48 Cal.App.5th 1
Cal. Ct. App.2020Background
- On March 28, 2015 defendant Remondo Bell (appellant) met buyer Erik Sliskovich at Sliskovich’s business; surveillance video records the encounter. Three masked men (one Ernest Young) exited a van and, with Bell present/unmasked, surrounded and threatened Sliskovich while demanding money.
- A struggle ensued; Sliskovich fired, wounding Young (and others) and shooting Bell. Young fell and was later run over by the van driven by Bell, dragged about 2.5 miles.
- Autopsy listed cause of death as both multiple gunshot wounds and blunt force trauma from the van; experts disagreed on whether Young was alive when run over.
- Jury convicted Bell of attempted robbery, second‑degree murder, and simple hit‑and‑run; found not true firearm principal allegation and acquitted hit‑and‑run causing death. Trial court imposed 21 years‑to‑life plus three 1‑year §667.5(b) prior‑prison enhancements.
- On appeal Bell raised multiple claims (including challenges under the provocative‑acts doctrine, instructional errors, ineffective assistance, and sentencing errors). The Court affirmed convictions, found any instructional errors harmless, but struck the §667.5(b) enhancements and remanded for resentencing and correction of the abstract of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 1437 retroactive relief may be raised on appeal (requirement to use §1170.95) | People: convictions were lawful when obtained; petition procedure in §1170.95 is the route for post‑SB1437 relief | Bell: his convictions relied on theories invalidated by SB 1437; appeal should resolve error now | Court: Bell must pursue §1170.95 in trial court; decline to stay appeal; follow People v. Martinez. |
| Sufficiency of evidence under provocative‑acts doctrine | People: surveillance shows crowding, grabbing, and conduct beyond necessity to commit robbery sufficient to provoke deadly defensive response | Bell: Young’s conduct (gun pointing) was necessary to robbery; no high probability victim would be killed | Court: Substantial evidence supports provocative‑acts liability; jury could infer acts were beyond robbery and dangerous to life. |
| Sufficiency that Young was alive when van ran over him (basis for murder by van) | People: video and experts permit inference Young moved / was dying but not yet dead; van blunt force contributed to death | Bell: expert says aortic wound was fatal and Young was already dead when run over; conviction speculative | Court: Evidence (video + conflicting experts) supports a rational jury finding Young alive when run over; conviction valid. |
| CALJIC No. 8.12 (provocative acts instruction) correctness | People: instruction correctly required an intentional provocative act beyond that necessary to commit the crime and excluded sole provocateur decedent | Bell: instruction failed to preclude liability if only decedent provocateur acted; allowed mere participation to suffice; omitted foreseeability language | Court: Instruction correctly stated law, expressly excluded decedent‑only provocateur, required act beyond necessity; any wording variance was forfeited or harmless. |
| CALJIC No. 8.10 (felony murder) ambiguity given third‑party killer | People: instruction correctly states felony‑murder rule; other instructions cover third‑party shooter doctrine | Bell: 8.10 could be read to convict on murder because a killing occurred during robbery irrespective of his role | Court: Considering instructions as a whole (including 8.12) and counsel arguments, no reasonable likelihood jury misunderstood; claim forfeited by failure to request clarification. |
| Failure to give causation instructions (CALJIC 3.40/3.41) | Bell: causation was at issue (who caused death); omission prejudicial | People: issues were timing and whether victim was alive; those instructions would not have helped | Court: Omission harmless — jury’s focus was on timing/credibility; causation instructions would not have affected outcome. |
| Unconsciousness instruction (CALJIC 12.72) adequacy | Bell: instruction incomplete, should have defined unconsciousness | People: Bell did not rely on unconsciousness defense and evidence did not indicate unconsciousness | Court: Instruction was superfluous; no sua sponte duty because evidence didn’t indicate unconsciousness; no prejudice. |
| Flight instruction (CALJIC 2.52) | People: flight evidence supported instruction | Bell: leaving was to avoid further attack or seek medical help; instruction too broad | Court: Sufficient evidence supported flight inference; objection not made — claim forfeited. |
| Necessity instruction (CALJIC 4.43) inclusion of reporting element | Bell: reporting requirement irrelevant outside prison‑escape context | People: reporting requirement applies more broadly; necessity unlikely given jury’s findings | Court: Even if inclusion was erroneous, no reasonable probability of prejudice because jury found Bell substantially contributed to emergency (attempted robbery). |
| Sua sponte duty to instruct on duress | Bell: court should have instructed on duress | People: no evidence of demand by victim to commit crimes; duress inapplicable to murder | Court: No substantial evidence of duress or demand; no duty to instruct. |
| Ineffective assistance for failure to object to Sliskovich’s testimony | Bell: victim narrated events he did not consciously recall; testimony was improper lay opinion / beyond personal knowledge | People: counsel may have strategically declined to object; testimony was largely admissible and not shown to prejudice | Court: Claim largely forfeited and not shown to meet Strickland prejudice prong. |
| Cumulative error | Bell: multiple errors cumulatively deprived fair trial | People: alleged errors minor / harmless and evidence strong | Court: No prejudicial cumulative effect; convictions affirmed. |
| §667.5(b) prior prison‑term enhancements & abstract credits | People: respondent conceded §667.5 enhancements invalid under SB 1361; abstract needs correction for conduct credits | Bell: enhancements should be stricken; abstract incorrect | Court: Struck three §667.5(b) one‑year enhancements; remanded for resentencing and correction of the abstract (conduct credit issue). |
Key Cases Cited
- People v. Miranda, 192 Cal.App.4th 398 (2011) (inconsistent verdicts may stand if supported by substantial evidence)
- People v. Lewis, 25 Cal.4th 610 (2001) (inconsistency may reflect jury lenity/compromise)
- People v. Martinez, 31 Cal.App.5th 719 (2019) (§1170.95 is the procedure for SB 1437 relief when case pending)
- People v. Gonzalez, 54 Cal.4th 643 (2012) (provocative‑acts doctrine explained)
- People v. Avila, 46 Cal.4th 680 (2009) (sufficiency review standard)
- People v. Osband, 13 Cal.4th 622 (1996) (due process sufficiency standard articulated)
- People v. Concha, 47 Cal.4th 653 (2009) (implied malice/provocative act formulations)
- People v. Knoller, 41 Cal.4th 139 (2007) (objective test for implied malice)
- People v. Young, 34 Cal.4th 1149 (2005) (instructional‑error forfeiture principles)
- People v. Briscoe, 92 Cal.App.4th 568 (2001) (proximate causation in provocative‑acts context)
- People v. Rangel, 62 Cal.4th 1192 (2016) (forfeiture by failure to propose instruction modifications)
- Strickland v. Washington, 466 U.S. 668 (1984) (standards for ineffective assistance of counsel)