Opinion
C081139
09-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NABOR OROSCO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SF123417A, STKCRFE20130005837)
Defendant Anthony Nabor Orosco shot his girlfriend in the face with a .22-caliber revolver while the two were involved in a physical altercation on defendant's bed. The bullet's path of travel transected major blood vessels in the base of her skull, causing massive blood loss and resulting in her drowning in her own blood. Defendant was convicted by jury of second degree murder and possession of a short-barreled rifle found in his bedroom after the murder. With respect to the murder count, the jury found an allegation defendant personally used a firearm to be true, but found an allegation he personally and intentionally discharged that firearm to be not true. The trial court sentenced defendant to serve an indeterminate term of 15 years to life in state prison consecutive to an aggregate determinate term of 13 years.
On appeal, defendant contends: (1) the trial court's responses to certain jury questions concerning the homicide instructions were "legally inadequate," left the jury "more confused," and amounted not only to an abuse of discretion but also "constituted a denial of [his] rights to due process and a jury trial" under the federal Constitution; and (2) we must remand the matter for a new sentencing hearing because Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, §§ 1 & 2) (SB 620), which became effective January 1, 2018 and gives the trial court discretion to strike a firearm enhancement in the interest of justice, applies retroactively to cases not yet final on appeal. Defendant's first contention is forfeited. Anticipating such a conclusion, defendant argues he received constitutionally deficient assistance of counsel. Because there may have been a tactical reason not to object to the trial court's responses to the questions, and because we also conclude it is not reasonably probable defendant would have obtained a more favorable result had the claimed error not occurred, we must reject this argument. However, defendant's claim regarding the retroactive application of SB 620 has merit and requires remand for a new sentencing hearing.
FACTS
Defendant reconnected with the victim through social media eight to ten months before he killed her. They previously went to high school together. What began as a renewed friendship with added sexual benefits turned into a romantic relationship as the victim and her children spent more time at defendant's house. Defendant also had two children who lived with him on a part-time basis.
Throughout the relationship, defendant abused prescription medication, specifically, Vicodin and Norco (opioid pain medication), Soma (muscle relaxer that also blocks pain), and Valium (anti-anxiety medication). The victim's oldest son, who was 12 years old at the time of the murder, testified defendant would sometimes become "aggressive" when he was taking pills, explaining he would "walk around the house just mad." Defendant's drug use also made him paranoid. He was regularly worried people were on his property. As the victim's oldest son explained, defendant would periodically go to the windows and then walk outside the house to make sure no one was there.
Defendant's paranoia was also documented in text messages he and the victim sent to each other during the roughly two-month period before the murder. For example, on January 8, 2013, defendant sent the victim a text message saying: "Id rather die today than worry who's hiding in my fuckin house." The victim responded: "I don't n have never had anyone hiding n your house Anthony." On February 10, at nearly 4:00 a.m., defendant sent her a text message saying he could not sleep. When she did not respond immediately, defendant texted again with "whatever" and "bye." The victim responded that she "dozed off" and was sorry, adding: "Fuck, I can't do shit right!" After some back and forth, during which defendant agreed with the latter statement, the victim asked what defendant wanted her to change. Defendant answered: "Everything u know what u need too do don't act fuckin dumb if thir is any one in my fuckin house fuckin tell me fucker." Regarding people being in defendant's house, the victim responded: "Anthony there's no one in your house as far as I'm aware of. I DON'T have anyone in your home." After further back and forth about their relationship, defendant sent her the following text message: "I need a big gun and liquer and fuck the world."
We recount the content of various text messages without correcting for spelling, punctuation, or grammatical structure.
Defendant bought a single action .22-caliber revolver in the beginning of March, about two weeks before the murder. Defendant and the victim discussed the purchase of the gun in several text messages and the victim agreed to contribute $100 towards the purchase price. When the victim asked whether the gun would "stop somebody," defendant answered: "Hell yea u can dump 6 shots hella quick that shit will make the hardest man bitch out and run it def dose the job I wouldent buy it if it was weak." He then added: "Its considered more deadly than a 9mm cuz a 9 gose in and rite trew the body but a 22 goes in and rikisheys off bones causind more internal damage."
After buying the gun, defendant regularly walked around the house with it in his pocket. Aside from being paranoid about trespassers in general, he was also concerned about the victim's former boyfriend, E., who was the father of the victim's youngest son. According to defendant's testimony, E. lived down the street from his house and confronted him in his front yard toward the beginning of his relationship with the victim. E. wanted to fight and told defendant "[the victim] was his." When the victim got into the middle of the confrontation, E. called her various names and then took his son and drove away. After that incident, according to defendant, the victim told him on other occasions throughout their relationship that E. "was saying that he wanted to kick [defendant's] ass and that he was going to do all sorts of things," from vandalizing defendant's car, to lighting his house on fire, to shooting defendant. Defendant also testified that the victim cheated on him with E. toward the beginning of their relationship. The victim admitted as much during several of the text message exchanges. However, whereas defendant testified he had not known the victim long enough at that point for him "to take it personal," the text messages indicate the contrary. In several of the messages, defendant reminded the victim she had cheated on him and accused her of doing so again.
The victim's oldest son confirmed in his testimony that defendant did not like E. and was concerned about E. being on defendant's property. As the boy explained, on one occasion, defendant took his newly-acquired gun outside, fired it four times, and then returned to the house, asking the victim if she knew whether anyone was in his yard and warning if E. was in his yard, "he would shoot him." Defendant also sent the victim a series of text messages on March 11, less than a week before the murder. In one of the messages, defendant said: "Did u know my mom told me that my son was worryed I was gonna die or go to prison cuz I have a gun now?" He added: "Thay worried Ima overdose or kill somebody in my house or yard that's fucking with me and I think thir not too far off." After some back and forth, defendant sent this message: "Just tell me when ur fuckin BD is in my yard so I can blast that nigga in his fucking ass. He needs to stay outa my yard." When the victim responded that she did not think E. would go into defendant's yard, he replied: "If he is im gona shoot at him andid hate going to prison but I will get my point acrost."
The detective who recounted the content of these text messages testified he understood "BD" to signify "Baby daddy."
The Day of the Murder
On the morning of March 17, at about 8:00 a.m., the victim had difficulty waking defendant up. He took several pills the night before. Concerned that defendant's breathing was shallow, the victim called 911. Emergency responders arrived within minutes. Finding defendant in a mental and physical state "typically indicative of opiate use," paramedics administered Narcan, a drug that quickly counteracts the effects of opiates. Defendant became "combative" while being transported to the hospital, a common reaction following Narcan administration. Blood drawn at the hospital tested positive for opiates, benzodiazapines, and barbiturates. Defendant was discharged from the hospital at around 12:30 p.m.
In the meantime, the victim informed defendant's mother, who drove to the hospital to check on her son. When defendant was discharged, he and the victim got into his mother's car to be taken back to his house. However, defendant and his mother got into an argument while still in the parking lot, prompting defendant to get out and walk to an adjacent cemetery, where his grandmother was buried. Defendant's mother drove to the cemetery and parked. She told the victim to stay at the car while she spoke to her son at his grandmother's gravesite. After a brief conversation, they returned to the car, but the victim was no longer there. Defendant and his mother got into an another argument while driving around looking for the victim, prompting defendant to again get out of the car. This time, he walked back to his house, took some Soma, and lay down on his bed to sleep.
At around 3:00 p.m., defendant sent the victim a text message asking: "Whirs my gun?" The victim responded: "I put it in the cabinet in your room closet." Defendant wrote back: "Why did you fuckin leave the car?" The victim answered: "You were mad at me so didn't think you wanted me around." She then said she was almost at his house and asked him to open the door. He responded: "Yea."
The Murder and Immediate Aftermath
At about 10:00 p.m., defendant shot the victim in the face while they were on his bed. The bullet, fired from a distance of 18 to 24 inches, entered her skull through her left nostril, passed through the pharynx, and lodged in the base of her skull. The bullet transected major blood vessels, causing a massive amount of bleeding, but would not have killed the victim immediately. She ultimately died from drowning in her own blood. Bruises on the victim's forehead, chin, right clavicle area, the right side of her trunk above the abdomen, and her right forearm and elbow were also inflicted "around the time of death."
Only defendant knows precisely what transpired immediately before the fatal shot was fired and during the period of time between the shooting and arrival of police and emergency medical responders several minutes later. We therefore recount his version of the victim's death and the immediate aftermath, pointing out where defendant's trial testimony differs from his statement to detectives following the murder, and further pointing out where that testimony is consistent with or contradicted by testimony from the medical examiner, physical evidence at the crime scene, and other evidence admitted against him at trial.
Defendant testified that he did not remember the victim coming over to his house or sending her any text messages after he took the Soma and fell asleep. According to defendant, the next thing he remembered was waking up to the sound of dogs barking. He kept his revolver on the right side of his bed, between the bed and a couch that was also in his bedroom, so he could easily grab it with his right hand. Concerned that the dogs were barking because E. was "sneaking around [his] house or trying to get in [the] house," defendant grabbed the revolver, pulled back the hammer to cock the gun, and laid it on his chest. While holding the gun against his chest, defendant started to get up to go to the window to look outside. As he turned to his left to start to get up, the gun fired. In defendant's words: "It wasn't -- it just went off and that's the only thing I can explain. It wasn't -- I really didn't have my hand -- I didn't squeeze the trigger, but if it was jarred, like I had it in my hand when I was getting up, moving, it just went off. It was -- I barely even had it in my hand." Startled by the discharge, defendant looked over to his left and saw that he had shot the victim, who was lying on the bed beside him. Defendant denied getting into a physical altercation with the victim before shooting her. He also denied shooting her on purpose because he was upset with her for any reason.
This version of the shooting was contradicted by testimony from the medical examiner, who concluded defendant was on top of the victim on the bed when she was shot, pointing the gun at her face as she extended her head backwards and away from the gun. This conclusion was based on the trajectory of the bullet and the location of blood spatter on the wall next to the bed. The bruising on her body was also consistent with the victim struggling to get away from defendant as he held her down on the bed. Moreover, in order to test defendant's story that the revolver was on his chest when it accidentally discharged, a senior criminalist at the Department of Justice test-fired the gun while it was in contact with cloth and compared the results of those tests with the shirt defendant was wearing when he shot the victim. Based on the lack of visible gunshot residue on defendant's shirt, the criminalist concluded the gun was not in contact with that shirt when it was fired. The criminalist also testified the revolver defendant used to shoot the victim required a trigger pull of 2.5 to 2.75 pounds, "a little lighter" than most handguns, but also what one would expect for a single action .22-caliber revolver. The criminalist attempted but was unable to get the gun to discharge without pulling the trigger.
We also note defendant's claimed lack of memory about the victim coming over to his house is contradicted by statements he made during his police interview. In that interview, defendant stated the victim came over during the daytime, after which they lay down on his bed and had an amicable conversation. Later in the interview, one of the detectives asked defendant what they were talking about while in bed together. Defendant answered: "We were talking about issues about why she put me in why why I wouldn't wake up. How come I didn't wake up. I asked her why I didn't wake up. She said I don't know you just didn't wake up. I said why didn't you just let me go to sleep? Why did you have to take me to the hospital?" Defendant denied being upset with the victim for calling the ambulance, adding: "I have no reason to be mad. I woke up in the hospital and I was fine. I just had to walk home." The detective followed up: "So no arguing with [the victim] what-so-ever while you were lying in bed?" Defendant answered: "No." A short time later, another detective asked defendant to admit he was upset with the victim for calling the ambulance. After some initial denials, defendant admitted he was "a little irritated," but claimed it was not something he would "go crazy" over, adding: "She said I'm sorry. I said okay. I said just don't do it again. You don't have to, you don't have to call the ambulance." Defendant admitted in his trial testimony that he was a little irritated the victim called the ambulance and thought they might have had such a conversation, although he did not specifically remember.
Returning to defendant's account of events, he testified that after he shot his girlfriend in the face, "she wasn't breathing properly," so he decided to bring her to his bathroom, where he planned to attempt to resuscitate her. As he explained earlier in his testimony, one of his sons previously had some sort of seizure and stopped breathing, so defendant carried him into the bathroom, performed CPR, and "was able to bring him back to life." When defendant saw that the victim's breathing was labored, he "couldn't figure out what to do," but thought about "what happened with [his] son" and decided to employ the same strategy. However, defendant was unable to pick the victim up off of the bed to carry her to the bathroom. He tried twice, but dropped her on the bed each time. The second time he dropped her, she fell face first on the mattress at the foot of the bed. Realizing he needed to get help, defendant left her on the bed, ran to his neighbor's house, and pounded on the door. As the neighbor testified, when he answered the door, defendant told him to call the police, adding either, "I killed my girlfriend" or "I think I killed my girlfriend." Defendant ran back to his house and decided to continue with his plan to move the victim to the bathroom. He tried picking her up several more times, but "[t]here was so much blood, she kept slipping out of [his] hands," so he dragged her down the hallway and into the bathroom. When defendant got her into the bathroom, he got on his knees to do CPR, but as he explained: "There was way too much blood. By the time I figured out there was no way I could administer CPR -- I wanted to do chest compressions -- I knew there was nothing I could do." Defendant then waited for paramedics to arrive, but "[t]hey didn't come fast enough."
This portion of defendant's story is corroborated by other evidence. There were two pools of blood on the bed, one at the head of the bed and the other at the foot of the bed. This is consistent with the victim having been moved from where she was shot to the foot of the bed during defendant's unsuccessful attempts to pick her up and carry her to the bathroom before running over to the neighbor's house. There was also a large amount of blood in the hallway and in the bathroom. This is consistent with defendant's account of dragging the victim through the hallway to the bathroom and with the medical examiner's testimony that the victim would have been alive and continuing to bleed out for several minutes after she was shot. And, as mentioned, defendant's neighbor corroborated his testimony that he ran over there and told the neighbor to call the police.
Police were the first to arrive at the scene and took up positions outside the house. Two officers testified to hearing moaning sounds coming from inside the house. The first officer described the sounds as coming from a male voice; the second could not identify gender but described the sounds as those accompanying the lifting of something heavy. A few minutes later, while the responding officers awaited the arrival of their sergeant, defendant walked out the front door holding the revolver. With their weapons drawn, the officers ordered him to drop his gun and get down on the ground. Defendant complied and was taken into custody. When the officer who walked defendant over to a patrol car asked if anybody else was in the house, defendant responded: "My dead girlfriend is in the bathroom." He had fresh blood on his shirt, hands, and forearms. Officers and paramedics then entered the house and found the victim's deceased body in the bathroom.
DISCUSSION
I
Adequacy of the Trial Court's Responses to the Jury's Questions
Defendant contends the trial court's responses to certain jury questions concerning the homicide instructions were "legally inadequate," left the jury "more confused," and amounted not only to an abuse of discretion but "constituted a denial of [his] rights to due process and a jury trial" under the federal Constitution. We conclude the contention is forfeited and defense counsel's failure to preserve the matter for review did not amount to constitutionally deficient assistance of counsel.
A.
Additional Background
The jury was properly instructed with relevant standard homicide instructions, specifically CALCRIM Nos. 500 (providing an overview of the difference between lawful homicide, manslaughter, and murder), 510 (defining lawful homicide), 520 (defining murder), 521 (defining first degree murder), and 580 (defining involuntary manslaughter and distinguishing that form of homicide from the more culpable forms). The prosecution's theory of this particular homicide, argued during closing argument, was that defendant committed first degree murder by shooting the victim with the intent to kill and with premeditation and deliberation. At the very least, argued the prosecutor, the crime was second degree murder under an implied malice theory. The defense, relying largely on defendant's testimony, argued he was not guilty of an unlawful homicide at all because he engaged in a lawful act, i.e., "having the .22, having it in his room, even having it cocked," and the prosecution did not prove beyond a reasonable doubt that shooting the victim was not an accident. At most, the defense argued, the crime was involuntary manslaughter because defendant neither intended to kill the victim nor intentionally acted in conscious disregard for human life.
The jury asked several questions of the trial court during their deliberations. Three are relevant to this appeal. In the first (Jury Question No. 1), the jury asked for a "detailed description of [the] charges which are applied to [defendant's] case." This request was submitted at 9:15 a.m. on the first full day of deliberations. When the trial court brought the jury into the courtroom to address the request, the foreperson clarified the jury wanted "a breakdown from first degree, second degree . . . [¶] . . . [¶] . . . and involuntary manslaughter, . . . a breakdown of each charge and how [they] should apply it to this case." The trial court asked whether the jury had received the jury instructions. The foreperson said they had, but the instructions did not "go into second degree murder" and they "were hoping [for] a cheat sheet or something."
The Honorable Seth R. Hoyt, Jr., presided over the trial, but was apparently unavailable during the jury deliberations, so the Honorable Bernard J. Garber presided over that phase of the trial, answering the jury's questions and taking their verdict. Judge Hoyt returned to preside over the combined hearing on defendant's motion for new trial and sentencing hearing.
The trial court responded: "The instructions have numbers at the top. So the first instruction on homicide is 500. And that discusses the general murder and manslaughter as being types of homicide. [¶] Then 520 discusses murder, and it gives the elements of murder. [¶] 521 says that: The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [¶] And it goes on from there and discusses the rest of first degree murder. [¶] The last paragraph might answer your question. And that says: The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder. [¶] If you find the defendant is guilty of murder, which is defined in 500 [¶] . . . [¶] . . . and 520." The jury foreperson then said, "Okay. I understand," and repeated: "I understand. I understand." The trial court continued: "Okay? So then, though, if you have a reasonable doubt as to whether it was first degree or second degree murder, and you find the defendant not guilty of murder, murder first degree or murder second degree, then you look at whether it is -- and this is number 580 -- involuntary manslaughter." The foreperson said: "Gotcha. I understand you." The trial court said it "would be happy to go over the definitions again," prompting the foreperson to request a re-reading of the murder instructions. The trial court then re-read CALCRIM Nos. 500, 520, and 521 for the jury. At the end of these instructions, the foreperson said: "Got it. I understand it now." The trial court then asked if the jury wanted re-instruction on involuntary manslaughter, to which the foreperson answered: "No, we pretty much understand now." The trial court concluded its response to this jury question by explaining the verdict had to be unanimous with respect to whether or not defendant committed murder, and if so, whether that murder was of the first or second degree, adding: "If you find the defendant not guilty of murder in the first degree, not guilty of murder in the second degree, then you decide was it involuntary manslaughter, guilty or not guilty. [¶] You cannot find the defendant guilty of involuntary manslaughter unless you find him not guilty of murder." The foreperson responded: "Gotcha."
The second and third relevant jury questions (Jury Question Nos. 6 and 7) were submitted on the second full day of deliberations, at 10:52 a.m. and 10:55 a.m., respectively. Jury Question No. 6 asked: "We the jury request a [description] of the difference between 'intended to kill' and 'intentionally committed an act'." Jury Question No. 7 asked: "We the jury request a [description] of the difference between 'a deliberate act with conscious disregard for human life' and 'conscious disregard of the risk to human life'."
The trial court conferred with counsel prior to answering these questions, indicating it intended to answer the first of these questions by "explain[ing] the doing an act without any particular intent as to consequence, as opposed to doing an act with a specific intent desiring a specific consequence, such as shooting a gun at a person, period. As opposed to shooting a gun and intending, wanting to kill the person. And that's the difference between general and specific intent." The trial court then stated: "And the next question is really pretty close. And that is the difference between a deliberate act of conscious disregard for human life and conscious disregard to the risk of human life, which is similar. [¶] And I think the -- the issue is a deliberate act just means a -- a willful act. A committing an act with -- well, I think it's pretty much the same thing what they are asking about."
With respect to Jury Question No. 7, the prosecutor pointed out that implied malice required subjective awareness of the danger to human life. The trial court agreed: "It's knowledge. With knowledge. With knowledge that the act could kill, but you do it anyway." Defendant's counsel then expressed concern with the trial court's proposed response to Jury Question No. 6, specifically how the court would answer what "intentionally committing an act" meant. The trial court responded: "In other words, volitionally committing an act. The problem is when you use the word 'intent,' sometimes you think about the results of the act. [¶] But specific intent would be intentionally shooting a gun at a person with the intent that the person be killed. It's redundant. You only need to say it one time. [¶] And specific intent is shooting a gun at a person with the specific intent that the person be killed. [¶] General intent, we would -- we say shooting a gun at a person without any particular intent. Technically, you would say intentionally shooting. Because if a person takes a gun and accidentally shoots, that's not a crime. Unless it's gross negligence, which I don't want to get into with the jury due to the nature of this case." Defense counsel asked: "What are you going to say to the jury?" The trial court answered: "I'm going to say volitionally doing an act voluntarily."
The jury was then brought into the courtroom and the trial court provided the following answer to Jury Question No. 6: "The . . . first question is: We, the jury, request a description of the difference between intended to kill and intentionally committed an act. [¶] And that is really the difference between specific and general intent. [¶] The intentionally committed an act could be confusing because there's another -- there are other words that could be used for intentionally committed an act. [¶] For instance, we don't have assault with a deadly weapon in this case. If we did, a person commits an assault with a deadly weapon if they point a gun at a person, pull the trigger and shoot. [¶] Another charge would be attempted murder. They point a gun at a person and shoot. They miss him. They miss the person both times. One could be attempted murder, though, depending on the intent of the shooter. [¶] If the person intends to kill the person, that's attempted murder. That's a specific intent to kill. And that's a requirement for attempted murder. [¶] Assault with a deadly weapon is a general intent crime. Doing the act. Now, one could say intentionally doing the act. Intend to shoot at the person. But it gets confusing because attempted murder is technically intentionally shooting at a person with the intent to kill the person. [¶] So to make it simpler, we say shoots at a person, or volitionally shoots at a person, or voluntarily shoots at a person. That would be assault with a deadly weapon. Or shoots at a person, does the act. [¶] Attempted murder is does the act with the intent to kill -- specific intent to kill. [¶] So I -- I think that's the -- does that answer the difference between intended to kill and intentionally committed an act? [¶] So intent to kill is classic definition of specific intent. [¶] So murder can be committed in two ways: Express malice, implied malice. That's in 520. Express malice is that the -- the defendant unlawfully intended to kill. [¶] Implied malice is the defendant intentionally committed an act. So we have intent again. The natural and probable consequences of the act were dangerous to human life. At the time he acted, he knew his act was dangerous to human life. And, four, he deliberately acted with conscious disregard for human life. [¶] The difference between implied and express malice is express malice, intent to kill; implied malice, there is not an intent to kill."
The trial court then asked: "So does everyone understand that?" The foreperson answered: "No."
After a sidebar discussion, the trial court resumed addressing the jury: "Okay. Now that you're confused again. Let me go over 252. And that's the intent instruction. [¶] The crimes and other allegations charged require proof of the union, or joint operation, of act and wrongful intent. [¶] The following crime and allegation require general criminal intent: Possession of a short-barreled rifle as charged in Count 2, the allegation of use of a firearm in the commission of a felony, the allegation of personal use of a firearm, the allegation of personal discharge of a firearm, and the allegation of intentional discharge of a firearm causing great bodily injury or death. [¶] For you to find a person guilty of this crime or to find the allegations true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act. However, it is not required that he intend to break the law. The act required is explained in the instruction for that crime or allegation. [¶] The following crime requires a specific intent or mental state: Murder, as charged in Count 1. For you to find a person guilty of this crime, the person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime. [¶] For instance, 12022.53, intentional discharge of a firearm causing great bodily injury or death, that allegation, that is a general intent allegation. The intent required is just the general intent to fire the gun. But there is no specific intent required for that -- for that allegation to be found true. And, of course, you can only find that true if the defendant is found guilty of murder. But for that to be true, it is not required that he intended to kill or cause great bodily injury when he fired the gun. [¶] But with murder, express malice requires specific intent, and that is -- and he unlawfully intended to kill. [¶] Implied malice, that means the defendant intentionally committed an act of -- of shooting the gun, knowing that the natural and probable consequences of the act were dangerous to human life. At the time he acted, he knew his act was dangerous to human life. But in spite of knowing this, the defendant deliberately acted with conscious disregard for human life. There is not an intent to kill required if those facts are found true. If those facts are found true. That's a big if. Crucial. Important."
After further sidebar discussion, the trial court had the court reporter read and then re-read the trial court's response to a previous jury question (Jury Question No. 4, asking, "what is the meaning of 'act' in regards to implied malice"): "The act is the final event that caused the death. However, the jury is entitled to consider all of the circumstances surrounding that act in determining whether or not implied malice existed." Two of the jurors requested a written version of the trial court's responses to both Jury Question No. 4 and Jury Question No. 6. The trial court agreed to provide written responses. At this point, apparently referring to Jury Question No. 7, one of the jurors asked: "Did we have another handwritten question?" The trial court indicated it "answered all" of the questions, adding: "Two of them were pretty much -- pretty similar."
Jury Question No. 5 requested the transcript of the trial court's answer to Jury Question No. 4.
B.
Forfeiture
" 'When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.' [Citations.]" (People v. Boyce (2014) 59 Cal.4th 672, 699.) Moreover, when a defendant approves of the trial court's response to a jury question during deliberations, any claim of error with respect to that response is forfeited. (People v. Bohana (2000) 84 Cal.App.4th 360, 373; see also People v. Lazo (2012) 207 Cal.App.4th 332, 350.)
Here, the trial court conferred with counsel before responding to each of the jury's questions. The only arguable objection made by defense counsel was with respect to Jury Question No. 6. Defense counsel stated he was "a little concerned" about the trial court's proposed response. However, after the trial court indicated it would tell the jury, "[i]ntentionally committing an act" meant "volitionally doing an act voluntarily," defense counsel offered no objection. Nor were any objections lodged contemporaneously with the trial court's responses to these questions. As we explain in greater detail during our discussion of defendant's ineffective assistance of counsel claim, the trial court's responses were generally correct and pertinent statements of the law. Accordingly, in order to preserve his claim on appeal that they were inadequate and left the jury more confused, defendant was required to object on that basis below and request clarification. He failed to do so and has forfeited the claim.
C.
Ineffective Assistance of Counsel
Anticipating forfeiture, defendant asserts his trial counsel rendered constitutionally deficient assistance by failing to so object and request clarification. We disagree.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him [or her] to 'the reasonably competent assistance of an attorney acting as his [or her] diligent conscientious advocate.' [Citations.]" (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We begin with the first element of this claim, deficient performance. "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected.' [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520.)
Here, defense counsel was not asked for an explanation as to why he did not object to the trial court's responses or request clarification. However, the record suggests a reasonable explanation. First, contrary to defendant's argument on appeal, the trial court's answer to Jury Question No. 1 was an entirely accurate and appropriate response to the jury's request. As previously set forth in detail, the jury wanted a breakdown of the various homicide offenses and was confused by the fact the jury instructions did not "go into second degree murder." The trial court responded by going over the homicide instructions. While doing so, it became clear the jury did not initially understand that if they found defendant guilty of murder, defined in CALCRIM No. 520, but not guilty of first degree murder, defined in CALCRIM No. 521, then the crime was second degree murder. When the trial court got to the sentence of the latter instruction spelling that out, the foreperson said: "Okay. I understand," and repeated: "I understand. I understand." Despite having apparently cleared up the confusion, the trial court continued by pointing out that if the jury found defendant not guilty of murder, they must determine whether or not he was guilty of involuntary manslaughter, defined in CALCRIM No. 580, to which the foreperson said: "Gotcha. I understand you." Then, at the jury's request, the trial court re-read the murder instructions. The trial court also offered to re-read the involuntary manslaughter instruction, but the foreperson declined, stating: "No, we pretty much understand now." As our Supreme Court has explained: "Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Because the trial court's response was sufficient in this regard, as confirmed by the foreperson, there was no reason for defense counsel to have objected.
With respect to the trial court's combined response to Jury Question Nos. 6 and 7, we acknowledge the jury appeared to have been confused by the trial court's foray into the crimes of attempted murder and assault with a deadly weapon, crimes not charged in this case. We also acknowledge the two jury questions did not ask "pretty much" the same thing, and warranted separate responses. However, after the trial court's initial attempt at differentiating between "intended to kill" and "intentionally committed an act," during which the court explained, "intentionally doing the act" means "volitionally" or "voluntarily" doing that act, the court went over CALCRIM No. 252 and set forth in detail the mental states required for each crime and enhancement. In doing so, the court again set forth the mental state required for murder, distinguishing between express malice (i.e., "unlawfully intended to kill") and implied malice (i.e., "intentionally committed an act") the natural and probable consequences of which were dangerous to human life with knowledge of and conscious disregard for the danger. This answered the jury's question in a legally correct manner. If defense counsel wanted further clarification, it was incumbent upon him to request it. Moreover, his failure to do so may well have been a tactical decision based on a conclusion that if the jury was confused about whether implied malice also required an intent to kill, such confusion would inure to defendant's benefit rather than his detriment. Again, we must reject defendant's ineffectiveness claim unless there is no possible satisfactory explanation. (People v. Kelly, supra, 1 Cal.4th at p. 520.)
The same calculus may have motivated defense counsel to refrain from objecting that the trial court's answer did not directly address Jury Question No. 7. That question asked for a description of "the difference between 'a deliberate act with conscious disregard for human life' and 'conscious disregard of the risk to human life'." Both phrases described implied malice and the immaterial difference in wording comes from CALCRIM Nos. 520 and 580, respectively. The trial court could have explained as much, but then the court may well have felt obliged to again define implied malice for the jury, at the risk of clearing up any potential lingering confusion regarding whether or not that mental state also required an intent to kill.
In any event, even if we were to conclude defense counsel's failure to object or request clarification fell below an objective standard of reasonableness, defendant has failed to carry his burden of demonstrating prejudice. First, the trial court correctly defined murder, including express and implied malice, multiple times. The jury also received written versions of the instructions. Second, viewing the jury's ultimate verdicts together with their jury questions reveals they likely concluded defendant did not intentionally shoot the victim and similarly did not intend to kill her. The jury questions indicate debate in the jury room regarding whether or not defendant's conduct immediately before he fired the gun satisfied the requirements of implied malice murder. Strong evidence supported such a conclusion. By defendant's own admission, he was lying in bed next to the victim while holding a loaded and cocked revolver. He dramatically described the danger that weapon posed in multiple text messages to the victim. For present purposes, one example will suffice: "Its considered more deadly than a 9mm cuz a 9 go[es] in and rite trew the body but a 22 goes in and ri[cochets] off bones causin[g] more internal damage." Defendant was also addicted to prescription medication and knew the combined danger his pill use and possession of the gun posed. Again, he revealed as much in text messages to the victim: "Did u know my mom told me that my son was worryed I was gonna die or go to prison cuz I have a gun now? . . . Thay worried Ima overdose or kill somebody in my house or yard that's fucking with me and I think thir not too far off." However, as already explained in detail, defendant's account of the shooting was contradicted by the testimony from the medical examiner and forensic evidence at the crime scene that he was on top of the victim and engaged in a struggle with her when the fatal shot was fired. In addition, defendant's admission he was "a little irritated" the victim called 911 earlier that morning supports this scenario. Thus, even if the jury concluded defendant did not intentionally pull the trigger, the evidence supports the conclusion that by struggling with the victim on his bed while holding a loaded and cocked revolver, defendant intentionally engaged in actions the natural and probable consequences of which were dangerous to human life with knowledge of and conscious disregard for the danger.
Simply put, there is no reasonable probability the result of the proceeding would have been different had counsel objected and sought clarification with respect to the trial court's response to Jury Question Nos. 6 and 7.
II
Sentencing Issues
In a supplemental brief, defendant claims we must remand the matter for a new sentencing hearing because SB 620, which became effective January 1, 2018 and amends Penal Code sections 12022.5 and 12022.53 to give trial courts discretion to strike firearm enhancements in the interest of justice, applies retroactively to cases not yet final on appeal. We agree and also direct the trial court to correct a related sentencing error.
Undesignated statutory references are to the Penal Code.
A.
Sentencing Error
First, the sentencing error. As previously stated, the trial court sentenced defendant to serve an indeterminate term of 15 years to life in state prison consecutive to an aggregate determinate term of 13 years. Ten years of the determinate term were imposed pursuant to section 12022.53, subdivision (b), which provides that "any person who, in the commission of [certain specified felonies, including murder], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." We shall refer to this as the "section 12022.53(b) enhancement." In imposing this mandatory consecutive term, the trial court noted it was "prescribed by law." However, while defendant was also found to have "personally use[d] a firearm in the commission of a felony," within the meaning of section 12022.5, subdivision (a), the trial court did not impose a sentence of either "3, 4, or 10 years" as provided by that subdivision. We shall refer to this as the "section 12022.5(a) enhancement."
While section 12022.53, subdivision (f), provides, "[a]n enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section," our Supreme Court explained in People v. Gonzalez (2008) 43 Cal.4th 1118 that the word "impose" as used in section 12022.53 means "impose and execute." (Id. at p. 1127.) Thus, while the trial court was not authorized to impose and execute sentence on the section 12022.5(a) enhancement, that sentence "must be imposed and then stayed" pursuant to section 12022.53, subdivision (f). (Id. at p. 1130.) The trial court erred in failing to do so.
We also note the minute order of sentencing and the abstract of judgment do not conform to the oral pronouncement of judgment. Whereas the trial court did not impose any sentence with respect to the section 12022.5(a) enhancement, both the minute order and abstract of judgment state the trial court imposed an upper term 10-year sentence for the section 12022.5(a) enhancement and the mandatory 10-year sentence for the section 12022.53(b) enhancement, staying the latter enhancement pursuant to section 654. As stated, this is not what happened during the oral pronouncement of judgment. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385; accord, People v. Mesa (1975) 14 Cal.3d 466, 471.)
In sum, the trial court should have imposed and stayed sentence on the section 12022.5(a) enhancement pursuant to section 12022.53, subdivision (f). However, as we explain immediately below, because SB 620 applies retroactively to this case, we must remand the matter to the trial court with directions to exercise its discretion to strike or dismiss either firearm enhancement in the interest of justice pursuant to sections 12022.5, subdivision (c) and 12022.53, subdivision (h), and if it declines to do so, then to properly impose and stay the section 12022.5(a) enhancement.
B.
Retroactivity of SB 620
Defendant was sentenced on January 4, 2016. The law at that time did not allow the trial court to strike his firearm enhancements in the interest of justice, but rather required their mandatory imposition. (See former §§ 12022.5, subd. (c), 12022.53, subd. (h) (Stats. 2010, ch. 711, § 5).) Effective January 1, 2018, SB 620 amended both sections to provide: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1 & 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues the amendments to these sections apply to him because his judgment is not yet final. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Our Supreme Court has also applied the Estrada rule to amendments giving the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
Defendant argues, "although the amended statutes do not guarantee a reduced sentence, the possibility of a reduced punishment, through the exercise of . . . section 1385 discretion, triggers the Estrada rule, requiring a remand to the sentencing court for resentencing." The Attorney General concedes the rule of Estrada, supra, 63 Cal.2d 740 requires retroactive application of SB 620 to defendant's case, but argues remand is nevertheless unnecessary, relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894. We accept the concession, but conclude the Attorney General's reliance on Gutierrez to avoid remand is misplaced. There, our colleagues at the Second Appellate District declined to remand a defendant's matter for resentencing despite the fact the trial court erroneously believed it lacked discretion to strike his prior strike conviction under the three strikes law. As the court explained, "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence" and therefore "no purpose would be served in remanding for reconsideration." (Id. at p. 1896.)
Here, the trial court made no comparable finding as to whether or not defendant's firearm enhancements should be stricken. Nevertheless, relying on the minute order of sentencing and the abstract of judgment, the Attorney General argues, "[t]he fact that the trial court imposed the upper term for the section 12022.5, subdivision (a) firearm enhancement shows that it would not be amenable to striking that enhancement, or the enhancement imposed (and stayed) for section 12022.53, subdivision (b)." We have already demonstrated the trial court did not impose an upper term sentence on the section 12022.5(a) enhancement. It imposed no sentence with respect to that enhancement. Thus, we cannot say the record clearly indicates the trial court would have declined to strike or dismiss that firearm enhancement. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so"]; cf. People v. McVey (2018) 24 Cal.App.5th 405, 419 ["In light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether"].)
The Attorney General also relies on statements made by the trial court before imposing a prison term of 15 years to life for second degree murder consecutive to a term of 10 years for the section 12022.53(b) enhancement. The trial court explained defendant "would keep his loaded gun on him in the house," he "abused that gun previously" by firing it off in his yard on a number of occasions, and he sent the victim multiple text messages indicating he knew the danger that gun posed, the contents of which we have set forth in detail earlier in this opinion. The trial court also pointed out the victim "did nothing in this situation to deserve to be shot," and "may have saved [defendant's] life" the morning of the murder by calling an ambulance when he was unable to wake up because he took too many pills the night before. After expressing sympathy for both families, particularly the children, the trial court stated: "That [defendant], that he didn't think about his children when he kept using drugs. He had a gun. He fired it off a number of times in his house. He slept with a gun. [¶] And whether or not the jury found, by way of express[] malice, that he intentionally killed [the victim] or whether they . . . found by implied malice, that he consciously disregarded human life by keeping a loaded gun with him in bed. [¶] Either way, it doesn't matter because he wasn't thinking about his kids and his family when he did that, and so it's a shame for his children as well. [¶] And his text messages about ending up killing someone and going to prison were prophetic because that is exactly what's going to happen."
However, as the trial court expressly stated, the consecutive 10-year term imposed for the section 12022.53(b) enhancement was "prescribed by law." The fact the trial court expressed disapproval of defendant's conduct before imposing a mandatory consecutive sentence for the firearm enhancement does not necessarily indicate it would not have exercised discretion to strike that enhancement had it possessed the discretion to do so at the time of sentencing. Nor does the trial court's decision to impose an upper term consecutive sentence for defendant's possession of a short-barreled rifle, a second weapon found in the residence. While the trial court found the aggravating factors outweighed the mitigating factors in imposing that sentence, the decision to impose a consecutive and upper term sentence for possessing a short-barreled rifle is not the same as the decision to strike a firearm enhancement attached to defendant's murder conviction in the interest of justice.
Finally, we note SB 620 allows for the striking of even the most serious firearm enhancements, i.e., those imposed under section 12022.53, subdivision (d), involving the personal and intentional discharge of a firearm resulting in death or great bodily injury. Here, while such an enhancement was alleged, the jury found that allegation not true. Thus, the firearm enhancement the jury found to be true, personal use of a firearm, is less serious than that which the Legislature has determined may be stricken under SB 620. Whether to do so in this case is up to the trial court, in the exercise of its sound discretion.
DISPOSITION
The matter is remanded to the trial court with directions to exercise its discretion as to whether or not to strike or dismiss either firearm enhancement in the interest of justice pursuant to Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h), and if it declines to do so, then to properly impose and stay the Penal Code section 12022.5, subdivision (a) enhancement pursuant to Penal Code section 12022.53, subdivision (f). The judgment is otherwise affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MURRAY, J.