans Palace and later hit defendant's Camry with his pickup truck. Although the evidence of retaliatory gang violence was prejudicial, we do not believe the court abused its discretion in finding its probative value outweighed its prejudicial effect. Accordingly, defendant's claim of ineffective assistance of counsel fails. Defendant's counsel did not render ineffective assistance, because an objection would have been futile.
3. Instructional Error
Lastly, defendant argues the trial court prejudicially erred when it instructed the jury with CALCRIM No. 505. In pertinent part, CALCRIM No. 505 states that defendant acted in lawful self-defense only if: "The defendant must have believed there was imminent danger of death or great bodily injury to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief." (Italics added.) Defendant believes this italicized portion of CALCRIM No. 505 misstates the law, because a murder based on mixed motives is justifiable so long as fear was a substantial cause of the decision to kill.
Defendant did not object to the challenged instruction below. Thus, the People argue that his arguments are forfeited because " 'a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) Defendant, however, is not arguing that the instructions required clarification, he is arguing that the instructions are an incorrect statement of law. Accordingly, his arguments are not forfeited for failing to raise an objection below. (Ibid.) Thus, we review his claim and apply a de novo standard of review, because it is a question of law. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) In so doing, we examine the given instructions to determine whether the law was correctly conveyed to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525.)
The challenged language in CALCRIM No. 505 is based on language found in section 198. Section 198 states in pertinent part that "[a] bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone."
Section 197, subdivisions (2) and (3) describe that homicide is justifiable when committed in the following cases: "(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein. [¶] (3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed."
As defendant acknowledges, courts have held that the language referencing "fear alone" in CALCRIM No. 505 is a correct statement of law. In People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino), the appellate court held that it was settled that " '[t]o be exculpated on a theory of self-defense one must have an honest and reasonable belief in the need to defend. [Citations.] A bare fear is not enough; "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." [Citation.]' [Citations.] Hence, an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law." (Id. at pp. 878-879.)
The Trevino court clarified that its holding was not meant to imply "that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense." (Trevino, supra, 200 Cal.App.3d at p. 879.) "The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense. But if the only causation of the killing was the reasonable fear that there was imminent danger of death or great bodily injury, then the use of deadly force in self-defense is proper, regardless of what other emotions the party who kills may have been feeling, but not acting upon." (Ibid.)
Defendant argues that our Supreme Court's more recent opinion in Nguyen, supra, 61 Cal.4th 1015 left open the question of the precise meaning of the statutory language set forth under section 198. The Nguyen court approved of and relied on Trevino, but remarked that in the case at bench the defendant did not argue below or on appeal "that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill." (Nguyen, supra, at p. 1046.) The Nguyen court then stated that it had "no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases." (Ibid.) Defendant insists that the question raised in Nguyen should be resolved by this court, and we should interpret section 198 as finding that a killing based on mixed motives is justifiable so long as fear is the substantial—but not necessarily the only—cause of the decision to kill.
We decline to do so. First, we note that the statements cited by defendant from Nguyen are dicta. And the Nguyen court's statements were ambiguous; there is no indication whether the Nguyen court would have agreed that such a mixed-motive instruction would be permissible. Second, we agree with the analysis set forth in Trevino and find that CALCRIM No. 505 as given to the jury is a correct statement of the law—more specifically, it is a correct summation of section 198.
Defendant, however, argues that an instruction is not correct merely because it echoes statutory language. He insists that even if we find that CALCRIM No. 505 accurately summarizes the principles set forth under section 198, the instruction is still incorrect as given.
First, defendant claims that in the context of the "law as a whole," section 198's reference to "such fears alone" is misleading. He insists that as a general concept, the idea that legal consequences will attach to a given act only if the act is the product of one exclusive cause is absent from legal jurisprudence across all disciplines. In support of this claim, he cites to tort law and negligence cases. For example, in tort law, California has adopted the "substantial factor test" as set forth in the Restatement Second of Torts, and under this standard "a cause in fact is something that is a substantial factor in bringing about the injury." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.)
We reject this argument. The fact that other bodies of law, such as tort law, employ a substantial factor test does not necessarily imply that such a test should govern in criminal cases. Nor does it mean that such a test makes sense in all contexts. In essence, defendant would have us interpret section 198 in a way that goes against its plain language. However, "[w]hen interpreting a statute our primary task is to determine the Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826.) As previously stated, section 198 expressly states that "the party killing must have acted under the influence of such fears alone." (Italics added.) If the Legislature had intended for self-defense to apply when a defendant did not act under such fears alone, it would have worded section 198 differently.
Defendant also argues that section 198 should be interpreted in accord with the common law. He claims "[t]he common law's understanding of the comprehensive and fundamental nature of the right to self-defense, as evidenced by these authorities, is incompatible with an interpretation of our statutes as prohibiting the exercise of that right whenever a non-defensive motivation, however slight, coexists with the substantial motivation of self-defense." Despite defendant's claim to the contrary, we discern no inconsistency between our interpretation of section 198 and the common law. In fact, even early California cases have consistently held that for a killing to be justified, "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (People v. Herbert (1882) 61 Cal. 544, 546.)
Lastly, defendant claims that we must interpret section 198 to permit mixed-motive killings in order to comport with the state and federal constitutional right to defend one's life from imminent danger. He argues a strict interpretation of section 198 violates the state constitutional right to self-defense, citing to People v. McDonnell (1917) 32 Cal.App. 694 (McDonnell). In McDonnell, the court interpreted a jury instruction that could be interpreted to require the defendant to attempt to withdraw before killing his adversary, even if "he had reason to believe, and did believe, his life was in imminent danger, and that to attempt to decline further struggle would increase his peril and probably enable his adversary to kill him." (Id. at p. 704.) Recognizing that "[t]he right to defend life is one of the inalienable rights guaranteed by the constitution of the state," the court concluded that such a requirement would essentially "require the very thing that may prevent [the defendant] from defending himself at all." (Ibid.)
Defendant argues adherence to the interpretation of section 198 as set forth in Trevino and Nguyen would create a similar scenario where an individual who is in imminent danger must "pause to examine his conscience and determine whether his motivation to act includes any strain, however faint, of resentment or anger, and to stay his hand if such strain is discovered," which would prevent him from defending himself at all. We disagree with defendant's interpretation. Although the right to self-defense is one of the "inalienable rights" secured by the California Constitution (Cal. Const., art. I, § 1; McDonnell, supra, 32 Cal.App. at p. 706), section 198 does not render the right to self-defense toothless. It also does not create the hypothetical scenario advanced by the defendant here. As we previously discussed, section 198 does not operate to preclude any person who feels anger or hatred toward the person killed from using deadly force in self-defense. It merely requires that the killing be motivated based on the influence of fear alone. We see no state constitutional violation in this interpretation.
Next, defendant claims the right to self-defense is a fundamental liberty interest under the federal Constitution, and restricting the right as set forth under the plain language of section 198 violates substantive due process. "The Due Process Clause guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint. [Citations.] The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." (Washington v. Glucksberg (1997) 521 U.S. 702, 719-720 (Washington).) Recognized fundamental liberty interests include the right to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to bodily integrity, and to abortion. (Id. at p. 720.) "[T]he Fourteenth Amendment 'forbids the government to infringe . . . "fundamental" liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.' " (Id. at p. 721.)
Courts " 'ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.' [Citation.] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action." (Washington, supra, 521 U.S. at p. 720.) Thus, our substantive due process analysis "must begin with a careful description of the asserted right, for '[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.' " (Reno v. Flores (1993) 507 U.S. 292, 302 (Reno).)
Defendant broadly describes the fundamental liberty interest he seeks to assert as the right to self-defense. This is not the type of " 'careful description' " that we must employ. The " 'careful description' " of the interest must be "concrete and particularized, rather than abstract and general." (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 940, superseded by statute on another ground as stated in Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765, 771.) For example, in Washington, the Supreme Court rejected the view that the interest at issue, which arose from a Washington state statute prohibiting aiding another person to attempt suicide, was the right to determine the time and manner of one's death or a right to die. (Washington, supra, 521 U.S. at pp. 722-723.) Instead, the Supreme Court determined that a careful description of the asserted right was a "right to commit suicide which itself includes a right to assistance in doing so." (Id. at p. 723.) Similarly, in Reno, the Supreme Court rejected the view that the right at issue, which arose from the policy of the Immigration and Naturalization Service to place deportable alien juveniles in custodial child care rather than releasing them to unrelated adults, was the right to " 'freedom from physical restraint.' " (Reno, supra, 507 U.S. at p. 302.) Instead, the right was more carefully described as "the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution." (Ibid.)
We therefore reject the view that the interest defendant seeks to protect is the right to self-defense. More accurately, defendant is asserting the right to use deadly force against another when a reasonable fear of death or great bodily injury is not the only motivating factor for the use of deadly force. Although defendant offers citations to cases recognizing the basic right to self-defense, such as McDonald v. Chicago (2010) 561 U.S. 742, he does not cite to any authority that indicates the specific right to self-defense he asserts here is "objectively, 'deeply rooted in this Nation's history and tradition' [citations], and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if [it] were sacrificed,' " which would render it a fundamental liberty interest. (Washington, supra, 521 U.S. at pp. 720-721.) Accordingly, his substantive due process claim fails.
Since we conclude CALCRIM No. 505 is a correct statement of the law, we need not address defendant's claim that giving the jurors this instruction deprived him of due process and caused him prejudice.
4. Cumulative Error
Defendant argues the cumulative impact of the issues described above warrants reversal of the judgment. Having found no errors, we also reject his claim of cumulative error.
5. Retroactivity of Senate Bill No. 620
While defendant's appeal was pending, the Legislature enacted Senate Bill No. 620. Senate Bill No. 620 amended section 12022.53, subdivision (h), which now reads: "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." Senate Bill No. 620 took effect on January 1, 2018. Prior to its passage, trial courts did not have the discretion to strike or dismiss firearm enhancements imposed under section 12022.53.
After briefing in this case was completed, defendant submitted a supplemental brief arguing that Senate Bill No. 620 should be given retroactive effect, and we should remand the matter to the trial court so it may exercise its discretion in deciding whether to strike defendant's enhancement imposed under section 12022.53. The People agree that Senate Bill No. 620 retroactively applies in defendant's case, because his judgment is not yet final. We accept the People's concession.
We find the rule articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies. Whether a statute is prospective or retroactive is a matter of legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).) The "default rule" is that absent an express retroactivity provision, " 'a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application.' " (Ibid.; § 3.) In Estrada, the court created a "contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (Brown, supra, at p. 323, fn. omitted; Estrada, supra, at pp. 742-748.) However "[t]he rule in Estrada . . . is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent." (People v. Nasalga (1996) 12 Cal.4th 784, 793.)
There is nothing in the statutory language that clearly signals the Legislature intended the amendments made by Senate Bill No. 620 to apply prospectively. Thus, we remand the matter to the trial court so it may exercise its discretion to strike the enhancement imposed under section 12022.53. (See People v. Francis (1969) 71 Cal.2d 66, 75-76.)
DISPOSITION
The judgment is reversed and remanded for resentencing for the limited purpose of allowing the trial court to consider whether the enhancement imposed under Penal Code section 12022.53 should be stricken under Penal Code section 1385.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.