Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD190366 Peter C. Deddeh, Judge.
BENKE, Acting P. J.
James Lamar Jackson was convicted of second degree murder. It was found true he used a firearm within the meaning of Penal Code section 12022.5, subdivision (a), and discharged a firearm within the meaning of section 12022.53, subdivision (d). The trial court granted appellant's motion to modify the verdict pursuant to People v. Dillon (1983) 34 Cal.3d 441 to voluntary manslaughter. Jackson was sentenced to a prison term of 21 years. He appeals, arguing the trial court erred in excluding defense evidence, the prosecutor committed misconduct and the trial court erred in imposing the upper term on both the substantive offense and the firearm allegation.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
In April 2005 appellant lived in Paradise Hills with his mother and other family members, including his cousin Robert Smith. Smith had a bad temper. At around 8:00 a.m. on April 16, 2005, appellant and Smith had an argument. At about that time persons in a house next door to appellant heard what might have been shots and saw Smith on the ground between the houses.
The police and paramedics were called. As the police were securing the scene, a woman walked up to the officers with appellant. The woman stated appellant was her son, he had shot a relative and wanted to turn himself in. Asked about the gun used, appellant stated it was a small black .22 caliber gun. The officers searched the area where appellant stated he threw it but could not find the weapon. However, a cartridge casing was found about an inch from a brown chair outside the house.
While the officers were searching for the gun, appellant told them he was visiting a girl and Smith came in and began bothering him. Appellant stated Smith knew he was carrying a gun. Appellant stated the gun went off accidentally. Frightened, appellant ran. Appellant stated he did not intend to shoot Smith.
Later, after waiving his rights, appellant told a detective he was inside the home of his next door neighbor. Smith came to a window and angrily stated if appellant came outside he would "beat the shit" out of him. Appellant, who had a gun in his pocket, went outside and sat in a brown chair. Smith took off his hat and shirt and angrily came at appellant. Fearing Smith would harm him, appellant pulled out his gun. The two men wrestled and the gun went off. Smith fell to the ground. Appellant went home and told his mother what happened.
Smith died from a single gunshot wound to the head. The evidence indicated the shot was fired from at least two to three feet away. Smith would have fallen to the ground almost immediately after being shot. A criminalist examined the bullet and determined it was fired from a .25 caliber automatic firearm.
B. Defense Case
Smith had a reputation for violence. Several witnesses testified appellant did not have a history of violence and no history of violence with Smith. Smith frequently wanted to fight men for making "passes" at his girlfriend. Other witnesses testified Smith had a reputation for violence. Over the years, Smith picked several fights with appellant. The defense argued that after an argument, Smith attacked appellant and appellant shot him in self-defense.
`DISCUSSION
A. Limitation on Defense Evidence
Appellant argues the trial court denied him the right to the effective assistance of counsel and due process when it restricted his presentation of evidence relevant to Smith's history of violence.
1. Background
Appellant claimed self-defense. Prior to trial, appellant moved under Evidence Code section 1103 for the admission of evidence concerning the victim's reputation for violence and specific instances of violence. After a hearing, the court generally agreed to admit such evidence. However, while admitting evidence concerning a fight between Smith and his stepfather, the court excluded evidence that Smith struck his mother and gave her a black eye. The court noted that based on appellant's offer of proof the injury was accidental and occurred when she tried to break up the fight. While allowing testimony that the fight was a physical one and that both men struck blows, the court would not allow testimony concerning who threw the first punch. The court also excluded evidence of violence directed by Smith at his girlfriend Varela. The court noted the incident involved domestic violence and apparently instances of mutual combat. The present case was a fight between two men. The count concluded, pursuant to Evidence Code section 352, admission of that evidence would be more confusing, time consuming and prejudicial than probative.
At trial, extensive evidence was offered concerning Smith's reputation for violence and his specific violent acts. Three witnesses stated Smith had a reputation for violence, and one testified he was mean. Varela testified appellant yelled and cursed at her, and pulled her hair. She told an investigator Smith often tried to fight with other men. She related Smith threw a cup in a girl's face a couple of days before his death. John Bowden, appellant's mother's boyfriend, testified Smith often lost his temper and cursed at his mother and aunt. Bowden and Smith had physical fights. Bowden described occasions when Smith punched holes in a wall, threw a television at his aunt and hit another man. Bowden also described incidents in which Smith stole money from appellant, then hit appellant when he asked that his money be returned.
2. Discussion
A defendant claiming self-defense in a homicide case is entitled to prove the dangerous character of the victim. (Evid. Code, § 1103, subd. (a)(1); People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) The trial court recognized this rule and readily admitted extensive evidence of Smith's past violent acts and his reputation for violence.
The court properly excluded evidence that during a fight between Smith and Bowden, Smith struck appellant's mother and gave her a black eye. Defense counsel indicated appellant's mother would testify she was struck accidentally. While the fight between Bowden and Smith was admissible to show Smith's violent character, accidental acts say nothing about character, and evidence of such acts are, therefore, irrelevant.
Likewise, the trial court did not abuse its discretion in concluding, under Evidence Code section 352, that evidence of a domestic dispute, even one involving violence, was more time consuming, confusing and prejudicial than probative. Domestic disputes have complications different than those involved in other disputes. The court could reasonably conclude that while Smith's violent acts directed at his girlfriend spoke to his character for violence, the probative value of such evidence was less than other evidence of his violent nature and were properly excludible.
Finally, while the court allowed Bowden to testify concerning his fight with Smith, it did not allow him to testify concerning who threw the first blow. Apparently, the trial court did so because it thought the fact minimally relevant and raised the danger that unwarranted time would be consumed in exploring the details of the confrontation. Whether right or wrong, that ruling, given the extensive evidence of Smith's violent character, was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Prosecutorial Misconduct
Appellant argues he was deprived of a fair trial by the prosecutor's repeated but unobjected to acts of misconduct during argument. Specifically, appellant argues the prosecution continually misstated the evidence and misstated an important legal concept.
1. The Law of Misconduct
A prosecutor's misconduct violates the federal Constitution only when it is so egregious, and infects the trial with such unfairness, that the resulting conviction is a denial of due process. Conduct that does not render a trial fundamentally unfair constitutes prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.)
Under either standard, it is only prejudicial misconduct that requires reversal. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.) With regard to a claim of misconduct based on remarks to the jury, appellant must show a reasonable likelihood the jury understood or applied the complained of comments in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970.) With regard to prosecutorial misconduct arising from erroneous characterizations of the law, proper instruction on the legal concept generally renders any misconduct harmless. (People v. Montiel (1993) 5 Cal.4th 877, 937.)
2. Discussion
Appellant concedes no objection was made to any of his claims of prosecutorial misconduct. Respondent argues the issue is, therefore, waived. Generally, in order to preserve a claim of prosecutorial misconduct, a defendant must timely object and/or request a curative admonition. The requirement does not apply, however, if either the objection or admonition would be futile or if the admonition would not have cured any harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Appellant, citing People v Hill, supra, 17 Cal.4th at pages 820-822, argues that any objection and request for a curative admonition would have been futile here because the instances of misconduct were so numerous. Hill, however, differs in important respects from this case. In Hill the misconduct was monumental, ranging in type from misstatements of the evidence that rose to "outright falsehoods," to misstatements of law to sarcastic comments about the defendant and defense counsel. In Hill objections were made to some of the misconduct but the trial court did nothing to control the prosecutor's egregious conduct. Our Supreme Court concluded under such circumstances it would have been futile and counterproductive to continue making objections. (Ibid.)
In this case there were no objections at all. Assuming for the sake of argument that some of the prosecutor's comments were improper, they were not as numerous or wide ranging as those in Hill, and there is no indication the trial court would have failed to take appropriative action. Had an objection been interposed, we must assume any impropriety would have been cured and the prosecutor would have been more circumspect.
Appellant's claims of misconduct are waived.
We have nonetheless reviewed the prosecutor's argument. This case involved the not so unique situation where hard facts were limited and many conclusions necessarily rested on inference. Many of appellant's claims of misstatement involved the prosecutor attempting to draw inferences from diverse facts that allowed different interpretations. Generally, when trial courts are faced with the objections that a party has misstated a fact or drawn an unsupported inference, it is appropriate to merely remind the jurors they have heard the evidence and must, based on their collective memory and wisdom, decide the facts and make the inferences themselves. Indeed, as is usually the case, the jury here was instructed that nothing said by counsel in argument was evidence.
Appellant argues the prosecutor misstated the law when she stated that because appellant had a gun in his pocket he was a "first aggressor" and could not properly claim self-defense. The jury was fully instructed concerning the concept of self-defense and the right to a defense of self-defense when they either are the first aggressor or when they are engaged in mutual combat. Assuming the prosecutor misstated the law concerning self-defense, there is no reason to assume the jury was misled.
C. Sentencing
Appellant argues the trial court erred in imposing the upper term on the voluntary manslaughter conviction and the firearm use finding.
1. Background
Appellant was convicted of second degree murder, and true findings were made on firearm use allegations within the meaning of sections 12022.5, subdivision (a), and 12022.53, subdivision (d). Based on the verdict and findings, appellant faced a sentence of 40 years to life in prison. Citing People v. Dillon, supra, 34 Cal.3d 441, appellant argued that sentence would be disproportionate to his culpability given his age and the circumstances of the offense.
In considering the motion, the court noted it did not believe the shooting was an accident. The court stated the evidence did not support appellant's claim the two men struggled. The court stated it believed appellant shot Smith from a distance. The court further stated it did not believe appellant meant to kill Smith but merely to frighten him. Appellant did, however, fire in wanton, reckless disregard for human life. The court stated the jury's verdict of second degree murder was therefore appropriate.
The court noted the prosecution's offer in the case was a guilty plea to voluntary manslaughter and a prison term of 16 to 21 years.
After reading a psychological report favorable to appellant, the court found appellant did not have a strong criminal orientation. The court also noted that some jurors indicated they believed appellant should be treated leniently. The court concluded a term of 40 years given appellant's age and history was inappropriate and reduced the conviction to voluntary manslaughter.
In sentencing on the substantive offense, the trial court found the factors in aggravation outweighed the factors in mitigation. The court found the defendant took advantage of a position of trust and confidence, i.e., appellant and Smith grew up together and Smith would not have believed appellant would confront him with a gun. Based on that finding, the trial court imposed the upper term of 11 years on the manslaughter charge. The Attorney General contends the trial court also stated a factor in aggravation was that appellant used a gun when a gun was not needed. This comment by the court was made during discussions with counsel but was not repeated during the formal pronouncement of sentence. We do not believe the trial court intended appellant's use of a gun, which was also the subject of the section 12022.5, subdivision (a), enhancement, as a factor in aggravation.
As to the section 12022.5, subdivision (a), firearm use allegation, the trial court imposed the upper term of 10 years based on the finding that Smith was particularly vulnerable.
2. Discussion
In Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 860], the court held that imposing an upper term pursuant to California's former determinate sentencing law violated the Sixth Amendment right to jury trial, unless the sentencing court relied on (1) a fact found by the jury beyond a reasonable doubt, (2) a fact admitted by the defendant or (3) a prior conviction. In this case the trial court's reasons for imposing the upper term as to the substantive offense and the firearm use enhancement were based on none of these factors. The trial court, therefore erred in imposing the aggravated terms.
Denial of the right to jury trial on aggravating circumstances is prejudicial error unless we find beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt at least one aggravating circumstance. (People v. Sandoval (2007) 41 Cal.4th 825, 838; People v. Curry (2007) 158 Cal.App.4th 766, 794.)
As to the substantive offense, the trial court imposed the upper term on the basis appellant took advantage of a position of trust and confidence. As to the firearm use enhancement, the court imposed the upper term based on a finding the victim was particularly vulnerable. Both of these aggravating factors are extremely subjective and neither is supported by overwhelming evidence. We cannot say beyond a reasonable doubt a jury would have found those aggravating circumstances true. The trial court's error in imposing the upper terms based on those circumstances, therefore, was prejudicial. (See generally People v. Sandoval, supra, 41 Cal.4th at pp. 840-843.)
As to the substantive offense, the matter is remanded for resentencing pursuant to People v. Sandoval, supra, 41 Cal.4th at pages 843-852.
Resentencing on the firearm enhancement raises different issues. In People v. Lincoln (2007) 157 Cal.App.4th 196, 204-205, the court stated: "[Sandoval's] sentencing scheme, however, applies only to the selection of the appropriate term of imprisonment for the substantive offenses. The Supreme Court in Sandoval performed what may be called a limited judicial reformation of section 1170 with respect to defendants whose cases were remanded for resentencing. The reformed sentencing scheme mirrors the Legislature's urgency legislation signed by the Governor on March 30, 2007, in which section 1770, subdivision (b) was amended to eliminate the statutory presumption for the middle term. Previous section 1170, subdivision (b), as it was in effect at the time of Lincoln's trial, provided that when an offense is punishable by one of three statutory terms, 'the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.' Rather than invent a system for charging and trying aggravating factors by jury under the reasonable doubt standard, the Legislature removed the statutory presumption of the middle term so that the section now reads, 'When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.' (§ 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.)
"The urgency legislation, however, did not change section 1170.1, subdivision (d), which establishes the same presumption of the middle term for enhancements that the former section 1170, subdivision (b) did for sentencing on criminal offenses. Section 1170.1, subdivision (d) provides, 'If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation . . . .' This provision suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], and is similarly unconstitutional. The Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment, and the California Supreme Court did not reform it in Sandoval, supra, 41 Cal.4th at pages 843 through 852."
The court in Lincoln stated it did not know if the Legislature intended this distinction or if the different treatment of substantive offenses and enhancements was inadvertent. Given that uncertainty, the court concluded it could not reform the sentencing scheme applicable to enhancement. (People v. Lincoln, supra, 157 Cal.App.4th at pp. 205-206.)
On remand, if there is no evidence appellant has suffered a prior conviction or fact relevant to the imposition of an aggravated term found by the jury beyond a reasonable doubt or admitted by the defendant, then the trial court must impose either the midterm or lower term on the enhancement.
The matter is remanded for resentencing on both the substantive offense and the firearm allegation. In all other respects the judgment is affirmed.
WE CONCUR: NARES, J., IRION, J.