Opinion
C077506
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. D'ANDRE LEON MONROE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F05343)
On the night of January 3, 2010, defendant D'Andre Leon Monroe, then 18 years old, fired a gun from a car into an inhabited dwelling, killing 15-year-old Aliyah ("Lele") Smith. Defendant appeals following conviction of (1) second degree murder and (2) shooting a gun at an inhabited dwelling house. (Pen. Code, §§ 187, 246; statutory section references that follow are found in the Penal Code unless othewise set forth.) On the murder count, the jury found true an allegation that defendant was armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm (§ 12022.5, subd. (a)), and personally used and discharged a firearm causing death (§ 12022.53, subds. (b), (c), and (d)).
Defendant acknowledges he does not contest his conviction on Count Two, maliciously and willfully discharging a gun at an inhabited dwelling (§ 246). Instead, he contends on appeal: (1) The evidence is insufficient to support the murder conviction; (2) the trial court erred by not instructing the jury sua sponte on involuntary manslaughter; and (3) the trial court erred in giving a jury instruction that prohibited the jury from considering voluntary intoxication on whether defendant had a conscious disregard for life for implied malice, and trial counsel's failure to request such instruction constituted ineffective assistance of counsel. In a supplemental brief, defendant asks that we remand to the trial court to consider dismissing the gun enhancements under recent legislation giving the trial court discretion to dismiss. (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, § 2 (Sen. Bill No. 620), eff. Jan. 1, 2018.) The Attorney General makes no response regarding the enhancements.
We remand for the trial court to exercise its discretion whether or not to dismiss gun use enhancements under Senate Bill No. 620. We also direct the trial court to correct errors in the abstract of judgment so as to conform with oral pronouncement of sentence. We otherwise affirm the judgment.
FACTS AND PROCEEDINGS
On January 3, 2010, the victim attended a party where she got into a fight with Talisha H., and they ended up rolling on the ground in a front yard. The fight stopped when someone fired a gun into the air and people scattered.
The victim and others congregated at the home of twins who lived on Nedra Court.
Talisha and her friends regrouped in a church parking lot. Talisha and sisters Mary and Shavana A. realized their cell phones were missing and suspected that Smith and her friends must have stolen the phones. Talisha's group contacted Shavana's older sister, Alison Williams, and said they had been in a fight and got "stuff stolen" and were going to go fight the same girls again. Williams got her boyfriend, Marschell Brumfield, to give her a ride in a white four-door sedan. Brumfield's friends -- defendant, (codefendant) Marcel Bullard, Paris C., Dominque D., and Tyrell P. -- went along to watch and provide "back up" for the fight.
When the white sedan got to the parking lot, Bullard asked Talisha if she needed him to "clap some shit up tonight" or "light some shit up tonight," meaning to shoot a gun at something. The group of girls walked to Nedra Court, while the white sedan drove there and parked in front of a neighboring home a few hundred feet from the twins' door. The males got out of the car and gathered in the alley.
The neighbor inside his home saw the group outside and heard a female say, "We are going down here. Are you guys going to have my back?" A male responded it was "okay because I have the thing." The group walked into the alley, yelling expletives and calling for a fight.
Inside the twins' bedroom, the group that included the victim could see and hear the girls outside yelling.
Witness Darrell J. went to the twins' home to pick up his brother and cousin. He saw the group outside. At trial Darrell, who admitted he did not want to be labeled a "snitch," denied having come upon the girls at the church parking lot and learned of their plan, and did not remember saying that to the police. He went to the door of the home and told the twins, who came to the door, that he wanted to get his brother and cousin and that the group in the alley wanted to fight and were planning to "shoot up the house." The twins saw groups of people in the alley and perceived that some wanted to fight, while others were there to watch a fight. The twins did not want to fight. It is not clear whether Darrell got his relatives out at that point, but he did not immediately leave.
The twins returned to their bedroom, where the window was shut, the blinds were down, and a blanket covered the window, but the victim and others kept peeking out the window. The victim sat on a mattress and looked out the lower corner of the window.
Darrell told the people in the alley that the people inside the house were not coming out because they were scared. The people in the alley responded with anger that "we are going to air this mother fucker out."
After several minutes, the neighbor heard a female who sounded extremely upset say, "Why didn't you guys have my back? I thought you were going to have my back." The males said alright, they were going to "air it out," which the neighbor understood to mean shoot a gun wherever you want to shoot it. Defendant and Bullard retrieved ski masks, gloves, and two guns from the trunk of the white car. The group walked further into the alley, out of the neighbor's view.
Darrell ran up to the bedroom window, urging those inside to get out.
The victim and others continued peeking out the bedroom window.
Defendant and Bullard approached the house wearing black ski masks and black gloves. Each fired a black gun. Some witnesses saw two guns, while others said defendant and Bullard took turns firing the same gun. Most witnesses heard three gunshots with a pause between the shots.
At the first shot, someone turned out the light in the bedroom and people got down on the floor but then got back up and looked out the window again, with the victim again at the lower corner.
Brumfield admitted he saw someone peeking out the window. There was a light pole outside the twins' home that was illuminated that night.
The males and Alison Williams got back into the white car, with defendant in the back seat and Williams lying across the males in the back seat.
The white car, with its headlights off, slowly drove past the twins' home. The driver said he drove slowly to avoid hitting parked cars. When the car was about 30 feet from the building, defendant from the back seat of the car leaned forward and fired the gun at the dwelling through the open front passenger window of the car. Defendant's companions in the car yelled at him, "What the fuck. You're hella stupid" and "you could have shot me in the head." Defendant leaned back and casually responded that he "wasn't even aiming." They had been drinking alcohol earlier that night and defendant was "drunkish." The white car sped off.
The frightened teens sat in darkness in the bedroom until they heard police arriving. They turned on the light and saw the victim lying dead, her face swollen and the flesh of her cheek torn.
The .9 millimeter bullet that defendant fired at the house entered through the lower corner of the bedroom window and, travelling in a straight trajectory, entered the victim's right cheek, passed through her sinuses, and severed her upper spinal cord from her brain, killing her. When the spinal cord is severed close enough to the brain stem it can cause death instantly. The shape of the wound was inconsistent with a ricocheted bullet. A witness in the bedroom testified the victim was looking out the window right before that last shot was fired.
The gun was not in evidence.
There was conflicting evidence as to whether Alison Williams later told her sisters that, before defendant fired the gun from the car, he and Bullard were arguing about being a "punk" or "pussy" for having fired the first shots into the air rather than shooting at the house.
Several witnesses testified pursuant to plea agreements on their own charges. Brumfield pleaded guilty to voluntary manslaughter. Williams and others pleaded guilty to being accessories.
Defendant did not testify. In closing argument, his trial counsel conceded to the jury that defendant was "guilty of grossly negligently firing a gun at the inhabited house."
As to codefendant Bullard, the jury found Bullard not guilty of murder and not guilty of shooting at an inhabited house, but guilty of shooting a firearm in a grossly negligent manner (§ 246.3).
As to defendant, the jury found defendant not guilty of first degree murder, but guilty of second degree murder (§ 187) and guilty of shooting at an inhabited house (§ 246). The jury failed to reach a verdict, and the court declared a mistrial, on the special circumstance allegation that defendant committed second degree murder by means of shooting a firearm from a motor vehicle intentionally at a person outside the vehicle with intent to inflict great bodily injury (§ 190, subd. (d)). On the murder count, the jury found true the allegations that defendant was a principal armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)), personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)).
The court sentenced defendant to prison for a total term of 40-years-to-life: 15-years-to-life for murder and an additional consecutive term of 25-years-to-life for personally and intentionally discharging a firearm causing death (§ 12022.53, subd. (d)). Citing section 654, the court did not impose sentence for Count Two, shooting at an inhabited house (§ 246). Pursuant to a negotiated stipulation, the court sentenced defendant to concurrent terms of six years for each of three unrelated burglary cases
The abstract of judgment mistakenly refers to the murder conviction as Count Two, and neither the abstract nor the oral pronouncement mentions the section 12022 and 12022.5 enhancements.
DISCUSSION
I
Substantial Evidence
In reviewing a claim of insufficiency of evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-319; People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).) The standard of review is the same where the prosecution relies on circumstantial evidence. (Rodriguez, at p. 11.) Although it is the duty of the jury to acquit if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. (Ibid.) If the circumstances reasonably justify the trier of fact's findings, the judgment will be affirmed. (Ibid.)
Defendant, disregarding this standard, begins with his own version that does not even exculpate him, i.e., he says he was convicted for an "unaimed (at Smith), thoughtless, random single shot, which was prompted by codefendant Bullard's accusing appellant of being a punk for not shooting at the house. This was conduct that appellant had distinctly avoided doing until prodded to do so as they were leaving the scene of this altercation because appellant had 'no dog in this fight.' " Defendant thus inadvertently acknowledges that he knew shooting at the house was dangerous but did it anyway.
Defendant argues the evidence was insufficient as a matter of law to support the second-degree murder conviction, because (1) there was no evidence of intent to kill a teenage girl whom he did not know and with whom he had no quarrel; (2) a marksman sniper would have had a difficult, if not impossible time, hitting the victim and therefore defendant's conduct cannot be considered to have posed a high probability of death; (3) there was no evidence defendant knew where the victim was located inside the house; (4) the manner of shooting did not indicate that defendant was aiming at the victim or anyone in the house; and (5) there was no evidence that, based on what defendant knew, he engaged in conduct dangerous to the victim's life with conscious disregard for her life.
According to the law, defendant's arguments are simply wrong. Intent to kill was not required, because the jury was instructed, and the prosecutor argued, that malice may be implied. (§ 188.) Implied malice does not require intent to kill. (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).) Nor does it require intent to inflict great bodily injury, and therefore the jury's failure to return a verdict on section 190, subdivision (d) -- killing by shooting a gun from a vehicle, intentionally shooting at a person outside the vehicle with intent to inflict great bodily injury -- does not show insufficiency of evidence of implied malice.
Implied malice has " 'both a physical and a mental component. The physical component is satisfied by the performance of "an act, the natural consequences of which are dangerous to life." [Citation.] The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life." [Citation.]' [Citation.]" (Chun, supra, 45 Cal.4th at p. 1181.)
Defendant argues the physical component of implied malice requires an act with a "high probability of death," which he views as a stricter standard than an act the natural consequences of which are dangerous to life. However, "high probability of death" is equivalent to " 'natural consequences dangerous to life.' " (People v. Nieto Benitez (1992) 4 Cal.4th 91, 114.) The "high probability of death" language originated in a concurring opinion in a 1953 California Supreme Court case. (People v. Knoller (2007) 41 Cal.4th 139, 157 (Knoller), citing People v. Thomas (1953) 41 Cal.2d 470, 480, conc. opn. by Traynor, J. (Thomas).) The "natural consequences of which are dangerous to life" language dates from the 1966 decision in People v. Phillips (1966) 64 Cal.2d 574, 587 (Phillips). (Knoller, supra, 41 Cal.4th at p. 157.) The California Supreme Court has held that, although the two tests "articulate[] one and the same standard," the "straightforward language" of Phillips is preferable to the "obscure phraseology" of Thomas. (People v. Dellinger (1989) 49 Cal.3d 1212, 1219, 1221.) Knoller, supra, reiterated this view in the course of deciding a different point, i.e., that a trial court improperly imputed the "high probability" standard to the subjective component of implied malice. (Id. 41 Cal.4th at p. 157 & fn. 5.) For the objective component, Knoller said the "better practice" is for trial courts to use Phillips test rather than Thomas test. (Ibid.) "[I]mplied malice requires a defendant's awareness of engaging in conduct that endangers the life of another -- no more, and no less." (Id. at p. 143.)
Willfully shooting a gun at an occupied dwelling (elements of the Count Two offense for violating § 246) can be an act, the natural consequences of which are dangerous to life. (Chun, supra, 45 Cal.4th at p. 1178, 1205.) Chun held that all assaultive-type crimes -- in that case shooting at an occupied vehicle in violation of section 246 -- merge with homicide and cannot serve as the basis for second-degree felony-murder, but error in instructing the jury on felony-murder was harmless because no juror could have found that the defendant participated in the shooting (firing gun at close range at a vehicle occupied by three persons) without also finding that he "committed an act that is dangerous to life" and did so knowing of the danger and with conscious disregard for life. (Id. at pp. 1178, 1205.) Chun nevertheless reversed the conviction, but due to unrelated errors. (Id. at p. 1205.)
We are not persuaded by the Attorney General's representation that Chun stands for the proposition that shooting at an inhabited dwelling under section 246 is an act, the natural consequences of which are dangerous to life. Chun did not need to discuss or decide whether all section 246 violations are acts "dangerous to life." It held that shooting at an occupied vehicle under section 246 is "assaultive" in nature, but an "assaultive" felony is one that involves a threat of immediate violent "injury," not necessarily death. (Id. 45 Cal.4th at p. 1200.) It was the circumstances of the particular case that made it an act dangerous to life.
Here, the physical component (an act, the natural consequences of which are dangerous to life) is satisfied by evidence that defendant willfully fired the gun at the inhabited dwelling house where people were inside, and fired a bullet that connected directly with the window where the victim and others had been looking out the window.
The subjective component is also supported by substantial evidence. Defendant fired the gun knowing of the danger to life and he acted with conscious disregard for life. He came to the scene planning to shoot the gun, as evidenced by his group's statements about "light[ing] shit up," and his donning a ski mask and gloves to conceal his identity, supporting a finding that he knew his conduct was dangerous and illegal. He knew there were people inside the home. The bullet went in a straight trajectory from the gun to the girl. Indeed, defendant acknowledges he knew that shooting at the house was dangerous, because his appellate briefing repeatedly states he "distinctly avoided [shooting at the house] until prodded to do so" by Bullard's calling him a punk for not shooting at the house.
It does not matter that a skilled marksman may have missed the shot. It was not necessary to prove that defendant saw the girl at the bedroom window, though the evidence supports an inference that he did, because the people inside had to move the window coverings in order to see outside. Or at a minimum, defendant knew there were people in that bedroom, because Darrell ran up to the window to communicate a message to the people inside. During deliberations the jury asked, "Does a defendant need to physically see a person to prove that he/she intended to shoot at them or is it sufficient if it was proven that a defendant intended to shoot into a room where he/she knew people were, but could not see them." Upon the court's inquiry, the jury said the question related to Instruction 525. Instruction 525 stated that if the jury found defendant guilty of second degree murder the jury must decide whether the prosecution proved the "special circumstance" (§ 190, subd. (d)) that defendant killed a person by shooting a firearm from a motor vehicle, intentionally shot at a person outside the vehicle, and intended to inflict great bodily injury on that person. The court responded the law does not require that a defendant "physically see" the person but requires that the defendant shot "at a person" who was outside the vehicle. The jury had meanwhile sent another question asking whether inability to reach a verdict on the special circumstance would invalidate the verdict on the related count, to which the court answered no. And the jury ultimately did not reach a verdict on the special circumstance.
For implied malice, it does not matter whether defendant aimed at the victim. The point is that defendant reached forward and aimed at the house. Defendant's claim that he fired the gun "by" the house, not "at" it, is nonsense. Indeed, defendant's own version of events is that he fired the gun at the house because his companion called him a "punk" for not aiming at the house.
We reject post defendant's argument about voluntary intoxication.
Substantial evidence supports conviction of implied-malice second-degree murder.
II
Involuntary Manslaughter
Defendant argues the trial court prejudicially erred in failing to instruct sua sponte on involuntary manslaughter as a lesser included offense.
"As a general rule, 'a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.' (People v. Breverman (1998) 19 Cal.4th 142, 162.) But a court must instruct on such theories only when the record contains ' " 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." ' (People v. Whalen (2013) 56 Cal.4th 1, 68 (Whalen).)" (People v. Smith (2018) 4 Cal.5th 1134, 1172 observing Whalen was disapproved on other grounds in People v. Romero (2015) 62 Cal.4th 1, 44, fn. 17.) We apply de novo review and consider the evidence in the light most favorable to the defendant. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)
Both implied-malice murder and involuntary manslaughter involve a disregard for life, but murder is judged by a subjective standard, while involuntary manslaughter is judged by an objective standard. (People v. Butler (2010) 187 Cal.App.4th 998, 1008- 1009.) Implied-malice murder requires a defendant's conscious disregard for life, meaning he subjectively appreciated the risk involved, while involuntary manslaughter merely requires that a reasonable person would have been aware of the risk. (Ibid.) Implied malice " 'contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.' " (Id. at p. 1008, fn. 5.)
A killing without malice in the commission of a noninherently dangerous felony would constitute involuntary manslaughter if committed without due caution and circumspection. (People v. Bryant (2013) 56 Cal.4th 959, 966 (Bryant).)
In Bryant, the California Supreme Court expressly declined to address a defendant's contention that, because assault with a deadly weapon is not an inherently dangerous felony, the trial court erred in failing to instruct the jury on involuntary manslaughter. (Id. at pp. 970-971.) There, the issue was voluntary manslaughter. A woman stabbed her boyfriend with a knife, killing him. (Id. at p. 963.) The jury convicted her of second degree murder. The Court of Appeal reversed, concluding the trial court erred by failing to instruct sua sponte on voluntary manslaughter as a lesser included offense, on the theory that she killed without malice in the commission of an inherently dangerous assaultive felony. (Ibid.) The Supreme Court reversed the Court of Appeal. By definition, a defendant who kills without malice in the commission of an inherently dangerous assaultive felony must have killed without either intent to kill or conscious disregard for life. "Such a killing cannot be voluntary manslaughter because voluntary manslaughter requires either an intent to kill or a conscious disregard for life." (Id. at p. 970.)
Defendant acknowledges the Supreme Court in Bryant did not decide any issue of involuntary manslaughter, but defendant favors Justice Kennard's sole concurrence in Bryant that a killing during an assault with a deadly weapon may be involuntary manslaughter. (Id. 56 Cal.4th at p. 973, conc. opn. of Kennard, J.) The concurrence opined that the Legislature, by defining involuntary manslaughter in section 192 as killing " 'in the commission of an unlawful act, not amounting to felony,' " must have meant that a killing during an unlawful act is involuntary manslaughter unless the unlawful act was the type of felony that turned the killing into felony-murder. (Ibid.) The concurrence nevertheless concluded the trial court had no duty sua sponte to so instruct because it was a legal principle " 'obfuscated by infrequent reference and inadequate elucidation.' " (Id. at p. 975.)
The People in our appeal think the Bryant majority "suggested" the concurrence was correct. (Id. at p. 970.) We are hard-pressed to find any such suggestion in the majority opinion, which expressly declined to address involuntary manslaughter. (Id. at pp. 970-971.)
On remand of Bryant's case, the Court of Appeal alternately assumed, declined to decide, and described as persuasive Justice Kennard's view that a killing during an assault with a deadly weapon can constitute involuntary manslaughter. (People v. Bryant (2013) 222 Cal.App.4th 1196, 1200-1201, 1202, 1203, 1205-1206, fn. 10.) The Fourth District Court of Appeal concluded that, in light of the lack of authority on the subject, the trial court did not have a duty sua sponte to instruct on involuntary manslaughter. (Id. at p. 1206.)
In any event, even assuming a killing while shooting at an occupied dwelling could be involuntary manslaughter, the evidence would not support involuntary manslaughter in this case.
An instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony. (Brothers, supra, 236 Cal.App.4th at pp. 33-34.)
However, "when, as here, the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed, there is no sua sponte duty to instruct on involuntary manslaughter. [Citations.] Otherwise, an involuntary manslaughter instruction would be required in every implied malice case regardless of the evidence." (Brothers, supra, 236 Cal.App.4th at p. 35.)
Defendant argues there was insufficient evidence that he appreciated the risk. However, even considering the evidence in the light most favorable to defendant, which we may not do, the evidence does not support instruction on involuntary manslaughter. Defendant did not testify. We reject post defendant's argument about voluntary intoxication. In general, the nature of a drive-by shooting at an occupied dwelling leaves little doubt that the act is intentional. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 [involuntary manslaughter instruction unwarranted where undisputed evidence established shooting was intentional, though witnesses disagreed on precipitating event, and jury's rejection of voluntary manslaughter in favor of murder verdict precluded possibility of error in refusal to instruct on involuntary manslaughter].) Here, defendant fired the gun about 30 feet away from the window where the victim was looking out. Regardless whether he saw the victim at that moment or aimed at the window, all the evidence supports an inference that he knew there were people in that bedroom -- because people inside the room kept looking out the window and because Darrell ran up to that window to communicate his warnings to the people inside. And we know defendant was aware of the risk, because his appellate briefing admits he "distinctly avoided [shooting at the house] until prodded to do so as they were leaving the scene . . . ." (Gutierrez, at p. 1145 [Supreme Court considered concession in defendant's appellate brief among other factors in deciding that trial court correctly concluded evidence did not warrant instruction on involuntary manslaughter].) While defendant asserts in his brief that he avoided shooting at the house because he had "no dog in this fight," this does not detract from the clear import that he appreciated the high risk of danger of shooting at the house. He initially chose not to take that high risk because he had "no dog in this fight." But in the end, he decided to take that risk because his companion baited him by calling him a "punk" and "pussy" for not shooting at the house. Thus, defendant appreciated the high risk of danger.
In his reply brief, defendant cites In re Hansen (2014) 227 Cal.App.4th 906, which said a jury could have found the defendant lacked subjective awareness of danger to life when he fired a gun at a dwelling, because he had knocked on the door and no one answered, so he thought no one was home. (Id. at pp. 912, 924.) In fact, two children -- ages 13 and five -- were home alone but did not answer the door because their mother had told them not to answer the door. (Id. at pp. 911-912, 924.) A bullet struck and killed the 13-year-old. (Ibid.) The Fourth District reversed the conviction because it was based on second-degree felony-murder, a theory which had been abrogated by the California Supreme Court in Chun, supra, 45 Cal.4th 1172, and the conviction could not be saved on an implied-malice theory because a jury may have found the defendant lacked subjective awareness of the danger to life. (In re Hansen, supra, 227 Cal.App.4th at pp. 910-911, 924-925.)
However, the Fourth District agreed with dicta in People v. Taylor (2004) 32 Cal.4th 863, 868 (Taylor) that "if a gunman simply walked down the hall of an apartment building and fired through the closed doors, he would be liable for the murder of all [of] the victims struck by his bullets." (In re Hansen, supra, 227 Cal.App.4th at p. 925, fn. 7.) Taylor itself is distinguishable; it held a defendant who fatally shot a pregnant woman could be liable for implied-malice murder of her fetus, even though he did not know she was pregnant. (Taylor, supra, 32 Cal.4th at p. 865.)
Nevertheless, our case is more similar to (and more egregious than) the Taylor dictum than to In re Hansen. As indicated, defendant knew there were people inside the home, and all the evidence supports an inference that he knew there were people in that bedroom. Moreover, the jury was given the option of finding defendant guilty of shooting the gun with gross negligence, because the court instructed on section 246.3 (intentionally shooting a gun with gross negligence that could have resulted in injury or death) as a lesser included offense to the section 246 offense of willfully shooting at an inhabited dwelling in Count Two. The jury nevertheless found defendant guilty of the greater offense.
We conclude defendant fails to show grounds for reversal based on the absence of instruction on involuntary manslaughter.
III
Voluntary Intoxication
Defendant contends the jury instruction limiting consideration of voluntary intoxication (CALCRIM No. 625) under former section 22 (now renumbered as § 29.4) violated his constitutional rights by prohibiting the jury from considering the effect of intoxication on his subjective awareness of the risk created by his conduct. Defendant claims his trial counsel's failure to raise this issue in the trial court constituted ineffective assistance of counsel. Defendant's challenge to the instruction lacks merit, and therefore counsel was not deficient in failing to raise it in the trial court.
A. Background
There was evidence that defendant had been drinking alcohol that night. Brumfield described defendant as "laid back, drunkish like nonchalant," having a "good buzz" ("perked") but not to the point of being unable to understand what was being said. Defense counsel argued to the jury "We are not saying he [defendant] was so drunk he didn't know what he was doing. That's not our argument. And clearly he did know what he was doing." The defense asked the jury to consider intoxication on the question whether defendant really intended to kill anybody, but that argument was directed toward first degree murder, of which the jury found defendant not guilty.
The trial court instructed the jury with CALCRIM No. 625:
"You may consider evidence, if any, of the defendants' voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, the defendant acted with deliberation and premeditation, the defendant acted with the intent to inflict great bodily injury, or the defendant intentionally shot a firearm at another person outside the vehicle. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
B. Analysis
The language of this jury instruction comported with former section 22, which was in effect at the time of the 2010 killing, and which has since been renumbered as section 29.4 with substantially the same language:
"(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
"(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.
"(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance." (Stats. 1995, ch. 793; Stats. 2012, ch. 162, § 119.)
Defendant argues that prohibiting the jury from considering voluntary intoxication on the question whether he had a conscious disregard for life violated his constitutional rights to due process, to present a defense, and to a jury trial.
Defendant's appellate brief acknowledges his arguments have been rejected by Court of Appeal opinions, but he argues they were incorrectly decided. (People v. Carlson (2011) 200 Cal.App.4th 695 (Carlson); People v. Turk (2008) 164 Cal.App.4th 1361; People v. Timms (2007) 151 Cal.App.4th 1292 (Timms); People v. Martin (2000) 78 Cal.App.4th 1107 (Martin).)
However, since defendant filed his appellate brief, the California Supreme Court has endorsed those Court of Appeal opinions. (People v. Soto (2018) 4 Cal.5th 968 (Soto).) Accordingly, they govern this appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Soto, supra, 4 Cal.5th 968, held the statute prevents use of intoxication evidence to show imperfect self-defense so as to negate express or implied malice, even though the statute allows evidence of intoxication to negate express malice. (Id. at p. 970.)
In Soto, the California Supreme Court quoted with approval what it called a "good summary" from one of the Court of Appeal cases (Carlson) criticized by defendant in our case:
" 'Montana v. Egelhoff [(1996)] 518 U.S. 37 . . . rejected the claim of a defendant convicted of purposely or knowingly causing the death of a person that he was denied federal due process by a state law that barred consideration of voluntary intoxication " 'in determining the existence of a mental state which is an element of [a criminal] offense.' " [Citation.] Four justices concurred in an opinion holding the rule that "intoxication may be considered on the question of intent . . . was [not] so deeply rooted . . . as to be a fundamental principle which th[e Fourteenth] Amendment [has] enshrined." [Citation.] Justice Ginsburg concurred in upholding the statute. Declaring " '[a] state legislature certainly has the authority to identify the elements of the offenses it wishes to punish,' . . . and to exclude evidence irrelevant to the crime it has defined" ([citation] (conc. opn. of Ginsburg, J.), citation omitted), she distinguished between invalid laws "designed to keep out 'relevant, exculpatory evidence' " ([Citation] (conc. opn. of Ginsburg, J.)) and valid laws that merely "redefin[e] . . . the mental-state element of the offense" ([Citation] (conc. opn. of Ginsburg, J.)), and concluded the Montana statute fell into the latter category [citation].
" 'California appellate courts have followed Egelhoff in upholding the current version of [former] section 22 [i.e., the substance of section 29.4] [orig. brackets] against due process attacks. People v. Martin, supra, 78 Cal.App.4th 1107 stated, "The 1995 amendment to [former] section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited," and "nothing in the enactment . . . deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt . . . ." [Citation.] People v. Timms, supra, 151 Cal.App.4th 1292, declared, "Like the Montana statute, the California Legislature could also exclude evidence of voluntary intoxication in determination of the requisite mental state. [¶] . . . In short, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard. Therefore, it does not lessen the prosecution's burden of proof or prevent a defendant from presenting all relevant defensive evidence." [Citation.]' [Citation.]" (Soto, supra, 4 Cal.5th at p. 981, quoting Carlson, supra, 200 Cal.App.4th at pp. 707-708.)
Our Supreme Court added in Soto: "We agree with these cases. The Legislature has decided, for policy reasons, that evidence of voluntary intoxication is irrelevant to proof of certain mental states. The Legislature may validly make that policy decision." (Id. 4 Cal.5th at p. 981.)
In a concurring and dissenting opinion, Justice Liu (joined by assigned J. Thompson) said he would have declined to address the due process issue because Mr. Soto did not straightforwardly raise it, the Supreme Court did not grant review to decide it, and the trial court's exclusion of intoxication evidence was harmless. (Soto, supra, 4 Cal.5th at pp. 985-987.) Justice Liu was dissatisfied with the majority's explanation of the split decision in Egelhoff. (Id. 4 Cal.5th at p. 986.)
Based on Soto's endorsement of the Court of Appeal decisions challenged by defendant, we conclude the trial court properly instructed the jury regarding voluntary intoxication. Since the jury instruction was proper, trial counsel's performance did not fall below an objective standard of reasonableness under prevailing professional norms, and accordingly defendant's claim of ineffective assistance of counsel fails. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
IV
Senate Bill No. 620
Senate Bill No. 620 amended sections 12022.5 and 12022.53, effective January 1, 2018, to give the trial court discretion to strike gun use enhancements in the interests of justice. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) Before that, the enhancements were mandatory and could not be stricken.
Absent evidence to the contrary, we presume the Legislature intends an amendment reducing criminal punishment to apply retroactively to cases not yet final on appeal. (People v. Brown (2012) 54 Cal.4th 314, 324; In re Estrada (1965) 63 Cal.2d 740, 747-748.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.) Since defendant's conviction is not yet final, the changes enacted by Senate Bill No. 620 apply to his case. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 (Woods).)
Since the trial court could not have been aware it had discretion to strike the enhancements at the time of sentencing, the appropriate remedy is remand for the trial court to exercise its discretion. (Woods, supra, 19 Cal.App.4th at pp. 1090-1091.)
DISPOSITION
The matter is remanded to the trial court to exercise its discretion whether or not to dismiss gun enhancements under Senate Bill No. 620 (§§ 12022.5, subd. (c), 12022.53, subd. (h)) and, if appropriate, to resentence defendant accordingly. In either case, the court shall prepare a corrected abstract of judgment showing murder is Count One, not Count Two, and showing any enhancements not stricken. The judgment is otherwise affirmed.
HULL, Acting P. J. We concur: MAURO, J. HOCH, J.