Defendant appeals, contending:
1. The trial court erred by failing to instruct on voluntary manslaughter on a heat of passion theory.
2. The trial court erred by refusing to instruct the jury that it could consider voluntary intoxication in determining whether defendant had the intent to kill.
3. Under Penal Code section 1001.36, which became effective while this appeal was pending, defendant is entitled to a remand so the trial court can consider granting him pretrial mental health diversion.
4. Under Senate Bill No. 620 (2017-2018 Reg. Sess.), which also became effective while this appeal was pending, defendant is entitled to a remand so the trial court can consider striking the firearm enhancement.
We agree that defendant is entitled to a remand for consideration of whether to strike the firearm enhancement. Otherwise, however, his contentions lack merit.
I
FACTUAL BACKGROUND
A. February 6: The Altercation at the Mobile Home.
Defendant lived with his son Brian, age 17, and his daughter Kristi, age 15. His children were home-schooled; they had a "tight-knit" group of friends who were also home-schooled. These included Kristi's best friend, Heather Ryan. They also included Jerel Cobbs, Damien Saunders, and Devin Humphrey. Devin's mobile home, near defendant's house, was a "gathering place" for the group.
Around January 27, 2003, defendant's daughter ran away from home; she went to live with a 21-year-old man whom she had met just three days earlier.
Defendant got upset; he called Heather a "liar" and a "whore." Devin's mother asked defendant to leave, but he refused. Damien grabbed defendant and tried to push him outside; defendant tried to shake him off. After a "scuffle," defendant left.
B. February 10: The Shooting of Jerel.
On the night of February 10-11, 2003, Heather, Jerel, and Damien were once again hanging out at the mobile home. Kristi told Heather to take defendant's truck and bring it to her, so she could use it to go to Utah with her boyfriend.
Around 11:30 p.m., Heather, Jerel, and Damien left the mobile home, went to an open field across the street from defendant's house, and waited. When they thought defendant was asleep, they tried to take his truck.
Previously, Heather had seen defendant's son Brian take defendant's truck without permission; Brian used a spoon to pop out the rear window and to start the truck. Accordingly, the trio popped out the rear window and started to roll the truck out of the driveway.
Defendant woke up and started yelling at them. They ran west. When they saw
Defendant, however, drove right into the field. Heather dropped to the ground. A few minutes later, she saw Jerel run east, directly across the beams of defendant's headlights.
Defendant fired one blast from the shotgun. Two pellets hit Jerel in the back. One went through his heart and lung. He died within minutes from internal bleeding.
According to Heather, defendant's son Brian was with him. Brian checked on Jerel, then walked back to defendant; Heather heard them say something about calling the police. Defendant and Brian then went back home, leaving the car in the field.
At 1:46 a.m., defendant called 911. A sheriff's deputy arrived at defendant's home while he was still on the phone with 911. Defendant was "shaky and upset." A shotgun was lying on a nearby dresser.
After the shooting, defendant's blood tested positive for marijuana. Marijuana is detectable in the blood for "a few days" after use.
C. Defendant's Account.
1. Defendant's testimony.
Defendant had been using marijuana off and on since he was 17. Recently, his regular supplier had disappeared; his new supplier sold "chronic," which was much stronger than regular marijuana. Two or three weeks before the shooting, defendant got into a minor car accident because the chronic "made [him] lost" and he "didn't know which way to turn."
On February 6, 2003, according to defendant, he spoke to Heather on the phone; Heather said she knew where Kristi was, but she was not "at liberty to tell" defendant. He went over to the mobile home because he was not "satisfied with that information."
About an hour after leaving the mobile home, defendant realized he had left his phone and his hat there. He phoned and said he was coming over to get them. A "guy" named Kenneth brought them out to him. Defendant said, "Tell those guys they don't have to worry about me." He said that because he "wanted everything to be peaceful."
On February 10, 2003, defendant went to bed at 10:00 or 10:30 p.m. Right before going to bed, he smoked some marijuana.
Between 1:15 and 1:30 a.m., defendant was awakened by the sound of his cat "meow growling." As he went to let the cat out, he saw two people pushing his truck. When they saw him, they ran away.
At first, he ran after them, even though he was not wearing any shoes. They "veer[ed]" briefly into the yard of a house where some Mexicans lived. This made him think the Mexicans might be the people he was chasing.
He got in his car and circled the block three times, looking for the thieves. He then cut across the field to look behind some buildings on the other side. He saw three people, with their backs to him.
He drove back home and told his son Brian, "They're out in the field, there's three of them, go call the police." He then drove back into the field.
Instead of calling police, however, Brian walked over and into the field. When defendant realized Brian was in the field, where the thieves could attack him, he became "hyper panick[ed]." He stopped his car and jumped out, holding his shotgun.
He saw a person running toward Brian. He "fired the shot in panic." His intention was to protect Brian. However, he did not intend to hurt or kill the other person. He thought he would "knock [the person] down, ... see who it was, and then ... let them get up and run away." He "forgot that the gun was dangerous."
Brian checked the body and said, "It's Gene." Gene was an adult who hung out with Kristi and her friends. This was when defendant first thought that the thieves might be some of Kristi's friends.
2. Defendant's previous statements.
a. Defendant's 911 call.
During the 911 call, defendant was crying; he kept telling the operator to hurry. He said he had just shot one of three teenagers who had tried to steal his truck. As he was going through the field, they "jumped up" and "were coming at" him, so he fired.
He added that, on the previous Thursday, the teenagers had "jumped" him. His daughter had run away; they knew where she was but would not tell him. He got mad at them, and they all got mad at him.
Defendant's statement to the deputy was largely consistent with his testimony at trial, except as follows.
He told the deputy that, when he first got in his car, Brian came with him; after driving around a while, however, he dropped Brian off and told him to call the police.
Defendant loaded his shotgun with only one shell, and only after he drove into the field, although before he got out of his car. As he was walking, three people stood up. He fired because he feared for his safety. He said the reason for the confrontation was that he had gone to a mobile home to look for his runaway daughter, and the people there had threatened to "kick his ass." He insisted that he did not intend to shoot anybody.
By the end of the interview, defendant "was sobbing with his head between his knees[.]"
c. Defendant's testimony at the first trial.
Defendant's testimony at his first trial was largely consistent with his testimony at the present trial.
D. Expert Testimony.
Dr. Frank Sheridan, an expert forensic pathologist, testified that marijuana "impairs cognitive functioning" and can "affect quite a wide range of perceptions to varying degrees ...."
Dr. Robert Suiter testified for the defense as an expert forensic psychologist. He diagnosed defendant as having a "bipolar-related disorder." At the time of the crime, defendant was "experiencing a
Dr. Robert Brodie, also an expert forensic psychologist, testified on rebuttal for the prosecution. In his opinion, defendant's behavior at the time of the crime indicated that he was not anxious, but rather frustrated, angry, and determined to find the thieves. Also in his opinion, defendant did not have a
II
PROCEDURAL BACKGROUND
In 2003, defendant was charged with second degree murder ( Pen. Code, § 187, subd. (a) ), along with firearm enhancements ( Pen. Code, §§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d) ). In 2004, he was found incompetent to stand trial ( Pen. Code, § 1368 ) and committed to Patton State Hospital.
In 2005, the criminal proceedings were reinstated. After a jury trial, defendant was found guilty as charged and sentenced to a total of 40 years to life in prison. In 2008, we affirmed the judgment. ( People v. McShane (Jan. 31, 2008, E039494)
In 2014, a federal district court denied defendant's petition for writ of habeas corpus. ( McShane v. Cate (C.D. Cal., July 30, 2014, No. ED CV 09-1243-GW)
In 2017, in a second jury trial, defendant was once again found guilty as charged and sentenced to a total of 40 years to life in prison.
III
FAILURE TO INSTRUCT ON HEAT OF PASSION
Defendant contends that the trial court erred by failing to instruct on voluntary manslaughter on a heat of passion theory.
The trial court did instruct on voluntary manslaughter on an imperfect self-defense theory. ( CALCRIM No. 571.) However, it did not instruct on voluntary manslaughter on a heat of passion theory. (E.g., CALCRIM No. 570.)
" 'On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.' [Citation.]" ( People v. Nelson (2016)
"Voluntary manslaughter is a lesser included offense of murder. [Citation.]" ( People v. Booker (2011)
"Heat of passion has both objective and subjective components. Objectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citation.] ... [¶] Subjectively, 'the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation. [Citation.]" ( People v. Enraca (2012)
"[P]rovocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average
Defendant identifies the provocation here as a synergistic combination of the altercation at the mobile home with the attempt to steal his truck - a combination that he describes as "continuing provocation."
He does not argue that either the altercation at the mobile home, standing alone, or the attempt to steal his truck, standing alone, could constitute adequate provocation. We deem him to have forfeited these arguments. We discuss them nevertheless, in the alternative to forfeiture, and as
The altercation at the mobile home, standing alone, could not constitute adequate provocation, because four days had passed. " ' " '[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' " ' [Citation.]" ( People v. Rangel (2016)
The attempt to steal defendant's truck, standing alone, likewise could not constitute adequate provocation. As far as our research has revealed, there is no case, in California or elsewhere, holding that a taking of property alone can be sufficiently provocative. To the contrary, State v. Kelly (Minn. 1989)
We turn, then, to the combined effect of the two incidents. We recognize that provocation "may comprise a single incident or numerous incidents over a period of time. [Citations.]" ( People v. Le (2007)
Separately and alternatively, even assuming there was sufficient evidence of provocation to require an instruction on heat of passion voluntary manslaughter, the error was harmless.
In People v. Breverman (1998)
Justice Kennard, dissenting in Breverman , argued that such a failure is a federal constitutional violation, because it renders the instructions on the malice element of murder incomplete. ( People v. Breverman , supra , 19 Cal.4th at pp. 188-194,
Under that standard, an error must be deemed harmless unless "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ( People v. Watson (1956)
Defendant strenuously denied that the altercation at the mobile home had anything to do with the shooting. After the altercation, he testified, he wanted
Admittedly, he did tell the deputy that "the reason he had a confrontation with these individuals" was that, while he was looking for his runaway daughter, they had threatened to "kick his ass." At trial, however, defendant explained that his son had looked at the victim's body and identified him as "Gene"; then and only then did defendant realize that the thieves might be some of the teenagers who had been at the mobile home.
Significantly, defendant told the 911 operator that the victim was white and 20 years old. Gene was white and about 20; Jerel was black and 15. This corroborated defendant's claim that, at the time, he did not know the thieves were some of the teenagers who had also been present during the altercation at the mobile home.
In sum, defendant's testimony that the altercation at the mobile home had nothing to do with the shooting was consistent and uncontradicted. We therefore see no reasonable probability that the jury would have found that he was acting under a heat of passion induced by the combined effect of the altercation at the mobile home and the theft of his truck.
NEW MENTAL HEALTH DIVERSION STATUTE
Defendant contends that he is entitled to a remand so the trial court can consider granting him pretrial mental health diversion under Penal Code section 1001.36.
Penal Code section 1001.36 was enacted on June 27, 2018 (Stats. 2018, ch. 34, § 24, pp. 1318-1321) and took effect immediately. (Id. , § 37, p. 1341.) In broad general outline, it allows a trial court to grant a defendant pretrial diversion, for the purpose of mental health treatment for up to two years, if it finds that the defendant has a mental disorder that was a significant factor in the commission of the charged offense. ( Pen. Code, § 1001.36, subds. (a), (b)(1), (c).) If the defendant performs satisfactorily in diversion, the court must dismiss the criminal charges. (Id. , subd. (e).)
Penal Code section 1001.36 was amended, however, effective January 1, 2019, to provide that persons charged with certain specified offenses - including murder - are not eligible for diversion. ( Pen. Code, § 1001.36, subd. (b)(2), Stats. 2018, ch. 1005, § 1, pp. 6635-6638.)
"[W]e presume that newly enacted legislation mitigating criminal punishment reflects a determination that the 'former penalty was too severe' and that the ameliorative changes are intended to 'apply to every case to which it constitutionally could apply,' which would include those 'acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final.' [Citation.] Th[is] rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citation.]" ( People v. Buycks (2018)
In a feat of argumentative gymnastics, defendant argues that:
(1) He is entitled to the benefit of the new diversion provisions, because they are ameliorative; however,
(2) He is not subject to the even newer murder exclusion, because (a) it is not ameliorative, and (b) as applied to him, it would have a prohibited ex post facto effect.
We may assume, without deciding, that the diversion provisions apply in all cases not yet final.
"[W]hether a new law is being applied retrospectively is closely intertwined with the question whether it is an unconstitutional ex post facto law, because a finding that the law is being applied retrospectively is a threshold requirement for finding it impermissibly ex post facto." ( In re E.J. (2010)
Here, when defendant committed the crime, he was not eligible for pretrial diversion, because Penal Code section 1001.36 did not yet exist. Now, he is not eligible for pretrial diversion, because of the murder exclusion. Thus, the enactment of the murder exclusion did not change the consequences of his crime as of the time he committed it. The fact (if it is a fact) that he was briefly eligible for pretrial diversion under Penal Code section 1001.36, as originally enacted, is irrelevant to the retroactivity analysis.
People v. McKinney (1979)
Effective July 1, 1977, the statute was amended so as to reduce the penalty to life imprisonment with the possibility of parole. (
The defendant argued that, under the amendment, he was entitled to have his sentence reduced to life with the possibility of parole. ( People v. McKinney , supra ,
For similar reasons, here, defendant is not entitled to a remand for consideration of pretrial mental health diversion.
VI
VII
DISPOSITION
The judgment with respect to the conviction is affirmed. The judgment with respect to the sentence is reversed, and the matter is remanded with directions to consider whether to strike any of the firearm enhancement enhancements. If the trial court strikes the greatest firearm enhancement, under Penal Code section 12022.53, subdivision (d), it must resentence defendant;
We concur:
CODRINGTON, J.
FIELDS, J.
Notes
According to Heather, she genuinely did not know where Kristi was. According to Kristi, however, Heather knew where she was but had promised not to tell defendant.
Heather testified that Kristi asked her to take the truck in a phone call that night. Kristi testified, however, that she had asked Heather, Jerel, and Damien to take the truck the day before, when they were all at her new boyfriend's house.
By means of our tentative opinion (see Ct. App., Fourth Dist., Div. Two, Internal Operating Practices & Proc., VIII, Tentative opinions and oral argument), we gave the parties notice of our intent to take judicial notice of the record in defendant's first appeal. (Evid. Code, § 455, subd. (a).) We now take such judicial notice.
One of our sister courts has since held - adopting Justice Kennard's argument - that the erroneous refusal to give a heat of passion instruction is a federal constitutional violation. (People v. Thomas (2013)
If only out of an excess of caution, we note that, even if we were to apply the federal constitutional harmless error standard, we would find that the asserted error was harmless. Under that standard, an error must be deemed prejudicial unless it is shown "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967)
See footnote *, ante .
This issue is presently before the California Supreme Court in People v. Frahs , review granted December 27, 2018, S252220.
See footnote *, ante .