People v. Valera CA5 ( 2021 )

Filed 5/7/21 P. v. Valera CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078195
Plaintiff and Respondent,
(Super. Ct. No. F14902319)
v.
JOEL VALERA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Berstein and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant Joel Valera appeals following his conviction by jury of first degree
murder (Pen. Code, § 187, subd. (a);1 count 1) with the special circumstance that he
intentionally discharged a firearm which caused great bodily injury or death (§ 12022.53,
subd. (d)).2 Appellant challenges his conviction on multiple grounds. He claims the trial
court improperly rejected his request to represent himself and thereby denied him his
right to testify, prejudicially excluded certain evidence under improper hearsay rulings,
and failed to instruct the jury on appropriate defense theories. Relatedly, he argues he
received ineffective assistance of counsel with respect to some of these claims. Further,
appellant contends there were errors in his sentencing proceeding. And, in a deferred
motion, appellant’s counsel requests expansion of their appointment to file a partially
related habeas corpus petition. Ultimately, appellant seeks a retrial on his first degree
murder conviction. For the reasons set forth below, however, we reject his current
allegations of error and affirm his conviction. Additionally, though, we grant counsel’s
request to expand their appointment to file a habeas corpus petition.
FACTUAL BACKGROUND
On March 7, 2014, appellant shot and killed his neighbor, Arthur Gomez, Jr.
(Gomez), as the two stood in their respective yards. Although there were some
inconsistencies in the various witnesses’ testimonies, a general set of facts emerged
regarding the shooting.
1 All future statutory references are to the Penal Code unless otherwise noted.
2 Appellant was also convicted by jury of shooting at an inhabited dwelling (§ 246;
count 2) with the special circumstance that he intentionally discharged a firearm which caused
great bodily injury or death (§ 12022.53, subd. (d)) and giving false information to a police
officer (§ 148.9, subd. (a); count 5). He further pled guilty to two counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1); counts 3 & 4). We note the abstract of judgment
incorrectly places appellant’s conviction on count 2 under section 245. We order the abstract be
corrected to reflect section 246.
2.
Gomez, his sons (A.G. and J.G.), and their cousin A.M.3 were preparing to leave
on a church camping trip. Gomez and A.G. were inside their house while J.G. and A.M.
were out front trying to see who could whistle louder. While outside, J.G. noticed
appellant staring at him from appellant’s front door. Feeling uncomfortable, J.G. went
inside and told Gomez about appellant’s conduct.
Although he did not immediately respond, Gomez went outside shortly thereafter
and was followed by A.G. a few moments later. Appellant made some comments to
Gomez, purportedly about Gomez’s children throwing trash in appellant’s yard. Gomez
either simply said, “What’s up,” to appellant or told appellant that his children were
doing no such thing. During this interaction, Gomez walked toward appellant’s house
and the three children outside may have followed behind him.
Roughly in tandem, appellant exited his house carrying a shotgun, walked a short
distance toward Gomez, raised the shotgun, and fired three times. Two shots struck
Gomez, one toward the front of his body and one on the side. Gomez responded by
running into his house where he collapsed. Ultimately, Gomez died from his injuries.
Several witnesses called 911, including appellant. Police arrived and arrested
appellant without incident. Police learned that appellant had been living at his house
under an assumed name and found both a shotgun and handgun in the residence, along
with ammunition. Appellant’s girlfriend stated she bought the weapons but that they
were generally kept in appellant’s bedroom.
Appellant was charged with several offenses, including first degree murder, firing
at an inhabited dwelling, being a felon in possession of a firearm, and providing false
information to the police. The core issues in this appeal generally relate to issues arising
during appellant’s trial on the first degree murder charge. As these raise unique issues,
we detail relevant facts when discussing each below.
3 All three anonymized witnesses were minors at the time of the shooting.
3.
Appellant was ultimately convicted by jury of first degree murder and firing at an
inhabited dwelling along with their charged enhancements, as well as giving false
information to a police officer.
This appeal timely followed.
DISCUSSION
Appellant’s Request to Represent Himself
Appellant’s first argument on appeal is that he was denied his right to represent
himself at trial and, based on that erroneous ruling, effectively forced not to testify at
trial. The crux of the argument is that appellant, when unable to discharge his trial
counsel through normal procedures, properly requested to represent himself but was
incorrectly denied that right. As appellant had made clear to the trial court that he would
not testify if his trial counsel was asking the questions, he argues this ruling denied him
his constitutional right to testify by forcing a choice between maintaining trial counsel or
testifying in his defense. Upon review, we find no error.
Factual Background
On the first day of jury selection, appellant did not appear at the court dressed in
regular clothing. When asked why, appellant stated he had chosen not to wear regular
clothing because he wanted a Marsden hearing. The court complied and held a
confidential hearing on his request. At this hearing, appellant alleged counsel could not
argue the way he wanted her to because she had not been present at the scene of the
shooting. In a colloquy with the judge he expanded on his issues, complaining he had not
received copies of certain pretrial motions and identifying certain issues with how those
motions were argued in pretrial proceedings. Appellant also raised several issues he was
having with his physical and mental health that he claimed he wanted addressed before
trial. The trial court noted that many of the issues raised were with the court’s rulings
and not counsel’s conduct before denying the request on the grounds that counsel was
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providing adequate representation and there was no break in the attorney-client
relationship.
The case proceeded to trial. After the close of the prosecution’s case and the
presentation of one defense witness, the court asked appellant’s counsel if appellant
would be testifying in his defense and whether any motions were expected before any
testimony began. Counsel responded, with appellant present, that appellant would testify
the next day and that she expected no other motions to be filed.
When appellant arrived at court the next day, he informed the court he wished to
have a Marsden hearing. The court held that confidential hearing and again denied
appellant’s request When the court publicly reconvened, it immediately noted that
appellant suggested he wanted to represent himself and asked if that was still the case.
Appellant confirmed he wished to represent himself going forward.
The court then rejected this request. The court noted appellant’s right to represent
himself generally but concluded the request in this instance was not timely because it was
made well into trial and after the prosecution had rested. The court concluded this meant
the request for self-representation was within the court’s discretion and proceeded to
consider the factors set forth in People v. Windham (1977) 19 Cal.3d 121 (Windham) to
determine whether it would grant the request. The court concluded appellant’s counsel
had provided adequate to above adequate representation to that point and that appellant’s
previous attempts to replace counsel showed his issues were with strategic decisions and
appeared in part to be an attempt to avoid having the trial come to a timely conclusion.
The court further noted the case had been pending for four and a half years, and in trial
for 15 days to that point, with the full prosecution case having been presented and one
defense witness completed. The court thus concluded that further delay of the
proceedings would be inappropriate with respect to the jury and that a mistrial would be
unfair to the prosecution and the jury.
5.
Immediately following this ruling, appellant’s counsel requested a sidebar and,
upon its completion, appellant requested another Marsden hearing to replace his counsel.
In the discussion that followed that hearing, the court questioned appellant about his
ability to proceed if he were to represent himself, seeking to understand what delay if any
would be required. Appellant explained he would be ready to proceed but said, “The
only thing is I can’t ask myself questions.” The court asked whether appellant “would
need to look into resources in order to decide how to go about it,” to which the defendant
replied, “Correct,” and confirmed he would need some time to figure out the “resources”
he’d need. The court then confirmed it was denying appellant’s request to represent
himself.
The court and appellant discussed whether he would testify at the trial. Appellant
contended he could not answer that question while represented by his trial counsel,
stating, “I can’t answer that unless I feel it’s an attorney or somebody that is willing to
ask the questions that I tell her to ask.” After a short additional discussion, the court held
the requested Marsden hearing.
When the court went back on the record, the court again pressed appellant on
whether he would testify at the trial. Appellant did not respond, and the court made a
detailed oral record of his conduct during the time, noting appellant was merely flipping
through documents, not looking at the court, and refusing to answer. The court recessed
until the afternoon. When it reconvened, counsel informed the court that appellant had
refused to meet with her during the break. The court advised appellant of his rights,
reviewed the prior proceedings, and asked again if appellant would testify. Appellant
instead requested a Marsden hearing on the ground he believed the defense had at least
five more witnesses to call and that counsel was “railroading me.” Counsel confirmed, as
she had stated previously, that she had no other witnesses she intended to call, and the
court rejected appellant’s Marsden request. It then recessed until the next day.
6.
The next day, appellant again requested a Marsden hearing or to represent himself.
The court rejected this request and asked appellant again whether he would be testifying.
He refused to provide an answer, other than complaining about his counsel, at which
point the court began to move on. Appellant then interjected that he did want to testify
and stated, “but I don’t want her as my attorney.” At some point, appellant loudly
banged on the table in front of him. After substantial warnings and discussions about the
need to proceed in an orderly manner, appellant was removed from the courtroom and
ultimately for the remainder of the proceedings. He did not testify.
Standard of Review and Applicable Law
“[I]n order to invoke the constitutionally mandated unconditional right of self-
representation a defendant in a criminal trial should make an unequivocal assertion of
that right within a reasonable time prior to the commencement of trial.” (Windham,
supra, 19 Cal.3d at pp. 127–128.)
“[O]nce a defendant has chosen to proceed to trial represented by counsel,
demands by such defendant that he be permitted to discharge his attorney and assume the
defense himself shall be addressed to the sound discretion of the court. When such a
midtrial request for self-representation is presented the trial court shall inquire sua sponte
into the specific factors underlying the request thereby ensuring a meaningful record in
the event that appellate review is later required. Among other factors to be considered by
the court in assessing such requests made after the commencement of trial are the quality
of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings, and the
disruption or delay which might reasonably be expected to follow the granting of such a
motion. Having established a record based on such relevant considerations, the court
should then exercise its discretion and rule on the defendant’s request.” (Windham,
supra, 19 Cal.3d at pp. 128–129.)
7.
The requirement for a reasonable pretrial request “must not be used as a means of
limiting a defendant’s constitutional right of self-representation.” (Windham, supra,
19 Cal.3d at p. 128, fn. 5.) Rather, the requirement’s purpose is to prevent a defendant
from misusing the right of self-representation “as a means to unjustifiably delay a
scheduled trial or to obstruct the orderly administration of justice. For example, a
defendant should not be permitted to wait until the day preceding trial before he moves to
represent himself and requests a continuance in order to prepare for trial without some
showing of reasonable cause for the lateness of the request.” (Ibid.) Thus, “[w]hen the
lateness of the request and even the necessity of a continuance can be reasonably justified
the request should be granted. When, on the other hand, a defendant merely seeks to
delay the orderly processes of justice, a trial court is not required to grant a request for
self-representation without any ability to test the request by a reasonable standard.”
(Ibid.)
The Trial Court Did Not Abuse Its Discretion
Appellant contends that the trial court abused its discretion in denying appellant’s
request to represent himself because it failed to inquire with sufficient specificity into the
delay that would be caused by such a change. Appellant argues that the court’s ruling
acknowledged appellant’s legitimate dispute with counsel regarding her strategy but
failed to properly balance the Windham factors because it never actually determined what
type of delay would be caused by permitting appellant to proceed as his own counsel. He
posits that little disruption, if any, could occur because the request was made so close to
the close of trial. We do not agree.
The court created a detailed record in this case, both of its analysis of this issue,
and of the multitude of issues that appellant introduced in the proceedings as the case
concluded. While the record does not disclose a detailed analysis of how long a delay
might have arisen if appellant was permitted to proceed as his own counsel, such an
accounting was not necessary in this case. The court properly detailed the extensive
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pretrial and trial proceedings that had occurred, noted the jury was reaching the end of its
time with the case, and identified potential irregularities in appellant’s conduct that
suggested his motivations were to create delay. Further, the court considered appellant’s
statements that trial counsel was ineffective or otherwise not properly proceeding and
rejected those contentions, both in the context of the unchallenged Marsden hearings and
in the context of how those complaints related to appellant’s decision to seek self-
representation at that stage in the proceedings.
Considering counsel’s performance, the overall record shows that the trial court
considered counsel to have performed adequately to above adequately throughout the
trial, suggesting changing counsel would not be appropriate. Looking at the delay
involved, the record ultimately reveals that appellant wanted a multi-day delay to
research potential “resources,” which the record suggests could be as simple as how to
ask himself questions but could also be as complex as seeking to call the additional
witnesses he insisted should have been called. Finally, reviewing appellant’s
motivations, while a cold record can oftentimes be difficult to decipher, the court’s
detailed real-time account of appellant’s subsequent conduct to create delay and chaos
strongly implies that the court’s oral pronouncements that appellant was seeking delay
prior to those actions were based on more than mere hunches.
Ultimately, the Windham factors are a mechanism by which the court seeks to
ensure the defendant is not belatedly using the right to self-representation “as a means to
unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.”
(Windham, supra, 19 Cal.3d at p. 128, fn. 5.) Upon review of the record, there appears
no basis upon which appellant’s request “can be reasonably justified.” (Ibid.) His
counsel was performing adequately, his strategy objections were insufficient to warrant
removal, his request would incur delay deemed meaningful by the presiding court right at
the conclusion of a 15-day trial, and his motivations were perceived and ultimately shown
9.
to be part of a broader delay tactic. Considering these factors, we see no abuse of
discretion in the court’s denial of appellant’s request to represent himself.
Having concluded the court made no error in refusing appellant’s request to
represent himself, we further conclude there was no forced choice between proceeding
with counsel or testifying in this case. The record recounted above amply demonstrates
that any refusal to testify was appellant’s own willful choice. He was repeatedly offered
the opportunity to testify yet refused because he was either unhappy with the court or
actively attempting to sabotage his trial. The court regularly reviewed counsel’s
performance at appellant’s request and properly determined there was no basis upon
which to relieve counsel. That appellant, having utilized counsel through pretrial and
trial proceedings, suddenly insisted he would only testify if counsel was replaced—
despite failing to object on such grounds when it was first indicated he would testify the
next day—is not a basis to conclude the court forced an improper choice upon appellant.
Rather, it is clear on this record that it was appellant that attempted to create a conflict
where none existed.
The Contested Hearsay Rulings
Appellant raises two partially related hearsay rulings he contends resulted in the
trial court erroneously excluding evidence related to a potential imperfect self-defense
claim. In the first, the trial court excluded a recording of the 911 call appellant placed
after shooting Gomez. In the second, the trial court sustained hearsay objections to
questions seeking to elicit the fact that members of Gomez’s family had cursed about
appellant on some occasions. Appellant argues the first error wholly deprived him of his
potential imperfect self-defense position. Appellant recognizes the second error was not
so prejudicial as to require reversal but contends that it adds to a cumulative error
analysis on this issue. Appellant also raises an ineffective assistance of counsel claim,
alleging that counsel’s failure to raise any admissibility ground for appellant’s 911 call
other than Evidence Code section 1250 constituted ineffective assistance of counsel.
10.
Factual Background
After shooting Gomez, appellant placed a 911 call. During the call he provided a
false name and wrongly told police people were shooting at his house. He also, however,
admitted to shooting Gomez and stated he did not see Gomez with a weapon, even
correcting the dispatcher when his statements that someone who had come to his house
after the shooting had a gun were interpreted to mean he had seen Gomez with a weapon.
Relevant to the issues here, appellant stated in the call that Gomez had approached him in
a threatening manner, yelling and cursing at him, and that Gomez and others had
surrounded his house prior to the shooting.
As part of the defense case, appellant sought to introduce into evidence the 911
call and similar statements appellant made during his police interrogation. Appellant
argued the statements were relevant to an imperfect self-defense claim because they
highlighted his perceptions of the event and thus the statements were not hearsay because
they were not being introduced for the truth of the matter stated. In opposition, the
prosecutor argued the statements were inadmissible under Evidence Code sections 1250
and 1252 because they were unreliable hearsay statements. The court reviewed Evidence
Code section 1250 and confirmed with appellant’s counsel that the evidence was offered
to prove state of mind. The court then rejected appellant’s request to introduce the
statements, stating it was not convinced the evidence was admissible under Evidence
Code section 1250 and that the court had previously “indicated that unless the People
opened the door or somehow evidence needed to be brought in to impeach” appellant, it
would not allow the evidence in. The court added that appellant’s “decision, or lack of a
decision, for whatever it’s worth, to testify does not automatically let the court look into
it and say a different ruling.”
With respect to the cursing allegations, counsel attempted to cross-examine
appellant’s girlfriend about two occasions where she may have heard Gomez or persons
11.
in his family cursing about appellant. The trial court sustained hearsay objections to the
questions both times.
Standard of Review and Applicable Law
Hearsay is a statement that was made other than by a witness while testifying at
the hearing and that is offered to prove the truth of the matter stated. (Evid. Code,
§ 1200.) Several exceptions to this rule exist, including one that permits “evidence of a
statement of the declarant’s then existing state of mind, emotion, or physical sensation”
when “offered to prove the declarant’s state of mind … when it is itself an issue” (Evid.
Code, § 1250, subd. (a)(1)) or “offered to prove or explain acts or conduct of the
declarant” (id., subd. (a)(2)) provided the proffered statement is sufficiently trustworthy
(Evid. Code, § 1252). Further, statements not offered for the truth of the matter asserted,
but rather used circumstantially to demonstrate some other point such as the declarant’s
mental state, are not excluded by the hearsay rule. (See 1 Witkin, Cal. Evidence (5th ed.
2012) Hearsay, §§ 38, 40, pp. 831–835.)
We review evidentiary rulings for an abuse of discretion and an error is typically
reviewed to determine whether “it is reasonably probable that defendant would have
obtained a more favorable result in the absence of the error.” (People v. Sotelo-Urena
(2016) 4 Cal.App.5th 732, 756 (Sotelo-Urena).) However, in rare instances where an
evidentiary ruling effectuates a complete preclusion of a defense, such a ruling may
constitute a violation of the defendant’s constitutional right to present a defense and
warrant a higher level of scrutiny. (Ibid.)
With respect to ineffective assistance of counsel claims, “a defendant must show
that his or her counsel’s performance was deficient and that the defendant suffered
prejudice as a result of such deficient performance. (Strickland v. Washington (1984)
466 U.S. 668, 687–692.) To demonstrate deficient performance, [the] defendant bears
the burden of showing that counsel’s performance ‘ “ ‘ “fell below an objective standard
of reasonableness … under prevailing professional norms.” ’ ” ’ (People v. Lopez (2008)
12.
42 Cal.4th 960, 966.) To demonstrate prejudice, [the] defendant bears the burden of
showing a reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different. (Ibid.; In re Harris (1993)
5 Cal.4th 813, 833.)” (People v. Mickel (2016) 2 Cal.5th 181, 198.)
We review ineffective assistance of counsel claims de novo. (People v. Tapia
(2018) 26 Cal.App.5th 942, 950.)
Any Alleged Errors Were Harmless
In this case, whether reviewed as an evidentiary error or a claim of ineffective
assistance of counsel, the record does not demonstrate harm under any relevant standard.
Excluding the 911 call and any cumulative effect from excluding statements about
cursing are insufficient to demonstrate the loss of an imperfect self-defense claim in this
case. As the defense would not have been proper even if the evidence were introduced,
the exclusion of such evidence cannot support a claim of error.
To warrant a jury instruction, a claim of imperfect self-defense requires substantial
evidence that the defendant killed in unreasonable self-defense. (People v. Elmore
(2014) 59 Cal.4th 121, 134.) In this context, a fear of future harm is insufficient.
“ ‘ “[T]he peril must appear to the defendant as immediate and present and not
prospective or even in the near future. An imminent peril is one that, from appearances,
must be instantly dealt with.” ’ ” (In re Christian S. (1994) 7 Cal.4th 768, 783.) Further,
this assertion must be based on some objective basis to conclude that the defendant’s
unreasonable belief in the need for self-defense arose from the circumstances surrounding
the situation and not some delusional belief. (Elmore, at p. 138.)
The evidence excluded in this case provided no objective evidence that the
situation created an unreasonable fear of imminent harm requiring self-defense.
Appellant argues that the proffered evidence provides circumstantial evidence that he was
fearful and indicates he felt surrounded and threatened. However, such broad-based
assertions alone cannot trigger an imperfect self-defense claim. If merely experiencing a
13.
generalized fear is sufficient, this purportedly narrow doctrine would swallow virtually
all murder charges.
In this sense, this case is similar to People v. Oropeza (2007) 151 Cal.App.4th 73,
78–81, where the defendant sought an imperfect self-defense instruction after allegedly
firing a shot at another vehicle in a road rage incident. There, as here, the defendant “did
not testify and made no out-of-court comments indicating that when he fired, he believed
it necessary to defend his life or to avoid great bodily injury.” (Id. at p. 82.) Similarly,
no other witnesses provided objective evidence sufficient to indicate a fear of harm in the
defendant or an actual need to use deadly force from which the defendant’s generalized
fear could trigger an imperfect self-defense claim. (Ibid.) Here, appellant went no
further than claiming people approached him in a threatening way after he complained
about trash issues. “The only substantial evidence of appellant’s state of mind is found in
testimony concerning his aggressive and provocative behavior. It suggests only that he
fired the shot[s] as an act of aggression.” (Ibid.) Accordingly, the exclusion of
generalized evidence of a purported fear or past issues of potential dispute could not be
harmful in this case as they could not trigger an obligation to instruct on imperfect self-
defense, even if admitted.4
Imperfect Self-defense Instruction
Referring partially to the arguments raised concerning the hearsay objections,
appellant next argues that the trial court wrongly rejected his request to instruct the jury
4 We reject appellant’s claim this case is more like Sotelo-Urena, supra, 4 Cal.App.5th
732. In that case, the defendant testified that he believed he was going to be attacked. To
support this claim, the defendant attempted to introduce expert testimony about life as a
homeless individual and the risks one would encounter to support his claim. The appellate court
found reversible error in excluding that proffered testimony because it could reasonably support
a claim of actual belief in the need to use deadly force. (Id. at p. 756.) Here, the defense never
established a claim of actual belief in the need to use deadly force, meaning the evidence could
not be used to support such a claim. And, as noted, the excluded evidence itself does not
demonstrate appellant actually believed he needed to use deadly force. Thus, its exclusion does
not raise similar issues to Sotelo-Urena.
14.
on the issue of imperfect self-defense. Alleging the exclusion of the 911 call highlights
the prejudice in this area, appellant contends there was “some bare minimum of evidence
sufficient to justify the instruction” because the evidence suggested an argument occurred
and that multiple people walked toward appellant’s house.
Appellant correctly notes that counsel sought an instruction on imperfect self-
defense and that the trial court rejected this request. The court detailed its reasoning,
explaining the criteria that imperfect self-defense requires and that there was “no
evidence before this court that suggests that [appellant] was in [imminent] danger of
being killed or of suffering great bodily injury. No witness places any type of objects,
other than a pair of gloves, at best, in Mr. Gomez’[s] hands. The others don’t have any
objects. Any witness that has testified has not placed any objects of any kind in any one
of the witnesses’ hands, so there does not appear to be any evidence that would have
caused [appellant] to believe that he was in [imminent] danger of being killed or suffering
great bodily injury.” The court also noted the lack of evidence of appellant’s state of
mind, stating, “We don’t have any evidence as to what [appellant] actually believed,
other than suppositions .…” In fact, the court found the evidence showed the opposite,
noting the evidence showed the weapon in question “was all ready to be fired when
[appellant] stepped out of his own doorway, which demonstrates that before any danger
may have occurred, he was ready to use deadly force himself.”
As this court has previously explained, “unreasonable or imperfect self-defense is
not a true defense, but instead is a shorthand description of one form of voluntary
manslaughter, a lesser included offense of murder. [Citation.] ‘Accordingly, when a
defendant is charged with murder the trial court’s duty to instruct sua sponte … on
unreasonable self-defense is the same as its duty to instruct on any other lesser included
offense: this duty arises whenever the evidence is such that a jury could reasonably
conclude that the defendant killed the victim in the unreasonable but good faith belief in
having to act in self-defense.’ [Citation.] Likewise, ‘[t]he trial court need not give such
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instructions on request absent substantial evidence to support them.’ ” (People v. Mejia-
Lenares (2006) 135 Cal.App.4th 1437, 1446.)
Appellant’s claim that at least a bare minimum of evidence supported the
requested instruction falls short of the requirements for instructing on imperfect self-
defense. As recounted above, and as appellant’s argument shows, the evidence in this
case failed to come close to permitting a jury to reasonably conclude that the defendant
killed the victim in an unreasonable but good faith belief in having to act in self-defense.
At most there was a verbal dispute and some people moving toward appellant’s yard.
Nothing in these facts would permit a jury to reasonably infer that appellant had an
honest belief that he needed to act in self-defense. Rather, as in People v. Oropeza,
supra, 151 Cal.App.4th at page 82, the only evidence of appellant’s state of mind was the
depravity of his conduct, which was noted by the trial court in its oral rejection of the
instruction request. Accordingly, we see no error in the trial court’s refusal to instruct on
imperfect self-defense given the evidence offered at trial.
Unreasonable Provocation Instruction Issue
Next, appellant raises an instructional issue regarding the concept of unreasonable
provocation. Appellant notes that the trial court instructed the jury with CALCRIM
Nos. 520 and 521, which detail the offense of first degree murder and the difference
between first and second degree murder. However, appellant argues the trial court should
have also instructed the jury with CALCRIM No. 522, which explains the notion of
provocation with respect to the type of murder committed. Appellant contends this
instruction was required, despite acknowledging it was not requested, because
CALCRIM No. 521 provides an insufficient description of the law to render CALCRIM
No. 522 optional.
The People respond that this issue has been forfeited because CALCRIM No. 522
was not requested and no objection was raised to the sufficiency of CALCRIM No. 521.
The People further contend that CALCRIM No. 521 is a sufficient recitation of the
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proper legal principles to render CALCRIM No. 522 a pinpoint instruction, thus requiring
appellant to request the instruction. The People point the court specifically to People v.
Rogers (2006) 39 Cal.4th 826 (Rogers), which held that CALJIC No. 8.20, the analogue
to CALCRIM No. 521, was a proper recitation of the law and thus that an instruction on
unreasonable provocation was a pinpoint instruction. Ultimately, we agree with the
People.
Factual and Procedural Background
Following the presentation of evidence, the court held a discussion on jury
instructions. Both parties requested the court give CALCRIM No. 520. The People
requested the trial court give CALCRIM No. 521. The court noted appellant had not
requested that instruction and asked if there was any objection to it. Counsel responded,
“No.” The court ultimately read the instruction as presented to the jury. Appellant did
not request CALCRIM No. 522 during the jury instructions discussion.
The jury was thus instructed under CALCRIM No. 520 that “[i]f you decide that
the defendant committed murder, it is murder of the second degree unless the People
have proved beyond a reasonable doubt that it is murder of the first degree, as defined
in CAL.CRIM [No. ]521.” It was then instructed under CALCRIM No. 521 as follows:
“The defendant is guilty of first degree murder if the People have proved that he acted
willfully, deliberately and with premeditation. The defendant acted willfully if he
intended to kill. The defendant acted deliberately if he carefully weighed the
consideration for and against his choice, and knowing the consequences, decided to kill.
The defendant acted with premeditation if he decided to kill before completing the act
that caused the death. The length of time the person spends whether to kill does not,
alone, determine whether the 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 is not deliberate and premeditated. On the other hand, a cold,
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calculated decision to kill can be reached quickly. The test is the extent of the reflection,
not the length of time.” The jury was then, again, instructed that: “The People have the
burden of proving beyond a reasonable doubt that the killing was first degree murder
rather than a lesser crime. If the People have not met this burden you must find the
defendant not guilty of first degree and the murder is second degree murder.”
Standard of Review and Applicable Law
Pinpoint instructions “ ‘relate particular facts to a legal issue in the case or
“pinpoint” the crux of a defendant’s case .… They are required to be given upon request
when there is evidence supportive of the theory, but they are not required to be given sua
sponte.’ ” (Rogers, supra, 39 Cal.4th at p. 878.) CALJIC No. 8.73, the analogue to
CALCRIM No. 522, has been held to be a pinpoint instruction. (Rogers, at p. 879.) The
failure to request a pinpoint instruction forfeits the claim on appeal. (People v. Jones
(2014) 223 Cal.App.4th 995, 1001.) Relatedly, the failure to object to the wording of an
instruction forfeits any state law argument of error. (People v. Mitchell (2019) 7 Cal.5th
561, 579.)
In the context of the CALJIC instructions, “[i]n the absence of instructional
errors … , the standard manslaughter instruction is not misleading, because the jury is
told that premeditation and deliberation is the factor distinguishing first and second
degree murder. Further, the manslaughter instruction does not preclude the defense from
arguing that provocation played a role in preventing the defendant from premeditating
and deliberating; nor does it preclude the jury from giving weight to any evidence of
provocation in determining whether premeditation existed.” (Rogers, supra, 39 Cal.4th
at p. 880.) We review de novo whether a jury instruction correctly states the law.
(People v. Posey (2004) 32 Cal.4th 193, 218.)
Discussion
As noted above, the record in this case shows both that appellant agreed to the
language of CALCRIM No. 521 and did not request any additional language or the use of
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CALCRIM No. 522. Accordingly, appellant’s state law claims of error have been
forfeited. (People v. Mitchell, supra, 7 Cal.5th at p. 579; People v. Jones, supra,
223 Cal.App.4th at p. 1001.) In reaching this conclusion, we reject appellant’s argument
that Rogers is distinguishable “because the Rogers jury - unlike the jury here - was
instructed with the essential principle that a ‘sudden heat of passion or other condition
precluding the idea of deliberation’ could reduce the charge from first degree murder to
second,” as stated in CALJIC No. 8.20. We likewise reject appellant’s claim that
CALCRIM No. 521 fails to properly instruct on the law because it does not specifically
discuss the concept of unreasonable provocation. (See People v. Valentine (1946)
28 Cal.2d 121, 132.)
As the People point out, CALJIC No. 8.20’s description of the “sudden heat of
passion” doctrine and its discussion of the definition of first degree murder is not
meaningfully different than the more general descriptions provided in CALCRIM
No. 521.
CALJIC No. 8.20 states in relevant part: “The word ‘deliberate’, which relates to
how a person thinks, means formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of action. [¶]
The word ‘premeditated’ relates to when a person thinks and means considered
beforehand. One premeditates by deliberating before taking action. [¶] If you find that
the killing was preceded and accompanied by a clear, deliberate intent on the part of the
defendant to kill, which was the result of deliberation and premeditation, so that it must
have been formed upon pre-existing reflection and not under a sudden heat of passion or
other condition precluding the idea of deliberation, it is murder of the first degree.”
As given at appellant’s trial, CALCRIM No. 521 states in relevant part: “The
defendant is guilty of first degree murder if the People have proved that he acted
willfully, deliberately and with premeditation.… The defendant acted deliberately if he
carefully weighed the consideration for and against his choice, and knowing the
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consequences, decided to kill. The defendant acted with premeditation if he decided to
kill before completing the act that caused the death. The length of time the person spends
whether to kill does not, alone, determine whether the 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 is not deliberate and premeditated.”
In addition, the overall instructions given to the jury in this case included the
following language from CALCRIM No. 520: “If you decide that the defendant
committed murder, it is murder of the second degree unless the People have proved
beyond a reasonable doubt that it is murder of the first degree, as defined in CAL.CRIM
[No. ]521.”
When reviewing the meaning of the two instructions, we see no meaningful
difference in the import of the instructions. Although CALJIC No. 8.20 specifically
utilizes the words “sudden heat of passion or other condition precluding the idea of
deliberation,” it does not provide any meaningful description of that phrase but rather
uses it in contrast to the notions of premeditation and deliberation provided. The
CALCRIM instructions, particularly in the context of the full set given in this case, do the
same thing, just in different terms. They specifically identify the need to find all
elements of CALCRIM No. 521 for first degree murder and specifically identify the need
for premeditation and deliberation in those instructions. They further contrast the notion
of premeditation and deliberation with decisions made “rashly, impulsively or without
careful consideration.” In this way, much like the instructions discussed in Rogers, “the
jury is told that premeditation and deliberation is the factor distinguishing first and
second degree murder,” and the instructions do not “preclude the defense from arguing
that provocation played a role in preventing the defendant from premeditating and
deliberating; nor does it preclude the jury from giving weight to any evidence of
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provocation in determining whether premeditation existed.” (Rogers, supra, 39 Cal.4th
at p. 880.)
Based on this comparison, we see no reason to distinguish the Rogers conclusion
that the analogous CALJIC instructions to CALCRIM No. 522 are pinpoint instructions.
The general CALCRIM instructions did not fail to properly instruct the jury on the effect
of a sudden heat of passion or unreasonable provocation defense on the concept of
premeditation. Rather, although not providing the additional pinpoint instructions of
CALCRIM No. 522, they properly instructed the jury on the need to find premeditation
and deliberation and properly left open defenses suggesting the lack of those elements,
even drawing a specific contrast for the jury. Accordingly, appellant was required to
request CALCRIM No. 522, and his failure to do so waives any claim of error on appeal.
Further, however, our consideration of the two sets of instructions shows that any
underlying claim of error in the language of CALCRIM No. 521, even if not waived by
the noted failure to object, lacks merit. The instructions provided in CALCRIM No. 521,
like the instructions in CALJIC No. 8.20, are sufficient to inform the jury of the relevant
law and do not preclude the defense from arguing lack of premeditation under a sudden
heat of passion, unreasonable provocation, or other similar doctrine. The addition of
CALCRIM No. 520 ensures the jury finds the prosecution proved every element of the
crime beyond a reasonable doubt. As the instructions are a proper statement of the law,
only subject to supplementation from of CALCRIM No. 522 when requested and
supported, we find no error in their use here.
Unreasonable Provocation Ineffective Assistance of Counsel Claim
Continuing under the argument that unreasonable provocation was a valid defense
that should have been presented, appellant next claims he received ineffective assistance
of counsel because his trial counsel did not request CALCRIM No. 522 or argue
unreasonable provocation to the jury. We do not agree.
21.
As noted above, to show ineffective assistance of counsel, “a defendant must show
that his or her counsel’s performance was deficient and that the defendant suffered
prejudice as a result of such deficient performance.” (People v. Mickel, supra, 2 Cal.5th
at p. 198.) We review ineffective assistance of counsel claims de novo. (People v.
Tapia, supra, 26 Cal.App.5th at p. 950.)
Appellant’s argument on this claim asserts that unreasonable provocation was the
only potential strategical decision that remained after the trial court rejected proffered
instructions on imperfect self-defense, and that it was a warranted defense based on the
evidence of a potential argument over trash. Appellant claims there was therefore no
tactical reason for counsel not to request CALCRIM No. 522 and argue unreasonable
provocation to the jury, and that the failure to provide a valid argument why the killing
should not be a first degree murder was prejudicial. We do not agree.
First, although counsel did not argue unreasonable provocation, counsel did not
abdicate any argument in the case. Rather, as the People note, counsel argued there was a
lack of premeditation and deliberation based on the speed with which the incident
unfolded. Indeed, counsel was able to cite evidence from the record to support an
argument that the whole incident only lasted a few seconds and that such a “rash and
impulsive” act “is not first degree murder.” Counsel used this argument to request a
guilty verdict on the lesser crime of second degree murder, which the jury ultimately
rejected.
Upon review of the record, we cannot conclude that choosing this strategy over an
unreasonable provocation theory was deficient. The evidence for unreasonable
provocation was limited to prior claims of trash in the yard and a singular denial of such
incidents by Gomez. We think it well within counsel’s reasonable discretion to
determine that the speed of the incident reflected more upon the potential lack of
premeditation and deliberation than any assertion that appellant felt provoked. Indeed,
with appellant choosing not to testify, this court is hesitant to conclude that CALCRIM
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No. 522 would have been required even if requested, as the evidence supporting a claim
of provocation was circumstantial and extremely limited.
In addition, upon review, we can identify no prejudice from counsel’s tactical
decision. Counsel chose between one of two potential arguments that could reduce the
first degree murder charge to second degree murder. Neither theory was particularly
strong, and the jury readily rejected the request for a second degree murder conviction on
the theory counsel selected. We see nothing in the record that would suggest the
unreasonable provocation theory could have changed this result. The evidence was not
strong for provocation, shed no light on whether appellant was actually provoked, and the
jury had no trouble finding premeditation and deliberation under the facts presented.
Cumulative Error Claim
Appellant next claims that the various errors alleged in this case effectively
prevented appellant from presenting a defense at all.
“Under the ‘cumulative error’ doctrine, we reverse the judgment if there is a
‘reasonable possibility’ that the jury would have reached a result more favorable to
defendant absent a combination of errors. [Citations.] ‘The “litmus test” for cumulative
error “is whether defendant received due process and a fair trial.” ’ ” (People v. Poletti
(2015) 240 Cal.App.4th 1191, 1216–1217.)
In our analysis of the various claims raised, we only considered harmless error in
the context of the exclusion of appellant’s 911 call and any cumulative effect of
excluding statements about cursing. There we concluded the alleged errors would not
have been sufficient to trigger an obligation to instruct on imperfect self-defense. For the
other claims, we found there was no cognizable error. We thus find no cumulative error
to consider. Upon review of the full scope of the claims raised, we are convinced
appellant’s trial was fair beyond a reasonable doubt. (See People v. Rivas (2013)
214 Cal.App.4th 1410, 1437.) There was thus no cumulative error requiring reversal.
23.
Resentencing Request
Appellant next argues that a remand is required in this case because, although the
trial court was aware of its discretion to strike the firearm enhancement imposed, it was
unaware of its ability to substitute a lesser enhancement in place of the enhancement
found true by the jury as set forth in People v. Morrison (2019) 34 Cal.App.5th 217(Morrison). We do not agree.
Appellant’s sentence included a 25-year enhancement for use of a firearm imposed
pursuant to section 12022.53. During sentencing, the court explained, “The Court does
believe that [appellant] deserves the maximum sentence in Count 1, which is the 25 years
to life for the charge of [section] 187[, subdivision ](a) as a first-degree murder, along
with the 25 years to life for the weapon enhancement pursuant to [section ]12022.53[,
subdivision (d)]. And although the court does have discretion per [section ]1385 to strike
the sentence on that enhancement or dismiss that sentence on that enhancement, based on
his record, based on the evidence in this case, based on his long violent history at this
stage to the point of a homicide does not justify the striking of that additional 25 years to
life.”
In Morrison, the First District Court of Appeal (Div. Five) concluded trial courts
have “discretion to impose an enhancement under section 12022.53, subdivision (b) or (c)
as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if
such an outcome [is] found to be in the interests of justice under section 1385.”
(Morrison, supra, 34 Cal.App.5th at p. 223.) This district, however, in People v. Tirado
(2019) 38 Cal.App.5th 637, review granted November 13, 2019, S257658, concluded no
such authority exists. This court explained, “Nothing in the plain language of
sections 1385 and 12022.53, subdivision (h) authorizes a trial court to substitute one
enhancement for another. Section 12022.53, subdivision (h) uses the verbs ‘strike’ and
‘dismiss,’ and section 1385, subdivision (a) states the court may ‘order an action to be
dismissed.’ This language indicates the court’s power pursuant to these sections is
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binary: The court can choose to dismiss a charge or enhancement in the interest of
justice, or it can choose to take no action. There is nothing in either statute that conveys
the power to change, modify, or substitute a charge or enhancement.” (Id. at p. 643.)
“Had the Legislature intended to grant the trial court the power to modify or reduce a
firearm enhancement, it would have done so with express language.” (Ibid.)
Accordingly, we reject appellant’s claim that the court was unaware of additional
discretion to modify appellant’s sentence.
Further, even if such discretion exists, we conclude it would be futile to remand
for resentencing here. “ ‘ “Defendants are entitled to sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which
is unaware of the scope of its discretionary powers can no more exercise that ‘informed
discretion’ than one whose sentence is or may have been based on misinformation
regarding a material aspect of a defendant’s record.” [Citation.] In such circumstances,
we have held that the appropriate remedy is to remand for resentencing unless the record
“clearly indicate[s]” that the trial court would have reached the same conclusion “even if
it had been aware that it had such discretion.” ’ ” (People v. Flores (2020) 9 Cal.5th 371,
431–432.)
In this case, the court’s sentencing decision shows not only that it determined it
would not strike the sentencing enhancement, but also that it affirmatively believed the
maximum sentence, including both the base term “along with the 25 years to life for the
weapon enhancement pursuant to [section ]12022.53[, subdivision (d)]” was appropriate
and warranted given the facts of the case. Given this clear statement of intent, appellant’s
criminal history, and the severe facts of this case, we see no indication in the record the
court would have reduced appellant’s sentence even if it had been aware of some
additional discretionary authority to do so.
25.
Restitution Issue
As part of his sentencing, appellant was ordered to pay a $10,000 restitution fine
pursuant to section 1202.4. During sentencing, appellant argued, “With regard to the
recommendations made by probation in the report, I would be objecting to the restitution
amount of $63,000. There is also an additional fine that is being asked of $10,000. If the
Court -- assuming that the Court is going to impose the $63,000 restitution amount, I
would be asking the Court to not impose the $10,000 amount. I think that would ensure
that any and all money that the government takes from [appellant] during his
incarceration would then go towards that $63,000 amount.” Appellant, relying on People
v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), contends on appeal that the trial court
erred in failing to stay his restitution fine because there was no ability to pay hearing.
We do not agree. This court has previously concluded that Dueñas was wrongly
decided and that an Eighth Amendment excessive fines clause analysis should apply to
such objections. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1067–1072.) Under that
standard, we cannot conclude the fines imposed in this case are grossly disproportionate
to appellant’s level of culpability; thus, they are not excessive under the Eighth
Amendment to the United States Constitution. (Id. at p. 1072.)
Further, even if we were to consider Dueñas well-reasoned, we would still not
apply it to a case like this as we consider Dueñas to be heavily dependent upon its
specific factual scenario. In Dueñas, the defendant lost her driver’s license because she
was financially unable to pay her juvenile citations. (Dueñas, supra, 30 Cal.App.5th at
p. 1161.) The aggregating criminal conviction assessments and fines imposed as she
drove without a license prevented her from recovering her license. (Ibid.) The Dueñas
court described this as “cascading consequences” stemming from “a series of criminal
proceedings driven by, and contributing to, [the defendant’s] poverty.” (Id. at pp. 1163–
1164.) As a result, the defendant faced ongoing unintended punitive consequences
because of the imposed financial obligations that the Dueñas court concluded were
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“fundamentally unfair.” (Id. at p. 1168.) Such is not the case here, where the restitution
fine is imposed specifically based on appellant’s individualized conduct and is not part of
a fundamentally unfair cascading set of unintended punitive consequences. Accordingly,
we do not find Dueñas’s analysis instructive in this case. (See People v. Lowery (2020)
43 Cal.App.5th 1046, 1054–1055.)
Motion to Expand Appointment
Finally, in a separate filing, appellant’s counsel requested this court expand their
appointment “to include the preparation and filing of a petition for writ of habeas corpus
in this Court, or the Superior Court” based on an ineffective assistance of counsel claim.
This claim arises from trial counsel’s allegedly incorrect determination that an expert
witness could not be called to support appellant’s defense theories unless appellant
testified first. This court previously deferred ruling on the request until reaching the
merits of this appeal. Having reviewed the scope of appellant’s appeal and request, the
motion is granted. Appellant’s counsel’s appointment is expanded to include the
preparation and filing of a petition for writ of habeas corpus in this court. We agree with
counsel that judicial efficiency warrants filing the claim in this court.
DISPOSITION
The judgment is affirmed. The trial court is ordered to prepare an amended
abstract of judgment that accurately reflects appellant was convicted by jury of count 2,
shooting at an inhabited dwelling, in violation of section 246. The trial court is further
ordered to forward a copy of the amended abstract to the Department of Corrections and
Rehabilitation.
27.
Appellant’s counsel’s motion to expand their appointment is granted. Counsel’s
appointment shall include preparing and filing a petition for writ of habeas corpus in this
court.
HILL, P.J.
WE CONCUR:
POOCHIGIAN, J.
DETJEN, J.
28.