P. v. Smith
Filed 6/27/12 P. v. Smith CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNATHON LEE SMITH,
Defendant and Appellant.
B231583
(Los Angeles
County
Super. Ct.
No. MA047755)
APPEAL from
a judgment of the Superior Court
of
County, Charles A. Chung, Judge. Affirmed in part, modified in part with
directions.
Cannon
& Harris, Donna L. Harris under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Marc A. Kohm and Sonya Roth,
Deputy Attorneys General, for Plaintiff and Respondent.
>
I. INTRODUCTION
A jury
convicted defendant, Johnathon Lee Smith, of:
first degree murder (Pen. Code,
(§ 211); first degree burglary,
person present (§§ 459, 667.5, subd. (c)); and
were true: he had sustained one prior
serious felony conviction (§§ 667, subds. (b)-(i), 1170.12); he had
sustained a single prior serious felony conviction (§ 667, subd. (a)(1));
and he had served prior separate prison
terms (§ 667.5, subd. (b).)
Defendant was sentenced to a determinate term of 23 years consecutive to
an indeterminate term of 55 years to life.
Defendant argues: his murder
conviction must be reversed because the trial court failed to instruct on
voluntary intoxication as it relates to involuntary manslaughter; his arson
conviction must be reversed because the trial court failed to give an aiding
and abetting instruction; and a theft fine plus penalty assessments must be
deleted from the abstract of judgment because the trial court did not orally
impose any such fine. We modify the judgment,
direct further limited sentencing
proceedings and order correction of the abstract of judgment.
II. THE EVIDENCE
Defendant
was a methamphetamine user. He both
smoked and injected methamphetamine on a regular basis. Defendant admitted killing a friend and
fellow drug-user, Alfonso Gonzalez.
After the killing, over the next few days, defendant removed hundreds of
valuable items, primarily electronic equipment, from Mr. Gonzalez’s
home. Mr. Gonzalez shared the home
with Gary Shockley. Defendant was
assisted in this endeavor by a friend, Andrew Gamez. On November 28, 2009, defendant set the house
on fire. Investigators found
Mr. Gonzalez’s partially burned body in a closet. One week prior to the murder, defendant spoke
to a friend, Kristy Langosh. Defendant
said he could easily get into the Gonzalez-Shockley home. During their conversation, defendant told
Ms. Langosh: “[H]e brought up how
he could just take [Mr. Gonzalez] . . . out to the
middle of the desert and leave him there and nobody would ever find him.”
When
interviewed by two sheriff’s detectives, defendant claimed Mr. Gonzalez
was unintentionally killed in a fist fight.
Defendant told the detectives: “I
got in a fight with him. I snapped. [¶] .
. . I blacked out when I started hitting
him, and when I stopped hitting him . . .
[¶] . . . he was just laying
there.” Defendant’s explanation for the
fight as described to the detectives was:
“He tried to grab my dick.
[¶] . . . I flipped out.” During the in-custody interviews, defendant
also admitted setting the house afire with Mr. Gonzalez’s body
inside. At trial, however, defendant
testified it was Mr. Gamez, acting alone, who set the house afire.
III. DISCUSSION
A. Voluntary Intoxication Instruction
The trial
court refused defendant’s requested instruction that voluntary intoxication
resulting in unconsciousness negates express malice so as to reduce a murder
charge to involuntary manslaughter.
(§ 22, subd. (b); People v.
Carlson (2011) 200 Cal.App.4th 695, 699.)
Involuntary manslaughter is a lesser included offense of murder. (People
v. Thomas (2012) 53 Cal.4th 771, 813; People
v. Gutierrez (2012) 28 Cal.4th 1083, 1145.)
Section 22, subdivision (b) states:
“Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or,
when charged with murder, whether the defendant premeditated, deliberated, or
harbored express malice aforethought.”
Pursuant to section 188:
“[Malice] is express when there is manifested a deliberate intention
unlawfully to take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart.” The
requested instruction, CALJIC No. 8.47, provided in part, “If you find that a
defendant, while unconscious as a result of voluntary intoxication, killed
another human being without an intent to kill and without malice aforethought,
the crime is involuntary manslaughter.”
A defendant
is entitled, upon request, to instruction on voluntary intoxication as it
relates to voluntary manslaughter only when substantial evidence supports the
instruction. (People v. Verdugo (2010) 50 Cal.4th 263, 295; People v. Williams (1997) 16 Cal.4th 635, 677.) Here, the trial court found there was no
substantial evidence defendant blacked out due to voluntary intoxication. The trial court reasoned the evidence showed
only that defendant blacked out when punched by Mr. Gonzalez. We agree there was insufficient evidence of
unconsciousness due to voluntary intoxication.
Defendant had smoked methamphetamine earlier on the day of the murder,
but due to his exhaustion, he did not feel the effects. Defendant was on the verge of injecting
himself with methamphetamine when he discovered he was using a possibly tainted
needle. Defendant aborted the injection. Defendant confronted Mr. Gonzalez and a
fist fight ensued. Mr. Gonzalez punched
defendant in the face. Only then did
defendant black out. Moreover, defendant
never testified his methamphetamine use rendered him unconscious.
And there was no evidence of the
effects of methamphetamine on a chronic user.
Further, on cross-examination, defendant testified as follows: “Q . .
. Are you saying that you were under the influence that entire night that
Alfonso died [¶] A I
was up for eight days before that.
[¶] Q So you weren’t functioning that night you
[are] saying [¶] A Not
in a right mind, no. [¶] Q Were
you able to walk around [¶] A
Yes. [¶] Q Were
you able to talk [¶] A
Yes. [¶] Q Were
you able to make decisions [¶] A
No. [¶] Q Were
you able to look around the house
[¶] A Yes.
[¶] . . . [¶]
Were you able to take the car seat out of Alfonso’s car [¶]
A Yes. [¶]
Q And load up the car [¶]
Yes. [¶] Q And
drive the car [¶] A
Yes.” Defense counsel argued
Mr. Gonzalez’s death was the unintended consequence of a fist fight. Defense counsel further argued defendant was
provoked by Mr. Gonzalez.
Mr. Gonzalez seemed unconcerned when accused of potentially
exposing defendant to the human immunodeficiency virus. Under all of these circumstances, the trial
court properly declined to instruct pursuant to CALJIC No. 8.47. (People
v. Haley (2004) 34 Cal.4th 283, 313; People
v. Ochoa (1998) 19 Cal.4th 353, 423-424.)
Even if the
trial court erred, there was no prejudice.
The jury was instructed on premeditated murder, second degree murder,
voluntary manslaughter and involuntary manslaughter. The jury was further instructed that, if it
found defendant was voluntarily intoxicated at the time of the murder, it
should consider that fact in deciding whether he had the requisite mental state. (CALJIC No. 4.21.1.) The jury had the opportunity to find
defendant not guilty of murder and guilty only of involuntary manslaughter on
the basis of his voluntary intoxication.
The jury rejected all other verdicts and found defendant guilty of
claim he was unconscious due to voluntary intoxication when the killing
occurred. (People v. Boyer (2006) 38 Cal.4th 412, 474-475;
314; People v. Whitfield (1994) 7
Cal.4th 437, 456, superseded by statute on another point as discussed in
1114, 1125-1126.)
B. Aiding And Abetting Instruction As To Arson
Defendant
argues his arson conviction must be reversed because the trial court failed to
instruct on aiding and abetting liability.
Defendant reasons, “[I]t is not inconceivable that the jury believed
[defendant] was not the actual perpetrator [of the arson] but still concluded
he was equally guilty because he set into motion the events that led to
Gonzalez’s injuries.” Our Supreme Court
has defined an aider and abettor as:
“[One who] act[s] with knowledge of the criminal purpose of the
perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating commission of,
the offense. [Citations.]” (People
v. Beeman (1984) 35 Cal.3d 547, 560; accord, People v. Mendoza, supra, 18 Cal.4th at p. 1123.) An aiding and abetting instruction is not
required where there is no evidence to support such a theory. (People
v. Young (2005) 34 Cal.4th 1149, 1201, citing People v. Sassounian (1986) 182 Cal.App.3d 361, 404.) Here, the trial court had no obligation to
sua sponte instruct on aiding and abetting in connection with the arson
charge. The evidence at trial reasonably
led to only one of two conclusions, neither of which involved aiding and
abetting. Either defendant acted alone
in setting the fire or Mr. Gamez committed the arson.
C. Sentencing Errors
1. Count 1:
First Degree Murder
The trial
court sentenced defendant on count 1 to 50 years to life, that is, 25 years to
life doubled pursuant to sections 667, subdivisions (b) through (i), and
1170.12. The abstract of judgment
erroneously records the sentence as 25 years to life. The abstract of judgment must be corrected.
2. Counts 2 and 3
The
abstract of judgment fails to record that the sentence imposed on count 2 was
12 years and on count 3 was likewise 12 years.
The abstract of judgment must be amended to so provide.
3. The Local Crime Prevention Programs Fine
The
abstract of judgment states a $10 local crime prevention programs fine
(§ 1202.5, subd. (a)) plus $26 in penalties was imposed. However, the trial court did not orally impose
the fine. Moreover, section 1202.5,
subdivision (a) has an ability to pay provision. The failure of the trial court to orally
impose the section 1202.5, subdivision (a) fine is presumed to result from a
finding defendant did not have the ability to pay the fine plus the penalties
and surcharge. (People v. Tillman (2000) 22 Cal.4th 300, 302-303;
859, 864.) Because no section 1202.5,
subdivision (a) fine was orally imposed, it must be deleted from the abstract of
judgment. (People v. Mesa (1975)
14 Cal.3d 466, 471-472; People v. Hartsell (1973) 34
Cal.App.3d 8, 14.)
4. Fees
The trial
court orally imposed “$70 in fees.”
However, defendant was subject to a $30 court security fee on each count
for a total of $120. (§ 1465.8,
subd. (a)(1); People v. Schoeb (2005)
132 Cal.App.4th 861, 865-866; see People
v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.) This is notwithstanding the section 654,
subdivision (a) stays imposed on counts 2 and 3. (People
v. Sharret, supra, 191 Cal.App.4th at p. 865; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.) The oral pronouncement of judgment must be
modified to reflect the imposition of $120 in court security fees. The abstract of judgment is correct in this
respect and need not be amended.
Defendant
was also subject to a $40 court facilities assessment as to each count for a
total of $160 (Gov. Code, § 70373, subd. (a)(1); People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3)
notwithstanding the section 654, subdivision (a) stay on counts 2 and 3 (cf.
Cal.App.4th at pp. 370-371; see People v.
Woods (2010) 191 Cal.App.4th 269, 271-273).
The oral pronouncement of
judgment must be modified to so provide.
The abstract of judgment must be amended to record the assessments.
5. Conduct Credit
The trial
court recognized that given defendant’s murder conviction he was not entitled to presentence conduct credit. (§ 2933.2, subd. (c).) The trial court ordered, however, “As to the
arson count, he gets 67 good time/work time credits.” That order was in error. Section 2933.2, subdivision (c) imposes a
complete ban on presentence conduct credit for defendants convicted of
murder. Section 2933.2, subdivision (c)
does not allow presentence conduct credits against any part of a sentence
imposed on a convicted murderer. (
792-801; People v. McNamee (2002) 96
Cal.App.4th 66, 69-74.) Therefore, the
oral pronouncement of judgment must be modified to omit the reference to 67
days of conduct credit. The abstract of
judgment is correct in this respect and need not be amended.
6. Prior prison term enhancements
The trial
court stated in connection with the prior prison term enhancements: “Then to the overall sentence I will add two
of the one-year priors. The other two
either wash out or have already been used.”
The trial court’s calculation that only two of the three one-year prior
prison term enhancements could be imposed is correct in part. The trial court’s assessment that only two
one-year prior prison term enhancements may be imposed is correct. However, they must be imposed on
terms unless they are stricken. (
1550, 1559-1562; see People v. Williams
(2004) 34 Cal.4th 397, 401-405.) A prior
prison term enhancement must be imposed or stricken pursuant to section 1385,
subdivision (a). (People v. Langston (2004) 33 Cal.4th 1237, 1241;
The failure to either impose or strike a prior prison term enhancement
pursuant to section 1385, subdivision (a) is a jurisdictional error correctable
for the first time on appeal. (
section 667, subdivision (b) enhancements on the determinate term is
affirmed. Upon remittitur issuance, the
trial court is to impose or strike pursuant to section 1385, subdivision (a),
the two 667.5, subdivision (b) one-year enhancements on the indeterminate
term. The trial court retains the
jurisdiction to strike one single one-year enhancement and impose the
other. Any order striking an enhancement
must fully comply with the requirement that the reasons for such an action
appear in the clerk’s minutes.
(§ 1385, subd. (a); People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) We leave all of these matters in the trial
court’s good hands.
IV. DISPOSITION
The judgment is modified to impose
$160 in court facilities assessments (Gov. Code, § 70373, subd. (a)(1))
and $120 in court security fees (Pen. Code, § 1465.8, subd. (a)(1)), and
to omit the award of 67 days conduct credit.
Upon remittitur issuance, the abstract of judgment must be amended to
reflect that: defendant was sentenced on
count 1 to 50 years to life; the sentence imposed on count 2 was 12 years; the
sentence imposed on count 3 was 12 years; and defendant was subject to $160 in
court facilities assessments. (Gov.
Code, § 70373, subd. (a)(1).) The
abstract of judgment is to delete any reference to the Penal Code section
1202.5, subdivision (a) fine and any associated penalties. Upon remittitur issuance, the trial court is
to impose or strike pursuant to section 1385, subdivision (a) the two Penal
Code section 667.5, subdivision (b) one-year enhancements on the indeterminate
term. Once the decision is made on the
two prior prison term enhancements, the clerk is to prepare a corrected
abstract of judgment. The corrected
abstract of judgment is to be served on the
Rehabilitation. The judgment is
affirmed in all other respects.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
ARMSTRONG,
J. KRIEGLER,
J.
further statutory references are to the Penal Code unless otherwise noted.
