People v. Gonzales CA2/4 ( 2021 )


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  • Filed 11/23/21 P. v. Gonzales CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
    publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,                                                                          B306537
    Plaintiff and Respondent,                                                (Los Angeles County
    Super. Ct. No. LA082639)
    v.
    BRIAN GONZALES,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Alan Schneider, Judge. Affirmed in part,
    vacated in part and remanded.
    Mark Yanis, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Senior
    Assistant Attorney General, Paul M. Roadarmel, Jr. and
    David A. Wildman, Deputy Attorneys General, for Plaintiff
    and Respondent.
    _____________________________________
    INTRODUCTION
    In January 2016, appellant Brian Gonzales confronted
    his ex-girlfriend Emily Fox and her new boyfriend Jerred
    Scott in a hallway outside Fox’s apartment and learned that
    Fox was dating Scott. Appellant reacted to this discovery by
    drawing a gun, causing Scott to flee. Appellant pursued him
    and forced him to return at gunpoint. After discovering that
    Fox had called the police while he was chasing Scott,
    appellant shot and killed them both. He was charged with
    two counts of murder. Each count was accompanied by
    firearm and multiple murder allegations under Penal Code
    sections 12022.53, subdivision (d) (section 12022.53(d)) and
    190.2, subdivision (a)(3) (section 190.2(a)(3)).1 Count two
    (the murder of Scott) was also accompanied by an allegation
    that Scott’s murder was committed during a kidnapping
    under section 190.2, subdivision (a)(17) (section
    190.2(a)(17)). Appellant pled not guilty.
    At a pretrial hearing, appellant’s counsel indicated he
    intended to present a “heat of passion” defense and wanted
    to call an expert to testify about which region of the brain
    was active when a person acted during the heat of passion.
    1    Undesignated statutory references are to the Penal Code.
    2
    The court declined to permit such testimony, finding that a
    juror would know from common experience that a person
    could act in such a manner, and concluding it was not
    helpful to explain where in the brain such actions originated.
    After all witnesses had testified and both counsel had given
    their closing arguments, the jury was presented with verdict
    forms regarding each murder count and all charged special
    circumstances. The verdict form for Fox’s murder
    additionally contained the uncharged special circumstance
    that her murder occurred during a kidnapping. The jury
    convicted appellant of all counts and found true all special
    circumstances, including the uncharged one. The court
    sentenced appellant to life without the possibility of parole
    for each murder count based on both the true multiple
    murder findings and the true kidnapping findings. The
    court additionally sentenced appellant to 25 years to life for
    each of the true firearm findings, arriving at a total sentence
    of life without the possibility of parole, plus 50 years to life.
    The court also imposed various fines and fees.
    Appellant makes five arguments on appeal: (a) the
    court erred in excluding the expert testimony; (b) the court
    erred in sentencing appellant based on the true finding that
    Fox’s murder occurred during a kidnapping; (c) the court
    erred in imposing fines and fees without determining
    appellant’s ability to pay; (d) the instruction the court gave
    regarding reasonable doubt was inadequate to inform the
    jury that each element of each offense and special
    circumstance was required to be proven beyond a reasonable
    3
    doubt; and (e) the cumulative prejudicial effect of the errors
    in excluding the expert testimony and inadequately
    instructing on reasonable doubt warrants reversal.
    We conclude that: (a) the court did not err in excluding
    the expert testimony; (b) the court erred in basing
    appellant’s sentence in count one (Fox’s murder) in part on
    the true finding on an uncharged special circumstance; (c)
    appellant forfeited any objections to the imposed fines and
    fees by failing to raise the issue when they were imposed; (d)
    our Supreme Court has already rejected appellant’s
    argument regarding the reasonable doubt instruction, and
    we are bound to follow its decision; and (e) because the court
    did not err in excluding the expert testimony or instructing
    on reasonable doubt, there is no cumulative error. We
    therefore vacate that portion of the judgment basing
    appellant’s sentence in count one on section 190.2(a)(17), and
    remand with directions to modify the abstract of judgment to
    remove this section as a basis for the sentence imposed on
    count one (and to correct the other errors discussed below).
    We otherwise affirm.
    STATEMENT OF RELEVANT FACTS
    A.    Pre-Trial
    After an August 2017 preliminary hearing, the court
    originally held appellant to answer on two counts of murder,
    with additional allegations that there were multiple
    murders, that the murders were committed with a firearm,
    and that they were committed in the course of a kidnapping
    4
    pursuant to section 190.2(a)(17). When the prosecutor asked
    to clarify to which count the kidnapping allegation
    pertained, the court responded: “It’s not specified and it
    occurred during the course of a crime for both, so the court
    will find it as to both. It is not specified in the complaint as
    to which count.” Immediately thereafter, however, the court
    stated, “There is sufficient evidence as to both, but the court
    will hold him to answer as charged as to count two [Scott’s
    murder] only.” Two weeks later, the People filed an
    information charging appellant with two counts of murder,
    and alleging both that appellant used a firearm in each
    murder (§ 12022.53(d) 2), and that each murder involved
    multiple murders (§ 190.2(a)(3)3). A kidnapping special
    2     (§ 12022.53(d) [“Notwithstanding any other provision of
    law, any person who, in the commission of a felony specified in
    subdivision (a), Section 246, or subdivision (c) or (d) of Section
    26100, personally and intentionally discharges a firearm and
    proximately causes great bodily injury, as defined in Section
    12022.7, or death, to any person other than an accomplice, shall
    be punished by an additional and consecutive term of
    imprisonment in the state prison for 25 years to life”].)
    3     (§ 190.2(a)(3) [“The penalty for a defendant who is found
    guilty of murder in the first degree is death or imprisonment in
    the state prison for life without the possibility of parole if one or
    more of the following special circumstances has been found . . . to
    be true: [¶] . . . [¶] (3) The defendant, in this proceeding, has been
    convicted of more than one offense of murder in the first or
    second degree”].)
    5
    circumstance (§ 190.2(a)(17) 4) was alleged only as to count
    two, Scott’s murder. Appellant pled not guilty to all counts.
    At a January 2020 pretrial hearing in which
    appellant’s counsel explained he intended to pursue a “heat
    of passion” defense, the court was asked to permit
    appellant’s expert to testify that the limbic system (the
    emotional part of the brain) can “‘hijack’” and deactivate the
    prefrontal cortex of the brain (where premeditation occurs)
    when a person is sufficiently “‘aroused’” or “‘enraged.’” The
    court declined, opining that “where[] within the brain these
    issues are formed is not as important as the fact that they
    were formed.” The court found the proffered testimony was
    unnecessary and would confuse the issues, both because the
    expert could not testify as to what had happened in
    appellant’s brain, and because the jury was “eminently
    qualified to determine the impact on formation of
    premeditation and deliberation or of fear or anger or sadness
    . . . . They don’t need to know specifically, where, within the
    brain, it is formed to do that.” The court concluded it would
    “mislead[] the jury to worry about the complicated brain
    functioning” unnecessarily, and that there was “some
    consumption of time issue . . . .”
    4     (§ 190.2(a)(17) [“The penalty for a defendant who is found
    guilty of murder in the first degree is death or imprisonment in
    the state prison for life without the possibility of parole if one or
    more of the following special circumstances has been found . . . to
    be true: [¶] . . . [¶] (17) The murder was committed while the
    defendant was engaged in . . . (B) Kidnapping in violation of
    Section 207, 209, or 209.5”].)
    6
    B.     Trial
    1.    Testimony
    Trial began in late January 2020. In the prosecutor’s
    opening statement, he informed the jury that it would “hear
    evidence about how this defendant killed Jerred [Scott] in
    the commission of kidnapping” but did not similarly state
    that appellant had killed Fox in the commission of
    kidnapping. In the opening statement of appellant’s counsel,
    he claimed appellant had shot both Fox and Scott “without
    premeditation and without deliberation,” but rather as a
    reaction to discovering Fox had called the police on him, and
    seeing Scott step toward him.
    Multiple witnesses testified at trial, including
    appellant and his family and friends, Fox’s family and
    friends, and several professionals (police officers, a
    criminalist, a firearm examiner, and a coroner). All the
    witnesses agreed on the basic facts.
    After Fox and appellant began dating in late 2013,
    appellant was verbally and physically abusive toward Fox.
    In one incident, Fox’s best friend, Amanda Morton, was
    driving Fox and appellant to a restaurant. When appellant
    learned they were going to the Inglewood location of the
    restaurant instead of the Hollywood location, he began
    yelling and screaming at Fox, calling her a bitch, claiming
    she had lied, and demanding to be taken home. Fox began
    crying, and when Morton asked Fox if appellant always
    treated her in this manner, she confirmed he did. Also
    played at trial was a recording Fox had made of a
    7
    conversation between appellant and her, in which appellant
    apologized for choking Fox and throwing her on the couch.
    Morton testified that Fox had told her appellant had “[held]
    guns to her head,” and was very controlling. From mid to
    late 2015, Fox began expressing a desire to break up with
    appellant.
    By December 25, 2015, when Fox visited Morton in
    Dallas, Fox had broken up with appellant, had asked that
    his belongings be removed from her apartment, and had
    begun dating Scott. While Fox was visiting Morton,
    appellant called Fox and angrily told her that “when she got
    back into town . . . she had to watch her back because there
    was going to be bloodshed.”
    Though appellant moved out of Fox’s apartment
    shortly after the new year and took most of his belongings
    with him, he left some personal items behind due to
    insufficient space in the car he was using for the move.
    Appellant testified that he believed he and Fox were “on a
    break,” but had agreed not to date other people.
    In January 2016, on the day of the killings, appellant
    was driving his 16-year-old cousin Kamal Jenkins from
    Santa Barbara to Inglewood, when Jenkins told him he
    needed to use the bathroom. Appellant suggested they stop
    at Fox’s apartment, where Jenkins could use the bathroom,
    and appellant could both retrieve some of his clothes that
    were still there and say hello to Fox. Appellant attempted to
    contact Fox through various means, but received no response
    until he had already arrived and was pulling into the
    8
    apartment complex’s subterranean garage. Fox’s response
    was: “‘Now isn’t a good time because my mom is here.’”
    Appellant parked in the garage and saw an unfamiliar
    vehicle in one of Fox’s parking spaces, making him
    suspicious. He noticed that the driver’s seat of this car was
    moved far back, leading appellant to suspect the car
    belonged to a man. Appellant told Jenkins to urinate in a
    corner of the parking garage; Jenkins complied, and then got
    back in appellant’s car, joining him. Appellant tried to
    communicate with Fox again, but was unable to obtain a
    signal in the underground garage. Appellant then went to
    the trunk of his car and retrieved a gun. Before closing the
    trunk, he chambered a round, engaged the safety, and put
    the gun in his waistband.5 He and Jenkins then rode the
    elevator to the third floor where Fox’s apartment was
    located.
    When they exited the elevator, Fox greeted them and
    gave Jenkins a hug. Shorty after, Scott approached, shook
    Jenkins’s hand, and told appellant he did not know what Fox
    and appellant had “going on,” but he had nothing to do with
    it, and had “no problems.” Appellant asked Fox whether
    Scott was her new boyfriend, and after Fox stated he was,
    5     Appellant testified he was armed “all the time, especially
    when I’m in this specific neighborhood” because it was a known
    Hispanic gang neighborhood, and appellant was African
    American; because of appellant’s tattoos, other gang members
    often thought he was part of a gang. He claimed that arming
    himself in that neighborhood was simply a habit.
    9
    appellant became upset and drew his gun. Scott ran, but
    appellant chased him and forced him to return at gunpoint.
    When appellant ran after Scott, Fox called 911 and told
    the operator that her ex-boyfriend had come to her property
    with a gun and tried to shoot her current boyfriend. After
    appellant returned with Scott, Scott moved next to Fox and
    Jenkins, and all three faced appellant. Appellant testified
    he saw Fox on the phone and thought, “I need to take the
    [gun’s] safety off.” He then asked Fox if she was calling the
    police. Appellant testified that as Fox began to answer, he
    saw Scott take a step toward him and he “just snapped” and
    “blacked out and started shooting”; Jenkins dropped to the
    ground and closed his eyes. A total of nine bullet casings
    were recovered from the scene. Appellant testified that he
    believed he fired from only one location, but a criminalist
    testified that an analysis of the bullet pathways indicated
    appellant was moving as he fired his gun. Fox and Scott
    were each shot four times; Jenkins was not shot. Appellant
    admitted he aimed at Scott and Fox when firing.
    After he stopped shooting, appellant ran toward the
    stairs and Jenkins followed. The two left in appellant’s car,
    and Jenkins called his mother. Appellant eventually
    dropped Jenkins off near Dodger Stadium and his mother
    picked him up. Several hours later, Jenkins and his mother
    went to the police and told them what he had seen. Two
    days later, appellant was apprehended without incident at a
    Greyhound bus station; he was sitting on a bus going to
    Tijuana, Mexico.
    10
    During closing argument, the prosecutor professed
    confidence that the jury would find appellant “guilty of two
    counts of first degree murder, that he kidnapped Jerred
    [Scott] in the commission of that murder and that he
    obviously killed both victims, multiple murders.” (Italics
    added.)
    2.
    The Jury Finds Appellant Guilty on All
    Counts
    Among the jury instructions given was CALCRIM No.
    220, which provided that the prosecution was required to
    “prove a defendant guilty beyond a reasonable doubt” and
    that “[w]henever I tell you the People must prove something,
    I mean they must prove it beyond a reasonable doubt . . . .”
    The jury was also instructed on what was required for a true
    finding on a kidnapping special circumstance, but neither
    that instruction nor any other specified the count to which
    the kidnapping instruction applied. However, the verdict
    form for Fox’s murder contained the sentence: “We further
    find the special circumstance allegation that the defendant
    committed the offense during the crime of KIDNAPPING
    within the meaning of Penal Code Section 190.2(a)(17) to be:
    ___________________” with “(TRUE OR NOT TRUE)” written
    under the blank.6 The record is silent as to the
    circumstances surrounding the approval of this verdict form.
    6     Included with the verdict forms was a special verdict form,
    instructing the jury that if they found appellant guilty of one
    (Fn. is continued on the next page.)
    11
    During deliberations, the jury asked the court, “If we
    find a kidnapping occurred in regards to Count 2 (Jer[r]ed
    Scott), and Emily [Fox] is killed in the commission of the
    kidnapping, does this also constitute murder 1 in regards to
    Emily[?]” In discussing this question, appellant’s counsel
    indicated his belief that the answer should be “no,” but the
    court disagreed, stating the question was what the jury
    found “to be in the commission of the kidnapping and
    540A.”7 Appellant’s counsel then asked, “wasn’t the DA’s
    theory, that limits that theory to Jerred Scott [sic]?” The
    prosecutor responded that this was “incorrect” and
    “ridiculous.” The court’s response to the jury was: “The
    court refers the jury to the homicide instructions already
    provided.” The jury found appellant guilty of the first degree
    murders of Fox and Scott. It further found true the
    allegation as to each murder that it was committed during
    the crime of kidnapping, and that appellant intentionally
    charge of first degree murder, and one additional charge of either
    first degree or second degree murder, they were to determine
    whether “the multiple murder special circumstance within the
    meaning of Penal Code section 190.2(a)(3)” was true.
    7     Instruction 540A provided that the defendant was charged
    with two counts of first degree felony murder, and that to prove
    defendant’s guilt, the prosecution was required to prove, among
    other elements, that “[w]hile committing kidnapping[,] the
    defendant caused the death of another person.”
    12
    discharged a firearm in committing the crimes. The jury
    found true the multiple murder special circumstance.8
    The court sentenced appellant to life imprisonment
    without the possibility of parole for each count due to both
    the true finding on the kidnapping special circumstance, and
    the true finding on the multiple murder special
    circumstance. The court imposed an additional 25 years to
    life for each true finding that appellant discharged a firearm
    and caused great bodily injury, resulting in a total sentence
    of life without the possibility of parole, plus an additional 50
    years to life.9 The court also ordered appellant to pay
    various fines and fees. Appellant timely appealed.
    8      In June 2020, appellant moved for a new trial, arguing that
    he had been relying on a “heat of passion defense,” but was
    prevented from presenting expert testimony to explain that
    complex thought processes and impulsive decisions were
    governed by different regions of the brain, and that when
    sufficiently aroused by extreme emotion, the portion of the brain
    responsible for impulsive decisions could prevent premeditation.
    Though appellant acknowledged “it is common knowledge that
    people can act without thinking while in the throes of an extreme
    emotional state,” he argued that precluding his expert from
    testifying deprived him of “the opportunity to establish a very
    critical part of its defense: an explanation as to ‘how’ one part of
    the brain can actually prevent another part of the brain from
    thinking clearly and exercising judgment.” The court denied
    appellant’s motion, and appellant does not challenge this ruling
    on appeal.
    9     Both the abstract of judgment and the minute order
    erroneously state that appellant was sentenced to an additional
    25 years under section “1202.53(d)” instead of section
    (Fn. is continued on the next page.)
    13
    DISCUSSION
    A.    The Court Did Not Err in Excluding Expert
    Testimony About the Mechanics of How the
    Brain Functions
    At a pretrial hearing, the court refused to permit
    appellant’s expert to testify that the limbic system can
    “‘hijack’” and deactivate the prefrontal cortex of the brain
    (where premeditation occurs) when a person is sufficiently
    “‘aroused’” or “‘enraged,’” finding it was unnecessary, would
    confuse the issues, and would require too much time.
    Appellant contends the excluded testimony was relevant and
    would have aided the jury, the testimony was not confusing
    and did not require an undue consumption of time, and its
    exclusion was prejudicial.10 We disagree.
    We typically review a court’s exclusion of evidence for
    an abuse of discretion. (People v. Waidla (2000) 
    22 Cal.4th 690
    , 725 [“an appellate court applies the abuse of discretion
    standard of review to any ruling by a trial court on the
    admissibility of evidence”].) Citing People v. Seijas (2005) 36
    12022.53(d). The abstract of judgment also erroneously states
    that appellant was sentenced under “190.2(a)(2) PC” (as opposed
    to section 190.2(a)(3)), and incorrectly lists his attorney as
    “TYREE A. ALMADA, DDA” instead of “TYREE CAMPBELL.”
    (Manuel A. Almada was the prosecutor.)
    10    Appellant also argues that the testimony did not violate
    sections 28 and 29 (pertaining to expert testimony regarding a
    defendant’s mental disease, defect, or disorder). Because the
    court did not exclude the testimony under those sections, we need
    not address this argument.
    
    14 Cal.4th 291
    , appellant contends that because this ruling
    “deprived appellant of his constitutional right to present a
    defense, the de novo standard should apply.” We find it
    unnecessary to decide which standard of review applies,
    because we would affirm under either standard.
    The primary question for the jury was whether
    appellant’s mental state precluded him from engaging in
    premeditation. Though appellant acknowledges “it is
    common knowledge that people can act without thinking
    while in the throes of an extreme emotional state,” he fails to
    explain how knowing where in the brain such decisions
    emanate would aid the jurors in determining whether
    appellant acted from impulse or premeditation. Nor do we
    discern any other manner in which such testimony would
    have been helpful. Accordingly, we conclude the court acted
    well within its discretion in ruling that the excluded
    testimony had no tendency in reason to prove or disprove
    that appellant was in a mental state that precluded
    premeditation; on an independent review, we would make
    the same ruling ourselves.11
    11    The cases on which appellant relies are inapplicable
    because they deal with expert testimony on issues outside the
    common experience of a juror. (See People v. Sotelo-Urena (2016)
    
    4 Cal.App.5th 732
    , 746 [trial court erred in precluding expert
    testimony regarding effect of homelessness on defendant’s belief
    in need for self-defense]; People v. Humphrey (1996) 
    13 Cal.4th 1073
    , 1076, 1087 [expert testimony regarding battered woman
    syndrome “‘would have assisted the jury in objectively analyzing
    [defendant’s] claim of self-defense by dispelling many of the
    (Fn. is continued on the next page.)
    15
    Moreover, the exclusion of this testimony did not
    prejudice appellant; thus had we found error, we would deem
    it harmless. The jury had already heard testimony (1) that
    appellant had been verbally and physically abusive toward
    Fox, (2) that he armed himself before going to see her, (3)
    that he did not draw his gun until Fox confirmed Scott was
    her new boyfriend, (4) that he chased Scott down after the
    latter ran, marching him back to Fox at gunpoint, (5) that he
    deliberately disengaged the safety of his gun after he saw
    Fox on the phone, and (6) that he aimed at both Fox and
    Scott (but not at Jenkins), and fired his gun while in motion,
    even though he claimed to have been shooting in a blind
    commonly held misconceptions about battered women’”]; In re
    Walker (2007) 
    147 Cal.App.4th 533
    , 552-553 [ineffective
    assistance of counsel due to failure to present expert testimony
    on battered woman syndrome, because such testimony would
    have helped the jury assess “the nature and extent” of
    defendant’s fear]; People v. McAlpin (1991) 
    53 Cal.3d 1289
    , 1296,
    1300-1302 [expert testimony explaining why parents might not
    report child molestation admissible because it would aid jury in
    determining credibility of mother’s testimony]; People v.
    Coddington (2000) 
    23 Cal.4th 529
    , 582-583 [“expert’s opinion that
    a form of mental illness can lead to impulsive behavior is
    relevant to the existence vel non of the mental states of
    premeditation and deliberation”]; People v. Vu (1991) 
    227 Cal.App.3d 810
    , 813 [error to exclude expert testimony that a
    person’s actual perception of events may have differed from
    reality due to stress and preconceived expectations about what
    might happen].) By contrast, the idea that a person, when
    angered, could act impulsively without premeditation is within a
    juror’s common experience.
    16
    rage. On this record, we find beyond a reasonable doubt that
    hearing testimony that if appellant had been acting due to
    rage, his decisions would have emanated from his limbic
    system and not his prefrontal cortex, would have made no
    difference in the jury’s verdict.12
    12     Appellant’s reliance on People v. Cortes (2011) 
    192 Cal.App.4th 873
     is misplaced. In Cortes, where the defendant
    was accused of stabbing the victim to death, an expert was
    prepared to testify that the defendant was acting out of fear, and
    that his mental function was overwhelmed and impaired during
    the fight. (Id. at 877, 885, 894.) However, the court precluded
    the expert from offering any testimony about the defendant’s
    mental state and functioning, or his past or present psychiatric
    disorders or diagnoses, thus “effectively eviscerat[ing] any
    defense defendant had to premeditated and deliberated murder”
    and “prevent[ing] the jury from properly evaluating evidence that
    would have been relevant to its consideration of the self-defense,
    imperfect self-defense and heat of passion instructions given
    here.” (Id. at 912 & 899-900.) Here, by contrast, appellant’s
    expert would not have testified to whether appellant had entered
    into a state of rage, or whether he was predisposed to do so. The
    exclusion of the testimony did not “eviscerate” appellant’s
    defense, but merely prevented the jury from learning what part
    of the brain is responsible for the actions of a person in an
    emotionally charged state. Cortes is thus inapposite.
    17
    B.     The Court Erred in Sentencing Appellant
    Based on the True Finding of the
    Kidnapping Special Circumstance as to
    Fox’s Murder
    The jury’s finding that Fox’s murder occurred “during
    the crime of KIDNAPPING within the meaning of Penal
    Code Section 190.2(a)(17)” constituted one of the bases for
    the court to sentence appellant on that count to life
    imprisonment without the possibility of parole.13 Appellant
    contends the court erred in sentencing him based on this
    true finding because the kidnapping special circumstance
    was never alleged as to Fox’s murder. The People counter
    that appellant has forfeited this argument, and that
    regardless, appellant was given adequate notice that the
    kidnapping special circumstance applied to Fox’s murder as
    well. While we recognize that appellant makes this
    argument for the first time on appeal, we exercise our
    discretion to consider it, and find it meritorious.
    1.    We Exercise Our Discretion to
    Consider Appellant’s Argument
    Appellant admits that he “did not object to the lack of a
    specific kidnapping special circumstance in count 1,” but
    argues that he did not forfeit this argument because “he put
    the court and prosecution on notice that he believed the
    13   The other basis was the jury’s finding that Fox’s murder
    was part of a multiple murder under section 190.2(a)(3).
    18
    prosecution’s kidnapping theory was only as to Scott.”
    However, the discussion appellant references related to the
    jury’s question: “If we find a kidnapping occurred in regards
    to Count 2 (Jer[r]ed Scott), and Emily [Fox] is killed in the
    commission of the kidnapping, does this also constitute
    murder 1 in regards to Emily[?]” By stating its opinion that
    the issue was what the jury found “to be in the commission
    of the kidnapping and [instruction] 540A” -- which
    instruction explained the elements needed to convict
    appellant of first degree felony murder -- the court indicated
    it interpreted the jury’s question to be whether Scott’s
    kidnapping could serve as the predicate felony for the felony
    first degree murder of Fox. Thus, when appellant’s counsel
    stated he believed the prosecution’s kidnapping theory
    applied only to Scott’s murder, the prosecutor replied that
    was both “incorrect” and “ridiculous.” The statement of
    appellant’s counsel does not constitute an objection that the
    kidnapping special circumstance was improperly applied to
    Fox’s murder.
    However, while appellant failed to object adequately,
    we have discretion to consider his appeal on this issue. We
    find instructive our Supreme Court’s recent case of People v.
    Anderson (2020) 
    9 Cal.5th 946
     (Anderson). There, the
    defendant was charged with one count of murder and five
    counts of robbery. (Id. at 949, 950.) In connection with the
    murder count, the defendant “was subject to a 25-year-to-life
    enhancement based on vicarious liability for the injurious
    discharge of a firearm by a coparticipant in a gang-related
    19
    offense.” (Id. at 951.) “By contrast, in connection with each
    of the robbery counts, . . . the information alleged two
    personal use firearm enhancements—one a 10-year
    enhancement . . . and the other a three-, four-, or 10-year
    enhancement . . . .” (Ibid.) But after the close of evidence,
    “[t]he trial court instructed the jury that it could find that
    the prosecution proved the elements of the 25-year-to-life
    vicarious firearm discharge enhancements under section
    12022.53(e) as to the robbery counts—even though they were
    not alleged in the operative information—and approved
    verdict forms to the same effect. The record does not show
    definitively how this occurred, but it appears the prosecution
    requested this instruction as to the robbery counts after the
    close of the evidence.” (Ibid.) The jury convicted on all
    counts and returned true findings on all enhancement
    allegations. (Ibid.) At sentencing, the court imposed the 25-
    year-to-life enhancements on each of the five robbery counts
    over the defendant’s Eighth Amendment objection, and the
    defendant appealed. (Anderson, supra, at 952.)
    On appeal, the defendant argued for the first time that
    the enhancements could not be imposed because they had
    not been adequately pled in the charging document.
    (Anderson, supra, 9 Cal.5th at 952.) Because the 25-year-to-
    life enhancement had been pled as to the murder count, the
    Court of Appeal affirmed the judgment, and the Supreme
    Court granted review. (Ibid.) On the issue of forfeiture, the
    Supreme Court found that although the defendant failed to
    object at trial that he could not be subjected to the 25-year-
    20
    to-life enhancements for the robbery counts because they
    were not pled, the court should still consider the issue
    because (1) the error was “clear and obvious”; (2) “the error
    affected substantial rights by depriving Anderson of timely
    notice of the potential sentence he faced”; and (3) “the error
    was one that goes to the overall fairness of the proceeding.”
    (Id. at 963.) We address the same considerations here and
    exercise our discretion to consider the merits of appellant’s
    appeal on this issue.
    2.     The Court Erred in Sentencing
    Appellant on the Uncharged Special
    Circumstance
    In Anderson, our Supreme Court held that the
    defendant could not be sentenced based on true findings on
    unpled enhancements because the defendant “was entitled to
    a pleading that provided him with fair notice that he faced
    25-year-to-life enhancements under section 12022.53(e) as to
    each charged robbery offense if this was the prosecution’s
    intent.” (Anderson, supra, 9 Cal.5th at 955.) The court
    elaborated that “[a] pleading that alleges an enhancement as
    to one count does not provide fair notice that the same
    enhancement might be imposed as to a different count.
    When a pleading alleges an enhancement in connection with
    one count but not another, the defendant is ordinarily
    entitled to assume the prosecution made a discretionary
    choice not to pursue the enhancement on the second count,
    and to rely on that choice in making decisions such as
    21
    whether to plead guilty or proceed to trial.” (Id. at 956.)
    “Fair notice requires that every sentence enhancement be
    pleaded in connection with every count as to which it is
    imposed.” (Id. at 956-957.) The court also rejected the
    Attorney General’s argument that defense counsel’s
    agreement to the verdict forms containing the 25-year-to-life
    enhancements for the robbery counts constituted an informal
    agreement to amend the information, finding that “to treat
    defense counsel’s lack of objection as acquiescence or consent
    would go a long way toward eroding Anderson’s right to
    notice of the potential penalties he faced.” (Id. at 960.)
    The facts in the instant appeal are strikingly similar:
    just as the more severe firearm enhancements in Anderson
    were pled only as to some of the counts, so too was the
    kidnapping special circumstance in the instant case pled
    only as to count two, Scott’s murder. In both cases, while the
    information was never amended to add the unpled
    enhancements to other counts, the verdict forms for those
    other counts contained a space for the jury to make a true
    finding as to the unpled enhancements, and the jury did so.
    The court in both cases then imposed sentences based on
    those true findings.
    The People attempt to distinguish Anderson, arguing
    that unlike the defendant there, “appellant had notice that
    the kidnapping special circumstance pertaining to the
    kidnapping of Scott was at issue” because “it was alleged in
    the information as to count 2 and the jury verdict forms
    contained the kidnapping special circumstance as to both
    22
    counts.” But in Anderson, the defendant also had notice that
    the more severe firearm enhancements were at issue
    because they were alleged in connection with the murder
    count, and also were contained in the jury verdict forms.
    (Anderson, supra, 9 Cal.5th at 951.) Here, the kidnapping
    special circumstance was neither alleged in connection with
    the murder of Fox (count one) nor alluded to by the
    prosecutor.
    In support of their argument that we should find
    forfeiture or that appellant impliedly consented to the
    application of the kidnapping special circumstance to Fox’s
    murder, the People cite People v. Houston (2012) 
    54 Cal.4th 1186
     (Houston); People v. Ward (2005) 
    36 Cal.4th 186
    (Ward), People v. Toro (1989) 
    47 Cal.3d 966
     (Toro), and
    People v. Valenzuela (2011) 
    199 Cal.App.4th 1214
    (Valenzuela). We find these cases inapposite.
    In Houston, while the indictment “did not allege that
    the attempted murders were deliberate and premeditated,”
    the court undertook several actions that made clear the jury
    would be asked to determine deliberation and premeditation.
    (Houston, supra, 54 Cal.4th at 1226.) These included
    presenting the parties with a “preliminary draft of the
    verdict forms, which indicated that the court would ask the
    jury to determine whether the attempted murders were
    willful, deliberate, and premeditated”; specifically stating its
    belief that the prosecution was “intending to charge
    premeditated attempted murder” with a penalty of life
    imprisonment and instructing counsel to correct the court if
    23
    they disagreed; and announcing “its intent to have the
    attempted murder verdict form list deliberate and
    premeditated attempted murder as ‘a special finding’” and
    “instruct[ing] the jurors . . . to determine whether the
    attempted murders were willful, deliberate, and
    premeditated.” (Ibid.) Because the defendant did not object
    at any of these points, or at sentencing, the Supreme Court
    found the defendant had forfeited any argument concerning
    a defective indictment. Here, unlike Houston, there was no
    midtrial discussion highlighting the prosecution’s intent to
    apply the kidnapping special circumstance to Fox’s murder.
    (See Anderson, supra, 9 Cal.5th at 963 [“unlike Houston . . .
    there was no midtrial discussion highlighting the
    prosecution’s intent to seek the more serious vicarious
    firearm enhancements instead of the less serious personal
    use enhancements charged in the information”].)
    In Ward, the defendant was charged initially with
    multiple murders and a “multiple-murder special
    circumstance” under section 190.2(a)(3). (Ward, supra, 
    36 Cal.4th at 193
    .) The defendant then successfully moved to
    sever the murder charges such that he was tried in one trial
    for one murder, and a subsequent trial for the second
    murder. (Ibid.) After he was convicted of murder by the
    first jury, the second jury also found true an allegation that
    “[t]he defendant was convicted previously of murder in the
    first or second degree” pursuant to section 190.2, subdivision
    (a)(2). (Ward, supra, at 219.) On appeal, the defendant
    argued he could not be punished under subdivision (a)(2),
    24
    because he was charged under subdivision (a)(3). (Ward, at
    218-219.) Our Supreme Court rejected this argument, first
    noting that both subdivisions “‘are plainly complementary,
    and were evidently intended to define a single basic special
    circumstance—multiple murder—which can be satisfied by
    convictions in a single proceeding or in more than one
    proceeding’” and then finding that “defendant, by accepting
    the jury instruction and the jury’s finding on the allegedly
    uncharged special circumstance, acquiesced in the special
    circumstance finding. Indeed, defendant expressly
    acknowledged that severance of his murder charges would
    result in the application of section 190.2, subdivision (a)(2).
    As such, no amendment of the information was necessary
    . . . .” (Id. at 219, italics omitted.) Here, by contrast, there
    was no complementary kidnapping special circumstance
    alleged as to Fox’s murder, there was no acknowledgment
    that this special circumstance applied to Fox’s murder, and
    although appellant agreed to a kidnapping special
    circumstance jury instruction, there was no indication that
    this kidnapping special circumstance instruction applied to
    Fox’s murder, as opposed to only Scott’s murder.
    In Toro, our Supreme Court considered whether a jury
    could convict on an uncharged lesser related offense (battery
    with serious bodily injury when the defendant was charged
    with attempted murder). (Toro, supra, 47 Cal.3d at 969.)
    The court concluded that “when a lesser related offense is
    submitted to the jury without objection, the defendant must
    be regarded as having impliedly consented to the jury’s
    25
    consideration of the offense . . . .” (Id. at 970.) But as our
    Supreme Court clarified in Anderson, Toro “was quite
    different from the situation we confront in this case” because
    “[u]nlike the defendant in Toro, Anderson derived no
    possible benefit from submitting the unpleaded 25-year-to-
    life enhancements to the jury. There is therefore no reason
    to presume from defense counsel’s silence that Anderson
    consented to this procedure.” (Anderson, supra, 9 Cal.5th at
    959.) Similar to Anderson, and unlike Toro, appellant
    derived no possible benefit from submitting to the jury the
    unpled kidnapping special circumstance as applied to Fox’s
    murder.
    Finally, in Valenzuela, the defendant was charged with
    murder. (Valenzuela, supra, 199 Cal.App.4th at 1217.) The
    jury found true a special circumstance of shooting from a
    motor vehicle, even though this circumstance was not
    charged in the information. (Id. at 1236.) On appeal, the
    defendant argued this was improper, but the Court of Appeal
    disagreed because the trial court had specifically informed
    counsel it intended to instruct on this special circumstance,
    and defense counsel had stated she had no objection. (Id. at
    1236-1237.) Here, nothing in the record suggests anyone
    asked appellant’s counsel whether he objected to applying
    the kidnapping special circumstance allegation to Fox’s
    murder.
    26
    3.    Resentencing Is Unnecessary
    Following Anderson, we conclude the court erred in
    sentencing appellant based on the true finding of an
    uncharged special circumstance. We need not remand for
    resentencing, however, as the mandatory life sentence
    imposed on count one (Fox’s murder) was also based on the
    jury’s true finding under section 190.2(a)(3) (multiple
    murder). This finding is unchallenged. Because correcting
    the court’s error will not alter appellant’s sentence in any
    way, we vacate section 190.2(a)(17) as a basis for appellant’s
    sentence on count one, and remand with directions that the
    court modify the abstract of judgment accordingly.
    Specifically, any reference to section 190.2(a)(17) should
    state it is a basis for the sentence only on count two (Scott’s
    murder). Based on the jury’s true finding of the multiple
    murder special circumstance on count one, appellant
    remains subject to the same life-without-parole sentence on
    that count.
    C.      The Court Did Not Err in Imposing Fines
    and Fees
    Though appellant now argues the court erred in
    imposing various fines and fees at sentencing without
    determining his ability to pay, he admits he failed to object
    to these fines and fees in the trial court. We agree with our
    colleagues in Division Eight that a failure to object in the
    trial court forfeits this issue on appeal. (See People v.
    Frandsen (2019) 
    33 Cal.App.5th 1126
    , 1153-1155; accord,
    27
    People v. Keene (2019) 
    43 Cal.App.5th 861
    .) Accordingly, we
    do not consider appellant’s contentions.
    D.     The Court Did Not Err in Instructing the
    Jury
    Appellant contends the court erred by failing to
    instruct the jury that every element of every offense was
    required to be proven beyond a reasonable doubt, and argues
    that the issue is preserved on appeal despite his failure to
    object. Appellant acknowledges that our Supreme Court has
    rejected this argument and that we are obligated to follow its
    decisions. (People v. Covarrubias (2016) 
    1 Cal.5th 838
    ,
    910-911 [appellant’s failure to object forfeited claim that
    court erred by failing to instruct every element must be
    proved beyond reasonable doubt; in any case, this claim is
    rejected]; People v. Mackey (2015) 
    233 Cal.App.4th 32
    , 87
    [“we are bound to follow our state Supreme Court’s
    decisions”].)
    E.   There Was No Cumulative Error
    Appellant argues that “the court’s exclusion of expert
    testimony, combined with its failure to explicitly instruct the
    jury that it must find each element of all crimes and
    allegations proved beyond a reasonable doubt” constituted
    cumulative error that warrants reversal. Because we
    conclude the court did not err in these instances, we find no
    cumulative error.
    28
    DISPOSITION
    We vacate the judgment to the extent the true finding
    under section 190.2(a)(17) on count one (Fox’s murder) was a
    basis for appellant’s sentence on that count. On remand, we
    direct the court to modify the abstract of judgment to reflect
    that: (1) section 190.2(a)(17) is the basis for appellant’s
    sentence only as to count two (Scott’s murder); (2) other
    bases for appellant’s sentence on both counts are section
    190.2(a)(3) (not section 190.2(a)(2)) and section 12022.53(d)
    (not section 1202.53(d)); and (3) appellant’s counsel was
    Tyree Campbell (not Tyree A. Almada, DDA). The court
    shall forward this modified abstract of judgment to the
    Department of Corrections and Rehabilitation. In all other
    respects, the judgment is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL
    REPORTS
    MANELLA, P. J.
    We concur:
    WILLHITE, J.                                 CURREY, J.
    29
    

Document Info

Docket Number: B306537

Filed Date: 11/23/2021

Precedential Status: Non-Precedential

Modified Date: 11/23/2021