Opinion
E072573
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT SIMS, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV18002149) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler, Judge. Affirmed with directions. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert Sims was convicted of second degree murder. He contends on appeal that the jury instructions regarding perfect and imperfect self-defense were prejudicially deficient, that a one-year prior prison enhancement should be stricken under Senate Bill No. 136 (Sen. Bill 136) (Stats. 2019, ch. 590, § 1), and that Dueñas error occurred (see People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)). The People concede that the one-year prison prior enhancement should be stricken, and we agree. We therefore vacate the sentence, order the one-year prison prior enhancement stricken pursuant to Sen. Bill 136, and remand the matter for resentencing. We do not reach the merits of Sims's asserted Dueñas error, as he may raise that issue in the first instance on remand. In all other respects, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
According to Sims's trial testimony, Madis Tolentino, Sims's girlfriend, swung at Sims with a knife some moments after he told her he was ending their relationship. After telling Tolentino his "heart" was "somewhere else", Sims went to the restroom. He then saw Tolentino in his peripheral vision. Sims turned and saw that she had a knife, which she began swinging at him. What happened next was a "blur," but Sims recalled strangling her by the neck, ultimately killing her.
Sims testified that seeing Tolentino swing a knife at him "triggered" him. Sims had spent over 13 years in prison, and during that time he stated that he witnessed "at least 30 or more" stabbings, had a knife held up to his throat, was cut in the leg during a riot, and once witnessed another inmate get his throat cut in front of him. Sims described prison as "like a war zone" and that he had to "always be ready" because "the majority of people, if not all of them, have knives."
Following the killing, Sims took a car belonging to Tolentino's son and began driving. Tolentino's body was discovered in her bathtub the following day by her daughter and the daughter's boyfriend. Sims was apprehended in Utah two days after the killing.
The jury convicted Sims of second degree murder (Pen. Code, § 187, subd. (a); all undesignated statutory references are to the Penal Code) as well as felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). The jury acquitted Sims on a count of felony corporal injury on a former girlfriend (§ 273.5, subd. (a)), which was based on a separate incident not involving Tolentino. The People alleged, and Sims admitted, two prior strike convictions, two prior serious felony convictions, and one prior prison term allegation. The trial court sentenced Sims to a total term of 56 years to life on the murder charge, comprising of 45 years to life for the underlying offense (i.e., triple the minimum term because of the two prior strike convictions (§§ 190, subd. (a), 1170.12, subd. (c)(2)(A)(i))), 10 years for the two prior serious felony enhancements (§ 667, subd. (a)(1)), and one year for the prior prison enhancement (§ 667.5, subd. (b)). The trial court also imposed a lesser, concurrent sentence of two years for the unlawful driving or taking of a vehicle charge, which it doubled to four years given the prior strikes and the fact that the count was not for a serious or violent felony (§ 667, subd. (e)(1), (2)(C)), and both imposed and struck the one-year prior prison enhancement on the count. In addition, among other fines and fees, the trial court imposed court operations assessments of $40 on each count (§ 1465.8), conviction assessments of $30 on each count (Gov. Code, § 70373), and a restitution fine of $300 (§ 1202.4, subd. (b)) for a total of $440.
The trial court stated that for "the enhancement under [section] 667.5(b), I'm imposing the one-year, but strike the enhancement."
II. ANALYSIS
A. Jury Instructions on Self-Defense
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey).)
The jury was instructed on both perfect and imperfect self-defense. As relevant here, regarding perfect self-defense, the jury was told: "When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed." (See CALCRIM No. 505.) Regarding imperfect self-defense, the jury was told: "In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant." (See CALCRIM No. 571.)
Sims first contends that these instructions did not clearly communicate to the jury that it could consider his traumatic prison experiences in considering either actual belief or reasonableness. Because nothing in the instructions restated above expressly precluded the jury from considering those experiences, and because the instructions' direction to "consider all the circumstances as they were known and appeared to the defendant" at least arguably allows the jury to consider them, we consider whether the instructions were ambiguous such that the jury likely misapplied those instructions on this record by not considering those experiences.
We assume, for the sake of argument, that the jury would have been entitled as a matter of law to consider Sims's prison experiences in considering both actual belief and reasonableness. There is no real dispute that the jury can consider Sims's prison experiences in evaluating actual belief. "A defendant claiming self-defense or imperfect self-defense is required to 'prove his own frame of mind.' [Citations.] . . . In other words, the jury [is] to evaluate [a] defendant's belief in the need to use lethal force from his perspective. Evidence that would assist the jury in evaluating the situation from [a] defendant's perspective [is] thus relevant." (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 745, italics omitted (Sotelo-Urena).) Less certain is whether Sim's prison experiences can inform on reasonableness. In Humphrey, our Supreme Court held that "evidence of battered women's syndrome is generally relevant to the reasonableness . . . of [a] defendant's belief in the need to defend." (Humphrey, supra, 13 Cal.4th at pp. 1088-1089.) But it is debatable whether Humphrey's holding extends beyond its specific circumstances. (Compare Sotelo-Urena, supra, at p. 751 [extending Humphrey to evidence of "chronic homelessness" in holding that "expert testimony explaining why a chronically homeless individual would experience a heightened fear of aggression would assist a jury in weighing the reasonableness of defendant's belief of imminent harm"] with People v. Jefferson (2004) 119 Cal.App.4th 508, 519-520 ["Defendant erroneously claims Humphrey required the admission here of his mental condition as part of establishing the reasonable person standard."].) However, even if we read Humphrey broadly, Sims's contention would still fail for the reasons stated below.
"In reviewing an ambiguous instruction, we inquire whether there is a reasonable likelihood that the jury misunderstood or misapplied the instruction in a manner that violates the Constitution. [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 906; see also Boyde v. California (1990) 494 U.S. 370, 380 [test for when an "instruction is ambiguous and therefore subject to an erroneous interpretation" "is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence"].) Such a review is de novo (People v. Posey (2004) 32 Cal.4th 193, 218), and "[i]t is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record" (Estelle v. McGuire (1991) 502 U.S. 62, 72).
Because a defendant's substantial rights are affected when an instruction precludes a jury from considering relevant admitted evidence, the fact that Sims did not raise these objections before the trial court does not matter. (See People v. Townsel (2016) 63 Cal.4th 25, 59-60.) This is notwithstanding the "general rule . . . that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given." (People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The record here discloses no reasonable likelihood that the jury was prevented from considering Sims's prison experiences. For one, much of Sims's trial testimony focused on those experiences and the effect they have on him. In addition to the incidents of prison violence described above, this included testimony about an incident where Sims was triggered in a grocery store by someone standing too close to him. If the jury believed it was precluded from considering what he disclosed on this topic, then the presentation of such "'favorable testimony'" would have been "transformed" into a "'virtual charade.'" (Boyde v. California, supra, 494 U.S. at p. 383.)
"[W]hen I got out of prison, I remember specifically—standing in line—within my first couple weeks, standing in the grocery line of the grocery store and somebody was standing too close. I remember kind of just looking to my side at them. I guess, responding the way I would have in prison. Like, that's kind of look at somebody like that. Kind of, hey, back up, you know. Take it as a threat. I'm going to take it as a threat. I did. And, again, how twisted it was in my mind. Now, I look back at it, finally, I told the man, Hey, man, you want to back up, you know. And as quickly—when I said that, standing in line, it caught my pride at the time. That wasn't right. I guess I realized, like, this person didn't mean no harm. I said, excuse me, I'm sorry about that. I didn't give him an explanation. I was kind of embarrassed and left, you know."
Sims's closing argument, moreover, repeatedly emphasized the importance of his prison experiences to his defense. His trial counsel argued, for instance, that his "state of mind" was "[t]he entire issue in this case," and that "[w]hat we have here is somebody who we know for 13 years was in a traumatic environment, who said repeatedly he was attacked with a knife." Counsel further stated, "Mr. Sims has experience of prior trauma. Okay. It matters because what we experience in our past affects our mindset for something that happens in the moment. Someone who never had a knife pulled on them, never seen someone get their throat slit to the point they died and bled out, someone that has never seen people get stabbed would probably have a very different reaction—okay—than Robert. The reality is those experiences cannot be shaken. Those are a part of him, ingrained in him."
Most telling is that Sims even emphasized to the jury what the phrase "reasonable person in a similar situation with similar knowledge" meant: "A reasonable person in a similar situation with similar knowledge. Okay. What does that mean? It means [that] we're looking at someone that's in his shoes. Someone who has that same knowledge[.] 'I've seen knives. I've seen what a knife can do to people. I know they can hit arteries. I know that people can get hurt and people can die.' It's not something he's heard about or read about or watched a documentary on. He had lived it for 13 years. He has a heightened sense of perception of danger. That's that that means. Consider that. Someone who's seen deadly weapons for over 13 years. Period." Thus, Sims not only informed the jury that his state of mind was important, but that it also was relevant in the context of the jury instructions. We find it unlikely that a jury that hears this argument, with no objection from the prosecution, would construe the instructions as precluding an ability to consider Sims's prison experiences. "Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might." (Boyde v. California, supra, 494 U.S. at pp. 380-381.)
Accordingly, on this record, there is no reasonable likelihood that the jury applied the jury instructions in a way that precluded them from considering Sims's prison experiences.
Sims also contends that the trial court erroneously declined to give the following instruction, which is part of CALCRIM No. 505 as an optional, bracketed instruction: "Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person." Although Sims relies on Humphrey and Sotelo-Urena in arguing that this instruction was necessary, both of those cases involved a victim who had harmed or threatened the defendant in the past, a circumstance that distinguishes those cases from the situation here. (See Humphrey, supra, 13 Cal.4th at p. 1077 [victim had threatened to kill defendant the day before]; Sotelo-Urena, supra, 4 Cal.App.5th at p. 738 [victim had "tried to kill" defendant in the past].) Here, there is no evidence that Tolentino had ever previously harmed or threatened to harm Sims—the instruction says someone who has been harmed or threatened by another can take greater self-defense measures "against that person"—so the instruction has no relevance.
To the extent Sims contends that a history of violence justifies greater self-defense measures against everyone, such an instruction would already be encapsulated in CALCRIM No. 505's instruction to "consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed."
B. Prison Prior Enhancement
The parties agree that under section 667.5, subdivision (b) as amended by Sen. Bill 136, Sim's one-year prison prior enhancement should be stricken. We agree. Under section 667.5, subdivision (b) as amended, such enhancements may only be imposed for certain sexually violent offenses, and Sim's prior prison sentence was not for such an offense. Furthermore, although Sen. Bill 136 did not become effective until January 1, 2020, which was after Sims's sentencing, we agree with the parties that the change in law applies retroactively to cases not yet final. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341; In re Estrada (1965) 63 Cal.2d 740, 742.) We therefore strike the one-year prison prior enhancement. We also agree with the parties that the matter should be remanded for resentencing to allow the trial court to restructure the overall sentence within its discretion.
C. Dueñas Error
Relying on Dueñas, Sims contends that the trial court violated his due process rights when it imposed $440 in court operations assessments, conviction assessments, and restitution fines on him without finding that he had a present ability to pay.
Because we remand for resentencing, we need not reach the merits of his arguments here. Sims will have an opportunity to raise such challenges before the trial court on remand.
III. DISPOSITION
The sentence is vacated and the matter is remanded for resentencing. The trial court is directed to strike the one-year prison prior pursuant to Sen. Bill 136, and to resentence defendant. Upon resentencing, the court may consider the full range of options available to it at that time, including defendant's ability to pay any imposed fine, fee, or assessment. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
SLOUGH
J.