People v. Sanchez

Full title: THE PEOPLE, Plaintiff and Respondent, v. MIGUEL CARRANZA SANCHEZ…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Aug 7, 2018

No. C068036 (Cal. Ct. App. Aug. 7, 2018)

Opinion

C068036

08-07-2018

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL CARRANZA SANCHEZ, Defendant and Appellant.

MURRAY, J.

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on August 7, 2018, be modified as follows:

1. On page 2, replace the second full paragraph, beginning "We conclude that the main jail booking" with the following:

In our original unpublished opinion, filed August 7, 2018, we concluded that the main jail booking and classification fees were unauthorized and ordered that those fees be struck. We also corrected the trial court's sentence on the

section 12022.53, subdivision (d), firearm enhancements to impose two consecutive indeterminate terms of 25 to life instead of two determinate terms of 25 years. As so modified, we affirmed. Defendant filed a petition for rehearing, asserting that, following the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), effective January 1, 2018, we must remand the matter to the trial court for resentencing. The People agree, as do we. We deny defendant's petition for rehearing, but remand for resentencing for the trial court to consider whether to exercise its newly authorized discretion to strike the section 12022.53, subdivision (d), firearm enhancements, and, if it declines to strike those enhancements, for that court to resentence defendant on those enhancements consistent with this opinion.

2. On page 52, after the last paragraph ending, "Thus, the sentence imposed by the trial court was unauthorized and must be corrected," insert the following paragraphs:

Additionally, defendant asserts in his petition for rehearing that, following the enactment of Senate Bill 620, the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the section 12022.53, subdivision (d), firearm enhancements. While this case was pending on appeal, the Governor signed Senate Bill 620. Following the enactment of Senate Bill 620, section 12022.53 now includes language stating: "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." (§ 12022.53, subd. (h).) Prior to the enactment of Senate Bill 620, and when defendant was sentenced, courts did not have discretion to strike or dismiss section 12022.53 firearm enhancements. The former language of this section explicitly provided that the courts "shall not strike" enhancement allegations under this section. (§ 12022.53, former subd. (h).)

Defendant asserts that the amendment applies retroactively to his case based on legislative intent and under the rule in In re Estrada (1965) 63 Cal.2d 740. We accept the People's concession concerning retroactivity and conclude that the effects of Senate Bill 620 do indeed apply retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)

Resentencing defendant because of the unauthorized determinate sentences imposed by the trial court, discussed ante, constitutes "any resentencing that may occur pursuant to any other law" within the meaning of section 12022.53, subdivision (h). Therefore, this implicates the trial court's newly authorized discretion to consider whether to strike defendant's section 12022.53, subdivision (d), enhancements in the interest of justice pursuant section 1385.

We accept the People's concession that remand is appropriate here. The record does not support a finding that remand would necessarily be an idle act. "Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Such is not the case here. We agree with defendant and the People that the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the section 12022.53, subdivision (d), enhancements.

3. On page 53, delete the Disposition paragraph and replace it with the following:

The main jail booking and classification fees imposed under Government Code section 29550.2 are struck. We remand this matter to the trial court with directions to (1) consider whether to exercise its discretion to strike the section 12022.53, subdivision (d), firearm enhancements, and (2) in the event that the court declines to exercise its discretion to strike the firearm enhancements, to impose sentences on the firearm enhancements consistent with this opinion. The trial court is directed thereafter to prepare an amended abstract of judgment reflecting the trial court's sentencing choices on the firearm enhancements and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed in all respects.

This modification changes the judgment. Defendant's petition for rehearing is denied. BY THE COURT:

s/MURRAY, J. We concur: s/MAURO, Acting P. J. s/HOCH, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07F11066)

Defendant Miguel Carranza Sanchez appeals following his conviction for the first degree murder (Pen. Code, § 187 ¹) of his ex-girlfriend Y.P. and her boyfriend J.L., who were ambushed and gunned down as they left Y.P.'s workplace. Defendant was sentenced to two consecutive terms of life without the possibility of parole for the murders, plus two consecutive determinate terms of 25 years for the firearm use enhancements.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charge offenses.

Defendant contends: (1) the trial court erred in excluding third-party culpability evidence that Y.P.'s ex-husband was murdered in Mexico 32 hours after the Sacramento killings in a manner assertedly typical of a drug cartel "message" killing; (2) the trial court failed to instruct the jury on the lesser included offenses of second degree murder and voluntary manslaughter; (3) trial counsel rendered ineffective assistance by failing to argue a proper factual basis for instructions on the lesser included offenses of second degree murder and voluntary manslaughter; (4) CALCRIM No. 852 includes an irrational permissive inference that defendant's prior commission of domestic violence made it likely he committed the murders; (5) the jury instruction removing motive from the prosecution's burden of proof is erroneous because motive can serve as circumstantial evidence of guilt; and (6) the trial court erred in ordering him to pay a main jail booking fee and classification fee (Gov. Code, § 29550.2).

We conclude that the main jail booking and classification fees were unauthorized and order that those fees be struck. We also correct the trial court's sentence on the section 12022.53, subdivision (d), firearm enhancements to impose two consecutive indeterminate terms of 25 to life instead of two determinate terms of 25 years. As so modified, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

An information charged defendant with two counts of murder (§ 187, subd. (a); count one—Y.P., count two—J.L.) alleged to have occurred on November 8, 2007, two special circumstances allegations of multiple murder (§ 190.2, subd. (a)(3)), and two firearm enhancements for personal use of a firearm causing death (§ 12022.53, subd. (d)). The information also charged defendant with infliction of corporal injury (§ 273.5, subd. (a); count three) and false imprisonment of Y.P. (§ 236; count four), but the trial court granted the prosecutor's motion to dismiss those counts.

The Prosecution's Case-in-chief

Prior Acts of Domestic Violence

The jury heard evidence of defendant's history of domestic violence with Y.P. as well as his former wife, P.R.

P.R.—Former Wife

In July 2004, while he was living with then-wife P.R. in Los Angeles, defendant became angry that she had followed him and caught him sitting in a car with another woman. He got out of the car and punched her in the face. Defendant then threw her on the ground, drew a gun from his pocket, pointed it at her, and demanded to know why she had followed him. Defendant's friends convinced him to put the gun away.

In December 2004, defendant pointed a gun at P.R. when she returned home from the store and demanded to know where she had been and with whom.

E.C., defendant's daughter with P.R., testified that, while they were still living in Los Angeles, she once heard defendant tell P.R. in an angry tone that she would never be with anyone else, and if she left him, he would kill both her and the man she was seeing. E.C. acknowledged that she told the police that defendant told P.R. if she was not going to be with him, P.R. was not going to be with anyone.

P.R. left defendant and moved to Santa Rosa with her children in March 2005. We discuss another act of domestic violence against P.R. post, in connection with the circumstances surrounding defendant's arrest.

Y.P.—Victim in Count One

In 2005, defendant moved from Los Angeles to Sacramento with Y.P. and her son. They temporarily moved in with defendant's brother Rogelio and his family. Defendant and Y.P. lived like husband and wife but never married.

On one occasion, a family member saw Y.P. sitting in the living room, crying and with a bit of blood on her mouth. Y.P. said defendant had hit her. Defendant was standing next to her but said nothing.

Defendant and Y.P. moved elsewhere, but on October 9, 2006, defendant pounded on Rogelio's door in the middle of the night, in a jealous rage, saying he wanted to beat up one of the occupants whom defendant suspected of dating or sleeping with Y.P. Defendant said he had a gun. Rogelio called 911 and defendant fled. At trial, Rogelio did not remember anything about a gun and said he did not see a gun. A homicide detective testified he spoke with Rogelio after Y.P.'s murder, and Rogelio said that, during the October 9, 2006, incident, defendant said he had a gun.

Y.P.'s mother, who lived in Culiacan, Sinaloa, Mexico, had a phone conversation with Y.P. about a year and a half before her murder, during which defendant took the phone and "loud[ly], very aggressive[ly]" told the mother he was going to kill Y.P. because he "had to do it." Y.P.'s mother visited her daughter in Sacramento several times between 2005 and 2007. On one visit, the mother heard Y.P. saying "no" and entered the living room to see defendant choking Y.P. with both hands wrapped around her neck. He said he wanted to kill Y.P. Y.P. was struggling and pled with defendant to leave her alone while defendant told Y.P. he wanted to kill her. The mother yelled at defendant to leave Y.P. alone and he released Y.P. He left thereafter. Approximately one month before the murders, the mother saw defendant and Y.P. arguing. He had a knife in his hand and threatened to kill Y.P. Y.P. grabbed the knife to avoid being stabbed, and her fingers were cut as she and defendant fought over the knife. Defendant was "constantly jealous" according to Y.P.'s mother. Y.P. rejected her mother's advice to call the police, saying defendant had threatened to kill Y.P.'s son if she said anything.

Y.P. obtained a temporary restraining order against defendant on April 29, 2005, reissued on May 24, 2005.

Defendant's Behavior Prior to the Murder

Y.P. worked as a cosmetologist at a beauty salon. On multiple occasions, the salon owners, Delmy Mancia and her husband Andres Luna, observed defendant hanging around the salon after he and Y.P. broke up and she was dating J.L. Y.P. once showed Mancia injuries to her neck and arm that Y.P. said defendant inflicted during an argument. Y.P. told Mancia on multiple occasions that she wanted nothing more to do with defendant, including on two occasions when Mancia saw defendant waiting outside the beauty shop.

Approximately a month and a half before the murders, Luna was sitting in his parked vehicle near the salon when defendant banged on the window. Defendant yelled, " 'You are going to tell me where [Y.P.] lives.' " When Luna said he did not know, defendant yelled, " 'You know. You took her out of my house.' " Defendant left when Mancia and her cousin came out of the salon.

The Murders

Y.P. had broken up with defendant by November 2007.²

2 Both salon owners were equivocal about whether they understood the split to be final.

On November 8, 2007, Y.P.'s boyfriend, J.L., came to the salon to pick her up when her shift ended at 7:00 p.m. At this point, they had been dating for about two months. As was their normal routine, they walked out of the salon together between 7:05 and 7:15 p.m., as the shop was closing. Almost immediately after they left, the salon owners heard a woman scream, " 'Aye,' " followed by several gunshots. Luna looked outside and saw Y.P. and J.L. on the ground near Y.P.'s vehicle, but did not see anyone leaving the area. After the shooting, the salon owners went outside. J.L., lying face up, was still. Y.P.'s mouth was moving, but they did not hear anything audible.

Police dispatch received the 911 call at 7:14 p.m. When the police arrived a few minutes later, J.L. was dead, lying on the ground next to Y.P.'s vehicle, with no weapon visible. Y.P. was unconscious and barely breathing. Y.P. died in the hospital of multiple gunshot wounds to the chest. She had three gunshot wounds to the chest and a gunshot wound to her right forearm, all inflicted from an indeterminate range. J.L. also died of multiple gunshot wounds. He had one gunshot wound to the back of the left hand, one to the right cheek, one to the left lower abdomen, and one to the left lower back. The hand injury was an intermediate range wound, meaning the gun was fired from several inches to a few feet. The other wounds were from an indeterminate range.

When crime scene investigators moved J.L.'s body at the scene, a loaded gun fell from the left side in the back of J.L.'s waistband. In the opinion of the prosecution's forensic firearm expert, none of the bullets at the crime scene were fired from J.L.'s gun.

A napkin, found in Y.P.'s purse, bore an unsigned note handwritten in Spanish, which was translated for the jury: "[Y.P.], I'm not threatening you. But if you cash [sic] your telephone or you don't answer me when I'm call you, you know that I'm not afraid even of the police, much less the idiot that you have for a boyfriend. [¶] Yesterday I didn't ik [sic] his ass,³ but next time, . . . I'm gonna do it. I love you, and I'm gonna fight for you. A-A-M. I love you, [Y.P]. A [sic] I'm crazy but over you." (Boldface & italics omitted.) On the side of the napkin was written in Spanish, "If not anyone's, my love, you are mine." On the back of the napkin was written in Spanish, "I swear to you, my love." (Boldface & italics omitted.)

3 The prosecutor asked, "[t]he translation you gave that phrase was I didn't kick -- I believe you used a different word than kick, and I believe you used his ass. [¶] Would you describe that as a conservative translation of that phrase?" and the translator responded that she would. She further testified that, in her opinion, the phrase could not be translated in a different way.

About four hours after the shooting, at 11:06 p.m., police dispatch received a call from a citizen, Jennifer Rodriguez, who said " 'she was at a neighboring restaurant and thinks she saw possible suspect running from the scene of the crime at the time of the shooting.' " Police did not interview her until November 27, 2007. When the detective called to say he was coming, she handwrote her account of what she saw, because she knew the police would want a statement from her.

Rodriguez testified she was picking up dinner at a taco restaurant in a strip mall next to the strip mall where the salon was located. The two strip malls are separated by an alley and two Dumpsters. As she left the taco shop, she noticed a Hispanic man pacing back and forth in the parking lot. He was wearing a light blue or gray sweatshirt with the hood pulled up, baggy jeans, and white tennis shoes. He had his hands in his pockets. Rodriguez got into her vehicle, lit a cigarette, lowered her window halfway, and began to drive away. The man started walking in the direction of the salon parking lot. As she drove past slowly, he started to walk faster, then stopped abruptly. She thought it was unusual that he was "just waiting there." He had one hand hanging by his side and the other in his pocket with his elbow moving up and down. As she pulled up next to him, about two or three feet from him, she saw the right side of his face—which was not covered by the hood—turned down and to the right. He had a scar under his right eye, a mustache, and a bit of gray hair in his sideburns. She told police the man had a pot belly, which defendant did not have, but she testified at trial it could have been that his hoodie made him look bigger than he was.

As Rodriguez drove out of the parking lot, she saw the man run past the Dumpsters separating the strip malls and in the direction of the salon parking lot. About ten seconds later, she heard five or six "pop" sounds, which she thought was a car backfiring. She pulled into a gas station, went inside to pay, came outside and saw several police cars with sirens on. She then realized the "pops" had been gunshots. She pumped her gas and went home. She knew she should have contacted the police right away, but she was busy and had children waiting at home.

When interviewed by the police detective, Rodriguez identified defendant from a photo lineup, and at trial she also identified defendant as the man she saw that night. The detective tape-recorded her interview, and a couple of weeks before trial she heard and read her statements in an office.

Rodriguez was a former client of Y.P. Rodriguez testified she did not remember when she learned that she knew one of the victims or that the victims had been killed. All she remembered from the news on the night of the shooting was that there had been a shooting at that location.

On cross-examination, defense counsel asked how Rodriguez could see the man's hair when her handwritten account said the man had his hood up. Rodriguez testified she could see his sideburns.

Post-murder Suspicious Activity

After the murders, the salon owners were tense and hyper vigilant. Three days after the shooting, on the morning of November 11, 2007, Mancia was in her salon and saw a small gray Honda in the parking lot driven by a person with a hooded sweatshirt covering most of his or her head. Mancia went outside, but the person drove away quickly. She reported it to the police. When asked if she thought the person's actions were unusual, she said, "During that time everything -- seemed like everything made me nervous." Luna reported to police that he saw a silver Honda in the parking lot, but defendant was not the driver. At trial, Luna did not remember reporting it to the police but testified, "Every car that we saw during that time, we thought it was suspicious."

Defendant's Arrest

Around 11:00 p.m. on November 11, 2007, defendant was outside his ex-wife P.R.'s Santa Rosa home, causing a scene. He kept phoning and demanding to see his children. He knocked on a rear door. P.R. and her brother tried to go outside to talk with him, but defendant forced his way into the house with a gun in his hand, angry and yelling that he wanted to see his children. Defendant held P.R., her brother, and her brother's family at gunpoint, and said he was going to kill P.R. and everyone else. Defendant's daughter called 911 from another room, then entered the room where defendant and the others were situated and managed to calm defendant down. When the police arrived, defendant became agitated again and yelled, "Who called the police? I'm going to kill you." (Italics omitted.) Declaring his intent to take P.R., defendant grabbed her arm and pulled her, but then let go. He then fled out the backdoor, still in possession of the gun.

The officers pursued defendant on foot and commanded, " 'Police. Stop.' " Defendant kept running, even after pulling free from his jacket when an officer grabbed it and after being tasered. Defendant tried to hide in another backyard, but was captured soon after with the help of a K-9 officer. Bullets were found in his pants pocket.

An officer, who was chasing defendant on foot, found a loaded gun on the ground in defendant's flight path. The gun was later shown to E.C. and she said it looked like the same gun defendant had at the house before he fled.

The prosecution's firearms expert opined that all seven cartridge casings found at the Sacramento crime scene were fired using that gun. Of the bullet slugs removed from the victims that were capable of analysis, the expert opined four had been fired from that same gun, and one was inconclusive but had the same class characteristics.

In a police interview on November 17, 2007, defendant referred to Y.P. as his former spouse and said they had broken up six months prior to the interview. He denied ever hitting Y.P. and denied shooting her or J.L., but he did not deny threatening Y.P. He said he was homeless and was at Howe Park alone, "smoking crystal meth" at the time of the murders. Regarding the last time he had seen Y.P., defendant mentioned two different occasions. He first said he had last seen Y.P. two months before the murders, but later said he saw her two days before Halloween of that year with another man. He claimed he was not angry and the man spoke to him nicely. He said he was happy she found someone and wished them luck. Regarding the incident at his brother Rogelio's residence, defendant said he just had a crazy thought, and did not deny what had happened.

The Defense Case

Rodriguez testified during the prosecution's case that she did not remember speaking with a defense investigator. A defense investigator testified that he interviewed Rodriguez on July 23, 2008, and she said she no longer remembered some details, but she heard the gunshots while she was still inside the restaurant and, as she left, saw the man running towards where the shooting had occurred. The defense investigator testified that Rodriguez said she was not sure if she could recognize the man. She said she got a " 'quick glimpse' " of the side of his face as she passed him.

The defense called as a witness a prosecution investigator who helped prepare Rodriguez shortly before trial. The prosecution team had Rodriguez review her handwritten note and her videotaped interview before asking for her present memory of events. She confirmed the prior statements but was unsure she would be able to recall all the details.

The Prosecution's Rebuttal Case

In rebuttal, a homicide detective testified Rodriquez gave him her handwritten account at her apartment on November 27, 2007, and confirmed its accuracy at that time. He also recorded his interview of her with a digital recorder he kept in his pocket. Rodriguez picked defendant out of a photo lineup at that time and said her identification was based on what she saw near the crime scene on November 8th, not on the subsequent media coverage.

Verdicts and Sentencing

The jury found defendant guilty of two counts of first degree murder and found true the multiple murder special circumstance and firearm enhancements.

The trial court sentenced defendant to two consecutive terms of life without the possibility of parole for the two counts of murder, plus two consecutive determinate terms of 25 years for the firearm use allegations under section 12022.53, subdivision (d).⁴

4 The court ran this sentence consecutive to a 14-year sentence imposed in Sonoma County for a violation of former section 245, subdivision (a)(2), assault with a firearm, in connection with the home invasion of P.R.'s home just before his arrest.

DISCUSSION

I. Exclusion of Third-party Culpability Evidence

A. Defendant's Contentions

Defendant argues the trial court erred in excluding evidence that, 32 hours after Y.P. and J.L. were killed in Sacramento, Y.P.'s ex-husband was killed in Mexico in a manner suggestive of a " 'message' " killing by a Mexican drug cartel. Because of the coincidence of former spouses being murdered within 32 hours of each other, defendant argues an unknown Mexican drug cartel may have committed the Sacramento murders. Defendant maintains that his proffered evidence was relevant to his defense of third-party culpability, Evidence Code section 352 did not compel exclusion, and exclusion of the evidence deprived him of his constitutional right to present a defense. We disagree.

B. Additional Background

Both sides filed motions in limine asking for a pretrial ruling on evidence defendant sought to introduce to support his theory that an unknown third party killed Y.P. and J.L. Defendant made an offer of proof as follows:

Witnesses in the vicinity heard gunshots and then saw a Hispanic man in a " 'hoodie' " run away from the general direction of the salon, get into a light blue or black Honda, and speed away.⁵ Defendant was known to drive a black Honda or Mazda or a long Lincoln. On a day after defendant's arrest, while he was in custody, the salon owners saw a hooded driver in a gray or silver Honda in the salon parking lot who appeared to be trying to hide his face and who drove off quickly.

5 No evidence was adduced at trial that any witness saw anyone fleeing in a Honda immediately after the shooting. This information came from a police canvas of witnesses right after the shooting, but those persons did not testify at trial. Defendant in his appellate brief says the killer was seen leaving in a light blue Honda, but he cites no trial evidence.

Y.P.'s ex-husband, J.A., who is the father to her child, was murdered in Sinaloa, Mexico,⁶ on November 10, 2007, around 3:00 a.m.—32 hours after Y.P. and J.L. were murdered in Sacramento on November 8, 2007, around 7:00 p.m. J.A. had resided in Los Angeles and was a long-haul truck driver. He canceled a scheduled job and went to his hometown of Sinaloa, Mexico, to celebrate the Day of the Dead on November 2, 2007. He drove to Mexico in his new red truck with Silvia Cervantes and her grandsons, who stayed with relatives, while J.A. stayed at his cousin's home. On November 5th, J.A. told Cervantes they would return to Los Angeles from Mexico the following morning, but instead he showed up at 10:30 p.m. on November 5th and insisted without explanation that they leave immediately. After driving awhile, J.A. again changed his mind and returned to his cousin's house after dropping off his passengers. On November 9th, J.A. told Cervantes they would leave early the next morning. On the evening of November 9th, J.A.'s cousin borrowed J.A.'s red truck and was driving it when she was stopped by two men "impersonat[ing] police officers," who asked about the owner of the truck, questioned her, and let her go on her way. When she was later driving home, they stopped her again, questioned her, and released her. At 3:00 a.m. on November 10, 2007, J.A. left his cousin's home to pick up Cervantes⁷ and return to Los Angeles. Later that morning, J.A.'s dead body was found hanging over a fence. J.A. had gunshot wounds in both eyes and between the eyes, and his body was swaddled in tape and left displayed on a fence near a roadway.

6 For purposes of this appeal, we accept defendant's representation that Sinaloa, Mexico, is about 1,500 miles away from Sacramento, California.

7 The proffer stated that, prior to departing Sinaloa, J.A. "was to meet his former sister-in-law," implying a relationship between Y.P. and Cervantes. Later, the proffer makes reference to "[Y.P.]'s sister."

Attached to defendant's written motion was a declaration from James Hernandez, a professor of criminal justice at California State University, Sacramento. He said the Mexico murder had the earmarks of a Mexican drug cartel killing, and Mexican drug cartels operate drug trafficking operations in the United States and use local street gangs in California to commit acts of violence. According to Hernandez, "groups involved in [d]rug [t]rafficking, have developed a variety of approaches for sending messages to those challenging them." One such method is "wrapping the victim with duct tape and then killing them."⁸ Hernandez opined, "The possibility that the two murders were connected is not without foundation. [¶] Given the history of the Mexican Drug Trafficking Organizations, and the times of the murders, along with the meeting of [J.A.] and [Y.P.]'s sister, there is clearly a reason for consideration for involvement of Mexican Drug Trafficking Organizations." (Italics added.) Hernandez opined, "Considering the date and circumstances in which this murder was committed [J.A.'s murder], the manner in which the murder was committed, and given my knowledge of the methods of operation of Mexican drug cartels, a reasonable person could conclude that the murders in Sacramento were committed by a Mexican drug cartel or an agent of a Mexican drug cartel."

8 The source of the information upon which Hernandez relied for this statement is unclear. He provided a footnote following this statement. But unlike the other footnotes where he cited a variety of reports and publications, the only thing written at this footnote is "2008."

Based on this proffer, defendant argued that the Sacramento murder "may have been [committed] because the cartel's emissary (assassin) was intending to kill [J.A.]'s ex-wife, or may have been because the emissary thought [J.L.] was in fact, [J.A.]" The defense acknowledged the evidence would "concededly take time to present," with the defense intending to call three civilian witnesses, two Mexican police witnesses, and the gang expert.

During oral argument on the motion, the defense argued it was a "remarkable coincidence" that two former spouses who have a son in common were murdered in extremely violent ways within 32 hours of each other. Defendant argued J.A.'s murderers "were almost certainly members of a Mexican drug cartel" who killed J.A. in a manner designed to send a message. The defense speculated a cartel hit man may have killed J.L. by mistake, thinking he was J.A.

The prosecution urged exclusion of the evidence, noting there was no evidence whatsoever that any of the three victims were involved in the drug trade, there was no evidence of a connection between the Mexico and Sacramento murders, and defendant's theory was based on pure speculation.

The trial court issued a written order denying defendant's motion in limine to introduce evidence of the murder in Mexico as third-party culpability evidence. The written order stated in pertinent part:

"Third party culpability evidence is admissible only if it consists of direct or circumstantial evidence linking the third person to the actual perpetration of the crime. [Citations.] If the evidence shows only mere motive or opportunity to commit the crime, without more, the evidence is not admissible. [Citation.] It also is not admissible if it consists of pure speculation [citation]. And, even if admissible, the evidence may be excluded under Evid. Code § 352 [citations]. [¶] In this case, defendant fails to show any connection of the current murders to that of the murder in Mexico of the ex-husband of one of the current murder victims. Although, as discussed below, there may be evidence that someone other than defendant was the shooter, defendant has no evidence showing that the shooting was the result of a murder for hire. Rather, that is mere speculation at this point, due to the coincidence of the murder in Mexico relative to the occurrence of the currently charged murders. As such, unless defendant is able to uncover admissible evidence of an actual murder for hire, the evidence of the murder in Mexico will not be allowed to be introduced at trial. [¶] However, the court [at the in limine stage] will allow the following evidence to be introduced during trial: [¶] (1) Evidence that at least one eyewitness of the murder scene as the shootings unfolded saw a person leaving the scene quickly, saw that the person was wearing a 'hoodie,' and saw that the person got into a light-colored blue Honda and drive off, [¶] (2) Evidence that at least one eyewitness on November 11, 2007 at 9:00 a.m., or some other time well after the murders as may be testified to, saw a gray Honda in the parking lot of Delmy's Beauty Salon, saw that its driver was wearing a 'hoodie,' saw the driver hide his face as the employees walked by, then saw the driver quickly drive off onto the roadway, and [¶] (3) Evidence that defendant was arrested and kept in custody before and during the November 11, 2007 9:00 a.m. incident referred to in (2), above, or at another time well after the murders as may be testified to, such that the evidence would show that some person other than defendant was the person in the gray Honda seen in the parking lot at that time. [¶] That evidence, if introduced at trial, could raise a reasonable inference that a person other than defendant had committed the actual shooting and gotten into the light-colored Honda and had returned to the scene a few days later to see if anything further was happening. As such, that is admissible as third party culpability evidence."

Near the end of the presentation of the defense case, the defense indicated an intent at the next court date to orally renew its request to introduce evidence about the Mexico murder. The next court day, however, was consumed with discussion about jury instructions, and the following court day the jury heard brief testimony from a final defense witness and a prosecution rebuttal witness. After closing arguments, the court and counsel were discussing final touches to the jury instructions and the need to give the jury the parties' stipulation about the temporary restraining orders against defendant. Defense counsel added there was one other thing: "I had asked to renew my motion on third-party culpability, and we never did that." Defense counsel said, "I don't want to spend a whole lot of time arguing it, but I would just submit that, based on the evidence, particularly problems that I see with the ballistics and the testimony of Jennifer Rodriguez, move this case further and further into, well, who else could have done did [sic] it territory, which I would submit to the Court again favors allowing the third-party culpability in. [¶] I'm prepared to submit it on those comments." The prosecutor submitted the matter.

The trial court said, "I'm going to again deny your motion to have that defense implicated in the case or brought before the jury in this case, for all of the reasons that I set forth in my original ruling. [¶] Plus in the Court's view, while I respect your sense of your own case, in the Court's view the bases for denying third-party culpability defense is even stronger in light of the evidence that has been presented to this point."

C. Analysis

Only relevant evidence is admissible (Evid. Code, §§ 350, 351), and evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210). The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts, such as identity, intent or motive, and the trial court has broad discretion in determining the relevance of evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 132.)⁹

9 Even if evidence is relevant, the trial court "in its discretion 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, or confusing the issues, or of misleading the jury." (Evid. Code, § 352; People v. Mills (2010) 48 Cal.4th 158, 195.) However, the trial court here determined the proffered evidence lacked relevance and therefore did not weigh probative value against the Evidence Code section 352 considerations.

The test for the admissibility of third-party culpability evidence is well-settled. " '[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.' " (People v. Elliott (2012) 53 Cal.4th 535, 580 (Elliott); People v. McWhorter (2009) 47 Cal.4th 318, 367-368 (McWhorter); People v. Edelbacher (1989) 47 Cal.3d 983, 1017-1018 (Edelbacher); People v. Andrade (2015) 238 Cal.App.4th 1274, 1288 (Andrade).) The seminal case concerning the admissibility of third-party culpability evidence is People v. Hall (1986) 41 Cal.3d 826, 831-834 (Hall).

To be admissible, third-party culpability " 'evidence must meet minimum standards of relevance: "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." [Citation.] . . . [Additionally,] such evidence is subject to exclusion under Evidence Code section 352.' " (McWhorter, supra, 47 Cal.4th at p. 368, quoting Hall, supra, 41 Cal.3d at p. 833 & Edelbacher, supra, 47 Cal.3d at p. 1017.) We review the trial court's exclusion of third-party culpability evidence for abuse of discretion. (Elliott, supra, 53 Cal.4th at p. 581; People v. Avila (2006) 38 Cal.4th 491, 578; Andrade, supra, 238 Cal.App.4th at p. 1289.)

Defendant contends that he was deprived of his right to present a complete defense because he was prohibited from introducing his proffered evidence. The Sixth Amendment right to a jury trial guarantees criminal defendants a meaningful opportunity to present a complete defense, including evidence of third-party culpability. (Holmes v. South Carolina (2006) 547 U.S. 319, 326-327 (Holmes); Chambers v. Mississippi (1973) 410 U.S. 284, 294, 302-303 (Chambers).) This guarantee is incorporated by the due process clause of the Fourteenth Amendment, binding the states. (Chambers, at pp. 302-303.) However, it is also settled that ordinary rules of evidence, such as those employed to exclude third-party culpability evidence, do not infringe on a defendant's due process rights. (Hall, supra, 41 Cal.3d at pp. 834-835; Andrade, supra, 238 Cal.App.4th at p. 1290.) "When a trial court exercises its discretion to exclude evidence and does not abuse that discretion, the exclusion of the evidence (including proffered third party culpability evidence) does not impermissibly infringe on a defendant's federal constitutional rights." (People v. Shorts (2017) 9 Cal.App.5th 350, 358-359, citing People v. Prince (2007) 40 Cal.4th 1179, 1243.) Evidence of third-party culpability may be excluded " 'where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote.' " (Holmes, at p. 327.)

The drug-related motive for the murders asserted by defendant here is speculative at best. Indeed, it is similar to the proposed third-party culpability evidence our high court held was properly excluded in Edelbacher, supra, 47 Cal.3d 983. In Edelbacher, the defendant proffered evidence that the murder victim had been involved in drugs and "running around with some Hell's Angel-type people." (Id. at p. 1017.) He argued, " 'people who are dealing in narcotics frequently end up injured or shot.' " (Id. at pp. 1017-1018.) Our high court held, "defendant's proposed evidence did not identify a possible suspect other than defendant or link any third person to the commission of the crime. The evidence did not even establish an actual motive but only a possible or potential motive for [the victim]'s murder." (Id. at p. 1018, italics added.)

Here, no evidence was proffered that the person or entity responsible for the murder in Mexico was also responsible for the Sacramento murders. The only connection appears to be a "possible or potential" drug-related motive. (See Edelbacher, supra, 47 Cal.3d at p. 1018.) Indeed, defendant's own expert characterized the connection only as a "possibility."

For the first time, defendant argues on appeal that his proffered evidence concerning the murder in Mexico was admissible under the " 'doctrine of chances,' " given what he asserts was a "remarkable coincidence." The doctrine of chances is a theory of logical relevance. (People v. Spector (2011) 194 Cal.App.4th 1335, 1378 (Spector).) It does not apply simply because a claim is made that two occurrences could not have been coincidental. As we will explain, under the doctrine of chances jurors are allowed to consider similar occurrences on the theory that it is objectively improbable that such occurrences happened by chance, accident, inadvertence or self-defense or good faith, rather than by design. The key, however, is the similarity of the occurrences. "[T]he doctrine of chances is based on a combination of similar events." (People v. Steele (2002) 27 Cal.4th 1230, 1244 (Steele), some italics added.) "California cases have recognized the value of this probability-based calculation that arises from a history of prior similar acts." (Spector, supra, 194 Cal.App.4th at p. 1379, italics added.) The doctrine of chances is " 'the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. [¶] . . . In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent.' " (People v. Robbins (1988) 45 Cal.3d 867, 879-880, italics added, superseded by statute on another ground as stated in People v. Jennings (1991) 53 Cal.3d 334, 386-387 & fn. 13.)

The doctrine of chances is most often applied in the context of other crimes evidence offered by the prosecution against a defendant. (See People v. Kelly (2007) 42 Cal.4th 763, 786 (Kelly) [it "would have been a remarkable coincidence if, shortly after defendant violently assaulted two women [in a particular apartment] he befriended at the fitness center, some different person happened to use that same apartment to assault another woman defendant had befriended at the fitness center"]; Steele, supra, 27 Cal.4th at p. 1244 ["the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous"]; Spector, supra, 194 Cal.App.4th at pp. 1377-1381 [in a murder prosecution, doctrine of chances supported admissibility of evidence that defendant had previously assaulted five other women at gunpoint over a 20-year period under similar circumstances to refute the defense claim that the current victim shot herself].)

The doctrine has been asserted, albeit not by name and not always successfully, by defendants seeking to introduce evidence of other crimes showing a pattern or signature for purpose of establishing that someone else committed similar crimes and thus may have committed the crime or crimes with which the defendant is charged. For example, in Elliott, supra, 53 Cal.4th 535, our high court held that evidence of other armored car robberies was properly precluded in the trial of a murder involving a robbery of an armored car. (Id. at pp. 580-581.) The Elliott court noted: "For evidence of an uncharged offense to be admissible to establish the third party's identity as the perpetrator of the charged crimes, ' "[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." ' [Citations.] A large number of common marks may, when viewed in combination, establish the required distinctive pattern." (Id. at p. 581; see also People v. Suff (2014) 58 Cal.4th 1013, 1062-1064 (Suff) [evidence that three prostitutes were killed after the defendant was arrested was properly precluded by the trial court; although the prostitutes killed after the defendant's arrest "were fatally stabbed and [their] bodies were dumped like trash," these shared characteristics were not unusual or distinctive, particularly in light of the fact that prostitutes are vulnerable and tend to be victimized]; People v. Lazarus (2015) 238 Cal.App.4th 734, 788-790 (Lazarus) [trial court properly excluded evidence of a burglary that occurred after the charged burglary-murder because it did not bear sufficient similarities]; Andrade, supra, 238 Cal.App.4th at pp. 1287-1290 [rejecting claim that trial court erred in precluding evidence of similar gunpoint rapes by persons posing as police officers that took place after defendant was arrested because rapists sometime pose as police officers, the other rapes were not unusual or distinctive, and the prosecutor did not argue that defendant's guilt could be based on the doctrine of chances].)

The People argue defendant forfeited the doctrine of chances theory by failing to raise it in the trial court. We agree. Evidence Code section 354 provides in relevant part that a reviewing court shall not reverse a conviction based on the erroneous exclusion of evidence unless a miscarriage of justice resulted and, among other possibilities, "[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by other means." (Evid. Code, § 354, subd. (a).) Thus, as a general matter, a defendant must specifically raise the grounds for admissibility in the trial court; otherwise he or she is precluded from complaining on appeal. (People v. Fauber (1992) 2 Cal.4th 792, 854.) Because defendant failed to specifically rely on the doctrine of chances, the logical relevance was not made known to the trial court and consequently neither the trial court nor the prosecution had occasion to look at the body of law discussing that legal theory and consider how it might apply in this case.

Defendant replies that, while he did not specifically invoke the term " '[d]octrine of chances,' " he did argue the doctrine in substance, arguing that the coincidence of the Sacramento killings and the killing in Mexico was extraordinary and remarkable, and the trial court acknowledged the defense theory of coincidence. But still, defendant does not explain why the arguments he made in the trial court would cause the trial court to look to the case law discussing the doctrine of chances in considering its ruling or why the prosecution would look to that body of law in considering its objections or opposing the introduction of defendant's proffered evidence. Moreover, we are aware of no case where the doctrine of chances has been applied to show that the occurrence of a separate, assertedly noncoincidental but dissimilar crime is somehow connected and admissible to prove motive or identity to establish third-party culpability of the charged crimes as defendant seeks to do here. Under the circumstance where there is no case law supporting the theory of admissibility advocated on appeal, the reasons for the forfeiture rule are all the more important. It is especially unfair to both the trial court and the prosecution to assert an established theory of admissibility for the first time on appeal when there is a body of case law addressing that theory but the theory is sought to be applied in a novel way.

Even if the doctrine of chances theory was preserved, we conclude it has no application here. As we have said, mere coincidence does not support application of the doctrine of chances. Tellingly, defendant cites no California case where the doctrine of chances was invoked by the defense. Instead, he cites two Texas cases, Fox v. State (Tex.Ct.App. 2002) 115 S.W.3d 550 (Fox) and Renfro v. State (Tex.Ct.App. 1992) 822 S.W.2d 757 (Renfro), neither of which help him.

In Fox, the court held that a defendant may use the doctrine of chances defensively. (Fox, supra, 115 S.W.3d at p. 561.) The defendant was charged with the sexual molestation of his nine-year-old stepdaughter. (Id. at p. 555.) He sought to prove his defensive theory that the allegations were untrue by introducing similar allegations made by the victim's two sisters and arguing that all three girls lied at the instigation of their mother, who allegedly wanted to ensure that she would get custody of two of the girls in her divorce from the defendant. (Id. at p. 558.) The defense wanted to support its theory by introducing evidence of the timing and similarity of the girls' allegations. (Ibid.) The Fox court expressly noted that the doctrine of chances requires that the other incidents be similar. (Id. at p. 560.) In this regard, the Fox court's application of the doctrine of chances is really no different from the California cases admitting prosecution evidence based on the doctrine of chances theory. " 'Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance . . . . In short, there must be a similarity in the various instances in order to give them probative value.' " (Ibid., italics added.) The Fox court reasoned that the defendant asserted "a defensive theory that the very similar allegations of [the three girls] were false and were planted in these young girls' minds by their mother." (Id. at p. 561, italics added.) "Under the doctrine of chances, the jury could infer that these young girls made these similar and arguably implausible allegations on the same day and in a similar manner because they were making false allegations at the instigation of" the mother, and therefore the evidence was relevant. (Ibid.)

Renfro, supra, 822 S.W.2d 757, is similarly unhelpful to defendant. While that case did not expressly reference the "doctrine of chances," it involved the admissibility of multiple prior similar acts to establish third-party culpability. There, the defendant was charged with indecency with a child based the commission of an act of indecent exposure to female teenagers. (Id. at pp. 757-758.) The defense was mistaken identity. (Id. at p. 758.) The defense sought to introduce evidence of two prior acts of indecent exposure committed by another person that were similar. Indeed, they were similar enough that the perpetrator's photo was included in the same photo lineup with the defendant's photo, from which the defendant was identified by the victims in his case. (Ibid.) After viewing a live lineup, two victims said the defendant was not the perpetrator of the charged offense. (Ibid.) The court held that the prior crimes had a "sufficiently similar modus operandi to the offense charged to be admissible" to prove identity. (Id. at p. 759.) The theory in Renfro involves the same theory of admissibility advanced in California cases by defendants, where the courts concluded the other crimes were not uniquely similar enough to be admissible to establish third-party culpability. (See Suff, supra, 58 Cal.4th at pp. 1062-1064; Elliott, supra, 53 Cal.4th at pp. 580-581; Lazarus, supra, 238 Cal.App.4th at pp. 788-790; Andrade, supra, 238 Cal.App.4th at pp. 1287-1290.)

We conclude the circumstances of the killings here were too dissimilar, and any connection too attenuated and speculative, to be admissible under the doctrine of chances or any other theory of third party culpability. First, the murder of J.A. was different from the murders of the victims here. In the Mexico killing, J.A. had gunshot wounds in both eyes and between the eyes, and his body was swaddled in tape and left displayed near a roadway. In Sacramento, Y.P. and J.L. were shot and killed in a way that is indistinguishable from countless other killings in American society.

Second, as we have noted, defendant proffered no evidence establishing that anyone affiliated with an unidentified Mexican drug cartel was responsible for killing Y.P. and J.L. Instead, defendant advanced a theory based on pure speculation similar to the theory advanced in Edelbacher, supra, 47 Cal.3d at pages 1017-1018. There was no proffer whatsoever of any evidence that Y.P. or J.L. were involved in drugs or gangs. Moreover, there was no proffer of what contact or connection, if any, Y.P. (who lived in Sacramento) had with her former husband J.A. (who lived in Los Angeles) at the time of the murders.

To the extent defendant relies on his expert as evidence that the murder in Mexico had earmarks of a cartel killing and Mexican drug cartels use local street gangs as enforcers, such evidence was irrelevant here without evidence of a connection to the Sacramento murders. That the "Mexican Mafia" has long arms reaching into Sacramento, besides being an unremarkable assertion, does nothing to connect the murder of J.A. to this case. Indeed, the assertedly "expert" opinion of James Hernandez in divining a possible connection between the Sacramento and Mexico murders was not a proper subject of expert opinion. Evidence Code section 801 limits expert opinion to opinions related to subjects "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) Common experience is the very foundation of the doctrine of chances. The trial court, as the evidentiary gatekeeper, was just as capable as the defense expert of evaluating the similarities and differences between the two events and drawing its own conclusion. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 [trial court acts as a gatekeeper to exclude expert opinion testimony that is speculative].) Defendant contends the prosecution did not challenge his expert's reliability or the substance of his proffered testimony. We do not understand defendant's argument, because the prosecution clearly argued there was no connection between the Sacramento and Mexico murders, that defendant had failed to establish a connection, and that the notion the murders were connected was based on pure speculation. Moreover, the trial court ultimately ruled there was no evidence of a connection, which shows the court discounted the expert's opinion in this regard.

Defendant cites cases from the Ninth Circuit Court of Appeals where that court concluded that defendants were deprived of their constitutional right to present defenses, but none helps him. In each case, the proffered evidence passed the threshold of being relevant and probative—a threshold not met in the case before us. These federal cases turned on questions such as the trustworthiness of hearsay evidence and whether evidentiary error was harmless.

In Cudjo v. Ayers (9th Cir. 2012) 698 F.3d 752, the proffered evidence was a witness who would have testified he had a conversation with a third party who confessed to committing the crime. (Id. at pp. 756-760.) The Ninth Circuit, granting habeas corpus relief, held that the California Supreme Court—which had concluded the trial court erred by precluding the testimony, but held that the error was harmless (People v. Cudjo (1993) 6 Cal.4th 585)—erred in applying the lower standard of state-law harmless error, rather than the federal standard of prejudice. (Cudjo v. Ayers, at pp. 756-760, 762-763.) In Lunbery v. Hornbeak (9th Cir. 2010) 605 F.3d 754, the California trial court excluded on hearsay grounds testimony that a third person admitted that his partners, rather than the defendant, murdered the victim. (Id. at pp. 761-762.) A panel of this court affirmed the conviction. (Id. at p. 759.) The Ninth Circuit, relying on Chambers, supra, 410 U.S. 284, granted habeas relief, concluding that preclusion of the admission was a violation of the defendant's federal constitutional right to present a defense. (Lunbery, at p. 762.) In Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, the evidence proffered by a defendant charged as an accomplice was that one of the shooters told local and federal authorities that the defendant had nothing to do with the crimes and that defendant had actually tried to talk the shooter out of participating. (Id. at p. 999.) In each of these cases, the third party (or parties) the defendant asserted was culpable either confessed to the crimes or, in the case of Lunbery, was implicated by someone other than the charged defendant who was, at a minimum, an accessory after the fact, and possibly an aider and abettor or a co-conspirator with the killers. (Lunbery, at p. 761.) These cases are obviously inapposite to the instant case, where defendant points to unknown individuals acting on behalf of an unidentified Mexican drug trafficking organization.

In United States v. Stever (9th Cir. 2010) 603 F.3d 747, another case upon which defendant relies, the court addressed a discovery issue. The defendant sought to defend on the ground that the marijuana-growing operation found on an isolated corner of his mother's 400-acre property was not his, but rather the work of one of the Mexican drug trafficking organizations that had recently infiltrated Oregon. (Id. at p. 750.) Defendant sought discovery of reports of Mexican drug trafficking operations involved in growing marijuana, explaining that he had knowledge that the United States Attorney's Office for the District of Oregon was then prosecuting a number of factually similar marijuana cases involving such organizations. (Id. at p. 751.) He asserted that the operations on his mother's property bore several distinctive characteristics of such operations and thus the discovery could buttress the inference that this particular marijuana operation was the work of a Mexican drug trafficking organization. (Id. at pp. 751, 753.) He further asserted that such organizations are secretive and familial and thus unlikely to have involved a local Caucasian in their operations. (Id. at p. 753.) The court held that the defendant had a right to discovery of such reports. (Ibid.) The evidence, if it existed, would tend to show that a Mexican operation planted the marijuana and would tend to make it more probable that the defendant was not involved; thus, there would be an alternate explanation for the marijuana-growing operations that would not entail consent or participation of the defendant. (Ibid.) Denial of the right to discovery of the evidence deprived the defendant of his constitutional right to present a defense. (Id. at pp. 755-757.)

Here, in contrast to the cases cited by defendant, there was no confession by assertedly culpable third parties and no distinctive similar circumstances establishing relevance. Rather, defendant's proffered evidence had no probative value exculpating defendant but instead invited only wild speculation.

We conclude the trial court did not err or abuse its discretion by excluding evidence of the Mexico murder. We therefore need not address defendant's argument that the claimed error prejudiced him.

II. Jury Instruction on Lesser Included Offenses

A. Defendant's Contentions

Defendant maintains the trial court erred in failing to instruct the jury sua sponte on second degree murder and voluntary manslaughter based on a theory of imperfect self- defense as lesser included offenses of first degree murder.¹⁰ Defendant alternatively argues his trial counsel rendered ineffective assistance of counsel by failing to argue a proper factual basis for jury instruction on lesser included offenses. We reject both arguments.

10 In this section of his opening brief, defendant refers to voluntary and involuntary manslaughter somewhat interchangeably, and the subheading addresses the failure to instruct on involuntary manslaughter. "[W]hen a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter." (People v. Blakeley (2000) 23 Cal.4th 82, 91.) In his reply brief, defendant acknowledges that his argument is properly addressed to voluntary manslaughter.

B. Additional Background

During the discussion about what jury instructions to give, the court asked defense counsel, "What, if any, lesser does the defendant request? Just to put it up there." Defense counsel answered, "I suppose the defendant would request second degree and manslaughter. But I'm guessing the Court's going to want to know what the justification is for that." The court said, "That is going to be my question." Defense counsel said, "Well, the second degree -- the reporter is going to put long pause in there. [¶] I don't see much second degree, Judge, to tell you quite candidly. [¶] I mean, this is an identity question. And on the facts -- if the facts are as given, certainly it looks like there was premeditation. [¶] On the manslaughter, there is a lot of evidence of defendant's rather passionate state of mind. But I don't know whether -- assuming it was the defendant who committed these offenses, I don't know whether there's sufficient evidence of heat of passion in that he saw them together and had been smouldering [sic] about this for a long time. Again, that's the prosecution's theory. [¶] I'm prepared to submit it, your Honor."

When asked by the court, the prosecutor said he did not see a factual basis for second degree murder or manslaughter and submitted the matter to the trial court without further argument.

This was followed by:

"THE COURT: Well, let me just put something out there. First of all, I don't think this is a second degree or a manslaughter case based upon the evidence. However, I do think it is appropriate to address the evidence that J.L. had a gun. There's no evidence that it was pulled or anything else, but he had a gun. [¶] Now, with that in mind I would like to hear counsel address again this issue of second degree or manslaughter.

"[Prosecutor]: I don't think it changes my position based on the state of the evidence. There is nothing to indicate that anybody was in fear or the gun was pulled or the gun was moved based on the way it was found. It appeared in his back pocket,¹¹ but I don't see any factual basis for that either.

11 Defendant argues that it significant that the officer testified the gun fell from the back waistband, not the pocket, because defendant supposes a gun in the waistband would be more visible. We do not consider the distinction significant.

"THE COURT: It doesn't change my thinking either. But I do want to be sure that I'm not missing something and you all have this in mind as well.

"[Defense counsel]: What I would prefer to do on that, your Honor, my client is not present, and obviously he's got a big stake in this. I would prefer if I have a few moments to talk to him tomorrow morning before we start. I have my own thoughts on it, but I would like to hear from him. We've talked about the issue broadly, but we never squarely addressed what our request is."

The court deferred the matter to allow counsel and client to confer. The following day, the judge asked what was defendant's "desire" regarding lesser included offenses, which led to this:

"[Defense counsel]: We understand the Court's position and essentially accede to it.

"THE COURT: Well, let me get something a little more particular than that. [¶] Let me just simply say that, based upon the discussions yesterday and my own evaluation of the record in this case, it appears that the entirety of the issue before the jury is, who committed the murders and not the degree of the offense committed. But I do want to be sure that the defense is not requesting that the Court provide alternative verdicts and instructions relating thereto for second-degree murder and/or man -- voluntary manslaughter. That the defendant is satisfied with an up or down on the first-degree murder based upon the theory -- defense's theory that they simply have the wrong person. Does that fit

"[Defense counsel]: Your Honor, my thoughts on the matter were voiced yesterday on the record. And quite candidly, this is an identity case. In our view it's an identity case. And unless the Court sees something that I don't see, it appears to me that -- that I've made all my arguments for any lessers and I'm prepared to submit. [¶] In other words, I'm -- I'm not holding anything in abeyance in terms of feeling that there's a basis for a lesser that I haven't expressed. So we're prepared to submit it on our discussions yesterday and this morning."

The prosecutor submitted the matter.

The trial court ruled: "Based upon the record yesterday and the record this morning and the discussion that [defense counsel] had with [defendant] just before the Court took this matter up, I am satisfied that an appropriate verdict form is up or down on the first-degree murder, and that there is no basis, there's no evidence before the jury from which they could infer a basis to consider or return verdicts on anything less than first-degree murder. [¶] The facts are undisputed that somebody approached the two victims in this case and gunned them down. The question is entirely whether it was [defendant] or someone else."

C. Analysis

1. Sua Sponte Duty Contention

Defendant now argues the trial court had a sua sponte duty to instruct on second degree murder and voluntary manslaughter as lesser included offenses. We disagree.

A trial court has a duty sua sponte to instruct the jury on all theories of lesser included offenses "which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "For a sua sponte instruction to be required, . . . there must be 'evidence that a reasonable jury could find persuasive' on the point." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1455.) Our review is de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

Defendant suggests that consideration of the factors reviewing courts use to determine the sufficiency of evidence of deliberation and premeditation—planning, motive, and manner of killing¹²—reveals that those elements were not a foregone conclusion here. We disagree. There was no substantial evidence that the killings were anything less than first degree murder.

12 Courts look to evidence of planning, motive, and manner of killing as guidelines to assess the sufficiency of evidence establishing deliberation and premeditation. (See generally People v. Sandoval (2015) 62 Cal.4th 394, 424, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27.)

Regarding planning, the evidence established that defendant had previously threatened to kill Y.P. on multiple occasions and recently threatened J.L. in the note found in Y.P.'s purse. Defendant had a habit of stalking Y.P. in the very parking lot where the shooting took place, which suggests he knew of her routine to leave work with J.L. at that time of day. Defendant arrived on the scene armed with a loaded firearm, immediately gunned down the two victims after they left the salon, and then immediately fled the scene. He wore a hoodie over his head to conceal his identity.

As for motive, the evidence clearly established that defendant, the spurned lover, was motivated to kill by longstanding jealousy. As he had proclaimed in the past, if he could not have Y.P., nobody would. Moreover, defendant had previously demonstrated his desire to control not only Y.P., but also his first wife.

Regarding the manner of killing, we conclude that the evidence clearly shows the victims were ambushed. Y.P.'s immediate cries and J.L.'s failure to draw his own weapon show that the couple was surprised when accosted by defendant. The number and lethal placement of the shots defendant fired demonstrated his deliberate, premeditated plan to end the victims' lives. Y.P. died from multiple gunshot wounds to the chest. There were entry wounds to the right breast area of her chest and one to the left breast area. There was a through-and-through wound to her right forearm. J.L. also sustained multiple gunshot wounds. There were entry wounds to the left hand, face, lower abdomen, and lower back. The wound to the hand was inflicted from an intermediate range, several inches to a few feet away. The gunshot wound to the face had a downward trajectory; the bullet traveled through the jaw and neck and went into the chest. The gunshot wound to the back suggested the J.L.'s back was facing the shooter when that bullet was fired.

In our view, consideration of planning, motive, and manner of killing supports no reasonable conclusion other than first degree murder.

Defendant argues that the prosecution's jealousy theory supports second degree murder, because defendant wanted Y.P. back; and if she were dead he could never win her back; and maybe he went there just to talk to her to convince her to take him back (assuming the jury rejected his defense that he was not there); and maybe he was not expecting to see her with her new boyfriend; and maybe he became disheartened and angry; and maybe his anger led to a confrontation, causing Y.P. to scream "Aye"; and maybe J.L. reached for a gun; and maybe defendant saw J.L. reach for a gun; and maybe seeing J.L. reach for a gun led defendant to pull out and fire his own gun multiple times in a rash, impulsive manner. But aside from there being no evidence to support these hypothetical events, defendant does not explain how he would have had time to reach for and pull out his own gun and fire it multiple times before J.L. could complete his move for his own gun.

Defendant suggests the cold calculation of a cold-blooded killer is inconsistent with the evidence portraying him as a hothead—the sort of person who confronts and threatens people with angry bluster and bravado but "usually" leaves without following through on his threats. However, being a hothead does not reduce first degree murder to second degree murder. A hothead can engage in the reflection needed for premeditation and deliberation. And the test for first degree murder is not the duration of time so much as it is the extent of the reflection. (People v. Solomon (2010) 49 Cal.4th 792, 812-813.) "The speed by which such reflection takes place may not be as short as the flicker or twinkling of an eye." (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1114.) But even a frenzied attack can be preceded by sufficient reflection for first degree murder. (People v. Perez (1992) 2 Cal.4th 1117, 1122 [defendant's entering house and obtaining steak knife from the kitchen was properly indicative of planning activity for first degree murder, even where the knife attack was brutal and frenzied].) Here, all the evidence indicated defendant had been simmering in jealousy for a long time and even threatened to kill Y.P. and people who interfered with him. There was no evidence that defendant was surprised to see J.L. with Y.P. To the contrary, the evidence showed that defendant knew J.L. and Y.P. were dating and he wrote a note threatening to hurt J.L. Defendant kept tabs on Y.P. by hanging around the salon parking lot and therefore would know J.L. was in the habit of picking up Y.P. after work. The evidence indicates that defendant skulked nearby in an adjacent parking lot until Y.P.'s quitting time, came at the couple with a gun drawn, causing Y.P. to scream, and fired multiple gunshots.

Insofar as defendant suggests the evidence would support a voluntary manslaughter verdict based on imperfect self-defense, we disagree because that theory requires an actual belief in a threat of imminent harm. There is no evidence defendant actually feared imminent harm, since his theory of the case was that he was not even there. (See People v. Battle (2011) 198 Cal.App.4th 50, 74 [trial court did not err in omitting lesser-included-offense instruction on voluntary manslaughter based on imperfect self-defense, because the evidence was that the defendant did not actually fear imminent harm].) Indeed, given the evidence, it is clear that J.L. was unable to draw his concealed weapon; thus, the shooter would have no reason to fear imminent harm.

We conclude the trial court had no sua sponte duty to instruct on lesser-included offenses.

2. Ineffective Assistance of Counsel Claim

For the same reasons that we reject defendant's contention that the trial court had a sua sponte duty to instruct on lesser included offenses, we conclude defendant's trial counsel was not constitutionally remiss in failing to make a frivolous argument that the facts could support such instructions.

To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)

Because the evidence did not support the lesser included offenses, trial counsel competently did not make the argument. Moreover, because of the lack of evidence supporting a finding (1) that the killing was not deliberate and premeditated, or (2) the result of imperfect self-defense, defendant has failed to show prejudice. To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, at p. 112.) Based on the evidence in the record, in our view, it is not even conceivable that a reasonable jury could have concluded that this planned ambush killing of multiple victims was not deliberate and premeditated or that defendant acted based on imperfect self-defense.

We reject defendant's claim of ineffective assistance of counsel.

III. CALCRIM No. 852

A. Defendant's Contention

Defendant argues CALCRIM No. 852, concerning uncharged acts of domestic violence, includes an irrational permissive inference that violates due process given the facts of this case. In reply to the People's assertion that this contention is a roundabout attack on admissibility of the evidence which is forfeited for failure to raise it in the trial court, defendant's reply brief insists he is not challenging admissibility of the evidence. We address defendant's contention on the merits and conclude that it is without merit.

B. Additional Background

The trial court allowed the evidence of uncharged domestic violence under Evidence Code section 1109, subdivision (a)(1), which provides that, except as provided in subdivisions not material to this case, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 [character evidence is generally inadmissible to prove conduct] if the evidence is not inadmissible pursuant to Section 352."

The defense filed written responses to the jury instructions the court intended to give. Regarding CALCRIM No. 852, defense counsel stated, "We should discuss Monday. A few thoughts: 1) preponderance standard should be modified; 2) the 'emancipated minor' paragraph is unnecessary; and 3) the concluding paragraph should refer to count 1."

In discussing jury instructions, defendant argued the jury would be confused by the preponderance standard of CALCRIM Nos. 375 and 852. The court directed the lawyers to come back with proposed modifications. The prosecutor later informed the court that, "after communicating with [defense counsel], it's both our position that we withdraw [CALCRIM No.] 375 and just proceed with [CALCRIM No.] 852, if the Court is agreeable to that." Defense counsel confirmed he did not want CALCRIM No. 375, which addresses Evidence Code section 1101, subdivision (b), theories of admissibility.¹³ The prosecutor noted CALCRIM No. 852 had not yet been modified, so the court instructed the lawyers to do so.

13 Evidence Code section 1101, subdivision (b), provides in pertinent part: "evidence that a person committed a crime, civil wrong, or other act [is not inadmissible] when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."

The trial court ultimately instructed the jury with the following modified version of CALCRIM No. 852: "The People presented evidence that the defendant committed domestic violence that was not charged in this case," defining "domestic violence," "abuse," and "cohabitants" for the jury, and continuing: "You may consider this evidence only if the People have proved beyond a reasonable doubt that the defendant in fact committed the uncharged domestic violence. If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit Count One as charged here. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count One. The People must still prove each charge and allegation beyond a reasonable doubt."

C. Analysis

1. Forfeiture and Invited Error

The People argue defendant's appellate challenge to the instruction is precluded by invited error or forfeiture.

The doctrine of invited error bars a defendant from challenging instructions he requested as a tactical choice. (People v. Gonzales (2011) 51 Cal.4th 894, 938.) The People suggest defendant, by submitting the modification requested by the court, made a request for the instruction. We disagree. While trial counsel made an apparent tactical decision to forgo instruction with CALCRIM No. 375 and joined in the submission of the modified CALCRIM No. 852, the failure to detect the flaw in CALCRIM No. 852 appellate counsel perceives does not demonstrate a tactical intent to induce the purported error now claimed. (People v. Moore (2011) 51 Cal.4th 386, 410.) We cannot apply the invited error doctrine here.

As to forfeiture for failure to raise the objection in the trial court, defendant relies on section 1259. Section 1259 provides in pertinent part: "The appellate court may ... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." Constitutional challenges to jury instructions have been allowed for the first time on appeal. (People v. Famalaro (2011) 52 Cal.4th 1, 36-37 [court addressed, but rejected on the merits, a claim first made on appeal that instruction allowing jury to infer consciousness of guilt from concealment of evidence created a constitutionally impermissible inference of first degree murder]; People v. Cleveland (2004) 32 Cal.4th 704, 750 [argument that motive instruction shifted the burden of proof was cognizable on appeal because, if correct, the error affected substantial rights].) " ' "[W]hether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." ' " (People v. Jimenez (2016) 246 Cal.App.4th 726, 730 (Jimenez).)

We conclude that CALCRIM No. 852 allows for a permissive inference not implicating the constitutionally compelled reasonable doubt standard, and given the facts here, defendant's contention fails on its merits.

2. Unconstitutional Permissive Inference Contention

"A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." (Francis v. Franklin (1985) 471 U.S. 307, 314 (Francis), fn. omitted, citing County Court of Ulster County, N.Y. v. Allen (1979) 442 U.S. 140, 157 (Ulster).) The party challenging the instruction must demonstrate its invalidity as applied to him. (Ulster, supra, 442 U.S. at p. 157.) Because the permissive inference "leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination." (Ibid.) Each case is to be decided on its own facts. (Id. at pp. 162-163.)

In People v. Mendoza (2000) 24 Cal.4th 130, superseded by statute on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1, 62-63 and footnote 8, the defendant contended that the CALJIC flight instruction created an unconstitutional permissive inference because it could not be said "with ' "substantial assurance that the presumed fact [(the defendant's consciousness of guilt)] is more likely than not to flow from the provided fact [(the defendant's flight)] on which it is made to depend." ' " (Mendoza, at p. 179.) Defendant's argument here is based on the "more likely than not" language addressed in Mendoza. Defendant argues, for example, that "[i]t cannot be said with substantial assurance that the inferred fact ([defendant] is the perpetrator in this case) is more likely than not to flow from the proved fact (propensity to commit domestic violence) on which it is made to depend." In discussing this language, the Mendoza court stated that federal due process requires "a relationship between the permissively inferred fact and the proven fact on which it depends. The standard for evaluating the relationship has been variously described as 'rational connection,' 'more likely than not,' and 'reasonable doubt.' [Citation.] These seemingly disparate statements of the due process standard differ in language, not substance. Although these 'standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance.' " (Id. at p. 180.) The Mendoza court went on to clarify: " 'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " (Ibid., italics added, citing Francis, supra, 471 U.S. at pp. 314-315 & Ulster, supra, 442 U.S. at pp. 157-163.) This court has recently recognized and applied this test for permissible inferences. (People v. McGehee (2016) 246 Cal.App.4th 1190, 1205; Jimenez, supra, 246 Cal.App.4th at p. 735; People v. Wiidanen (2011) 201 Cal.App.4th 526, 533.)

Here, the modified CALCRIM No. 852 required the prosecution to prove the past acts of domestic violence beyond a reasonable doubt. And, as defendant acknowledges, the instruction did not allow the jury to convict him of murder based on the prior domestic violence alone. The jury was instructed that the prior domestic violence evidence "is not sufficient by itself to prove that the defendant is guilty of Count One. The People must still prove each charge and allegation beyond a reasonable doubt."

Defendant's argument hinges on his view that his prior commission of non-lethal domestic violence does not make it more likely than not that he has a propensity to commit first degree murder or that he was the one who committed the murder of Y.P. According to defendant, "[t]he inference was irrational because the prior offenses did not involve the taking of a life, no[r] did they involve the kind of cold, calculated decision-making that is required for deliberate and premeditated murder." His argument depends to some extent on generalizations about human behavior, whereas a challenge to a permissive inference is to be decided on the facts of the particular case. (Ulster, supra, 442 U.S. at pp. 162-163.) Thus, our focus is on the facts of this case.¹⁴ In view of those facts, we conclude that there was a rational connection between the proven fact (defendant's prior acts of domestic violence) and the permissive inference (defendant was disposed or inclined to commit domestic violence and, based on that, he was likely to commit and did commit the charged crime of first degree murder). The permissive inference here was one that reason and common sense could justify. (See Jimenez, supra, 246 Cal.App.4th at p. 735.)

14 As indicated, defendant expressly states he is not challenging admissibility of the evidence. He thus feels free to distinguish cases discussing the high relevance of prior domestic violence in upholding admissibility of such evidence, while relying on cases discussing insufficient relevance in holding the evidence inadmissible. We consider the legislative and judicial acknowledgement of the potential for high relevance of such evidence and conclude the permissive inference was strong under the facts of this case.

We note that " '[t]he legislative history of [Evidence Code section 1109] recognizes the special nature of domestic violence crime, as follows: "The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity." . . . (Assem. Com. [ ] on Public Safety[, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996,] pp. 3-4.)' " (People v. Brown (2011) 192 Cal.App.4th 1222, 1235-1236.) "[M]urder is the ultimate form of domestic violence." (Id. at p. 1237.) In our view, it is reasonable to infer that a person who commits acts of domestic violence would commit the ultimate form of domestic violence,¹⁵ and this is particularly true when the prior acts of violence were against the murder victim.

15 The court in People v. Younger (2000) 84 Cal.App.4th 1360, reversed a murder conviction where the jury was told it could use prior domestic violence to infer the defendant murdered his ex-girlfriend, but the problem in that case has since been fixed by revision of the jury instruction to specify that the prior acts evidence is not sufficient in itself to prove the charged offense. (Id. at p. 1380, fn. 2.)

We note that this court has previously rejected a similar claim of unconstitutional permissive inference in connection with CALJIC No. 2.50.02, which addresses prior domestic violence acts and articulates an inference similar to that in CALCRIM No. 852. (People v. Pescador (2004) 119 Cal.App.4th 252, 258.) Similar to defendant here, the defendant in Pescador argued that the instruction was unconstitutional because the inferred facts, a disposition to commit crimes of domestic violence and likelihood that he did commit the charged offense, do not flow " 'more likely than not' " from the proved fact, the prior incidents of domestic violence. (Id. at pp. 258-259.) Based on an analysis, turning on the facts of that case, the Pescador court concluded: "CALJIC No. 2.50.02 . . . was neither illogical nor a violation of defendant's due process rights. We can say ' "with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." ' " (Pescador, at p. 260, quoting Ulster, supra, 442 U.S. at p. 166, fn. 28.)

Here, in light of the facts in this case, CALCRIM No. 852 did not violate due process, because reason and common sense justified the suggested conclusion that defendant's physical abuse of Y.P. and his ex-wife in the past, which included multiple threats to kill both of them, tended to show he had a propensity to be deliberately violent with these two women. And based on that conclusion, together with the other evidence of guilt, the jury could easily conclude it was more likely than not that defendant was indeed the one who committed the crime. The other evidence included: defendant's display of continuing anger and jealousy by staking out the salon where Y.P. worked; his threatening note to her on the napkin to coerce her to break up with J.L.;¹⁶ he was seen moving toward the crime scene shortly before the shooting; and the bullets and cartridge casings at the murder scene came from the gun found on the ground in Santa Rosa as defendant ran from the Santa Rosa police.

16 In his argument about lesser-included offenses, defendant suggests the napkin note shows he wanted Y.P. back, and therefore he was not likely to kill her, because if she were dead, he could not get her back. However, the evidence showed defendant was not getting her back anyway, because she continued her routine of leaving the salon with J.L.

Defendant divides his appellate argument into three subheadings, arguing unconstitutional permissive inferences of (1) identity, (2) deliberation and premeditation, and (3) malice aforethought.

As to identity, he argues there are six million victims of domestic violence annually in the United States, and therefore there are six million domestic abusers disposed to commit domestic violence, but "[t]he odds that any one of them would be guilty of any particular crime would be one in several million. Those odds do not provide substantial assurance that the inferred fact (the defendant is the perpetrator in this case) is more likely than not to flow from the proved fact (the defendant has a propensity to commit domestic violence) on which it is made to depend." This argument fails because it ignores the facts of this case, recounted ante.¹⁷

17 We also note that just because there are six million domestic violence victims does not mean there are six million domestic violence perpetrators. As in this case, abusers may have multiple victims.

Additionally, the argument is particularly weak as to the evidence of prior domestic violence against Y.P. Where a defendant is charged with a violent crime against a victim with whom he has had a previous relationship, prior assaults upon the same victim tend to prove a motive to murder that victim. (People v. Zack (1986) 184 Cal.App.3d 409, 415 (Zack).) Numerous courts have recognized that evidence of jealousy, quarrels, antagonism, enmity, or marital discord between a defendant and the victim of a violent offense is proof of motive to commit the offense. (People v. Kovacich (2011) 201 Cal.App.4th 863, 893; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613; Zack, at p. 413; People v. Daniels (1971) 16 Cal.App.3d 36, 46.) Evidence having a tendency to prove motive on the part of a defendant to commit a crime also tends to prove the identity of the slayer. (Zack, at p. 414.) As the Zack court noted, this rule is based on "common sense, experience, and logic." (Id. at p. 415.)

As to premeditation, defendant argues a propensity to commit domestic violence does not support an inference of propensity to commit deliberate and premeditated murder. Again reverting to generalizations, defendant argues domestic violence is often the product of hot temper or impulse, whereas premeditated murder is deliberate and cold-blooded. He argues, "The fact that a person has a history of acting violently in a rash, unthinking, and hot-headed manner toward his spouse does not support the inference that the person is prone to . . . premeditate the cold-blooded murder of his spouse."

First, as noted in Zack, supra, 184 Cal.App.3d 409, just as evidence of prior domestic violence involving the same victim tends to prove motive and identity, it also tends to prove the perpetrator's state of mind. (Id. at p. 415 [specifically identifying intent].) Here, motivated by jealousy, defendant threatened to kill Y.P. and his former wife on multiple occasions. Common sense, experience, and logic support an inference that he would think about killing Y.P. and make good on that threat some day.

Second, even though common sense and reason support the use of prior acts of domestic violence against the same victim to infer a defendant's state of mind, neither the instructions nor counsels' arguments suggested that the jury use the prior domestic violence to infer deliberation and premeditation. The jury was instructed that the domestic violence evidence alone was insufficient to prove the charged offense, and the prosecution had the burden to prove all elements beyond a reasonable doubt. In closing argument, the prosecutor only argued motive, telling the jury: "in regard to domestic violence, am I understanding [sic]¹⁸ that because he beat [Y.P.] before that means he killed her. Absolutely not. I'm saying he killed [Y.P.] The fact that he had beat her in those relationships gives you a little insight in regards to who he is, in regards to why he did what he did." (Italics added.)

18 The People view the word "understanding" as an obvious error in transcription because it makes no sense, and the prosecutor likely said "arguing." Defendant replies the transcript is presumed correct (People v. Kronemyer (1987) 189 Cal.App.3d 314, 356), and, since the transcript makes no sense, the jury must have been confused. However, the presumption is not a conclusive presumption, and given the context, we deem the People's view to be the more reasonable one.

Defendant argues the prosecutor's remark in closing argument was part of a "rambling and unfocused portion of the rebuttal summation" and did not neutralize what he perceives as an "irrational permissive inference instruction." However, defendant has nevertheless failed to show that the instruction invited an unconstitutional permissive inference.

As to defendant's third subheading, permissive inference regarding malice aforethought, defendant asserts that the fact he committed domestic violence in the past does not support an inference that he actually harbored malice or did not act in the heat of passion or based on a sudden quarrel. Again, no one made that argument to the jury. However, even if the argument had been made, it would not convert the inference into one that is constitutionally infirm. Intent to kill can be inferred from past domestic violence against the same victim. (See Zack, supra, 184 Cal.App.3d at p. 415.)

Lastly, we note that any instructional error was harmless in light of the overwhelming evidence against defendant, even under the standard for determining prejudice resulting from constitutional error in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. Since Chapman, our high court has " 'repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' " (People v. Geier (2007) 41 Cal.4th 555, 608 (Geier).) "The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (Ibid.; People v. Livingston (2012) 53 Cal.4th 1145, 1159.) To determine whether the People have satisfied their burden of proving the error was harmless beyond a reasonable doubt, "we examine the entire record and must reverse if there is a ' " 'reasonable probability' " ' that the error contributed to the verdict." (People v. Reese (2017) 2 Cal.5th 660, 671, citing People v. Aranda (2012) 55 Cal.4th 342, 367.) Given the evidence we have recounted ante, it is clear beyond a reasonable doubt that a rational jury would have found defendant guilty absent the purported instructional error. (Geier, at p. 608; Livingston, at p. 1159.) A reasonable jury using common sense, experience, and logic would have concluded that defendant made good on his previous threats to kill Y.P., even without the permissive inference in CALCRIM No. 852.

IV. Motive Instruction

A. Defendant's Contention

Defendant argues the jury instruction on motive was erroneous because it removed motive from the requirement that the prosecution prove guilt beyond a reasonable doubt. Assuming defendant did not forfeit the point by failing to make it in the trial court, we reject the contention.

B. Additional Background

The trial court instructed the jury with the standard motive instruction in CALCRIM No. 370: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict, you may, however, consider whether defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."

The trial court also instructed the jury that the defendant is presumed innocent and that this presumption requires the prosecution to prove his guilt beyond a reasonable doubt. (CALCRIM No. 220.)

The court also instructed that "a finding of guilt as to any crime may not be based on circumstantial evidence, unless the proved circumstances are not, one,¹⁹ consistent with the theory that the defendant is guilty of the crime; but, two, cannot be reconciled with any other rational conclusion. [¶] . . . [¶] Further, each fact which is essential to a complete set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests, must be proved beyond a reasonable doubt. . . ."

19 The written instruction, labeled "2.01," read in part "are not one (1) . . . ." Both the oral and written instruction are wrong; CALJIC No. 2.01 is worded, "unless the proved circumstances are not only (1) consistent with the theory . . . ." Defendant says this instruction was pursuant to CALCRIM No. 224 but it was not. CALCRIM No. 224 uses different wording. Defendant makes no issue of this point, and we therefore need not consider it.

In closing argument, the prosecutor said, "And that brings us to the motive. And we all know what the motive is. But in this case, I mean, the motive is really spelled out for us. I mean, he did a good job in letting us know what he was about to do. He told everyone what would happen if he felt he was going to lose control of whoever the woman in his life was." Additionally, the prosecutor argued, "And when you look at the motive, the evidence is clear. The defendant has indicated from day one what his motive in this case was." The prosecutor recited the evidence of defendant's threats to kill Y.P. and his ex-wife.

C. Analysis

Our inquiry on review is whether there is a reasonable likelihood that the jury applied the instruction in a way that violated the defendant's constitutional rights. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Although motive is not an element of the crime, " '[m]otive is an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself.' " (People v. Lewis (2001) 26 Cal.4th 334, 370.) Motive can serve as circumstantial evidence that a defendant killed with deliberation and premeditation. (People v. Karis (1988) 46 Cal.3d 612, 636; People v. Walker (2006) 139 Cal.App.4th 782, 796.)

Defendant argues that, when the prosecution relies on circumstantial evidence to prove an ultimate fact, the prosecution must prove beyond a reasonable doubt each fact essential to that conclusion, as the jury was instructed. Yet, according to defendant, the motive instruction improperly exempts motive from that requirement. Defendant argues there is a reasonable likelihood the jury would thus believe that motive is a special form of circumstantial evidence that is exempt from the rule requiring proof beyond a reasonable doubt.

Similar arguments have been repeatedly rejected. " 'The motive instruction did not itself include instructions on the prosecution's burden of proof and the reasonable doubt standard, but it also did not undercut other instructions that correctly informed the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt.' " (Kelly, supra, 42 Cal.4th at p. 792; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1094; People v. Wilson (2008) 43 Cal.4th 1, 22; People v. Howard (2008) 42 Cal.4th 1000, 1024.)

Defendant attempts to diminish those authorities by arguing they did not involve CALCRIM NO. 370, but rather its predecessor, CALJIC No. 2.51. Defendant maintains the two versions are materially different, because CALJIC No. 2.51²⁰ said motive was "not an element of the crime charged," whereas CALCRIM No. 370 says, "[t]he People are not required to prove that the defendant had a motive." He asserts that CALCRIM No. 370 is "untrue," implying that the prosecution is required to prove motive. We disagree. The prosecution is not required to prove motive. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017 ["Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish"].)

20 CALJIC No. 2.51 provides: "Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty."

However, while the prosecution is not required to prove a motive, if it does, the motive must be established beyond a reasonable doubt before the jury can consider it just like any other circumstantial evidence. CALCRIM No. 370 does not indicate otherwise; it cannot reasonably be read to mean that, if the jury is considering motive as circumstantial evidence of guilt, the motive evidence need not be proved beyond a reasonable doubt. As noted, the circumstantial evidence instruction, told the jurors that "each fact which is essential to a complete set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests, must be proved beyond a reasonable doubt." Motive and the inferences to be drawn therefrom are not exempt from the circumstantial evidence instruction. Indeed, CALCRIM No. 370 instructs on motive, not the burden of proof. We presume jurors are capable of correlating and understanding the jury instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, we conclude there is no reasonable likelihood that the jury would have understood the language of CALCRIM No. 370 to mean that motive is some special form of circumstantial evidence exempt from the rule requiring proof beyond a reasonable doubt.

Defendant cites authority standing for the proposition that, where two instructions are inconsistent, a jury is more likely to follow the more specific instruction over the more general instruction, and so the jury is likely to follow a specific instruction misstating the burden of proof rather than a general instruction on the burden of proof. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 878; Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1388, fn. 8; Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395.) However, as we have noted, the motive instruction did not state any burden of proof. Consequently, it was not inconsistent with the general instructions on circumstantial evidence.

We conclude there was no instructional error.

V. Jail Classification and Booking Fees

A. Defendant's Contention

Defendant argues the Sacramento County trial court erred in imposing a main jail booking fee of $242.29 and a main jail classification fee of $27.22 under Government Code section 29550.2,²¹ because (1) the fees were unauthorized, and (2) there is no substantial evidence of his ability to pay. The Attorney General agrees with defendant that the fees were unauthorized and should be struck. We agree with both parties that the fee was unauthorized.²²

21 Government Code section 29550.2 provides in pertinent part: "(a) Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in [Government Code] Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. . . . [¶] . . . [¶] (c) As used in this section, 'actual administrative costs' include only those costs for functions that are performed in order to receive an arrestee into a county detention facility. Operating expenses of the county jail facility including capital costs and those costs involved in the housing, feeding, and care of inmates shall not be included in calculating 'actual administrative costs.' 'Actual administrative costs' may include any one or more of the following as related to receiving an arrestee into the county detention facility: [¶] (1) The searching, wristbanding, bathing, clothing, fingerprinting, photographing, and medical and mental screening of an arrestee. [¶] (2) Document preparation, retrieval, updating, filing, and court scheduling related to receiving an arrestee into the detention facility. [¶] (3) Warrant service, processing, and detainer. [¶] (4) Inventory of an arrestee's money and creation of cash accounts. [¶] (5) Inventory and storage of an arrestee's property. [¶] (6) Inventory, laundry, and storage of an arrestee's clothing. [¶] (7) The classification of an arrestee. [¶] (8) The direct costs of automated services utilized in paragraphs (1) to (7), inclusive. [¶] (9) Unit management and supervision of the detention function as related to paragraphs (1) to (8), inclusive. [¶] (d) It is the Legislature's intent in providing the definition of 'actual administrative costs' for purposes of this section that this definition be used in determining the fees for the governmental entities referenced in subdivision (a) only. In interpreting the phrases 'actual administrative costs,' 'criminal justice administration fee,' 'booking,' or 'otherwise processing' in [Government Code] Section 29550 or 29550.1, it is the further intent of the Legislature that the courts shall not look to this section for guidance on what the Legislature may have intended when it enacted those sections." (Italics added.)

22 Because we conclude the fees are unauthorized, we need not address defendant's forfeited contention concerning the insufficiency of evidence of his ability to pay. (See People v. McCullough (2013) 56 Cal.4th 589, 592-593.)

B. Additional Background

After his arrest in Sonoma County, defendant was booked into the Sonoma County Jail. He was subsequently convicted of crimes committed there and sentenced to 14 years in state prison. The Sacramento County Superior Court issued an order to the warden at High Desert State Prison to produce defendant to appear at arraignment on the instant case. Thereafter, defendant was transferred to the Sacramento County Jail and appeared for arraignment in the Sacramento County Superior Court on the charges in this case.

After trial in this case, the Sacramento County Probation Department recommended defendant be ordered to pay the main jail booking and classification fee pursuant to Government Code section 29550.2. At sentencing, the trial court imposed both fees.

C. Analysis

Defendant's failure to raise this point in the trial court does not forfeit the issue, because a sentencing matter unauthorized by law may be corrected on appeal despite failure to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.)

Government Code section 29550.2 applies to people who are "booked into a county jail pursuant to any arrest." "An arrest is taking a person into custody, in a case and in the manner authorized by law." (§ 834.) Because defendant was already in custody, he was not taken into custody when he was transferred to the Sacramento County Jail. (See People v. Hill (1992) 3 Cal.4th 959, 979 [transfer from jail to police headquarters for interrogation did not constitute arrest because the defendant was already in custody], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, defendant was not an arrestee. Rather, he was a sentenced state prison inmate when he was transferred. "When a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities." (People v. Johnson (2004) 32 Cal.4th 260, 267 [inmate continues to earn sentence credit when temporarily away from prison for court appearances].)

The booking and classification fees were unauthorized.

VI. Sentences on Firearm Enhancement

Our review of the record reveals a sentencing error related to the two firearm enhancements. The trial court imposed determinate term sentences of 25 years on each of the section 12022.53, subdivision (d), firearm enhancements. Section 12022.53, subdivision (d), provides that the sentence for that enhancement is "an additional and consecutive term of imprisonment in the state prison for 25 years to life." This provision applies even when the underlying offense is punishable by death or life imprisonment without the possibility of parole. (People v. Shabazz (2006) 38 Cal.4th 55, 69.) Thus, the sentence imposed by the trial court was unauthorized and must be corrected.

DISPOSITION

The main jail booking and classification fees imposed under Government Code section 29550.2 are struck. The determinate term sentences of 25 years imposed on the section 12022.53, subdivision (d), firearm enhancements are vacated and consecutive sentences of 25 years to life are imposed on each enhancement. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

s/ MURRAY, J. We concur: s/MAURO, Acting P. J. s/HOCH, J.