People v. Medrano CA2/3 ( 2022 )

Filed 4/19/22 P. v. Medrano CA2/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B312576
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA084749)
v.
ANTHONY JAMES MEDRANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael V. Jesic, Judge. Affirmed in part,
reversed in part, and modified.
Richard B. Lennon and David Andreasen, 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, Assistant
Attorney General, David E. Madeo and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
A jury found defendant and appellant Anthony James
Medrano guilty of first degree murder, willful, deliberate, and
premeditated attempted murder, aggravated mayhem, and
simple mayhem, after he attacked two older men in a North
Hollywood park, killing one and badly injuring the other.
Medrano contends: (1) the trial court prejudicially erred by
failing to instruct the jury on heat of passion voluntary
manslaughter; (2) his conviction for simple mayhem must be
reversed because it is a lesser included offense of aggravated
mayhem; (3) the abstract of judgment must be modified to
accurately reflect the jury’s verdict; and (4) he is entitled to one
additional day of custody credit. Medrano’s second and fourth
contentions have merit; his first does not. Accordingly, we order
the simple mayhem conviction reversed, which moots Medrano’s
third contention. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. The crimes
In November 2016, Federico V. was 68 years old and
retired. He and his wife of 48 years lived near the Victory
Vineland Recreation Center park in North Hollywood. Federico
often went for early morning walks and visited the park to collect
recyclables. The park had a soccer field, a basketball court, a
tennis court, a playground, and a recreation center building.
At approximately 6:00 a.m. on November 12, 2016, Rolando
V.1, who was approximately 73 years old, was sitting on a bench
in the park after collecting recyclables, or while waiting for his
1 Both victims had the same last name, but they were not
related to each other and did not know each other.
2
brother before the men headed to work at a recycling center.2 He
was not armed with a weapon.
Rolando had seen Federico in the park previously,
collecting recyclables. That morning, he saw Medrano and
Federico near the park’s basketball court. Medrano was about 20
meters away from Federico. Federico was holding his hands on
his head, and then was lying down on the grass. Rolando did not
realize Federico was injured; he thought he was simply tired.
Medrano then walked up to Rolando and told him to go to
the basketball court. Rolando refused, and Medrano stabbed him
in the chest with a knife. Rolando pushed Medrano away with
his legs, and ran. Medrano caught up to him; tripped him,
causing him to fall to the ground; straddled him; beat him; and
said “ ‘I’m going to kill you, fucker.’ ” Rolando pinned Medrano’s
arm to prevent him from using the knife again. Medrano
attempted to gouge out Rolando’s eyes, head-butted Rolando’s
face multiple times, and bit Rolando’s ear, partially severing it.
Rolando succeeded in gaining control of the knife and threw it
into an area where the grass was tall. Medrano got up and went
to search for the knife in the grass. Rolando called 911. A
recording of his call was played for the jury.
b. The investigation
Multiple police officers arrived in response to the call. They
observed Medrano crawling in the grass, apparently looking for
something. When he rolled over, officers saw he had a knife in
2 At trial, Rolando testified he was waiting for his brother.
However, he told a detective that he was homeless and had been
collecting recyclables in the park that morning.
3
his hand.3 After being ordered multiple times to drop the knife,
Medrano complied. He was handcuffed, and an officer recovered
the knife. His clothing was bloody. Medrano stated that he
thought the officers were there to help him or save him. A
detective found a second knife, sometimes referred to in the
record as a “butter knife,” on the ground in a picnic area.
Officers found Rolando sitting with his back against a wall.
He was covered in blood and his ear was dangling away from his
head. His eyes were swollen shut, “bulging out,” and he had bite
marks on his head. He identified Medrano as his attacker and
the recovered knife as the weapon Medrano had used.
An ambulance transported Rolando to the hospital. When
he arrived he was in extremis, near collapse and death. A stab
wound to his upper left chest had penetrated his lung and the sac
around the heart, causing his lung to partially collapse. The top
portion of his ear was bitten off, resulting in a permanent
deformity. A tube was placed in his chest and he underwent
surgery on his ear. The attack left him blind in one eye, and he
lost a tooth. He remained in the hospital for approximately ten
days, until November 21, 2016.
Officers found Federico in the park’s soccer field, deceased
and lying face down, with blood on his head and face. Plastic
bottles were scattered near his body and throughout the soccer
field. An autopsy revealed that his death was a homicide, caused
by multiple sharp force injuries. He had suffered seven stab
wounds, one of which entered his left upper chest, punctured his
left lung and his heart, and was fatal. He also suffered 11 “sharp
3
This knife is sometimes described in the record as a steak
knife.
4
incised wounds.” His injuries were consistent with him being
stabbed in the chest, attempting to run away, falling, and the
attacker then inflicting the remaining wounds. In the medical
examiner’s opinion, Federico was standing when he was stabbed.
He had no defensive injuries.
DNA analysis showed that blood on Medrano’s shoes,
clothes, and mouth matched Rolando’s DNA profile. No blood
was detected on the butter knife. Blood was detected on the
steak knife that officers recovered from Medrano. Due to the
complexity of the data, partial DNA typing results on the steak
knife blade and handle were inconclusive and not suitable for
comparison.
c. Medrano’s police interview
Medrano was treated at a hospital for a laceration to his
hand, which was sutured. He also had a scrape on his thumb,
but no other injuries. He had blood on his face. Two Los Angeles
Police Department detectives advised Medrano of his Miranda4
rights and then conducted a videotaped interview with him at
approximately 11:00 a.m. that morning, which was played for the
jury. Medrano admitted stabbing both victims at the park, and
biting one of them. During the interview, Medrano gave the
detectives a false name, a false birth date, and a false name for
his mother. He claimed to be 15 years old, but was actually 29.
Medrano said he had been living in the park for
approximately two weeks. When he awoke on the morning of the
attack, he felt the day “wasn’t right.” He saw the two victims,
whom he believed were only pretending to collect recyclables and
were really in the park to “rape people right there or something.”
4 Miranda v. Arizona (1966) 384 U.S. 436.
5
He thought the men were evil and were not supposed to be in the
park. They were a threat to park patrons and looked sick and
weird, like demons or zombies. He felt it was his job or mission
to “take care of the evil” and “take him out.”
He approached the first victim, Federico, and told him he
was not supposed to be there. Medrano said, “What are you
doing here at this . . . random time, weirdo?” When Federico
replied by asking who Medrano was, Medrano punched him.
Federico ran, and Medrano chased him. Medrano did a “leg
sweep,” causing Federico to fall, and then wrestled with him for a
“cool minute.” He then purposely stabbed Federico in the heart
with a butter knife in self-defense.5 He stabbed the victim in
“every technical spot I could, you know. Easy . . . access.”
Medrano then turned his attention to Rolando, who was
sitting on a bench. Believing Rolando and Federico were “in
cahoots,” Medrano approached Rolando and told him he should
not be in the park. The men began wrestling. When Medrano
got tired, he stabbed Rolando, bit his ear, and gouged out his
eyes. He aimed for Rolando’s chest or aorta, directing his attack
to hit “vitals.” Initially Medrano stated that he used the same
butter knife he had used to stab Federico. When informed that
the officers had found the butter knife in another area of the
park, he stated that Rolando must have had a different knife on
his person and Medrano took it away from him.
Medrano claimed that both victims displayed superhuman
strength. He attacked both of them in self-defense even though
5 Medrano stated that the butter knife was “just laying
around.” His statements to police were unclear regarding
whether he picked it up off the ground, or whether Federico had
it and he took it from Federico.
6
they were yards away from him. He felt his life was in danger,
and they had invaded his privacy and his space. He claimed the
stabbings were “necessary.” His stabbing motions were “tactical
maneuvers.” His intent was to achieve “salvation.” He “had to do
what [he] had to do to survive.” He suggested that the victims’
blood, which was on his clothing and face during the police
interview, was not human blood. He repeatedly stated that his
actions were good: “I know what I did was right” and “I did what
I did for good, not for evil.”
d. Medrano’s defense at trial
Medrano’s father, Moris Medrano,6 testified that Medrano
had lived at home his entire life. The family’s residence was
located within approximately a half mile of the park. On
November 9, 2016, Moris kicked Medrano out because he had
violated a curfew. Medrano had been boxing since he was 11
years old, and Moris was his coach. In 2016, Medrano was
training to become a professional boxer.
Medrano testified on his own behalf at trial, as follows. He
was a trained boxer. He had been sleeping in the park for three
days after being kicked out of the house. As part of his training
to become a boxer, he was attempting to drop his weight from 160
to 132 pounds. Because he had safety concerns, he tried to stay
up all night and sleep during the day.
On November 11, he stayed up all night. At 4:00 a.m. on
November 12, he left his belongings in a safe spot behind a bin
and went for a four-mile run. He returned to the park, retrieved
his things, washed in the park’s restroom, and changed his
6
Because appellant and his father share the same last name,
we refer to Moris Medrano by his first name.
7
clothes. He then placed his things by the bin again, went to the
other side of a fence, and fell asleep. He was not armed with a
weapon. He awoke to find Federico groping his thigh. He
panicked and felt scared and alarmed. He began
hyperventilating and couldn’t breathe. Medrano got up and
confronted Federico, asking “what was his problem?” Federico
swung his bag of recyclables at Medrano and became “very
aggressive.” He grabbed Medrano, and Medrano struggled to get
him off. Federico pushed Medrano down a nearby slope, causing
him to fall. Medrano was “really scared.”
While on the ground, Medrano looked around for something
he could use to defend himself, and found a knife. When Federico
approached him again, Medrano stabbed Federico once in the
chest. Federico fell on top of Medrano. Medrano got on top of
Federico and “frantically start[ed] stabbing him in the back.”
Medrano was “really scared. I’m in shock. I don’t know what’s
going on.” When asked what he was thinking while stabbing
Federico, he testified, “I just want the man to stop. To stop
coming towards me.” He eventually stopped stabbing Federico
because “[i]t was enough.” Federico got up and began stumbling.
Medrano stayed back because he was having an asthma attack.
Medrano then looked over toward where he left his
property and saw Rolando going through his bags. He thought
Rolando was going to take his things. He ran over and
confronted Rolando, asking “what was his problem” and “why
was he taking my stuff.” Rolando was very aggressive, did not
respond to Medrano’s query, and was “very mad.” Medrano was
“beyond scared.” Rolando threw Medrano’s bags down. Rolando
had a knife and rushed toward Medrano. Medrano tried to take
the knife away from him. Medrano still had in his pocket the
8
knife he had used to stab Federico. The two men struggled.
When Rolando refused to drop the knife, Medrano stabbed him
once in the chest. Medrano moved to another area of the park
and Rolando followed him. Medrano was “really scared” because
he thought Rolando would have backed off after being stabbed.
When Rolando got too close, Medrano “couldn’t breathe.” He was
“having a serious asthma attack.” So he decided to “take
[Rolando] down once.” Medrano tripped him. Rolando bit
Medrano’s hand and wouldn’t let go. Medrano responded by
headbutting and kicking him. Rolando grabbed Medrano’s
genitals. To get Rolando off him, Medrano bit him once on the
top of his head. Medrano managed to break free, ran to the front
of the park, and decided to lie down. He was tired. He looked up
and saw Rolando still heading toward him, so Medrano began
crawling away. The police arrived. He was taken to the hospital
and then into custody. He was sad, in shock, confused, and “felt
violated.” He was the victim, not the men he stabbed.
During his police interview, Medrano was still sad, in shock
and confused. He gave his son’s name as his own because he was
thinking about his son. He admitted suffering prior convictions
for petty theft, false personation, and making criminal threats.
2. Procedure
Trial was by jury. Medrano was convicted of the first
degree murder of Federico (Pen. Code, § 187, subd. (a));7 the
attempted willful, premeditated, and deliberate murder of
Rolando (§§ 664, 187, subd. (a)); simple mayhem (§ 203); and
aggravated mayhem (§ 205). The jury also found true allegations
7
All further undesignated statutory references are to the
Penal Code.
9
that Medrano personally used a deadly weapon in the murder
and attempted murder (§ 12022, subd. (b)(1)) and personally
inflicted great bodily injury on Rolando (§ 12022.7, subd. (a)). In
a bifurcated proceeding, the trial court found true allegations
that Medrano had suffered a prior conviction for making criminal
threats, a “strike” and a serious felony (§ 667, subds. (a), (b)–(i)).
The trial court denied Medrano’s Romero motion8 and
sentenced him, pursuant to the Three Strikes law, to 50 years to
life for the murder; a consecutive term of 30 years to life for the
attempted murder, plus four years for the weapon and great
bodily injury enhancements; and a consecutive term of 14 years
to life for the aggravated mayhem offense. Sentence on simple
mayhem was stayed pursuant to section 654. The court struck
the section 667, subdivision (a)(1) serious felony enhancement.
Medrano filed a timely notice of appeal.
DISCUSSION
1. Failure to instruct on heat of passion voluntary
manslaughter
The trial court instructed the jury on first and second
degree murder, “perfect” self-defense, and voluntary
manslaughter on an imperfect self-defense theory. Defense
counsel did not request, and the trial court did not give, an
instruction on heat of passion voluntary manslaughter. Medrano
now contends this omission was prejudicial error. We disagree.
a. Applicable legal principles
A trial court must instruct on all general principles of law
relevant to the issues raised by the evidence, including lesser
included offenses, even in the absence of a request. (People v.
8
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
10
Smith (2013) 57 Cal.4th 232, 239.) Instruction on a lesser
included offense is required when there is evidence the defendant
is guilty of the lesser, but not the greater, offense. (People v.
Landry (2016) 2 Cal.5th 52, 98; People v. Whalen (2013) 56
Cal.4th 1, 68.) This duty is not satisfied by instructing on only
one theory if other theories are supported by the evidence.
(People v. Lee (1999) 20 Cal.4th 47, 61.) Substantial evidence is
that which a reasonable jury could find persuasive. (People v.
Williams (2015) 61 Cal.4th 1244, 1263.) The existence of any
evidence, no matter how weak, will not justify an instruction
(Whalen, at p. 68), but the testimony of a single witness,
including the defendant, may suffice. (People v. Wyatt (2012) 55
Cal.4th 694, 698.)
We independently review the question of whether the trial
court erred by failing to instruct on a lesser included offense.
(People v. Nelson (2016) 1 Cal.5th 513, 538.) In making this
determination, we do not evaluate the credibility of the
witnesses. (People v. Wyatt, supra, 55 Cal.4th at p. 698.) We
view the evidence in the light most favorable to the defendant.
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v.
Brothers (2015) 236 Cal.App.4th 24, 30.)
Voluntary manslaughter is the intentional but
nonmalicious killing of a human being, and is a lesser included
offense of murder. (§ 192, subd. (a); People v. Nelson, supra, 1
Cal.5th at p. 538; People v. Moye (2009) 47 Cal.4th 537, 549.)
A killing may be reduced from murder to voluntary manslaughter
if it occurs upon a sudden quarrel or in the heat of passion on
sufficient provocation, or if the defendant kills in the
unreasonable, but good faith, belief that deadly force is necessary
11
in self-defense. (People v. Landry, supra, 2 Cal.5th at p. 97;
Moye, at p. 549.)
“The heat of passion sufficient to reduce murder to
manslaughter ‘exists only where “the killer’s reason was actually
obscured as the result of a strong passion aroused by a
‘provocation’ sufficient to cause an ‘ “ordinary [person] of average
disposition . . . to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.” ’ ” ’
[Citation.]” (People v. Landry, supra, 2 Cal.5th at p. 97.) Thus,
heat of passion manslaughter has both an objective and a
subjective component. (People v. Moye, supra, 47 Cal.4th at
p. 549; People v. Enraca (2012) 53 Cal.4th 735, 759.) As to the
former, the “provocation which incites the defendant to homicidal
conduct . . . must be caused by the victim . . . or be conduct
reasonably believed by the defendant to have been engaged in by
the victim” (People v. Lee, supra, 20 Cal.4th at p. 59; People v.
Manriquez (2005) 37 Cal.4th 547, 583), and must have been
sufficiently provocative to cause an ordinary person of average
disposition to act rashly or without due deliberation and
reflection, i.e., “ ‘from this passion rather than from judgment.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 939; Enraca, at p. 759.)
To satisfy the subjective component, the defendant must have
killed while under the actual influence of such a strong passion
induced by legally adequate provocation. (Moye, at p. 550; People
v. Millbrook, supra, 222 Cal.App.4th at p. 1139.) The passion
aroused may be any violent, intense, high-wrought or
enthusiastic emotion other than revenge. (People v. Dominguez
(2021) 66 Cal.App.5th 163, 174, 180; Millbrook, at p. 1139; People
v. Wright (2015) 242 Cal.App.4th 1461, 1481.) Substantial
evidence to support an instruction may exist even in the face of
12
inconsistencies presented by the defense itself. (In re Hampton
(2020) 48 Cal.App.5th 463, 480.)
b. Application here
Medrano contends that his testimony regarding Federico’s
actions of groping his thigh, swinging the recycling bag at him,
and pushing him amounted to legally adequate provocation. He
further observes that a defendant’s strong fear or panic can, in an
appropriate case, provide evidence to support a heat of passion
instruction, and he testified at trial that he was scared and
panicked. (See People v. Dominguez, supra, 66 Cal.App.5th at
p. 175; People v. Millbrook, supra, 222 Cal.App.4th at pp. 1138–
1139; People v. Thomas (2013) 218 Cal.App.4th 630, 645.)
Although Medrano’s trial testimony was more consistent with
imperfect self-defense than a heat of passion theory, the two are
not mutually exclusive, and instruction on both may be required.
(See Thomas, at p. 645; Dominguez, at p. 180; In re Hampton,
supra, 48 Cal.App.5th at pp. 480‒481; Millbrook, at p. 1138.) The
People concede that a heat of passion voluntary manslaughter
instruction should have been given.
We need not decide whether the trial court erred by failing
to sua sponte instruct on heat of passion voluntary manslaughter
because the omission was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18.)9 Error in failing to
9 The appellate courts have come to different conclusions
regarding whether the failure to instruct on a lesser included
offense is evaluated under the federal beyond-a-reasonable-doubt
standard articulated in Chapman v. California, supra, 386 U.S.
18, or under the state law reasonable probability standard of
People v. Watson (1956) 46 Cal.2d 818. (Compare, e.g., People v.
Dominguez, supra, 66 Cal.App.5th at pp. 183–184 with In re
Hampton, supra, 48 Cal.App.5th at pp. 481–482.) Our Supreme
13
instruct on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted
instructions adversely to the defendant under other, properly
given instructions. (People v. Manriquez, supra, 37 Cal.4th at
p. 582; People v. Elliot (2005) 37 Cal.4th 453, 475; People v.
Lewis (2001) 25 Cal.4th 610, 646.)
Here, the jury found Medrano guilty of first degree murder.
It was instructed that to render that verdict, it had to find beyond
a reasonable doubt that Medrano committed the murder
“willfully, deliberately, and with premeditation.” CALCRIM
No. 521 explained, “The defendant acted willfully if he intended
to kill. The defendant acted deliberately if he carefully weighed
the considerations 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 death.” “A decision to kill made rashly, impulsively, or
without careful consideration is not deliberate and premeditated.”
(Some italics added.) The instruction further stated that if the
People failed to prove these elements beyond a reasonable doubt,
“you must find the defendant not guilty of first degree murder
and the murder is second degree murder.”
In People v. Wharton (1991) 53 Cal.3d 522 (Wharton), our
Supreme Court concluded that a failure to instruct that
provocation could occur over time was harmless where the jury
found the defendant guilty of willful, deliberate, and
premeditated murder. The court explained: “By finding
Court is currently considering the question. (People v. Schuller
(2021) 72 Cal.App.5th 221, 237, review granted Jan. 19, 2022,
S272237.)
14
defendant was guilty of first degree murder, the jury necessarily
found defendant premeditated and deliberated the killing. This
state of mind, involving planning and deliberate action, is
manifestly inconsistent with having acted under the heat of
passion—even if that state of mind was achieved after a
considerable period of provocatory conduct—and clearly
demonstrates that defendant was not prejudiced by the failure to
give his requested instruction.” (Id. at p. 572.)
The court found the same was true in regard to the failure
to instruct on imperfect self-defense in People v. Manriquez,
supra, 37 Cal.4th 547. There, the defendant was charged with
four separate murders occurring on different occasions. (Id. at
p. 551.) As to one of them, the murder of victim Baldia at the
Rita Motel, the jury was instructed on heat of passion
manslaughter, but the court declined a defense request to
instruct on imperfect self-defense. (Id. at p. 580.) Our Supreme
Court found the instruction was properly declined because no
evidence in the record supported it. (Id. at pp. 581–582.) The
court further reasoned: “The jury’s verdict finding defendant
guilty of the first degree murder of Efrem Baldia implicitly
rejected defendant’s version of the events, leaving no doubt the
jury would have returned the same verdict had it been instructed
regarding imperfect self-defense. [Citation.] Accordingly, even if
we were to assume the failure to instruct on imperfect self-
defense violated defendant’s constitutional rights, we would find
the error harmless.” (Id. at p. 582.)10
10 Medrano contends that Manriquez is distinguishable from
the instant matter and challenges the People’s assertion that its
analysis reinforced Wharton’s reasoning. However, the portion of
the case Medrano cites pertains to a different victim, Jose
15
Subsequent courts have come to the same conclusion.
(People v. Wang (2020) 46 Cal.App.5th 1055, 1071–1072 [because
jury’s finding that appellant premeditated and deliberated a
killing was “manifestly inconsistent” with his having acted under
the heat of passion, omission of heat of passion instruction was
harmless beyond a reasonable doubt]; People v. Franklin (2018)
21 Cal.App.5th 881, 892–894; People v. Peau (2015) 236
Cal.App.4th 823, 830 [first degree murder conviction rendered
any failure to give heat of passion instruction harmless under
Chapman]; People v. Speight (2014) 227 Cal.App.4th 1229,
1246; People v. Millbrook, supra, 222 Cal.App.4th at p. 1138 [if
jury had found attempted murder was willful, premeditated, and
deliberate, “the finding would have been ‘manifestly inconsistent
with having acted under the heat of passion.’ ”]; cf. People v.
Wright, supra, 242 Cal.App.4th at pp. 1497–1498 [true finding on
lying-in-wait special circumstance showed defendant acted with
premeditation and deliberation; that finding could not be
reconciled with finding defendant lacked malice due to
provocation and heat of passion].)
Medrano argues that Wharton is distinguishable for three
reasons. First, he points out that in Wharton, the jury was
Gutierrez. As to that murder, Manriquez concluded the trial
court did not err by failing to instruct on heat of passion
voluntary manslaughter because there was insufficient evidence
the defendant actually killed in the heat or passion, nor was
there sufficient evidence of provocation. (People v. Manriquez,
supra, 37 Cal.4th at pp. 583–585.) We agree that the Supreme
Court’s analysis as to the Gutierrez killing is distinguishable
from the instant case, but this is not the portion of Manriquez
that the People reference and that we address.
16
instructed on provocation and heat of passion; the flaw was that
it was not instructed that provocation could occur over a
considerable period of time. (Wharton, supra, 53 Cal.3d at
pp. 569–572.) Here, in contrast, the jury was not given any heat
of passion instruction. But in our view, this is a distinction
without a difference. The salient aspect of our Supreme Court’s
reasoning in Wharton was that a finding of premeditation and
deliberation is “manifestly inconsistent” with acting in the heat of
passion. (Id. at p. 572.) That is equally true here.
Second, Medrano points out that in in Wharton the first
degree murder instruction, CALJIC No. 8.20, stated that the
decision to kill “ ‘must have been formed upon preexisting
reflection and not upon sudden heat of passion.’ ” (Wharton,
supra, 53 Cal.3d at p. 572.) The instruction given here—
CALCRIM No. 521—omits the phrase “heat of passion.” But
again, this difference is of no moment. CALCRIM No. 521
conveys the same concepts as did CALJIC No. 8.20: that to prove
first degree murder, the People were required to show the
defendant intended to kill; “carefully weighed the considerations
for and against his choice, and, knowing the consequences,
decided to kill”; and “decided to kill before completing the act that
caused death.” There is no magic to the phrase “heat of passion”
where, as here, the instruction conveyed the same principles.
Finally, Medrano contends Wharton applied the Watson
standard, rather than the Chapman standard. This does not
change our conclusion. For the reasons we have explained, the
jury’s first degree murder verdict demonstrates omission of the
instruction was harmless under Chapman. People v. Manriquez,
supra, 37 Cal.4th 547—deciding the conceptually identical issue
of whether the omission of imperfect self-defense instructions was
17
erroneous—concluded the jury’s first degree murder verdict
eliminated “any doubt” that the jury would have returned the
same verdict even if the instruction had been given. (Id. at
p. 588, italics added.) Medrano does not explain how it would be
possible for a jury to conclude a defendant’s decision to kill, made
after carefully weighing the considerations for and against his
choice and knowing the consequences, could simultaneously have
been made in the heat of passion, a state of mind in which
reflection is eclipsed and a person “ ‘simply reacts from emotion
due to the provocation, without deliberation or judgment.’ ”
(People v. Nelson, supra, 1 Cal.5th at p. 539; People v. Wang,
supra, 46 Cal.App.5th at p. 1072; see People v. Franklin, supra,
21 Cal.App.5th at p. 894.)
Medrano further contends that this case is controlled by
People v. Berry (1976) 18 Cal.3d 509, rather than Wharton.
Berry reversed a defendant’s first degree murder conviction
because the trial court erroneously refused to instruct on
voluntary manslaughter on a heat of passion theory. (Id. at
p. 518.) Berry reasoned that the first degree murder verdict did
not necessarily indicate the jury found the defendant was not
acting in the heat of passion when he killed. (Ibid.) The
instructions given “only casually” referenced provocation and
heat of passion, and there was no clear direction to consider the
victim’s provocatory conduct. (Ibid.)
Wharton was decided approximately fifteen years later.
Wharton discussed Berry’s analysis on the provocation-over-time
issue, but not the prejudice issue and, as explained above, found
the error harmless due to the first degree murder verdict.
(Wharton, supra, 53 Cal.3d at p. 572.)
18
Based on Berry, People v. Ramirez (2010) 189 Cal.App.4th
1483, rejected the argument that a trial court’s error in failing
to instruct on heat of passion voluntary manslaughter was
harmless in light of the jury’s first degree murder verdict. (Id. at
pp. 1484, 1488.) Without citation to Wharton, Ramirez concluded
the People’s argument “fail[ed] as a matter of law” in light
of Berry. (Id. at p. 1488.)
Since Ramirez, appellate courts have reconciled Berry and
Wharton and concluded a first degree murder verdict renders
errors in provocation and heat of passion instructions harmless.
In People v. Peau, the court instructed that provocation could
reduce a murder from first to second degree murder or
to manslaughter, but did not instruct that the defendant was
guilty of only voluntary manslaughter if he acted in the heat of
passion. (People v. Peau, supra, 236 Cal.App.4th at pp. 828–
829.) While recognizing that there was “some tension between
the holdings” in Berry and Wharton, Peau reconciled the two.
(Id. at p. 831.) The court explained: “Although Berry refused to
find an error in omitting a heat-of-passion instruction harmless,
it did not even mention that first degree murder must be willful,
deliberate, and premeditated. Instead, it focused only on the fact
that the instruction distinguishing between first and second
degree murder in that case ‘made passing reference to heat of
passion and provocation for the purpose of distinguishing
between’ the two types of murder. [Citation.] We think this
strongly suggests that the sole issue considered in Berry was
whether the error was harmless because the jury received some
instruction on the concepts of heat of passion and provocation,
not whether the error was harmless because the jury found the
murder was willful, deliberate, and premeditated and such a
19
finding was inconsistent with a finding that the defendant acted
in a heat of passion.” (Id. at pp. 831–832.) Noting that cases are
not authority for propositions not considered, the court
“disagree[d] with the conclusion reached in People v. Ramirez,
supra, 189 Cal.App.4th 1483 that Berry forecloses a
determination that such an error is harmless for the latter
reason.” (Id. at p. 832.) Peau concluded any error was harmless
beyond a reasonable doubt “because the jury necessarily rejected
the possibility that [defendant] acted in the heat of passion by
convicting him of first degree murder.” (Id. at pp. 828, 832.)
In People v. Franklin, the jury was instructed on attempted
voluntary manslaughter on a heat of passion theory, but the
court’s erroneous response to the jury’s question was inconsistent
with those instructions. (People v. Franklin, supra, 21
Cal.App.5th at pp. 886–890.) Agreeing with Peau, and focusing
on the same language contained in the instructions given here,
Franklin concluded the error was harmless. (Id. at p. 894.) “We
cannot see how a determination that [defendant] carefully
weighed his choice to act and did not decide rashly or impulsively
can coexist with the heat of passion, which ‘arises when “at the
time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly
and without deliberation and reflection, and from such passion
rather than from judgment.” ’ [Citation.] In other words, the
jury’s finding of premeditation and deliberation is ‘manifestly
inconsistent with having acted under the heat of passion’ and
nullifies any potential for prejudice here.” (Id. at p. 894.)
We agree with the analyses in Franklin and Peau.
Medrano argues that Berry is binding precedent, but so are
20
Wharton and Manriquez, and we conclude these latter cases
compel rejection of Medrano’s contentions.
Furthermore, even if the jury’s first degree murder verdict
were not by itself dispositive, given the evidence and the defense
theory it is clear beyond a reasonable doubt that omission of a
heat of passion instruction was harmless. Assuming the jury
managed to overlook some of the less compelling aspects of
Medrano’s trial testimony—that he was attacked by not one but
two random strangers in the park in unconnected incidents, that
he happened to find a knife in the grass to defend himself at
precisely the moment he needed it, and that he was terrified by
two elderly men despite his youth and status as a trained boxer—
his trial testimony regarding his mental state was contradicted
by his statement to police.
Medrano’s account of his state of mind in his police
interview was incompatible with a heat of passion theory: he
made it quite clear he acted according to a calculated “mission” to
“take . . . out” the victims, whom he perceived as evil. For
example, he explained, “They were, like evil. So, you know, I had
to take care of the evil, take the evil out.” He said he needed to
“take care of a job” and “follow through with plans.” He stabbed
Federico in every “technical” spot he could find, using the moves
he had learned growing up. He killed Federico because he was
seeking “salvation.” He also claimed he was defending himself.
In short, he told police he committed a purposeful attack, and
never suggested that he was acting without thinking due to
intense emotions. (See People v. Schuller, supra, 72 Cal.App.5th
at pp. 238–239, rev.gr. [evidence that defendant was not acting in
any form of self-defense was overwhelming, in part because his
“account of the killing radically changed leading up to trial.”].)
21
Medrano’s sudden turnabout in his trial testimony was not
satisfactorily explained.11
Medrano’s trial testimony provided minimal support for a
heat of passion theory. Although he stated he was scared, and
sometimes mentioned he was panicked, in shock, or frantic, the
gist of his testimony was that he acted in self-defense, not
because he was overcome by emotion that bypassed his thought
processes. Being frightened does not by itself equate to heat of
passion. To show heat of passion, “ ‘[T]he anger or other passion
must be so strong that the defendant’s reaction bypassed his
thought process to such an extent that judgment could not and
did not intervene.’ ” (People v. Beck and Cruz (2019) 8 Cal.5th
548, 649; People v. Nelson, supra, 1 Cal.5th at p. 539 [passion
must eclipse reflection and cause the person to react from
emotion without deliberation or judgment]; People v. Rangel
(2016) 62 Cal.4th 1192, 1225 [“ ‘provocation must be one that
would cause an emotion so intense that an ordinary person would
simply react, without reflection.’ ”].) Medrano did not clearly
testify he acted without thinking. And the defense theory was
that Medrano acted in self-defense or imperfect self-defense; the
defense did not argue that Medrano acted in the heat of passion.
11
Citing People v. Atkins (2019) 31 Cal.App.5th 963, Medrano
argues that this court may not consider whether his testimony
was credible. Our observation that Medrano’s statements to
police contradicted his trial testimony is not a comment on his
credibility, but simply an objective evaluation of the strength of
the defense case, an appropriate consideration when determining
prejudice. (See People v. Ramirez, supra, 189 Cal.App.4th at
p. 1487 [strength of the evidence supporting the judgment is a
relevant consideration in determining prejudice]; People v.
Schuller, supra, 72 Cal.App.5th at pp. 239–240, rev.gr.)
22
Furthermore, the jury was given the option to convict
Medrano of voluntary manslaughter on an imperfect self-defense
theory, as well as second degree murder. CALCRIM No. 571
instructed that the crime was voluntary manslaughter if
Medrano actually believed he was in imminent danger of being
killed or suffering great bodily injury, actually believed the
immediate use of deadly force was necessary to defend against
the danger, and at least one of those beliefs was unreasonable.
But the jury rejected this theory. There is authority that, in an
appropriate case, a jury might reject imperfect self-defense but
still find a defendant guilty of voluntary manslaughter on a heat
of passion theory. (See People v. Dominguez, supra, 66
Cal.App.5th at p. 182 [“even if the jury did not believe that
Defendants either reasonably or unreasonably thought deadly
force was necessary—as jurors may have concluded in rejecting
these theories—they could nevertheless have found that
Defendants fired in the heat of passion.”]; In re Hampton, supra,
48 Cal.App.5th at p. 481; People v. Millbrook, supra, 222
Cal.App.4th at p. 1138.)
But we fail to see how that was a genuine possibility here.
The only strong emotion Medrano testified to was fear and panic.
To find heat of passion but not imperfect self-defense, the jury
would have had to conclude Medrano did not subjectively believe
he was in danger and/or did not subjectively believe deadly force
was necessary, but that this very same fear was strong enough to
overcome his reason to such an extent that he acted from passion
rather than reason, without thought. While this is possible in the
abstract, we do not think it remotely likely that reasonable jurors
would have come to this conclusion in this case. (See generally
People v. Moye, supra, 47 Cal.4th at p. 557 [“Once the jury
23
rejected defendant’s claims of reasonable and imperfect self-
defense, there was little if any independent evidence remaining
to support his further claim that he killed in the heat of passion,
and no direct testimonial evidence from defendant himself to
support an inference that he subjectively harbored such strong
passion, or acted rashly or impulsively while under its influence
for reasons unrelated to his perceived need for self-defense.”].)
And it is not as though the jury had no option but to find
Medrano guilty of first degree murder or nothing. Had it
concluded that Medrano did not premeditate and deliberate, it
could have found him guilty of second degree murder. “Thus, in
convicting appellant of first degree rather than second degree
murder, the jury necessarily found the evidence sufficient to
establish premeditation and deliberation and also must have
rejected the notion that appellant formed the intent to kill ‘under
a sudden heat of passion or other condition precluding the idea of
deliberation.’ ” (People v. Wang, supra, 46 Cal.App.5th at
p. 1071.)
Omission of the instruction, if error, was harmless beyond a
reasonable doubt.
2. The mayhem conviction
Medrano was convicted of both aggravated mayhem (§ 205)
and simple mayhem (§ 203). He contends that the simple
mayhem conviction must be reversed because it is a lesser
included offense of aggravated mayhem, and the People agree.
So do we.
A defendant may be convicted of more than one offense
based on the same act or course of conduct, but may not be
convicted of two such offenses if one is a necessarily included
lesser offense of the other. (People v. Lopez (2020) 9 Cal.5th 254,
24
269–270; People v. Reed (2006) 38 Cal.4th 1224, 1227–1228;
People v. Robinson (2014) 232 Cal.App.4th 69, 73–74.) To
determine whether an offense cannot be committed without
necessarily committing the included offense, we look to the
statutory definitions of both offenses. (Reed, at pp. 1227–
1229; Robinson, at p. 74.) “[I]f the statutory elements of the
greater offense include all of the statutory elements of the lesser
offense, such that the greater offense cannot be committed
without also committing the lesser offense, the latter is
necessarily included in the former.” (Robinson, at p. 74.) Under
this test, simple mayhem is a lesser necessarily included offense
of aggravated mayhem. (Id. at pp. 73, 79.) Here, both
convictions were based on the same act: Medrano’s biting of
Rolando’s ear. Accordingly, Medrano’s conviction for simple
mayhem in count 4 must be reversed.
3. Correction of the minute order
The trial court’s March 13, 2020, minute order reflects that
the jury found true a great bodily injury enhancement (§ 12022.7,
subd. (a)) on the simple mayhem conviction. The jury’s verdict
form on this count is comprised of two pages; the true finding on
the section 12022.7 enhancement is on the second page.
However, when the verdicts were read aloud and the jury was
polled, the true finding was omitted. Medrano contends that the
minute order must be corrected to delete the reference to the
enhancement. The People agree. “The oral declaration of the
jurors endorsing the result is the true return of the verdict.”
(People v. Lankford (1976) 55 Cal.App.3d 203, 211, disapproved
on other grounds in People v. Collins (1976) 17 Cal.3d 687, 694–
695, fn. 4.) Here, however, in light of our reversal of Medrano’s
conviction on this count, the issue is moot.
25
4. Custody credits
At sentencing, the trial court awarded Medrano 1,599 days
of custody credit. Medrano contends he is entitled to one
additional day of presentence custody credit and again, the
People agree. Medrano was arrested on November 12, 2016 and
was sentenced on March 30, 2021. A defendant is entitled to
credit for the date of his arrest and the date of sentencing.
(§ 2900.5, subd. (a); People v. Denman (2013) 218 Cal.App.4th
800, 814; People v. Morgain (2009) 177 Cal.App.4th 454, 469.)
Thus, taking into account that 2020 was a leap year, he is
entitled to 1,600 days of presentence custody credit, rather than
1,599. A “sentence that fails to award legally mandated custody
credit is unauthorized and may be corrected whenever
discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647;
People v. Cardenas (2015) 239 Cal.App.4th 220, 235.) We order
the custody credit award corrected.
26
DISPOSITION
Defendant’s conviction in count 4, for simple mayhem
(§ 203), is reversed. The judgment is modified to reflect that
Medrano is entitled to 1,600 days of presentence custody credit.
In all other respects, the judgment is affirmed. The clerk of the
superior court is ordered to prepare an amended abstract of
judgment reflecting the reversal of count 4 and the corrected
custody credits, and to forward it to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
27