Filed 5/1/18 P. v. Gaines CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUES ADRIAN GAINES,

Defendant and Appellant.
H043645
(Monterey County
Super. Ct. No. SS14175A)

I. INTRODUCTION
A jury convicted defendant Marques Adrian Gaines of first degree murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 664/187, subd. (a)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury found that, in the commission of both the murder and attempted murder, defendant personally used a firearm (§ 12022.5, subd. (a)) and personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and that in the commission of the attempted murder, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury further found that appellant had a prior serious felony conviction (§ 667, subd. (a)), had served two prior prison terms (§ 667.5, subd. (b)), and had two prior “strike” convictions (§ 1170.12, subd. (c)(2)). The trial court imposed an aggregate prison term of 176 years to life.
On appeal, defendant contends the trial court (1) failed to correctly instruct the jury on the defense theory of the case, which was a combination of self-defense, transferred intent, and mistake of fact; (2) failed to correctly instruct the jury on imperfect self-defense; and (3) improperly sentenced him for premeditated attempted murder. Defendant additionally contends the cumulative effect of the trial court errors requires reversal. Finally, defendant contends a remand for resentencing is required because he is entitled to the benefits of a recent amendment to section 12022.53.
Although we find no merit to defendant’s instructional claims or claim of sentencing error, we will reverse the judgment and remand the matter to allow the trial court to consider whether the section 12022.53, subdivision (d) enhancement allegation should be stricken.
II. BACKGROUND
On the night of July 9, 2014, defendant shot Gabriel Rodriguez and Rafael Vasquez. Gabriel was killed and Rafael was injured. Just before defendant shot at them, Gabriel and Rafael had been shooting a gun in an agricultural field behind Rafael’s house on Adams Street in Chualar. Defendant had been at the home of his girlfriend, Sylvia Cortez, who lived next door.
The prosecution’s theory was that defendant intentionally shot Rafael because he believed that Rafael had “turned on” him. The prosecution also sought to show that defendant intentionally shot at Gabriel, but believed that he was shooting at Daniel Rodriguez, who defendant had threatened earlier in the day. According to the prosecution, defendant had a gun because he was planning to retaliate against Romero Rodriguez, known as Travieso, who had assaulted and threatened defendant months before.
The defense theory was that defendant acted in self-defense after hearing gunshots outside the house and seeing two men in dark hoods running towards him, carrying guns, particularly in light of the prior threats and assault by Travieso. He did not think he was shooting at Rafael, with whom he had become friendly after moving in next door.
A. Motive Evidence
Both Rafael and his brother Oscar testified that about five months before the July 9, 2014 shooting, defendant said he could kill someone and “get away with it” because the local “cops” were “basically retarded, dumb, stupid.” Defendant said he could “[j]ust do it and go back home as if nothing happened.”
Through Rafael, defendant met Christopher Rualizo, known as Biggs. Defendant and Rualizo had an argument about a month before the shooting, at Rafael’s house. Defendant was upset that Rualizo had called the police to report that a car was stolen. During the argument, defendant said he was “gonna get somebody” to shoot and kill Rualizo. When Rafael told both defendant and Rualizo to “relax,” defendant indicated he thought Rafael was not being his friend. Defendant told Rafael, “Go get your gun then.”
Defendant met Travieso through Rafael’s brother Everardo (also known as Lalo). About a month before the shooting, defendant had been assaulted by Travieso in the Chinatown area of Salinas. According to Everardo, defendant reported having been beat up, but not shot at. After the Chinatown incident, defendant told Cortez he feared Travieso and did not trust him.
Defendant confronted Rafael about the assault by Travesio, asking if Rafael “had anything to do with it” or “knew that it was gonna happen.” Defendant told Rafael he was “trying to get at” Travieso. Rafael told defendant he had heard that Travieso was “locked up.” Around the same time, defendant texted Rafael some photographs of his new gun, a Baby Desert Eagle.
According to Cortez, defendant said he and Travieso had resolved their issue at some point prior to the shooting. Defendant had not brought up Travieso’s name to her again after that.
B. The Shooting
Defendant arrived at Cortez’s house in the early morning hours of July 9, 2014. Later that morning, Cortez drove defendant to Salinas for a court hearing. Defendant told her he had left a gun at her house because he did not feel safe there.
After the court hearing, Cortez brought defendant back to her house. At some point that day, defendant went over to Rafael’s house, asking where Travieso was. He said, “Where’s that fuck boy at? I’m trying to leave somebody in the dirt with this Baby Desert Eagle.” Rafael said, “I already told you he’s locked up.” Travieso was, in fact, in custody in Monterey Jail at the time. He had been in jail since April 17, 2014.
During defendant’s conversation with Rafael, Daniel Rodriguez drove by. Defendant asked, “Why didn’t he stop?” and then said, “Fuck him. He could get it too.” Rafael understood defendant to be saying that he could shoot Daniel, too. After defendant’s comment, Rafael told defendant he was going inside the house. Defendant extended his hand to Rafael, then squeezed Rafael’s hand “pretty hard.”
At about 10:30 p.m. that night, Gabriel went over to Rafael’s house. Later, they decided to go out to the agricultural field behind Rafael’s house to shoot a gun that Gabriel had brought over. They planned to fire the gun into the ground, in the direction of a big hill. Rafael fired the gun first, three times. He then passed the gun to Gabriel, who fired the remaining bullets. Together, they fired about 10 shots. As they walked back to Rafael’s house, Rafael was in front of Gabriel, who had the gun.
Defendant and Cortez heard the gunshots from inside Cortez’s house. Cortez froze, and defendant jumped up from the couch, saying, “[T]hose were gunshots, somebody’s in the backyard.” Defendant “paced a little,” went toward the hallway, then went to the back door and turned off the outside light.
Rafael and Gabriel heard defendant open the back door and started to jog towards Rafael’s house. Rafael heard defendant call out, “Hey, Rafael is that you and your folks?” Before Rafael could respond to defendant’s question, defendant started shooting at them. Rafael felt himself get shot in the back; he was knocked down. Rafael lost consciousness, and when he woke up, he saw Gabriel lying face-up on the ground.
Meanwhile, defendant returned to Cortez’s living room, where Cortez asked defendant what had happened. Cortez noticed that defendant had a gun in his hand. She asked, “What did you do, did you shoot?” Defendant said “he did because they were shooting at [the] house.” Defendant went back outside briefly, then returned, telling Cortez that they had to leave. Defendant told Cortez that “someone was down and wasn’t moving.” Cortez put their young son into a car seat in the back of her car and got into the driver’s seat. Defendant got into the back seat, and Cortez drove out of the neighborhood. A neighbor saw Cortez’s silver Mercedes SUV driving by “very fast” about five or 10 minutes after hearing gunshots.
After regaining consciousness, Rafael ran to his house for help, then went over to Cortez’s house. He knocked on the door, saying, “[Defendant], you know what you did,” but defendant and Cortez had already left.
C. Investigation
Monterey County Sheriff’s Deputies Bryan Hoskins and Pete Ramos were dispatched to the scene of the shooting. As Deputy Hoskins approached the area, he noticed Cortez’s silver Mercedes SUV driving at a high rate of speed towards him. Deputy Hoskins shined a light into the car and recognized Cortez, who was driving. Deputy Hoskins also saw a black male in the back of the car.
When the deputies arrived at Rafael’s house, they were directed to the agricultural field. Rafael, who had bullet wounds in his torso, was sitting against a fence. Gabriel’s body was on the ground; his hands were in the front pocket of his sweatshirt.
Rafael was scared to tell the police what had happened. He was specifically scared that defendant would return and of “being labeled as a snitch.” He was also scared of being “locked up and charged” for shooting in the field. He initially stated that he was just going out to the field to collect soil for his marijuana plants, and that he thought a farmer shot them. He later named defendant and admitted that he and Gabriel had been shooting a gun.
Rafael’s bullet wounds were in his right lower back and on the right side of his torso near his rib cage. He was transported to the hospital, where his treatment included “staples and stuff.” He was in pain for a few months.
An autopsy of Gabriel’s body revealed three gunshot wounds. One gunshot entered “towards the back” of Gabriel’s head and exited his temple. A second gunshot entered Gabriel’s left chest, below the nipple, and did not exit his body. A third gunshot struck Gabriel’s left hand, apparently while the hand was inside the front pocket of his sweatshirt. The prosecution’s forensic pathologist could not tell the order of the gunshot wounds. Gabriel also had an abrasion on his left forehead.
Shell casings from a .40-caliber firearm were found on and around the back patio of Cortez’s residence. The cartridges had been fired from a Magnum Research pistol. A .40-caliber Magnum Research Baby Desert Eagle pistol was found in a toilet tank inside Cortez’s residence. A Glock handgun was found inside a small gun safe in the residence. According to Cortez, that gun belonged to her and defendant did not have the combination to the safe.
Nine casings from a nine-millimeter firearm were found about 50 feet from a dirt road in the field. Shoe impressions in the dirt matched Gabriel’s shoes. A second set of impressions, matching Rafael’s shoes, were found about 10 feet from the casings.
Gabriel’s body was found 33 feet from Cortez’s house. Gabriel would not have been able to travel far after he was shot, and there was no blood trail indicating he had done so.
D. Defendant’s Flight
Video from a 7-Eleven in Salinas shortly after the shooting showed defendant. Defendant did not seem frightened and did not ask for help. He bought something—possibly cigarettes.
According to Cortez, defendant had directed her to drive to Bay Point, near Antioch, after the shooting and after stopping at the 7-Eleven in Salinas so defendant could buy cigars. Defendant had told her to “keep driving” when they passed the police near her home.
In Antioch on July 10, 2014, a witness observed a collision between a white sedan and Cortez’s silver SUV. Defendant got out of the SUV and walked away. The witness asked defendant to wait, but defendant started jogging away. The witness ran after defendant, who refused to stop. Defendant later showed up at his mother’s house. Defendant said he had been in a car accident, and his mother drove him back to the scene. When they arrived and saw that the car was flipped onto its side, defendant told his mother to drive away.
E. Defense Evidence
Everardo (Rafael’s brother) warned defendant that Travieso was someone that defendant should not “mess” with. Everardo told defendant that Travieso had “a history of beating guys down.” Regarding the Chinatown incident, defendant said Travieso had “side busted” him with a “cheap shot” when he wasn’t looking. Defendant was mad, but he did not seem afraid of Travieso.
When Rafael was interviewed the morning after the shooting, he did not tell the detective that defendant told him to “get your gun” or that defendant had made a statement about being able to get away with a crime in that area. Rafael did not report that defendant had made a statement about leaving someone “in the dirt.” Rafael did not definitively name defendant as the shooter. Rafael did report that he felt “uneasy” when defendant came over to talk to him on the day of the shooting, and that defendant had gotten mad at him for not wanting to hang out. Rafael also reported that defendant had accused Rafael of “snitching him off.” For several months after the shooting, Rafael denied having fired a gun in the field that night.
During interviews after the shooting, Rualizo said he had been involved in a minor argument with defendant but that he “had no problems with” defendant.
In February 2014, Cortez had called the police after receiving threatening phone calls. Investigation revealed that the calls were from Diane Olivares, Travieso’s ex-wife.
Pathologist Terri Haddix reviewed the autopsy report for Gabriel, crime scene photos, police reports, and medical record for Rafael. Haddix believed that Gabriel was shot in the chest before being shot in the back of the head. This was based on the amount of blood that was found in Gabriel’s chest. Haddix did not think that there would have been as much blood in Gabriel’s chest if he had been shot in the head first, because that wound would have been “rapidly incapacitating.” Additionally, Gabriel could have continued moving after he was shot in the chest. However, Haddix agreed that Gabriel could have been shot in the chest if he had rotated his chest in defendant’s direction while moving away from defendant.
Haddix believed that Gabriel had fallen to the ground face-first after he was shot in the back of the head, and that he was moved before being found in a face-up position. This opinion was based on the abrasion on Gabriel’s forehead, dirt on his pant leg, and the location where a bullet was found. Haddix agreed with the prosecution’s forensic pathologist that the path of the bullet wound to Gabriel’s head was “slightly upward,” but she could not determine whether the bullet wound to Gabriel’s torso went in a downward direction.
F. Defendant’s Testimony
Defendant admitted 2009 convictions of possessing cocaine base for sale, possessing cocaine for sale, and possessing methamphetamine for sale. He admitted 2007 convictions of possessing cocaine base for sale, possessing methamphetamine for sale, and being an ex-felon in possession of a firearm. In 2014, defendant had a pending charge of driving under the influence of alcohol. Also in 2014, defendant was in possession of a firearm, despite the fact that his status as a convicted felon made that illegal.
Defendant met Travieso through the Vasquez family. Defendant and Travieso sold marijuana together: defendant would obtain marijuana from dispensaries, since he had a “medicinal marijuana cannabis club card,” and Travieso would sell it in the Chinatown area of Salinas.
Defendant acquired the gun after Travieso assaulted him in February 2014. Travieso hit defendant in the face, which caused defendant to fall toward the ground, and then fired a gun at defendant while defendant was running away. Travieso took money and marijuana from defendant and said he would kill defendant when he saw defendant again. Defendant did not tell Cortez that Travieso had shot at him, because it would have made her mad at him.
At some point after the assault, Travieso came by Cortez’s house and banged on the door, yelling, “Motherfucker, I know you’re in there. You’re gonna get it.” Travieso was wearing a black sweatshirt at the time.
After the Chinatown incident, Rafael and his brother told defendant that Travieso had a reputation for being very violent. Defendant was told that Travieso was “a mean dude” who would “kill you if he wants to.” Defendant felt “[t]errified, afraid, scared, worried.” He was aware that Travieso’s wife had called and threatened Cortez. Travieso’s wife had also come over to Cortez’s house, asking for defendant.
Defendant told Rafael that he had obtained a Baby Desert Eagle firearm after Travieso had come to Cortez’s house. However, defendant did not send a photo of the gun to Rafael’s cell phone, he did not make any threats about using the gun, and he did not claim he could get away with murder in Monterey County.
Defendant acknowledged he and Rualizo had “an issue” that involved Rualizo’s stolen car. Defendant had refused to help Rualizo “chase down” the person who had stolen the car. Rualizo had also been upset with defendant for calling the police.
Defendant acknowledged that on the day of the shooting, he was no longer living with Cortez, who had evicted him. He was transient, but living in the Bay Area. He went to Cortez’s house in the early morning hours of July 9, 2014, then went to court. After going to court, defendant returned to Cortez’s house and then went over to talk to Rafael about Travieso. Rafael said he had not seen Travieso and that he believed Travieso was in jail. Defendant denied seeing Daniel drive by during that conversation. He denied being upset with Rafael at that time. Defendant claimed he and Rafael had “hung out” frequently and were still friends. However, he admitted being uncertain about whether Rafael’s allegiance was with Travieso.
Defendant returned to Cortez’s house for the night and eventually dozed off in the living room. He then heard gunfire: “[a] lot of shots,” which sounded like they were in the backyard. It sounded like the shots were hitting Cortez’s house. Defendant felt terrified. He immediately thought Travieso was trying to kill him, Cortez, and their baby. Defendant got his gun from the bathroom trash can, where he had previously placed it. He went to the back of the house, moved the blinds on the sliding glass door, and looked around. He opened the sliding glass door and yelled out, “Is that my little partner back there?” By “little partner,” defendant was referring to Rafael.
There was no response to defendant’s question, so he stepped out onto the back porch and called out again, asking the same thing. Again, there was no response, however. He saw two figures “running aggressively approaching [his] position.” Both men were wearing hooded sweatshirts.
Defendant moved towards the fence and gate behind the house. The two men continued to run towards him. Defendant saw guns in both of their hands. He was “scared to death” and believed the men were going to kill him, so he “opened fire” at them, firing five shots in quick succession.
Defendant saw the two men “go down” and went back into the house. He told Cortez he had shot at two hooded gunmen, and he instructed her to get her gun. Defendant then went back outside, “to make sure no other threats existed.” He went back to the fence area and saw the two men still “down.”
Defendant returned to the house again and told Cortez that they needed to leave because it was not safe. Defendant was panicking and scared, because he knew he was not supposed to have a firearm and because two people had just run towards him with guns. Defendant placed his gun into the toilet after ejecting the round that was in the chamber. He also put an extra magazine in the toilet tank.
Defendant and Cortez then left, with their young son. Defendant rode in the backseat with their son, as he usually did. He initially instructed Cortez to drive towards Gonzales, where he had a friend, but he then decided they should go to Seaside, where Cortez’s sister was a police officer. However, Cortez said she did not want her sister involved.
Defendant acknowledged seeing police cars coming towards him as he and Cortez drove away. He did not flag them down because he did not want to go back to jail for possessing the gun. He told Cortez to drive faster.
Defendant instructed Cortez to pull over at a 7-Eleven. He wanted to figure out what to do next, and he bought a cigar to help him calm his nerves. He appeared happy when talking to the clerk because he was glad to have gotten himself and his family out of the house alive.
Defendant next instructed Cortez to take him “home to the Bay Area.” He went to the home of his auto mechanic, James. He also told Cortez to lie to the police, and when a detective called Cortez’s phone, defendant became upset with her for talking to the detective. Defendant claimed he was trying to protect Cortez from “any involvement” with his possession of the gun.
The next morning, defendant left James’s house in Cortez’s car. He took Cortez’s phone, planning to get rid of it so the police could not locate him. Defendant intended to go to his mother’s house to tell her what had happened, but on the way, he crashed the car and left the scene. He then proceeded to his mother’s house by foot. He decided not to tell his mother about what had happened in Chualar because after the car crash, he felt that “[t]hings were spiraling out of control.”
Defendant asked his mother to take him back to Cortez, and on the way he had her stop at another 7-Eleven, again so he could buy a cigar to help him calm down. When he came out of the 7-Eleven, his mother’s car was gone, and he was arrested soon afterwards.
Later that day, defendant was interviewed by a detective in Antioch. At the time of the interview, he was distraught, scared, tired, and hungry. He did not tell the detective the truth about what had happened in Chualar—he denied having been there the previous night, and he denied shooting anyone. He also told the detective he did not know where Cortez was, which was not true.
Defendant was transported to Salinas. On the drive, a detective talked to him about the importance of finding the gun used in the shooting. Defendant said that when they arrived in Salinas, he would tell the police where the gun was and answer questions. That night, defendant was questioned again. He learned that Rafael had been shot.
G. Prosecution’s Rebuttal Evidence
Cortez’s sister, Seaside Police Officer Patricia Perez, testified that defendant never told her about being scared because of someone named Travieso.
H. Convictions and Sentence
A jury convicted defendant of first degree murder (§ 187, subd. (a)), attempted murder (§§ 664/187, subd. (a)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury found that, in the commission of both the murder and attempted murder, defendant personally used a firearm (§ 12022.5, subd. (a)) and personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and that in the commission of the attempted murder, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury further found that appellant had a prior serious felony conviction (§ 667, subd. (a)), had served two prior prison terms (§ 667.5, subd. (b)), and had two prior “strike” convictions (§ 1170.12, subd. (c)(2)).
The trial court imposed an aggregate prison term of 176 years to life, which included an indeterminate term of 107 years to life for the murder and associated enhancements, a consecutive indeterminate term of 56 years to life for the attempted murder and associated enhancements, and a consecutive determinate term of 13 years for possession of a firearm. The sentence for the murder was an indeterminate term of 75 years to life, with a consecutive indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), a consecutive five-year term pursuant to section 667, subdivision (a), and two consecutive one-year terms pursuant to section 667.5, subdivision (b). The sentence for the attempted murder was an indeterminate life term with a minimum parole term of 21 years, with a consecutive indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), a consecutive five-year term pursuant to section 667, subdivision (a), and two consecutive one-year terms pursuant to section 667.5, subdivision (b). The sentence for firearm possession was six years, with a consecutive five-year term pursuant to section 667, subdivision (a), and two consecutive one-year terms pursuant to section 667.5, subdivision (b).
III. DISCUSSION
A. Jury Instructions on Self-Defense
Defendant contends the trial court failed to correctly instruct the jury on the defense theory of the case, which was a combination of self-defense, transferred intent, and mistake of fact. Defendant contends that the instructional error violated his due process rights under the Fifth and Fourteenth Amendments.
1. Self-Defense Instruction
The jury was instructed on self-defense pursuant to CALCRIM No. 505 as follows:
“The defendant is not guilty of murder or manslaughter or attempted murder or attempted voluntary manslaughter if he was justified in killing or attempting to kill someone in self-defense or defense of another. [¶] The defendant acted in lawful self-defense or defense of another if, [¶] One, the defendant reasonably believed that he, Sylvia Cortez or their child was in imminent danger of being killed or suffering great bodily injury; [¶] Two, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] And, three, the defendant used no more force than was reasonably necessary to defend against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself or someone else. The defendant’s belief must have been reasonable, and he must have acted only because of that belief.
“The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing or attempted killing was not justified.
“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. [¶] If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The defendant’s belief that he or someone else was threatened may be reasonable even if he relied on information that was not true. . . . However, the defendant must actually and reasonably have believed that the information was true.
“If you find that Rafael Vasquez and/or Gabriel Javon Rodriguez threatened or harmed the defendant in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. [¶] If you find that the defendant knew that Rafael Vasquez and/or Gabriel Javon Rodriguez had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. [¶] 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. [¶] If you find that the defendant received a threat from someone else that he reasonably associated with Rafael Vasquez and/or Gabriel Javon Rodriguez, you may consider that threat in deciding whether the defendant was justified in acting in self-defense or defense of another.
“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“The People have the burden of proving beyond a reasonable doubt that the killing or attempted killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter, attempted murder or attempted voluntary manslaughter.”
2. Homicide and Transferred Intent Instructions
The jury was instructed on murder pursuant to CALCRIM No. 520, which specified that murder required a finding that defendant (1) “committed an act that caused the death of another person,” (2) “had a state of mind called malice aforethought” when he acted, and (3) “killed without lawful excuse or justification.”
The jury was instructed on attempted murder pursuant to CALCRIM No. 600, which specified that attempted murder required proof that defendant (1) “took at least one direct but ineffective step toward killing another person” and (2) “intended to kill a person.”
Pursuant to CALCRIM No. 521, the jury was instructed on the elements of willful, deliberate, and premediated first degree murder. A similar instruction, CALCRIM No. 601, was given as to the allegation that the attempted murder was willful, deliberate, and premeditated.
Pursuant to CALCRIM NO. 562, the jury was instructed on transferred intent: “If the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed.”
3. Special Instruction No. 1
Defendant requested Special Instruction No. 1, which would have provided: “The doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander.”
In urging the trial court to give Special Instruction No. 1, defendant’s trial counsel acknowledged that the language about an “innocent bystander” was not “exactly true” to the facts of the case. He argued that the point of Special Instruction No. 1 was to explain that if a person was “justifiably acting in self-defense it does not matter if the person shot actually was not the individual that the defendant believed at the time.”
The prosecutor objected to Special Instruction No. 1, arguing, “[T]his is covered by the other instructions, which instruct that if the defendant was acting in justifiable self-defense he is not guilty and it’s a complete acquittal.”
Defendant’s trial counsel argued that without Special Instruction No. 1, jurors might wonder “is it still self-defense if it turns out the person that he shot or people that he shot weren’t who we thought it was.”
The trial court declined to give Special Instruction No. 1, noting that there was no “innocent bystander” in this case.
4. Special Instruction No. 2
Defendant also requested Special Instruction No. 2, which would have provided: “You may consider the effect of previous threats and assaults against the defendant by those whom he believed were involved in the present assault on the reasonableness of the defendant’s conduct.”
The trial court read CALCRIM No. 505 (the standard instruction on self-defense) and remarked that the instruction “covers the situation you’re talking about.” Defendant’s trial counsel argued that the standard instruction did not “entirely” cover the defense theory. He pointed out that the trial court’s proposed standard instruction “focused on whether there were threats from [Rafael] or [Gabriel] or acts of violence or assaults,” whereas those victims were not the people who had attacked or threatened defendant in the past.
The trial court explained that it believed the defense theory was “pretty much covered by” the instruction, which told the jury to “ ‘consider all the circumstances as they were known to and appeared to the defendant at the time.’ ”
5. Arguments to the Jury
Defendant’s trial counsel argued that defendant acted in self-defense. He argued that defendant reasonably believed there was an imminent threat based on the gunshots, the two men running towards him with guns, and the prior attack and threats from Travieso and his wife. Defendant’s trial counsel asserted that the law permitted the jury to consider whether defendant believed he and Cortez “had been threatened by the persons who he believed were attacking him.” He asserted, “The law also says that someone who has been threatened or harmed in the past by the person who he believes is now attacking him may act more quickly and use greater measures of self-defense than otherwise.”
Defendant’s trial counsel alternatively argued that defendant acted in unreasonable self-defense. He told the jury that factors to be considered for imperfect self-defense included “prior threats, prior violence, perceptions of the other individual that he believes was bringing this attack.”
In closing, the prosecutor argued that defendant was “looking for trouble and looking for opportunity” when he shot Rafael and Gabriel. The prosecutor argued that defendant knew he was shooting at Rafael.
6. Legal Standards
Trial courts have a “sua sponte duty to instruct on all material issues presented by the evidence,” which includes defenses. (People v. Breverman (1998) 19 Cal.4th 142, 157; see also People v. Stewart (1976) 16 Cal.3d 133, 140 [“the trial court was under an obligation to give, sua sponte, a correct instruction setting forth the general theory relied upon by defendant”].) However, “a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].” (People v. Moon (2005) 37 Cal.4th 1, 30.)
“ ‘ “[J]urors are presumed to be intelligent and capable of understanding and applying the court’s instructions.” [Citation.]’ [Citation.] ‘ “ ‘A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]’ [Citation.] ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ” [Citation.]’ [Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 905 (Covarrubias).)
Although the Supreme Court has not specifically announced the standard of review for the denial of a requested pinpoint instruction, we will review these instructional issues de novo. (Cf. People v. Cook (2006) 39 Cal.4th 566, 596 [“We independently review a trial court’s failure to instruct on a lesser included offense.”].)
7. Failure to Instruct on Transferred Intent and Self-Defense
Defendant first asserts that the trial court erred because although the instructions “told the jury that transferred intent applied to the crime of murder,” the instructions failed to tell the jury that transferred intent applied to self-defense. He asserts that the jury would have been correctly instructed if Special Instruction No. 1 had been given, or if the trial court had added additional language to the transferred intent instruction.
Defendant has not pointed us to any case finding that an instruction on transferred intent and self-defense should have been given. Although he cites and discusses three cases for the proposition that transferred intent applies to self-defense, none of those cases found an instructional error.
The intended victim in People v. Mathews (1979) 91 Cal.App.3d 1018 (Mathews) was the passenger in a car. When the defendant shot into the car, the passenger ducked out of the way, and the driver was killed. The defendant later claimed she was shooting at the passenger in self-defense, because the passenger had been pointing a gun at her. (Id. at p. 1022.)
The Mathews court held that “a homicide is justified under the doctrine of self-defense where the act of self-defense, though directed towards the unlawful aggressor, inadvertently results in the death of an innocent bystander.” (Mathews, supra, 91 Cal.App.3d at p. 1023.) The court explained the basis for this rule was “the common law theory of ‘transferred intent,’ ” which “establishes that one’s criminal intent follows the corresponding criminal act to its unintended consequences” and thus also establishes that “the lack of criminal intent [follows] to the unintended consequences and thus preclude[s] criminal responsibility.” (Ibid.)
Although the trial court in Mathews had not instructed the jury on the above principles, the appellate court found no error. Neither party had disputed that self-defense potentially insulated the defendant from liability for the homicide. Further, the trial court had given “a full complement of standard instructions dealing with self-defense, sufficient for the jury to resolve the issue of defendant’s reasonable apprehension of loss of life or great bodily injury and her reaction thereto.” (Mathews, supra, 91 Cal.App.3d at p. 1025.) And even though the self-defense instructions stated that “to qualify as a justifiable homicide, the ‘person killed’ must have been the unlawful aggressor,” the instruction did not preclude the jury from finding the defendant acted in self-defense, since it did “not state that homicide is unjustified where the unlawful aggression of one results in the inadvertent death of another.” (Ibid.)
In the second case, the defendant admitted he intended to shoot at both victims. (People v. Levitt (1984) 156 Cal.App.3d 500 (Levitt), disapproved on other grounds by People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6.) The defendant testified he was attacked by his business partner and the business partner’s customer, then shot them both in self-defense. (Levitt, supra, at p. 507.) He requested jury instructions that would have told the jury to acquit him if he killed the customer “inadvertently while exercising self-defense” as to his business partner, and to find him guilty of manslaughter if he inadvertently killed the customer while acting in unreasonable self-defense as to the business partner. (Ibid.)
The Levitt court observed that “the doctrine of transferred intent is available as a defense in California” and that “instructions on transferred intent, just as instructions on any other defense, must be given on request if there is substantial evidence to support them. [Citaiton.]” (Levitt, supra, 156 Cal.App.3d at pp. 507-508.) However, the court found “no substantial evidence to support a theory of transferred intent” as to the defendant’s shooting of the customer, “because the evidence showed that [the customer’s] death could not have been the inadvertent result of defendant’s attempt to defend himself from [his business partner],” since the defendant’s testimony established that the customer had been shot intentionally. (Id. at p. 508.)
A third case, People v. Curtis (1994) 30 Cal.App.4th 1337 (Curtis), cited Mathews for the proposition that “under the doctrine of transferred intent, self-defense may also apply where the defendant intends to injure or kill the person who poses the threat, but inadvertently kills an innocent bystander instead. [Citation.]” (Curtis, supra, at p. 1357.) But self-defense did not apply in Curtis because the defendant did not claim that he intended to shoot anyone: “He claimed the rifle went off accidentally.” (Ibid.)
Nothing in the above three cases supports defendant’s claim that substantial evidence supported his proposed Special Instruction No. 1 or the similar instruction he now proposes. (See fn. 9, ante.) In fact, those cases support the trial court’s decision to decline Special Instruction No. 1. As in Mathews, the parties in this case did not dispute that transferred intent applied to defendant’s claim of self-defense, and nothing in the instructions precluded the jury from finding that defendant acted in self-defense when he shot at Rafael and Gabriel, believing them to be Travieso and an associate. As in Levitt, defendant’s testimony established that both victims were shot intentionally. Thus, defendant’s proposed instructions were not supported by the facts of this case because there was no evidence that defendant’s act of shooting at Rafael and Gabriel “inadvertently result[ed] in the injury of an innocent bystander” or “result[ed] in the inadvertent death of an innocent bystander.” And Curtis does not help defendant because the defendant in that case claimed the shooting was accidental.
Defendant takes issue with the trial court’s rationale for denying his proposed Special Instruction No. 1: that neither victim was an “innocent bystander.” Defendant asserts that under his theory, Rafael and Gabriel were innocent bystanders because he believed they were two other people. We do not agree. The “innocent bystander” language comes from Mathews, supra, 91 Cal.App.3d at page 1023. That case involved an actual bystander—i.e., a person who was shot when the defendant was trying to shoot at another person. The instant case does not involve a bystander, as even under defendant’s version of the incident, defendant intended to shoot both people in the field. Mistaken identity does not turn a victim into a “bystander.”
Defendant discusses two cases in which instructions were “so incomplete, as to be misleading.” (People v. Wilkins (2013) 56 Cal.4th 333 (Wilkins); People v. Hill (2015) 236 Cal.App.4th 1100 (Hill).) In Wilkins, the defendant burglarized a house, taking some large household appliances and loading them onto the back of a pickup truck. One of the appliances later fell off the defendant’s truck onto a freeway about 62 miles away, causing a driver to crash and die. The prosecution’s theory was that the felony-murder rule applied because the burglary and the act causing the death were part of one “continuous transaction,” but the defense sought to inform the jury of the “escape rule,” which provides that the felony continues only until the perpetrator has reached a place of temporary safety. (Wilkins, supra, 56 Cal.4th at pp. 337-338.) The Wilkins court found that an instruction on the escape rule should have been given, since a jury could have concluded that the defendant had reached a place of temporary safety before the fatal act occurred.
A similar instructional error occurred in Hill, in which a codefendant was prosecuted as an aider and abettor to a murder. There was evidence that the codefendant was not present at the scene when the murder victim was killed by the other defendant. The jury instructions failed to advise the jury that, to be liable for felony murder, the aider and abettor “must have been jointly engaged in the commission or attempted commission of the underlying [felony] at the time the fatal blow was dealt. [Citations.]” (Hill, supra, 236 Cal.App.4th at p. 1121.) Thus, the instructions “provided no guidance to the jury on the timing of [the codefendant’s] aiding, promotion, encouragement or instigation by act or advice, of [the other defendant’s] commission of the burglary and/or kidnapping. [Citation.]” (Ibid.)
In the present case, there was no similar gap in the jury instructions. The instructions told the jury that defendant was acting in self-defense if he reasonably believed he was in imminent danger of being killed or suffering great bodily injury, if he reasonably believed that the immediate use of deadly force was necessary to defend against that danger, and if he used no more force than was reasonably necessary to defend against that danger. The instructions further told the jury 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.” And the instructions told the jury that “the danger does not need to have actually existed.” These instructions conveyed to the jury that defendant acted in self-defense or defense of another as long as his beliefs were reasonable, even if he was mistaken about the identity of the people he was shooting at. The trial court’s failure to tell the jury that transferred intent applied to self-defense did not render the instructions misleading or preclude the jury from finding that defendant acted in self-defense.
Defendant next argues the trial court’s instructions did not adequately explain that he “was entitled to defend on the grounds of mistake of fact.” The mistake of fact defense is set forth in section 26, which “ ‘provides in pertinent part that persons who “committed the act or made the omission charged under an ignorance or mistake of fact, which disproves a criminal intent,” are not criminally liable for the act. Put another way, people do not act unlawfully if they commit acts based on a reasonable and honest belief that certain facts and circumstances exist which, if true, would render the act lawful. [Citations.]’ [Citation.]” (People v. Hanna (2013) 218 Cal.App.4th 455, 461.)
Defendant contends the mistake he made was “believing that he was shooting Travieso.” But the self-defense instructions did not preclude defendant from showing that he acted in self-defense because of a mistake as to the identity of the victim. The self-defense instructions explicitly told the jury 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, which similar knowledge, would have believed.” And the instructions told the jury that “the danger does not need to have actually existed.” Thus, the instructions permitted the jury to find that it appeared to defendant that he was shooting at Travieso, and to consider the circumstance that Travieso had previously assaulted and threatened defendant.
8. Failure to Give Special Instruction No. 2
Defendant contends that the trial court erred by failing to give his proposed Special Instruction No. 2, which would have told the jury that it could consider the effect of prior threats made by “those whom he believed were involved in the present assault.” According to defendant, his proposed instruction would have had the effect of explaining that he was entitled to “react more quickly, or take more forceful self-defense measures” if he believed that Travieso, who had previously threatened him, was the person attacking him.
Defendant cites People v. Minifie (1996) 13 Cal.4th 1055 (Minifie) as providing support for his claim. Minifie, however, addressed the question of whether “ ‘evidence of threats is . . . admissible where the threats have not been made by the victim, but by members of a group who in the defendant’s mind are reasonably associated with the victim.’ ” (Id. at p. 1065.) Minifie did not address an instructional issue, nor did it involve a defendant who claimed he mistakenly believed he was shooting at someone with a different identity than the actual victim. Minifie “merely hold[s] that the third-party-threats evidence is relevant, and the jury may consider it.” (Id. at p. 1069.)
The gist of defendant’s claim is that without his proposed Special Instruction No. 2, the jury would not have known that it could consider Travieso’s threats in determining whether defendant reasonably believed he was in imminent danger of being killed or suffering great bodily injury, and in determining whether he reasonably believed that the immediate use of deadly force was necessary to defend against that danger. But as explained above, the jury was explicitly told that it should “consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation, which similar knowledge, would have believed.” And the instructions told the jury that “the danger does not need to have actually existed.” Because prior threats by Travieso were included within “the circumstances as they were known to and appeared to the defendant,” the jury was sufficiently informed it could consider the effect of prior threats made by “those whom he believed were involved in the present assault.” Therefore, the trial court did not err by declining to give Special Instruction No. 2.
For similar reasons, even if we assumed that the denial of defendant’s requested instruction was error, we would find it harmless. Nothing in the instructions given “required or suggested that the jury ignore or disregard the admitted evidence of [Travieso’s] acts or threats” (People v. Spencer (1996) 51 Cal.App.4th 1208, 1220), and “the circumstances” that the jury was told to consider necessarily included Travieso’s threats. “Given this record, it simply cannot be said that the jury was somehow confused or misled concerning its consideration of this evidence.” (Id. at p. 1221)
Defendant further argues that as given, CALCRIM No. 505 was “[d]efective” because it told the jury that it could consider a threat defendant received from Rafael or Gabriel, or “from someone else that he reasonably associated with Rafael Vasquez and/or Gabriel Javon Rodriguez.” Defendant asserts this portion of the instruction was irrelevant because there was no evidence that any threat came from the victims or someone associated with the victims.
Although defendant is correct that there was no evidence that a threat came from Rafael or Gabriel, the evidence did suggest that Travieso was someone defendant “reasonably associated” with Rafael. There was evidence that defendant had met Travieso through Rafael’s brother, and evidence that defendant made several comments to Rafael about Travieso, which suggested defendant believed Rafael and Travieso had some kind of relationship. Thus, the challenged portion of the instruction was not irrelevant or non-responsive to the evidence. Moreover, as noted above, we must presume that jurors are “ ‘ “intelligent and capable of understanding and applying the court’s instructions.” [Citation.]’ [Citation.]” (Covarrubias, supra, 1 Cal.5th at p. 905.) And, the jury was told that some of the instructions “may not apply depending on your findings about the facts of the case.” (CALCRIM No. 200.) Thus, even if the challenged portion of the instruction was irrelevant or non-responsive to the evidence, we presume the jury understood that it did not apply.
We conclude the trial court did not err by failing to give defendant’s proposed Special Instruction No. 2 or by instructing the jury it could consider threats from Rafael or Gabriel, or “from someone else that he reasonably associated with [them].”
B. Jury Instructions on Imperfect Self-Defense
Defendant contends the trial court failed to correctly instruct the jury on imperfect self-defense. Two of his three arguments are closely related to the arguments he made as to the self-defense instructions.
1. Instructions
The jury received instructions on voluntary manslaughter (CALCRIM No. 571) and attempted voluntary manslaughter (CALCRIM No. 604). Both instructions included the requirements for imperfect self-defense and imperfect defense of another.
As given, CALCRIM No. 571 provided: “The killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another. [¶] If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. [¶] The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense or imperfect defense of another if: [¶] One, the defendant actually believed that he, Sylvia Cortez or their child were in imminent danger of being killed or suffering great bodily injury; [¶] . . . [¶] And, two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] But, three, at least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant’s belief, consider all the circumstances as they were known and appeared to the defendant.
“If you find that Rafael Vasquez and/or Gabriel Javon Rodriguez threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant knew that Rafael Vasquez and/or Gabriel Javon Rodriguez had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant received a threat from someone else that he reasonably associated with Rafael Vasquez and/or Gabriel Javon Rodriguez, you may consider that threat in evaluating the defendant’s beliefs. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense or imperfect defense of another. [¶] If the People have not met this burden, you must find the defendant not guilty of murder.”
As given, CALCRIM No. 604 provided: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense or defense of another. [¶] If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. [¶] The difference between complete self-defense or defense of another and imperfect self-defense or defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense or defense of another if: [¶] One, the defendant took at least one direct but ineffective step toward killing a person; [¶] Two, the defendant intended to kill when he acted; [¶] Three, the defendant believed that he, Sylvia Cortez or their child was in imminent danger of being killed or suffering great bodily injury; [¶] And, four, the defendant believed that the immediate use of deadly force was necessary to defend against the danger, but at least one of the defendant’s beliefs was unreasonable.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of death or great bodily injury to himself or someone else. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant.
“If you find that Rafael Vasquez and/or Gabriel Javon Rodriguez threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant knew that Rafael Vasquez and/or Gabriel Javon Rodriguez had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant received a threat from someone else that he reasonably associated with Rafael Vasquez and/or Gabriel Javon Rodriguez, you may consider that threat in evaluating the defendant’s beliefs. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
2. Analysis
Defendant first contends the jury instructions were defective because they did not tell the jury that transferred intent also applied to imperfect self-defense. His claim is based on “the same reasons why the instructions on complete self-defense and transferred intent constituted federal constitutional error.”
We find no merit to defendant’s claim that the instructions precluded the jury from considering the defense theory of unreasonable self-defense: that defendant actually but unreasonably believed that one of the men he shot was Travieso. The instructions told the jury that defendant was acting in unreasonable self-defense if he actually believed that he was in imminent danger of being killed or suffering great bodily injury and if he actually believed that the immediate use of deadly force was necessary to defend against the danger, but one or both of those beliefs was unreasonable. The instructions further told the jury to “consider all the circumstances as they were known and appeared to the defendant.” These instructions conveyed to the jury that defendant acted in unreasonable self-defense even if he was mistaken about the identity of the people he was shooting at. The trial court’s failure to tell the jury that transferred intent applied to unreasonable self-defense did not render the instructions misleading or preclude the jury from finding that defendant acted in self-defense.
Defendant next contends the imperfect self-defense instruction was defective because it told the jury it could consider “a threat from someone else that that he reasonably associated with” the victims. Defendant asserts that the jury was entitled to consider a threat from someone that defendant unreasonably believed to have been associated with the victims. He asserts that the jury could have found it was unreasonable for defendant to believe that he was shooting at Travieso, since he could not see the faces of the men he was shooting and/or because he had been told that Travieso was in jail.
On this record, there is no “ ‘reasonable likelihood that the jury understood the instruction in the way asserted by’ ” defendant. (Covarrubias, supra, 1 Cal.5th at p. 905.) Defendant’s challenge is to the portion of the instruction that told the jury it could consider a “a threat from someone else that [defendant] reasonable associated with” the victims (italics added), but his argument focuses on whether the jury could find defendant reasonably believed he was shooting at someone other than the actual victims. There was no dispute that defendant reasonably associated Travieso with Rafael, and that Travieso had threatened defendant in the past. Thus, there is no reasonable likelihood that the jury would interpret the instruction to find defendant was not entitled to claim imperfect self-defense because he unreasonably associated Travieso with Rafael.
Defendant’s last claim is that the imperfect self-defense instructions were defective because they failed to tell the jury that “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.” Defendant acknowledges that the foregoing language is not included in the standard instruction, and he does not cite any case supporting his claim that such language should be included in instructions on imperfect self-defense. (Cf. People v. Humphrey (1996) 13 Cal.4th 1073, 1083 [considering “the relevance of evidence of battered women’s syndrome” as to self-defense]; Minifie, supra, 13 Cal.4th at p. 1067 [“evidence of threats from the victim’s associates may be used in support of a claim of self-defense”], italics added.)
In any event, there is no “ ‘reasonable likelihood that the jury understood the instruction in the way asserted by’ ” defendant. (Covarrubias, supra, 1 Cal.5th at p. 905.) The instructions on imperfect self-defense told the jury that in evaluating defendant’s beliefs regarding whether there was an imminent danger and whether the immediate use of deadly force was necessary to defend against the danger, it should “consider all the circumstances as they were known and appeared to the defendant.” “[A]ll the circumstances” necessarily includes any prior threats or harm by the person defendant believed he was shooting. The instructions on imperfect self-defense also more specifically told the jury it could consider threats or prior harm to defendant or others by the victims, and that it could consider a threat made by someone that defendant reasonably associated with the victims.
In sum, we find no merit to defendant’s claims of error with respect to the instructions on imperfect self-defense.
C. Attempted Murder Sentence
Defendant contends the trial court improperly sentenced him to an indeterminate life term for premeditated attempted murder, because the jury never explicitly found that the attempted murder was “willful, deliberate, and premediated” as required by section 664, subdivision (a).
1. Relevant Statute
Section 664, subdivision (a) specifies the punishment for “willful, deliberate, and premeditated murder” is “imprisonment in the state prison for life with the possibility of parole.” The statute further specifies: “The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” (§ 664, subd. (a).)
2. Instructions
The trial court instructed the jury on attempted murder pursuant to CALCRIM Nos. 600 and 601.
CALCRIM No. 600 told the jury that defendant was charged with attempted murder and that the People were required to prove that defendant “took at least one direct but ineffective step toward killing another person” and that defendant “intended to kill a person.”
CALCRIM No. 601 told the jury: “If you find the defendant guilty of attempted murder under Count 2, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill . . . when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. [¶] The defendant premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted murder or attempted killing is deliberate [and] premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively or without careful consideration of the choice and its consequences is not deliberate [and] premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.”
3. Argument to the Jury
In argument to the jury, the prosecutor argued for a conviction of attempted murder, asserting that defendant had taken a “direct but ineffective step to kill Rafael Vasquez” by firing “two shots in the back.” The prosecutor further argued that defendant intended to kill Vasquez and that defendant did not act in “reasonable self-defense or imperfect self-defense.”
The prosecutor then told the jury, “First degree attempted murder is something that you’ll be asked to consider. Again, that’s just the premeditation and meditation [sic] we discussed earlier. . . .”
4. Verdict Forms
The verdict forms for count 2 included one for “attempted murder, first degree” and one for “attempted murder, second degree.” (Capitalization omitted.) The jury filled out the verdict form for “attempted murder, first degree,” indicating it found defendant guilty of “attempted murder in the first degree of Rafael Vasquez.” (Capitalization omitted.)
5. Analysis
Defendant contends that he was improperly sentenced to a life term for attempted willful, deliberate, and premeditated murder because “the fact that the attempted murder was willful, deliberate, and premeditated” was not “admitted or found to be true by the trier of fact.” (§ 664, subd. (a).) He points out that the verdict forms did not include a finding that the attempted murder was willful, deliberate, and premeditated, and that there is “no such crime” as attempted first degree murder. Defendant asserts that the jury’s verdict forms must explicitly include the phrase “attempted willful, deliberate, and premeditated” in order for the trial court to impose sentence under section 664, subdivision (a). He contends the error is “prejudicial per se.”
The Attorney General correctly asserts that defendant forfeited this issue “by failing to object to the form of the verdict when the court proposed to submit it or when the jury returned its finding. [Citation.]” (People v. Jones (2003) 29 Cal.4th 1229, 1259 (Jones).) But even assuming there was no forfeiture, defendant’s claim fails. As our Supreme Court has observed, “ ‘ “[t]echnical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice. [Citations.]” ’ [Citation.]” (Ibid.; see also People v. Camacho (2009) 171 Cal.App.4th 1269, 1272 [a verdict “ ‘ “ ‘is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court’ ” ’ ”].)
Defendant is correct that section 664, subdivision (a)’s penalty provision for “an attempt to commit murder that is ‘willful, deliberate, and premeditated’ does not establish a greater degree of attempted murder.” (People v. Bright (1996) 12 Cal.4th 652, 669, disapproved on another ground by People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Nevertheless, courts colloquially use the term “attempted first degree murder” to refer to attempted willful, deliberate, and premeditated murder. (E.g., People v. Jones (1997) 15 Cal.4th 119, 134, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 832, fn. 1.) Thus, defendant was not “convicted of a non-existent crime” by virtue of the fact that the verdict form referred to the crime as “attempted murder, first degree.”
A similar situation was presented in People v. Dominguez (1992) 4 Cal.App.4th 516 (Dominguez). The defendant was charged with two counts of attempted murder, and the jury was instructed that it had to determine whether allegations of willfulness, deliberateness, and premeditation were true. (Id. at p. 521.) The jury was also instructed on the definition of those terms and the prosecution’s burden of proof. However, the verdict forms did not include a special finding on whether the attempted murders were willful, deliberate, and premeditated; rather, it “included a part that allowed the jury to fix the degree of the attempted murder as first or second degree.” (Id. at p. 522.) The jury returned a verdict of first degree attempted murder as to one count and second degree attempted murder as to the other count.
On appeal, the Dominguez defendant claimed his conviction of first degree attempted murder should be reduced to second degree attempted murder because the verdict form did not contain the finding on willfulness, deliberateness, and premeditation specified in section 664. The appellate court rejected the claim, finding it “clear from th[e] record”—i.e., the instruction and verdict form—that the jury had found the allegation true. (Dominguez, supra, 4 Cal.App.4th at p. 522.) The court refused to hold that “the mandate of section 664 can be met only by” using a verdict form that contained a specific finding of willfulness, deliberateness, and premeditation. (Id. at p. 523.)
Defendant contends Dominguez was wrongly decided and asserts that this court should follow People v. Douglas (1990) 220 Cal.App.3d 544 (Douglas). However, Douglas does not help defendant. Although the Douglas court did hold that “attempted murder is not divided into degrees,” that was in the context of rejecting the defendant’s claim that he was entitled to an instruction on attempted second degree murder. (Id. at pp. 549-550.) In Douglas, the verdict form included a specific finding on whether the offense was willful, deliberate and premeditated, and thus the defendant was properly sentenced to a life term under section 664. (Douglas, supra, at p. 550.)
We agree with the rationale of Dominguez and find no sentencing error in this case. The jury was instructed it had to “decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.” The prosecutor told the jury that it had to consider “[f]irst degree attempted murder,” referencing “the premeditation and meditation [sic].” The jury had verdict forms for both “attempted murder, first degree” and “attempted murder, second degree” (capitalization omitted), and it filled out the verdict form for “attempted murder, first degree,” indicating it found defendant guilty of “attempted murder in the first degree of Rafael Vasquez” (capitalization omitted). On this record, in light of the instructions, argument, and verdict forms, the jury’s intent to convict defendant of willful, deliberate, and premeditated attempted murder “is unmistakably clear.” (Jones, supra, 29 Cal.4th at p. 1259.)
D. Cumulative Prejudice
Defendant contends the cumulative effect of the trial court’s errors requires reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error”].) However, we have found no errors. Therefore, there can be no cumulative prejudice.
E. Amendment to Section 12022.53
As noted above, the trial imposed an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d) as to both the murder and the attempted murder.
At the time of sentencing in this case, section 12022.53 contained a provision prohibiting a trial court from striking “an allegation under this section or a finding bringing a person within the provisions of this section.” (Former § 12022.53, subd. (h); see Stats. 2010, ch. 711, § 5.) However, section 12022.53 was amended effective January 1, 2018—while this appeal was pending. Section 12022.53, subdivision (h) now provides: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2.)
1. Retroactivity
Defendant requests this court remand the matter for resentencing to allow the trial court to exercise its discretion to strike the section 12022.53, subdivision (d) enhancement allegations pursuant to the amendment to section 12022.53 that became effective on January 1, 2018. Defendant asserts that he is entitled to the benefits of the amended version of section 12022.53 under the retroactivity principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 (Francis).
Estrada set forth an exception to the general rule that changes in the law apply prospectively: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.) Francis determined that the same exception applied when a statutory amendment gave the trial court discretion to impose a lower sentence. In that case, the defendant was convicted of committing a felony drug offense. While his case was pending on appeal, the statute was amended to change the drug offense from a straight felony to a wobbler that could be charged as a felony or a misdemeanor. The Francis court determined that the amendment was retroactive under the principles of Estrada. (Francis, supra, 71 Cal.2d at pp. 75-78.) The court reasoned that while the amendment did not guarantee Francis a lower sentence, making the crime punishable as a misdemeanor showed a legislative intent that punishing the offense as a felony might be too severe in certain cases. (Id. at p. 76.)
The Attorney General agrees that “[t]he reasoning of Francis controls in this case,” such that the amendment to section 12022.53, subdivision (h) applies retroactively to this case, which is not yet final. We find the Attorney General’s concession appropriate. (Accord, People v. Robbins (2018) 19 Cal.App.5th 660, 668.)
2. Remand
The Attorney General asserts that a remand for resentencing is not required because “it is apparent that the trial court would not strike or dismiss the firearm enhancement[s].”
At the sentencing hearing, the prosecutor argued that the trial court should impose the maximum sentence, noting that the killing had been “senseless” and that defendant had not taken responsibility or expressed remorse. Defendant made a statement apologizing “for the loss” but asserting he had acted in the belief that the shootings were “necessary to protect and defend” himself and his family.
The trial court found that the jury’s verdict was “just and supported by substantial, if not overwhelming, evidence.” The trial court noted that it had “very little discretion in the sentence based on the fact this is a three strikes case.” As to count 3 (possession of a firearm by a felon), the trial court imposed the upper term after finding that the factors in aggravation (sophistication and planning, increasingly severe criminal behavior, and unsatisfactory prior performance on probation or parole) outweighed the factor in mitigation (defendant’s admission to the shooting at an early stage).
We believe defendant is entitled to a remand for resentencing. The trial court’s comments make it clear the trial court believed its discretion was very limited. The trial court’s decision to impose an upper term sentence on count 3 does not inform us as to whether the court would have exercised its section 1385 discretion as to either of the section 12022.53, subdivision (d) enhancements. (Cf. People v. Deloza (1998) 18 Cal.4th 585, 600 [remanding for resentencing where trial court declined to strike a prior felony conviction pursuant to section 1385 but misunderstood the scope of its discretion to impose concurrent terms].) Appellate courts “do not have the power to substitute their discretion” for that of a trial court that fails to exercise its discretion based on a mistaken belief about its authority to do so. (People v. Orabuena (2004) 116 Cal.App.4th 84, 100.) Here, because the trial court sentenced defendant at a time when it lacked discretion to strike the section 12022.53, subdivision (d) enhancement allegation and the record does not indicate whether the trial court would have exercised that discretion, a remand for resentencing is appropriate.
We will therefore remand the matter to allow the trial court to consider whether to strike the section 12022.53, subdivision (d) enhancement allegation under section 1385.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for the purpose of allowing the trial court to consider whether to strike the Penal Code section 12022.53, subdivision (d) enhancement allegation under Penal Code section 1385. If the trial court strikes the Penal Code section 12022.53, subdivision (d) enhancement, it shall resentence defendant. If the trial court does not strike the Penal Code section 12022.53, subdivision (d) enhancement, it shall reinstate the sentence.






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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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ELIA, ACTING P.J.






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MIHARA, J.