Opinion
A150190
11-20-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM STEELE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR933877)
I. INTRODUCTION
William Steele fled from Highway Patrol officers who attempted to stop him for a sobriety check, firing shots at the officers as he sped away. During the subsequent chase, three passengers jumped from Steele's vehicle, one sustaining life-ending injuries. Following a jury trial, Steele was convicted of multiple offenses, including attempted murder of the officers, involuntary manslaughter and false imprisonment.
We address four sets of issues in this appeal. First, Steele contends a sentence enhancement imposed pursuant to Penal Code section 12022.5, subdivision (a) (section 12022.5(a)), for using a firearm in commission of the false imprisonment must be reversed due to insufficiency of the evidence, jury instruction error, and ineffective assistance of counsel. We reject these claims. Second, Steele contends his convictions for evading a peace officer (Veh. Code § 2800.2) and evading a peace officer causing death (Veh. Code § 2800.3) are not supported by substantial evidence. We reverse these convictions because the prosecution failed to present evidence at trial that the officers who attempted to stop Steele were wearing distinctive uniforms. Third, Steele seeks independent review of a finding made by the trial court pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), that there was no discoverable evidence of misconduct in the personnel files of two officers involved in this case. We have conducted that review and affirm the trial court's ruling. Finally, Steele requests a remand so that the trial court can decide whether to exercise its discretion under a recent statutory amendment to strike sentence enhancements imposed pursuant to section 12022.53. We grant that request.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Events of October 18-19, 2013
In October 2013, Davina Delgadillo wanted to sell her Chevy Blazer. Delgadillo's cousin, Jeremy John, told her Steele was interested in buying it. Delgadillo, who lived and worked at the Hopland Rancheria, was familiar with Steele, who was a member of a different tribe, but she did not know him personally. John made plans for himself and Delgadillo to show Steele the car at Steele's home in Clearlake, and he invited his friend Cody Potter along for the ride.
On the evening of October 18, 2013, Delgadillo, John and Potter made the trip to Clearlake. The men smoked marijuana and methamphetamine and drank beer with Steele for a few hours. Eventually, Steele bought Delgadillo's car, paying cash. After the sale was completed, Delgadillo was anxious to return home because she had to work the next day, but the others did not want to leave. Steele tried to convince Delgadillo to stay, then he tried to find her a ride. Ultimately, he decided that he would drive the trio back to the Rancheria in his two-door Chevrolet Tahoe truck. Delgadillo sat in the front passenger seat, John sat behind her, and Potter sat behind Steele.
During the drive back to the Rancheria, Steele swerved as he drove. The first time, John asked if Steele was alright and offered to drive. The second time, Delgadillo offered to drive, but Steele said he was fine. A few minutes later, Steele said "I knew this was going to happen. I knew this was going to happen," and Delgadillo saw that "cops" in the car behind them had activated their lights. John told Steele that everything was going to be fine, suggesting that he would get out of the truck and run to distract the officers' attention from Steele. In response, Steele slowed down as if he was going to stop, but then he just "sped off."
By that time, it was after 2:00 a.m. on the morning of October 19. California Highway Patrol Officers Shane Roach and Glen Thomas were nearing the end of their graveyard shift when they first noticed Steele's "lifted" white Chevy Tahoe with oversized tires, large mud flaps and a very loud exhaust pipe as it headed north on Highway 29. When the Tahoe drifted over the middle line, the officers decided to check the driver's sobriety, so they activated the overhead blue and red lights and flashing headlights on their patrol car.
The Tahoe came to a stop near Cruickshank Road and the patrol car stopped about ten feet behind it. Thomas shined a spot light on the truck but, as the officers prepared to get out of their car, the truck rolled forward and left, as though the driver was planning to cross the highway onto Cruickshank Road. Instead, the driver's head appeared out of the truck window as he fired gunshots at the officers. Thomas radioed dispatch that shots were fired while Roach began to drive in reverse. Then the Tahoe swerved to the right and headed north on Highway 29. The officers followed, activating their siren when they approached a four-way intersection. Soon after crossing the intersection, the truck stopped near Live Oak Road. The patrol car stopped about 100 yards back and the officers exited their vehicle. Then Steele made a U-turn and headed south toward the officers, firing shots at them as they stood on the street. Both officers took cover and returned fire.
While Steele was exchanging gunfire with the officers, his passengers were all crouching down for self-protection. Steele drove fast and "really swerve[ed] a lot," as he fired shots from inside the truck while bullets hit the truck from outside. Delgadillo, who had asked to be let out of the truck the first time Steele looked like he was going to pull over, "kept pleading with" Steele to let her out of the truck, asking him over and over again. At one point, Steele said "Why do you want to get out, they're trying to kill us?" Delgadillo responded that she did not care, she just wanted "to get let out." When Delgadillo began to cry, Potter and John both yelled at Steele to let her out.
Steele turned onto a side street, at which point the officers were no longer behind them. Then he slowed down and Delgadillo opened her door and jumped out of the truck. As Steele began to speed up again, John also jumped out. Steele sped up some more. Then he turned into a trailer park, where Potter was able to jump out and run. Potter fell into a ditch, where he laid undiscovered until the next morning.
Meanwhile, the officers had seen Steele make a right turn after he drove by and fired shots at them. They got back into their patrol car and pursued the truck, but shortly after turning onto Live Oak Drive they saw a body in the street and stopped to offer aid. Delgadillo ran to the body, frantically crying for help. The officers saw Steele's truck stop near a trailer park, and suspected he was going to attack them again but instead he fled the scene. Other officers arrived and initiated a search for Steele. They found him walking near a creek bed less than a mile away.
Jeremy John, who sustained blunt force injuries to his skull and brain, died four days later.
B. Jury Trial and Sentence
Steele was charged with twenty-four felony offenses arising out of the October 2013 incident, and with multiple sentence enhancements. A jury trial was held in March and April 2015. Steele's defense was that Delgadillo and Potter had lied to the jury and that Steele was not the person who drove the Chevy Tahoe and fired the gun shots at the officers. According to the defense theory, Potter, John and Delgadillo went to Steele's home on the night in question to commit a robbery because Steele was known around the reservation as a wealthy man who carried a lot of cash with him. The defense proposed that it was Potter who was driving Steele's truck that night, and he fired at the officers because he had an outstanding warrant and he, John, and Delgadillo had just committed a robbery against Steele.
On April 3, 2015, the jury returned the following verdicts:
As to Jeremy John, Steele was found not guilty of murder (§ 187) but was convicted of the lesser included offense of involuntary manslaughter (§ 192, subd. (b)).
As to Officer Roach, Steele was convicted of two counts of attempted murder (§ 664/187), two counts of assault with a firearm (§ 245, subd. (a)(2)), and two counts of assault with a semi-automatic firearm (§ 245, subd. (b)). Regarding the attempted murder counts, the jury found true allegations that Steele personally used a firearm within the meaning of section 12022.5(a) and section 12022.53, subdivision (b) and that he personally discharged a firearm within the meaning of section 12022.53, subdivision (c). In connection with the assault convictions, the jury found true allegations that Steele personally used a firearm within the meaning of section 12022.5(a).
The amended information and the verdict forms referred to this gun use enhancement as section 12022.5(a)(1), but as the trial court noted at the sentencing hearing, the reference to a subdivision (1) was a typographical error. In this opinion, we omit subdivision (1) references from our discussion of section 12022.5(a).
As to Officer Thomas, Steele was convicted of two counts of attempted murder (§ 664/187), two counts of assault with a firearm (§ 245, subd. (a)(2)), and two counts of assault with a semi-automatic firearm (§ 245, subd. (b)). Regarding the attempted murder counts, the jury found true allegations that Steele personally used a firearm within the meaning of section 12022.5(a) and section 12022.53, subdivision (b) and that he personally discharged a firearm within the meaning of section 12022.53, subdivision (c). In connection with the assault convictions, the jury found true allegations that Steele personally used a firearm within the meaning of section 12022.5(a).
As to Davina Delgadillo, Steele was found not guilty of kidnapping (§ 207), but guilty of false imprisonment (§ 236). The jury also found true an allegation that Steele personally used a firearm in the commission of the false imprisonment within the meaning of section 12022.5(a).
Regarding offenses that were not committed against a specific victim, the jury found Steele guilty of two counts of malicious discharge of a firearm (§ 26100, subd.(c)); being a felon in possession of a firearm (§ 29800, subd. (a)); being a felon in possession of ammunition (§ 30305, subd. (a)(1)); being in possession of a firearm while subject to a restraining order (§ 29825, subd. (a)); malicious discharge of a firearm at an occupied vehicle (§ 246); evading a peace officer (Veh. Code § 2800.2, subd. (a)); and evading a peace officer causing death (Veh. Code § 2800.3, subd. (a)).
Steele was sentenced in November 2016, following lengthy post-trial proceedings. Using one of the four attempted murder convictions as the principal term, the court imposed a total determinate sentence of 85 years. The court also sentenced Steele to consecutive indeterminate terms for two of the attempted murder convictions, which resulted in an additional total indeterminate term of 14 years to life.
III. DISCUSSION
A. Firearm Use in the Commission of False Imprisonment
Steele contends that, as to his false imprisonment conviction only, the jury's finding that Steele used a gun within the meaning of section 12022.5(a) must be reversed.
1. Background
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) "False imprisonment is a misdemeanor unless it is 'effected by violence, menace, fraud, or deceit,' in which case it is a felony." (People v. Wardell (2008) 162 Cal.App.4th 1484, 1490 (Wardell); § 237.)
Count seven of the amended information charged Steele with felony false imprisonment pursuant to allegations that he used violence, menace, fraud, and deceit to unlawfully violate the personal liberty of Davina Delgadillo. The trial court instructed the jury regarding the elements of this crime with a version of CALCRIM No. 1240, which stated:
"The defendant is charged in count seven with false imprisonment by violence or menace, in violation of Penal Code section 236. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally and unlawfully confined or detained someone by violence or menace; [¶] AND [¶] 2. The defendant made the other person stay or go somewhere against that person's will.
"Violence means using physical force that is greater than the force reasonably necessary to restrain someone. [¶] Menace means a verbal or physical threat of harm. The threat of harm may be express or implied. [¶] An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] False imprisonment does not require that the person restrained be confined in jail or prison."
In count seven of the amended information, the People also alleged that when Steele committed the false imprisonment, he personally used a handgun within the meaning of section 12022.5(a). Section 12022.5(a) provides that, absent circumstances not present here, "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." The trial court instructed the jury regarding this gun use enhancement by giving a version of CALCRIM No. 3146, which stated in pertinent part:
"If you find the defendant guilty [of] any of the crimes charged in counts one through fifteen, . . . you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime, in violation of Penal Code section 12022.5(a). You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
"A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2. Hits someone with the weapon; [¶] OR [¶] 3. Fires the weapon. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
The jury completed a verdict form as to the count seven charge pursuant to which it found that Steele was "GUILTY" of unlawful imprisonment in violation of section 236, and that he "DID" "Personally USE a firearm (Handgun) in the commission of [this] offense within the meaning of . . . section 12022.5(a)."
The trial court sentenced Steele to a consecutive determinate state prison term of eight months for the false imprisonment conviction, plus three years and four months for the section 12022.5(a) sentence enhancement.
2. The Enhancement is Supported by Substantial Evidence
" 'Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction.' " (People v. Wilson (2008) 44 Cal.4th 758, 806.) We affirm the jury's finding if it is supported by substantial evidence, considering the entire record in the light most favorable to the judgment to determine whether it discloses " ' "evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (Ibid.)
" 'There are no precise formulas, or particular fact patterns to follow, to determine whether a gun has been 'used' for purposes of a sentence enhancement.' [Citation.] [¶] 'Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. . . . The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that "uses" be broadly construed.' " (Wardell, supra, 162 Cal.App.4th at p. 1492.) For the same reason, the phrase "in the commission of" in gun enhancement statutes receives " 'a broad construction' " that " 'advances the purpose of enhancements which provide for additional punishment when a weapon is used.' " (People v. Jones (2001) 25 Cal.4th 98, 111 (Jones).)
In this case, the jury's true finding as to the section 12022.5(a) allegation is supported by substantial evidence. Steele created a dangerous and terrifying situation for Delgadillo by speeding, driving erratically, and initiating a gun battle with pursuing law enforcement officers. Delgadillo communicated her desire to get out of Steele's truck when the officers first activated their lights, and she continued to plead with Steele to let her out, but Steele prevented her from leaving, restraining her liberty by brandishing and firing his gun while speeding away from the officers. Steele's gun-related conducted prevented the officers from assisting Delgadillo, and also impeded her ability to escape from the truck of her own volition.
Steele concedes he personally used a gun to commit crimes against the officers but argues there is no substantial evidence that this gun use was "directed" at Delgadillo. According to Steele, "the use of the gun was directed only at the pursuing officers," and "was never directed at the passengers in the car." However, section 12022.5(a) is not "limited to situations where the gun is pointed at the victim or the defendant issues explicit threats of harm." (People v. Granado (1996) 49 Cal.App.4th 317, 322 (Granado).) Instead, courts construe broadly the "term 'use,' as employed in this statute, . . . consistent with common usage, to check the magnified risk of serious injury which accompanies any deployment of a gun in a criminal endeavor." (Ibid.) Thus, when the defendant uses a gun against one victim and that gun use facilitates the commission of a second crime, the enhancement applies to that second crime, even if the gun use was not directed against the second victim. (Id. at p. 330.)
As our Supreme Court has explained, "the firearm-use enhancement may be effective in deterring a defendant from making any use of a gun in his or her criminal enterprise [citation], and this deterrent effect will operate irrespective of the defendant's intent as to a particular victim." (In re Tameka C. (2000) 22 Cal.4th 190, 199 (Tameka C.).) Thus, the Legislature did not "limit [the] application of the statute to crimes in which the defendant possessed the intent to injure a particular victim." (Id. at p. 197.) Here, the trial evidence showed that Steele deployed his gun to attempt to murder the pursuing officers while he simultaneously prevented Delgadillo from getting out of the truck. This evidence was sufficient to support the gun use finding as to the false imprisonment conviction.
Steele makes the separate but closely related argument that there is no evidence his gun use was "directed" at the commission of a wrongful imprisonment. Again, he uses the term "directed at" to connote intent, maintaining that he did not intend to use his gun to commit the false imprisonment but that he incidentally committed this crime at the same time he was using his gun to assault and attempt to murder the officers. This argument fails because section 12022.5(a) does not require evidence that the gun user subjectively intended to use the gun to commit the predicate crime. (Wardell, supra, 162 Cal.App.4th at p. 1495.) Our Supreme Court has "concluded that the phrase 'in the commission of' a felony, as used in section 12022.5, means during and in furtherance of the felony." (Tameka C., supra, 22 Cal.4th at pp. 197-198.) Thus, "[a] gun use occurs 'in the commission of' an offense if the gun use in fact objectively facilitated the commission of the offense. The issue is not one of the gun user's subjective mental state but of the objective role that the gun use played in the commission of the crime. The 'in the commission of' element of a personal use enhancement does not encompass a specific intent requirement." (Wardell, supra, 162 Cal.App.4th at p. 1495, italics omitted.)
Steele takes the position that a gun use enhancement requires " 'evidence of gun-related conduct coupled with the intent the gun-related action facilitate the crime.' " (Quoting Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1005 (Alvarado).) Steele's use of language from Alvarado is misleading. The Alvarado court was explaining that a person can use a gun within the meaning of the statute without actually touching it if there is some type of gun-related conduct coupled with an intent that such conduct facilitate the crime. (Id. at p. 1005.) This principle was important to the disposition in Alvarado, but it has no application here.
Alvarado, supra, 146 Cal.App.4th 993 was a writ proceeding to prohibit a trial on a firearm use enhancement alleged in connection with a burglary charge. The charge arose out of an incident at a gas station mini-mart, where petitioner was a regular customer. (Id. at p. 996.) On the night in question, the clerk was returning to the counter from the back of the store when he noticed the defendant standing near the cooler drinking a beer and looking nervous. The clerk, who knew defendant well, asked what was going on. Defendant did not respond, but a moment later he asked the clerk to call the police and then wait outside, explaining that he was not going to hurt the clerk, but he expected trouble when the police arrived. The clerk was bewildered and thought that defendant was acting out of character, but eventually called the police. Then he noticed a shotgun a foot away from the defendant, lying on top of a rack of candy with the barrel pointed toward a wall. The defendant repeated that he was not going to hurt the clerk but explained he was " 'on a suicide mission.' " (Id. at p. 997.) The clerk went outside to warn customers away, then went back inside to try to talk the defendant out of his plan. At one point, he saw the defendant rest his hand on or near the gun, but the defendant did not pick up the gun, point it at him or demand anything other than to call the police. (Ibid.)
The Alvarado court concluded this evidence was sufficient to show the defendant was armed with a shotgun but not to hold him to answer on the personal use of a firearm enhancement allegation. (Alvarado, supra, 146 Cal.App.4th. at p. 1006.) The court reasoned that there was "no evidence of any conduct or action with regard to the shotgun." The defendant did not shoot the gun, strike anyone with the gun, point the gun at anyone, brandish or even display the gun in a menacing manner. Furthermore, defendant did not threaten the clerk with the gun or in any other way. Finally, the court observed, when the clerk first came to the front of the store, the gun was already out of the defendant's hands and it remained in the same position until it was retrieved by the police after the defendant left the store unarmed. (Id. at p. 1005.)
Alvarado illustrates the distinction between possessing a gun during the commission of a crime and using a gun during the commission of a crime, but this distinction does not assist Steele. In contrast to the Alvarado defendant who never picked up the shotgun or engaged in any other threatening conduct, Steele used his gun to assault and attempt to murder Highway Patrol officers while he trapped Delgadillo in his truck. This evidence is sufficient to show that appellant personally used a gun in the commission of Delgadillo's false imprisonment by creating a barrier to her escape and preventing the Highway Patrol officers from intervening on her behalf.
3. The Jury Instruction Was Sufficient
Steele contends the trial court committed reversible instructional error by failing to instruct the jury that it could not sustain the section 12022.5(a) allegation as to the wrongful imprisonment charge unless it found that appellant's personal use of a gun actually facilitated the completion of that crime.
Generally, " 'a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 (Hudson).) Here, Steele did not request a special instruction that his gun use must have facilitated the commission the false imprisonment, thereby forfeiting this claim of error.
Steele contends the trial court had a sua sponte duty to give a supplemental instruction. "The rules governing a trial court's obligation to give jury instructions without request by either party are well established. 'Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury's understanding of the case.' [Citations.] That obligation comes into play when a statutory term 'does not have a plain, unambiguous meaning,' has a 'particular and restricted meaning [citation], or has a technical meaning peculiar to the law or an area of law." (People v. Roberge (2003) 29 Cal.4th 979, 988.)
Here, Steele argues the phrase "in the commission of" in section 12022.5(a) is ambiguous. In common parlance it means a temporal connection between the use of the gun and the commission of the crime. But, Steele contends, the phrase as used in section 12022.5(a), has an additional meaning because for this enhancement to be found true, the gun must be used not only while the crime is being committed but also in a way that facilitates the commission of the crime.
This theory of instructional error rests on the premise that the allegedly ambiguous statutory phrase "in the commission of" was used to instruct this jury. As discussed above, the trial court used CALCRIM No. 3146 in this case, which does not use that phrase. CALCRIM No. 3146 instructs that the prosecution must prove that the defendant "personally used a firearm during the commission of" the felony. Appellant does not purport to show that CALCRIM No. 3146 is an erroneous statement of the law.
If there is a cognizable claim here, it is that the trial court violated a sua sponte duty to give an additional instruction telling the jury it could not sustain the section 12022.5(a) enhancement allegation unless it found that the defendant's personal use of a firearm during the commission of the felony actually facilitated the completion of that felony. We conclude that appellant's characterization of facilitation as a distinct and additional element that must be proven is not supported by the plain language of the statute or case law construing it.
Section 12022.5(a) applies a sentence enhancement to a defendant who "personally uses a firearm in the commission of a felony or attempted felony." By requiring proof that a defendant charged under this statute personally used a firearm and that this personal use occurred in the commission of the felony, the Legislature conveyed its intent to punish gun use during the commission of a felony because this conduct is inherently dangerous and by its nature facilitates the commission of the predicate crime. But nothing in the language of this statute restricts its application to cases in which the gun use was essential to the completion of the felony.
CALCRIM No. 3146 addresses both statutory elements of a section 12022.5(a) allegation. It advises the jury that the prosecutor must prove that the defendant "personally used" a firearm, incorporating the statutory definition of "used a firearm" codified in section 1203.06, which requires intentional conduct by which a defendant either displays the firearm in a menacing manner, hits someone with the firearm or fires the firearm. Courts have approved the incorporation of section 1203.06 into jury instructions regarding section 12022.5(a). (See People v. Johnson (1995) 38 Cal.App.4th 1315, 1319.)
In other contexts, courts have concluded that this instruction adequately addresses the elements of section 12022.5. (See People v Felix (2008) 160 Cal.App.4th 849, 864-865; Wardell, supra, 162 Cal.App.4th at p 1495-1496.)
CALCRIM No. 3146 also covers the statutory requirement that the personal gun use must occur "in the commission" of the charged crime for which the enhancement has been alleged (§ 12022.5(a)) by instructing that the prosecutor must prove that the defendant used the firearm "during the commission" of the specific crime set forth in that charge. This duration requirement can be a subject of dispute, as it is not " ' "a matter of semantics or simple chronology." ' " (See Jones, supra, 25 Cal.4th at p. 109.) For example, Jones holds that the use of a gun after the technical completion of a sex crime can be found to have occurred in the commission of the crime if the gun use increased the threat of harm to the victim; the defendant being more culpable because of the increased threat of harm attributable to his gun related conduct. (Ibid.)
CALCRIM No. 3146 does not specially explain this duration requirement because that issue is addressed in a separate model instruction, CALCRIM No. 3261. Steele does not contend that CALCRIM No. 3261 should have been given here. To the contrary, he concedes for purposes of appeal that during his unlawful imprisonment of Delgadillo he was firing his gun at the Highway Patrol officers who had initiated the traffic stop. Instead, Steele takes the view that case authority we have discussed above implicitly holds that the "in the commission of" language in section 12022.5(a) cannot be satisfied unless the prosecutor proves additionally that the defendant's personal gun use actually facilitated the completion of the predicate felony.
As the cases discussed above illustrate, there is no set formula or precise fact pattern for proving a section 12022.5(a) allegation is true. Direct or circumstantial evidence of facilitation can be critical to establishing either statutory element, depending on the circumstances. For example, a person who does not touch a firearm, or who does not point it at the victim, may nevertheless be found to have personally used it when the evidence supports an inference that its deliberate display facilitated the commission of the crime. (Granado, supra, 49 Cal.App.4th at p. 325.) Similarly, a "gun use occurs 'in the commission of' an offense if the gun use in fact objectively facilitated the commission of the offense.'" (Wardell, supra, 162 Cal.App.4th at p. 1495, italics omitted.) However, we have found no authority for appellant's proposition that a gun use must demonstrably have facilitated the completion of the crime in order for the gun use enhancement to apply. Imposing such a requirement would not only reach beyond the statutory language, it would impede the Legislative intent to deter inherently dangerous gun-related conduct that increases the threat of harm to the victim of the predicate felony. (See Jones, supra, 25 Cal.4th 98.)
Appellant seeks strength from the fact that he cannot find published authority rejecting his theory that the "in the commission of requirement in section 12022.5(a) requires a jury finding that the defendant's personal gun use facilitated the completion of the felony. We conclude that this theory is inconsistent with People v. Pitto (2008) 43 Cal.4th 228 (Pitto), which addressed parallel language in section 12022, a sentence enhancement for people who are armed with a firearm "in the commission of" specified crimes.
In Pitto, supra, 43 Cal.4th 228, officers who searched defendant's car found methamphetamine in a bag in an open floorboard area behind the driver's seat. They also found a gun and ammunition in a cardboard box next to the drugs within arm's reach of the defendant. (Id. at p. 233.) At trial, defendant testified the drugs were for personal use, denied using the gun in any drug offense, and claimed that he bought the gun months earlier because he planned to commit suicide. (Id. at p. 234.) However, the jury convicted him of transporting methamphetamine and sustained an enhancement allegation that he was armed with a firearm under section 12022. (Id. at p. 234-235.) On appeal, the court reversed the arming enhancement, accepting defendant's claim that the CALJIC instruction given to instruct the jury regarding the section 12022 enhancement "failed to explain the necessary 'nexus or link' between the firearm and drug crime." (Id. at p. 235.) The Supreme Court granted review and reversed. (Id. at p. 236.)
The instruction read, in part: " 'If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. [¶] . . . [¶] The term "armed with a firearm" means knowingly to carry a firearm or have it available for offensive or defensive use. [¶] The word "firearm" includes a pistol, revolver, shotgun, or rifle. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.' " (Pitto, supra, 43 Cal. 4th 228, 242 n.3, italics omitted.)
Preliminarily, the Pitto court observed there was no real dispute that the arming enhancement was supported by the trial evidence, in light of the following principles: " '[W]hen the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer (1) that the defendant knew of the firearm's presence, (2) that its presence together with the drugs was not accidental or coincidental, and (3) that, at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was 'armed with a firearm in the commission' of a felony within the meaning of section 12022.' " (Pitto, supra, 43 Cal.4th at pp. 238-239, quoting People v. Bland (1995) 10 Cal.4th 991, 1002-1003 (Bland).)
The disputed issue in Pitto was whether the trial court had a sua sponte duty to give an instruction allowing the jury to find that "there was no 'facilitative nexus' between the gun and the drugs" because the defendant "possessed the gun for a reason unrelated to the drug crimes—suicide." (Pitto, supra, 43 Cal.4th at p. 239.) The defendant argued that instruction was required because he was entitled to refute the inference that the presence of the gun near the drugs was not accidental or coincidental. (Ibid.)
The Pitto court acknowledged that language in its decision in Bland "appear[ed] to have adopt a 'facilitative nexus' test," and to indicate that the firearm must have some " 'purpose and effect' " with respect to the charged crime in the sense that its presence or involvement cannot be accidental or coincidental. (Pitto, supra, 43 Cal.4th at pp. 239-240.) But the court found that these principles do not create a sua sponte instructional duty, explaining: "Bland made clear that it did not impose an 'intent requirement' under section 12022, or provide that the purpose with which the gun was placed near the drugs negates the 'facilitative nexus' that arming requires. [Citation.] We adhere to this view. When (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission." (Pitto, supra, 43 Cal.4th at p. 240.)
Returning to the facts in Pitto, the court explained that it did not matter if the defendant intended to facilitate a drug offense when he knowingly placed the gun near the drugs, because "[r]egardless of his original motive, the opportunity and incentive to later resort to using the gun in perpetrating the crime is the same. And his deliberate placement of the gun and drugs in juxtaposition to each other negates any claim of accident or coincidence." (Id. at p. 240.) Therefore, the court found, the CALJIC instruction used at defendant's trial had adequately apprised the jury of the requirements for finding that the defendant was " 'armed with a firearm in the commission of' the charged crimes" within the meaning of section 12022; there was no sua sponte duty to instruct the jury that it had to find a facilitative nexus between the possession of the firearm and the drug offense. (Id. at p. 240.)
Although Pitto addressed an arming enhancement, its analysis of facilitation applies to a personal use enhancement as well. The personal gun use enhancement does not have a special intent requirement other than an intent to use the firearm. Thus, lack of intent to use the firearm in a way that would facilitate commission of the felony does not negate the facilitative nexus between the deliberative personal gun use and the crime. Bland and its progeny confirm that gun-related conduct which is accidental or coincidental as opposed to facilitative would not constitute personal use during the commission of the felony, but this evidentiary matter does not justify grafting an additional element onto the gun enhancement statutes. Nor does it give rise to a sua sponte duty to instruct beyond the statutory requirements of a section 12022.5(a) charge.
4. Steele's Ineffective Assistance of Counsel Claim Fails
Steele argues that if the trial court did not have a sua sponte duty to instruct the jury regarding allegedly ambiguous language in section 12022.5(a), then he was denied the effective assistance of counsel at trial because his attorney failed to request a pinpoint instruction explaining that "gun use 'in the commission of' a felony means gun use that not only occurs during the course of the felony but use that facilitates the completion of the felony." (AOB 30)~
" ' A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance." ' " (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas), italics omitted.) "It is defendant's burden to demonstrate the inadequacy of trial counsel." (Ibid.) To carry this burden, " ' "a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness ... under prevailing professional norms.' " ' " (Ibid.) "Second, [the defendant] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (Ibid.)
Here, appellant contends that "[i]t was . . . incumbent" on his trial counsel to inform the jury of the special meaning of the " 'in commission of' " language because the evidence pertaining to his gun use was unusual in that he used the gun to commit an assault on the officers at the same time that he committed the unlawful imprisonment, but the "gun use was not directed to the commission of the latter offense."
As discussed, the "in commission of" language does not have the special meaning appellant ascribes to it. Furthermore, section 12022.5(a) does not require specific intent to use the firearm to facilitate commission of the felony; the intentional use of the gun during the commission of the felony is enough. Here, there was clear evidence of personal gun use and that this gun-related conduct occurred during the commission of the false imprisonment of Delgadillo. There was also objective evidence of a facilitative nexus between the gun use and the crime because appellant's engagement of the officers in a gun battle impeded Degadillo from getting out of the truck and thereby restricted her liberty. Thus, we reject Steele's premise that the evidence on this point was decisively in his favor.
Conceivably, Steele's trial counsel could have urged the jury to find that, despite objective evidence to the contrary, Steele's gun use was incidental or inadvertent rather than facilitative of the wrongful imprisonment of Delgadillo. (See Granado, supra, 49 Cal.App.4th 317, 325.) But he did not pursue that theory at trial, perhaps because it was at odds with his defense, which was that he was not the actual shooter. Under these circumstances, we are not persuaded that reasonably competent defense counsel would have requested a pinpoint instruction disputing the facilitative nexus between appellant's personal gun use and Delgadillo's false imprisonment.
Moreover, on this record, Steele cannot carry his burden of proving prejudice. By convicting Steele of felony false imprisonment, the jury necessarily found that he did more than just prevent Delgadillo from getting out of the car—he used violence and/or menace to violate her liberty.
" 'Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to [a]ffect the restraint.' " (People v. Ghipriel (2016) 1 Cal.App.5th 828, 833.) Here, the record affirmatively shows that the jury understood this distinction. Before returning its verdicts, the jury submitted a note pointing out that the verdict form did not give the option of convicting Steele of a lesser false imprisonment charge. In response to that note, the court acknowledged the error and gave the jury an amended verdict form, which provided the option of convicting Steele of the greater charge or the lesser charge. Then, the jury convicted Steele of the greater charge, i.e. the felony.
Under these facts, it is not reasonably probable that a pinpoint instruction regarding facilitative gun use would have altered the outcome of this case.
B. Flight from Peace Officers
Steele challenges the sufficiency of the evidence to support his convictions for evading a peace officer in violation of Vehicle Code section 2800.2 (section 2800.2) and evading a peace officer causing death in violation of Vehicle Code section 2800.3, subdivision (b) (section 2800.3(b)).
1. Background
Section 2800.2 prohibits fleeing from or attempting to elude "a pursuing peace officer in violation of Section 2800.1" when "the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property."
Section 2800.3(b) increases the punishment for violating section 2800.2 when the "willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death to a person."
Thus, each of these crimes incorporates the elements of Vehicle Code section 2800.1 (section 2800.1), which codifies the offense of fleeing from a pursing peace officer. Under section 2800.1, "a person operating a motor vehicle is guilty of fleeing or attempting to elude a pursuing peace officer's motor vehicle if all of the following conditions exist: (1) the peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp; (2) the peace officer's motor vehicle is sounding a siren as may be reasonably necessary; (3) the peace officer's motor vehicle is distinctively marked; and (4) the peace officer's motor vehicle is operated by a peace officer, and that peace officer is wearing a distinctive uniform. (§ 2800.1, subd. (a), italics added.) 'Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.' [Citation.] The prosecution must prove each element beyond a reasonable doubt." (People v. Byrd (2016) 1 Cal.App.5th 1219, 1222-23 (Byrd); see also People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 236-238, disapproved on another ground in Hudson, supra, 38 Cal.4th at p. 1011, fn. 3.)
In this case, count twenty-three of the amended information charged Steele with a felony violation of section 2800.2 and count twenty-four charged him with a felony violation of section 2800.3(b). The jury instructions regarding these charged crimes advised the jury that the prosecution had the burden of proving all of the elements necessary to establish a section 2800.1 violation. The jury returned verdict forms, which found Steele "GUILTY" of evading a peace officer in violation of section 2800.2 and evading a peace officer causing death in violation of section 2800.3(b). The trial court sentenced Steele to an eight-month prison term for the violation of section 2800.2, which was stayed pursuant to section 654. A consecutive term of one year and eight months for the section 2800.3(b) conviction was added to Steele's determinate sentence.
2. The Distinctive Uniform Requirement Was Not Proven
Steele argues his two convictions for fleeing from a peace officer are not supported by substantial evidence because there was no proof that either of the Highway Patrol officers who attempted to stop his truck were "wearing a distinctive uniform." (§ 2800.1(a)(4).)
The People concede "there was no direct evidence" that Officer Roach or Officer Thomas wore a distinctive uniform on the night in question. They argue, however, that "the jury could reasonably have relied on circumstantial evidence to find that the officers were in uniform." The People offer two theories in support of this claim.
First, they argue that evidence Delgadillo knew the officers were "CHP" or "cops" is circumstantial evidence that they were wearing distinctive uniforms. As support for this theory, the People contend that Delgadillo (1) testified she saw "CHP in the middle of the road picking up debris," and (2) referred to people who told her to get off the road after she jumped from Steele's truck as "cops. "
The record citations provided by the People show that the testimony about "CHP" officers in the road picking up debris did not come from Delgadillo, but from Potter who described the crime scene the day after the incident, when he went up to the road to meet some people who had agreed to give him a ride home. Furthermore, Delgadillo's statement that "cops" warned her to move off the street after she jumped from Steele's vehicle was not made at trial, but during an interview conducted by investigators from the district attorney's office.
In any event, Delgadillo did refer to Officers Roach and Thomas as "cops" during her trial testimony, but that testimony undermines the People's theory that the distinctive uniform requirement was proven with circumstantial evidence. Under direct examination, Delgadillo testified that a few minutes after Steele rejected her offer to drive "[t]he cops were behind us." The prosecutor asked how Delgadillo knew that cops were behind them, and she responded that they activated their emergency lights and Steele said he knew something like this would happen. This testimony, which establishes how Delgadillo knew the officers were "cops," was not relevant to establish what the officers were wearing.
The People's second theory is that the distinctive uniform requirement was established by circumstantial evidence that the officers were performing official duties on the night in question. This precise argument was rejected in Byrd, supra, 1 Cal.App.5th at p. 1224. In that case, Sacramento police officers attempted to conduct a traffic stop of a driver who sped away from their patrol car. A high speed pursuit ensued resulting in the arrest of the driver who turned out to be the suspect in a murder committed earlier that night. (Id. at p. 1222.) After the driver was convicted of murder and of felony evading a peace officer, he filed an appeal challenging the sufficiency of the evidence to support the section 2800.2 conviction. (Ibid.) The People could not point to "actual evidence that either officer wore a distinctive uniform within the meaning of section 2800.1," but they argued "that the jury could have reasonably inferred that the officers wore a distinctive uniform because they were assigned to the patrol unit and were on patrol in a marked police vehicle at the time of the pursuit, and because defendant admitted to knowing the police were chasing him." (Id. at p. 1224.) Questioning whether the distinctive uniform requirement could ever be proven by inference, the Byrd court concluded that the evidence relied on by the People was insufficient as a matter of law: "The fact that the officers were assigned to the patrol unit and were in a patrol car at the time of the pursuit is not sufficient to prove that either officer was wearing a police uniform or other distinctive police attire. To infer evidence of a distinctive uniform rather than plainclothes or another less-than-distinctive outfit from the evidence in the record before us would be pure speculation." (Ibid.)
In Byrd, the defendant admitted under oath that he knew that his pursuers were law enforcement officers, and yet "because the prosecutor neglected to ask a single, simple question to elicit evidence of the officers' attire and there [was] no evidence otherwise in the record that the officers were wearing distinctive uniforms, defendant's conviction [could] not stand." (Byrd, supra, 1 Cal.App.5th at p. 1225.) We reach the same conclusion here as to Steele's convictions for violating section 2800.2 and section 2800.3.
C. Pitchess Review
Prior to trial, Steele filed a motion under Pitchess, supra, 11 Cal.3d 531, seeking disclosure of personnel records pertaining to Officers Roach and Thomas, as well as several other law enforcement officials with alleged connections to his case. Opposition briefs were filed by the Clearlake Police Department, the Lake County Sheriff's Office, the County of Lake District Attorney's Office, the California Highway Patrol and the City of Lakeport.
On August 2, 2016, the trial court held a hearing on Steele's Pitchess motion. The court denied the motion as to all agencies and officers except for Officers Roach and Thomas. Then it conducted an in camera hearing with counsel for the California Highway Patrol and its custodian of records. At the conclusion of that review, the court stated on the record that it had completed the in camera review and there was no evidence to disclose.
Steele requests that this court review a sealed transcript from the in camera review to determine whether the trial court's ruling was correct. As the People do not object to this request, we assume for purposes of this appeal that Steele was entitled to an in camera review of the relevant personnel files of Officers Roach and Thomas.
After reviewing the sealed record, we find that the trial court did not abuse its discretion by concluding there was no material to disclose in response to the Pitchess request directed at the two officers. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232 (Mooc).) We note for the record that we do not have copies of the documents the court reviewed. However, under the procedures outlined in Mooc, the trial court may "state for the record what documents it examined." (Id. at p. 1229.) Here, the court described the general nature of the documents submitted by the custodian of records; made a record of the fact that the custodian did not identify any potentially relevant documents; and then independently reviewed the files before concluding that there was no information to be disclosed. Under these circumstances, we have an adequate record to conclude that the trial court did not abuse its discretion. (See People v. Byers (2016) 6 Cal.App.5th 856, 869-870.)
D. Remand Issues
The People request correction of the following errors in the abstract of judgment: (1) the count one conviction is listed as murder rather than involuntary manslaughter; and (2) several convictions and enhancements for which sentence was imposed but stayed pursuant to section 654 do no list the term of the stayed sentence. The People also point out that the minutes of the sentencing hearing contain an erroneous statement that the count one conviction was for murder rather than involuntary manslaughter. Steele agrees these errors should be corrected. Accordingly, we order that the abstract and minutes be corrected.
We note another apparent discrepancy. The sentencing minutes state that the court imposed an eight-month prison sentence for the section 2800.2 violation, which was stayed pursuant to section 654, but the abstract of judgment does not reflect that Steele's sentence for this conviction was stayed.
Finally, Steele requests a remand for resentencing due to a change in the law that went into effect while this appeal was pending. As noted in our factual summary, for several of Steele's convictions, the jury found true allegations that Steele personally used a firearm within the meaning of section 12022.53, subdivision (b) and that he personally discharged a firearm within the meaning of section 12022.53, subdivision (c). When Steele's sentence was imposed, the trial court had no discretion to strike these firearm enhancement findings. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424.) However, while this appeal was pending, a statutory amendment added section 12022.53, subdivision (h) (section 12022.53(h)), which now provides that "[t]he 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."
As the People concede, section 12022.53(h) applies retroactively to Steele. The enactment of section 12022.53(h) "necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes this case." (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
Despite the People's concession that section 12022.53(h) applies retroactively, they contend that Steele is not entitled to a remand. They reason that Steele's crimes were so egregious the trial court would not have stricken any of the section 12022.53 enhancements under any circumstance.
" ' Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Thus, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (Ibid.; see also People v. Chavez (2018) 22 Cal.App.5th 663, 713.)
The trial court spent considerable time reviewing and considering the very complicated sentencing issues in this case. When the court announced Steele's sentence, it noted when a decision was discretionary and explained its decision. On the subject of the section 12022.53 enhancements, the court simply stated what the statute required it to do. Under these circumstances, the People's contention that the court would not have exercised its discretion to strike any of the enhancements is speculation.
IV. DISPOSITION
Steele's convictions for violating section 2800.2 (count twenty-three) and section 2800.3 (count twenty-four) are reversed. The judgment is affirmed in all other respects and this case is remanded for resentencing in accordance with this opinion.
/s/_________
Tucher, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Lee, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------