Opinion
A157567
01-22-2021
THE PEOPLE, Plaintiff and Respondent, v. DAMIEN GIBRON ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 606243)
Appellant Damien Gibron Robinson fatally shot his father and two other men inside a home where they were staying. His defense at trial was that he was fearful and shot them to protect himself. Appellant was convicted after a jury trial of two counts of second degree murder, one count of voluntary manslaughter, and one count of felon in possession of a firearm. Various firearm and prior conviction enhancements were also found true. (Pen. Code, §§ 187, 192, subd. (a), 29800, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d), 667, subd. (a), 667, subd. (b)-(i), 1170.12.)
Further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, appellant contends: (1) the court erred in striking testimony that he had told a woman who was like his mother that he was fearful about staying in the house where the shooting occurred; (2) the court should have given a requested pinpoint instruction regarding the absence of flight; (3) the court should have instructed the jury on involuntary manslaughter as a lesser included offense; (4) CALCRIM No. 571 was defective because it did not describe how, exactly, malice was negated by imperfect self-defense; (5) one paragraph of CALCRIM No. 571, regarding the effect of a defendant's "wrongful conduct" on an imperfect self-defense claim, was erroneous; (6) the jury should have been instructed sua sponte that a prior felony conviction admitted to impeach appellant could not be used to infer a predisposition to commit crimes; (7) the assessments and restitution fines should be stricken or the case remanded because the record does not show appellant's ability to pay; and (8) the judgment should be dismissed due to cumulative error. We affirm.
BACKGROUND
Darrell Robinson (Darrell) lived with his brother William Robinson (Billy) and his friend Benjamin Williams (Williams) in a home on 54th Street in Oakland. Appellant, who was Darrell's adult son, sometimes stayed at the house and a friend, Raymond Garza (Garza), sometimes visited. During the afternoon of May 23, 2015, appellant fatally shot Garza, Darrell and Williams inside the home.
Because one of the victims and several of the witnesses share the same last name as appellant, we use the first names of those individuals to ease the task of the reader.
Appellant was charged with three counts of murder with allegations that he had personally and intentionally used a firearm causing great bodily injury or death, had personally and intentionally discharged a firearm, and had personally used a firearm. He was also charged with one count of being a felon in possession of a firearm. (§§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)-(d), 29800, subd. (a)(1).) The information alleged a prior "strike," a prior serious felony enhancement, and two prison priors, along with a multiple-murder special circumstance, which would have made appellant eligible for a sentence of life without the possibility of parole if he were convicted of at least two counts of murder, one of which was murder in the first degree. (§§ 190.2, subd. (a)(3), 667, subd. (a), 667, subd. (b)-(i), former 667.5, subd. (b), added by Stats. 2014, ch. 442, § 10, 1170.12.) The case proceeded to a jury trial.
1. Prosecution Evidence
In the months leading up to the shooting that is the subject of this case, appellant was staying at the 54th Street house. Darrell and Williams were longtime drug users and appellant was dealing drugs. According to Billy, he had seen Darrell and appellant scuffle over a telephone on one occasion, but they generally got along.
Appellant sometimes spoke to his sister Danesia Robinson (Danesia), with whom he had a good relationship, on the telephone. Appellant told Danesia that he was scared and wanted to get out of the house. He asked her for a gun, which she did not give him, although she did begin investigating the possibility of finding him a new living situation.
Billy testified that there had been no arguments on the day of the shooting. He had gone out that morning to buy some vodka and as he was leaving, Garza arrived, and Billy let him in to make something to eat. Appellant was in the kitchen and Darrell was asleep in a chair in the living room, having returned from getting some methadone. When Billy came back from buying the vodka, Garza was asleep in the kitchen, appellant was watching television in the living room, Darrell was still asleep in a chair in the living room, and Williams was asleep in a recliner in the living room where he usually slept, clutching a pillow. Billy left the house again and when he returned at 1:00 or 2:00 p.m., everyone was in the same position.
Billy saw appellant walk into the kitchen from the living room. He did not see appellant carrying a gun, and to his knowledge no one in the house had a gun. After a few minutes, Billy heard something that sounded like a gunshot. Darrell got up and started to walk toward the kitchen and said he thought that the tire of a bicycle stored in the kitchen had popped. He walked toward the kitchen while Williams remained in the recliner in the living room.
Billy testified that before Darrell reached the kitchen, appellant came out of that room with his arm raised up. He was holding a gun, which he fired. Darrell fell near the corner of Billy's bed, which was located in the living room. Billy escaped out the front door, running so quickly that he fell down and skinned his knee. He heard another gunshot as he left and ran to the corner store to call the police.
When Billy returned home, officers had arrived, and he provided them the keys to the home. The officers attempted to enter, but appellant locked the door from the inside and said "no." Officers set up a perimeter and fired nonlethal bullets into the home. Meanwhile, from inside the home, appellant sent a text message to his sister Danesia telling her how to contact his daughter and his daughter's mother. Puzzled, Danesia called appellant on the telephone. He told her he was in trouble and had shot three people.
Thirty-five or 40 minutes into the call, Danesia called their older sister Delvosha Robinson (Delvosha) and placed her on a three-way call. Appellant told them he had killed "daddy." He said, "I am so sorry. It wasn't supposed to happen. They set me up. They tried to rob me. They saw me driving a Jaguar and thought I had more money than I did." Appellant also said he let Billy go. He told them he wanted to harm himself. Danesia and Delvosha convinced appellant not to kill himself and to surrender.
After appellant surrendered, police entered the home and found Darrell in the living room, dead from a gunshot wound to his torso. Williams was found dead and slumped over in his reclining chair with several gunshot wounds. Garza was found dead in the kitchen with a gunshot wound to his mouth.
At the time of death, Darrell had alcohol, cocaine metabolite, methadone, methadone metabolite, morphine and codeine in his system. Morphine is a depressant that could diminish a person's alertness; the level of morphine detected in Darrell's blood was potentially fatal. Williams had cocaine, cocaine metabolite, methadone and methadone metabolite in his system; methadone can diminish physical capabilities and alertness. The level of methadone found in Williams's system was potentially fatal to a non-habitual user. Garza had a small amount of methamphetamine in his system; methamphetamine is a stimulant that can lead to violent behavior. Each man's wounds were consistent with a single gunshot.
Although Williams had three gunshot wounds and grazing of the forearm, this could have been caused by a single shot passing through the crook of his arm to his upper torso.
Appellant was interviewed by police on the evening of the shooting and denied that he had been inside the house when the shooting occurred. The next morning, he called his ex-girlfriend from jail and she said, "I seen this coming," after which appellant laughed and later said, "I seen it coming too. I knew it. I knew it." A couple of hours later, appellant called Delvosha, who was extremely angry. When she asked him, "What the fuck did you do that for?" appellant said he couldn't "talk like that on the phone." Referencing her discussions with the police, he said, "I wish you hadn't even said nothing to the motherfuckers." He told her that his "next thing is trying to beat this case."
2. Defense Evidence
Appellant testified at his trial that in early 2015, he was selling drugs, as Darrell had taught him to do. Darrell and Williams knew this and asked him for drugs and money. He provided them with drugs and money at first, but then stopped because he could not afford to do so. In response, Darrell and Williams became hostile. Williams knew where appellant kept his money hidden in a sock and would tell Darrell, "Get the money out of the sock." Darrell would sometimes stare at appellant as he slept. Appellant was scared and contacted his sister Danesia for a gun, but she did not give one to him. He stayed in the home because he had nowhere else to live.
On the day of the shooting, appellant went to the kitchen, placed some cigarettes on the counter and started to heat some food. There had been no discussion with Darrell and Williams. Garza was in the kitchen leaning up against the deep freezer. He looked at appellant "like he was mad" at him. Garza pointed a gun at appellant, said "Shut the fuck up" and then snatched the cigarettes from the counter. Appellant grabbed the gun away from Garza and pushed him. Garza moved back but then lunged at appellant, who fired the gun and shot Garza.
Appellant left the kitchen to tell everyone what had happened and saw Darrell, two steps away. Darrell was angry and asked him, "[H]ow the hell you get the gun?" Appellant realized it was a "set-up" and thought that Darrell had sent Garza in to rob him. Darrell reached for the gun, so appellant pulled the trigger and shot him. Williams then began reaching for appellant and trying to get out of his chair. Appellant shot him because he thought Williams was trying to take the gun away from him. According to appellant, he did not want to kill anyone and was just trying to get them to stop attacking.
Appellant had been driving a Jaguar that didn't belong to him that Darrell and Williams might have believed to be his. They might have believed he had more money than he did.
3. Instructions, Verdict and Sentence
The jury was instructed on theories of first degree premeditated murder, second degree murder based on express or implied malice, voluntary manslaughter based on imperfect self-defense, and perfect self-defense. It found appellant had committed voluntary manslaughter as to Garza with a true finding he had personally used a firearm. (§§192, subd. (a), 12022.5, subd. (a).) It found appellant guilty of second degree murder as to Darrell and Williams, with an enhancement for personal discharge of a firearm causing death as to those counts. (§§ 187, subd. (a), 12022.53, subd. (d).) Appellant was also convicted of one count of felon in possession of a firearm. He was found by the court to have committed a prior residential burglary, which qualified as both a "strike" and a prior serious felony for purposes of the serious felony enhancement. (§§ 187, 192, subd. (a), 29800, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d), 667, subds. (a)-(i), 1170.12.) The multiple-murder special circumstance allegation was found not true.
Because appellant was convicted of voluntary manslaughter as to the count involving Garza, the enhancements under section 12022.53 did not apply to that count. (People v. Fialho (2014) 229 Cal.App.4th 1389, 1395.)
On May 31, 2019, the court imposed an aggregate term of 110 years to life plus 42 years in prison. This consisted of 15 years to life on each of the second degree murder counts, doubled to 30 years to life each under the strikes law, an enhancement of 25 years to life on each murder count under section 12022.53, subdivision (d), the 11-year upper term for voluntary manslaughter, doubled to 22 years pursuant to the strikes law, a ten-year consecutive term for the firearm enhancement attached to that count, and two consecutive five-year serious felony enhancements on each of the murder counts. The court exercised its discretion to strike the five-year serious felony enhancement with respect to the voluntary manslaughter count, but it declined to strike any of the firearm enhancements. Sentence on the felon with a firearm count was stayed under section 654.
Effective January 1, 2019, courts have the discretion to strike the five-year prior serious felony enhancement. (Senate Bill 1393 (2017-2018 Reg. Sess.) §§ 667 & 1385; People v. Garcia (2018) 28 Cal.App.5th 961, 965.) Effective January 1, 2018, courts have the discretion to strike firearm enhancements. (Senate Bill 620 (2017-2018 Reg. Sess.) §§ 1385 & 12022.53; People v. McDaniels (2018) 22 Cal.App.5th 420, 423-424.)
DISCUSSION
1. Exclusion of Evidence of Appellant's Expression of Fear
Appellant contends the trial court erred in striking testimony that before the shooting, he had expressed to Rachel Hall (Hall) that he was fearful about living in the home. We conclude that any error was harmless.
a. Background
Hall was called as a defense witness and testified that she helped raise appellant and was like a mother to him. In March of 2015 (about two months before the shooting), she was trying to help him move from the home on 54th Street because of "everything that he was telling me." Defense counsel asked her why she was trying to help him find other arrangements and she responded, "From the conversations that we were having, he was extremely fearful. And he said that he was being threatened. So—" The prosecutor interjected, "Object as to hearsay. Move to strike." Defense counsel indicated the evidence was relevant to the subsequent actions of Hall. The court sustained the objection and instructed the jury, "That last answer is stricken. Disregard it as hearsay." The prosecutor did not cross-examine Hall.
At the next recess, the court raised the issue of the admissibility of Hall's testimony that appellant had told her he was fearful. It indicated that this testimony appeared to be admissible under Evidence Code section 1250 as proof of appellant's state of mind. In response, the prosecutor drew a distinction between Hall's testimony that appellant was fearful and her testimony that he said he had been threatened, taking the position that evidence appellant was fearful was admissible and had in fact been properly admitted, but that evidence he told Hall he had been threatened was unreliable hearsay. The court indicated that it had stricken Hall's entire answer and proposed reversing itself in part and instructing the jury that the portion of the answer regarding fearfulness (as opposed to threats) was admissible.
The record is ambiguous as to whether the jury would have understood the court was striking the entire answer (regarding both fear and threats) or only that portion of the answer regarding threats. Hall's answer consisted of two sentences. ("From the conversations that we were having, he was extremely fearful. And he said he was being threatened.") The court stated the "last answer" was stricken, which might be construed by the jury to mean the court was striking only Hall's last sentence, which concerned threats, not fear, and that the testimony about fearfulness would be allowed to stand. Apparently the prosecutor was initially under the impression that this is what the court had done. But the court indicated to the parties that it had stricken the entire answer and they assume as much on appeal.
Defense counsel agreed with the court's proposed approach, but the prosecutor expressed concern: "It has the effect, given the timing, of really serving as the Court's endorsement of [appellant]'s narrative. . . ." The court ultimately decided not to reverse its ruling. It agreed that appellant's fearfulness was relevant evidence and admissible but ruled that because Hall was three hours away and not subject to recall, it would be unfair to the prosecution to "unstrike" Hall's testimony at that juncture.
Appellant contends the court erred because the evidence of fear was admissible and supported his claim of self-defense. "We review the court's evidentiary rulings—including those that turn on the hearsay nature of the evidence—for abuse of discretion [citation], keeping in mind that an abuse of discretion occurs when the trial court makes an error of law [citation]." (People v. Yates (2018) 25 Cal.App.5th 474, 484-485.)
Appellant does not argue the evidence of threats was admissible and we do not consider that aspect of the court's ruling.
b. Admissibility of Appellant's Expression of Fear
Appellant's mental state, and specifically his fear of the victims, was placed at issue by his claim of self-defense. At the outset, we note that it is not entirely clear whether Hall's description of appellant as "extremely fearful" was based on his statements to her that he was fearful or on statements he made from which she deduced his fear. Under the circumstances, it does not matter.
If the former, appellant made an out-of-court statement that was being offered for its truth (that he was in fact fearful) and was therefore hearsay. (Evid. Code, §1200; People v. Ortiz (1995) 38 Cal.App.4th 377, 389-390 (Ortiz).) But it would be admissible under the state-of-mind hearsay exception unless it was deemed untrustworthy. (Evid. Code, §§ 1250, 1252.) Made two months before the shooting to a woman who was like a mother to appellant, we do not see any basis for deeming his statements of fearfulness to be untrustworthy. Indeed, at the hearing at which the court considered "unstriking" Hall's testimony, it rejected the prosecutor's assertion that the statement was untrustworthy.
If Hall's description of appellant as "extremely fearful" was based not on what appellant told her directly about his mental state but instead on other statements he made to her, it was nonhearsay circumstantial evidence of his fear, or possibly a lay opinion regarding his demeanor. (Ortiz at pp. 389-390; People v. Blacksher (2011) 52 Cal.4th 769, 808-809.)
Either way, the evidence appears to have been admissible. The court's ruling assumed as much, declining to "unstrike" the testimony only because it concluded it would be unfair to the prosecution to do so. We do not think the court can make an erroneous evidentiary ruling that would itself constitute an abuse of discretion and then have that ruling insulated from review on the theory that the other party would be at a disadvantage if the ruling were reversed.
c. The Error Was Not Prejudicial
We therefore assume Hall's testimony about appellant's fearfulness was admissible, and that the court abused its discretion by striking it. But the error was not prejudicial. Evidentiary errors that do not completely prevent a defendant from presenting a defense are harmless unless it is reasonably probable they contributed to the verdict. (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Here, both appellant himself and his sister Danesia testified that he was fearful in the months leading to the shooting. There was evidence, memorialized in text messages, that appellant had asked Danesia for a gun. She testified that he had told her he was afraid about what was going on in the house. He described the motive behind the shooting to his sister Delvosha as "my own family, they're trying to set me up." The trial court did not completely exclude evidence that the shooting was committed because appellant was afraid.
We note that appellant was convicted of voluntary manslaughter as to Garza under a theory of imperfect self- defense. An element of this crime was a showing that appellant actually feared Garza. (People v. Stitely (2005) 35 Cal.4th 514, 551.)
While Hall's testimony would have corroborated this fear, she had no knowledge of the events leading to the shooting or appellant's state of mind at the time. At most, she could have testified that two months before, appellant had been fearful of his living situation, yet failed to leave. Assuming the jury interpreted the court's order striking Hall's testimony as striking the entire answer, the ruling was not prejudicial.
2. Instruction on Absence of Flight
The trial court declined appellant's request for a pinpoint instruction stating the jury could consider a person's absence of flight in deciding guilt. Appellant contends this was an abuse of discretion and denied him his due process rights. We disagree.
Appellant proposed the following instruction: "The absence of flight of a person immediately after he is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you, in light of all other proven facts, in deciding whether or not the defendant's guilt has been proven beyond a reasonable doubt. The weight to which such circumstances are entitled is a matter for the jury to determine."
In People v. Staten (2000) 24 Cal.4th 434, 459, the Supreme Court considered the trial court's refusal to instruct on absence of flight and observed: "We discern no error. In People v. Green (1980) 27 Cal.3d 1, 39-40 and footnote 26 [], we held that refusal of an instruction on absence of flight was proper and was not unfair in light of [] section 1127c. We observed that such an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. (Green, supra, 27 Cal.3d at pp. 37, 39.) Our conclusion therein also forecloses any federal or state constitutional challenge based on due process."
"Flight is by its nature an active, conscious activity which readily and logically tends to support the inference of consciousness of guilt[.] Indeed, the inference of consciousness of guilt from flight is one of the simplest, most compelling and universal in human experience. [Citation.] The absence of flight, on the other hand, is far less relevant, more inherently ambiguous and 'often feigned and artificial.' " (People v. Williams (1997) 55 Cal.App.4th 648, 652.)
So too here. Appellant did not flee the scene of the shooting, but his decision to remain was fraught with ambiguity: he lived there (as much as anywhere) and there is no suggestion he had anywhere else to go; he remained barricaded in the bathroom after the police arrived and had to be talked into coming out by his sisters, who were on the phone; and when he spoke to police for the first time, he denied even being present inside the home at the time of the shooting. This is not a case where appellant called the police himself, remained at the scene, patiently waited for them to arrive, and then immediately told them what had happened. Substantial evidence did not support the inference that his decision to stay at the scene suggests the opposite of a consciousness of guilt, and it was not error to refuse the instruction proposed.
3. Failure to Instruct on Involuntary Manslaughter
Appellant was charged with murder and the jury was instructed on the theories of first degree murder, second degree murder, and voluntary manslaughter based on imperfect self-defense and perfect self-defense. Although he did not request it at trial, appellant claims the court had a sua sponte duty to also instruct on involuntary manslaughter as a lesser included offense. We reject the claim.
A trial court has a sua sponte duty to instruct on lesser included offenses supported by the evidence if there is substantial evidence to support the determination that the defendant committed the lesser, but not the greater, offense. (People v. Shockley (2013) 58 Cal.4th 400, 403.) Instructions are not required when there is no substantial evidence that the crime was less than charged. (People v. Moye (2009) 47 Cal.4th 537, 548.)
Murder is a killing with either express or implied malice aforethought. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).) Express malice is the deliberate intent to unlawfully kill; implied malice is the commission of an act that is dangerous to human life, with knowledge that the act endangers the life of another and with conscious disregard for life. (Ibid.)
"Voluntary and involuntary manslaughter are lesser included offenses of murder." (People v. Thomas (2012) 53 Cal.4th 771, 813.) When a homicide is committed with malice under the good faith but unreasonable belief in the need for self-defense from imminent harm, malice is negated, and the crime is voluntary manslaughter. (Brothers, supra, 236 Cal.App.4th at p. 30.) Thus, a defendant commits voluntary manslaughter when a killing is committed with an intent to kill or with a conscious disregard for life and would normally constitute murder, but it is mitigated through the doctrine of imperfect self-defense. (Ibid.)
Involuntary manslaughter, by contrast, is the unlawful killing of a human being without malice. (People v. Ochoa (1998) 19 Cal.4th 353, 423.) It is statutorily defined as a killing without malice that occurs during the commission of "an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, [accomplished] in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) "The words 'without due caution and circumspection' refer to criminal negligence—unintentional conduct which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences. [Citation.] If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice." (People v. Evers (1992) 10 Cal.App.4th 588, 596.)
Here, there was no substantial evidence that appellant did not act with at least conscious disregard for human life when he shot the three men at close range. There was no evidence of an accidental killing, gross negligence, or a lack of understanding of the risk appellant's conduct posed to the life of each of his victims. (See Brothers, supra, 236 Cal.App.4th at p. 35.) The jury could have found that appellant acted with a subjective belief in the need to defend himself (as it did with respect to the count involving Garza), but there is no way they could have determined he did not act with at least conscious disregard for life. (People v. Guillen (2014) 227 Cal.App.4th 934, 1025.) No instruction on involuntary manslaughter was required.
4. CALCRIM No . 571—Failure to Describe Negation of Malice
Appellant contends that the instructions failed to adequately explain how malice was negated in the case of voluntary manslaughter. We disagree.
The jury was given CALCRIM No. 571, the standard instruction on voluntary manslaughter: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, the killing was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed."
Appellant complains this instruction did not explain how malice was negated by unreasonable self-defense, or that the mens rea for voluntary manslaughter was "every bit as serious" as the malice required for murder. This argument was rejected in People v. Genovese (2008) 168 Cal.App.4th 817, 830-831 (Genovese), in the context of imperfect self-defense of others: "[I]t does not matter that the CALCRIM instructions failed to inform the jury that imperfect defense of another would eliminate malice. As we have set forth above, the jury was told, in a series of instructions, what different kinds of acts and situations would reduce the crime from murder to voluntary manslaughter. It is immaterial that the jury was not informed that, in fact, what was going on was that the jury was finding an 'absence of malice.' As Justice Corrigan has explained in her Preface to the CALCRIM jury instructions, 'our work reflects a belief that sound communication takes into account the audience to which it is addressed.' (Judicial Council of Cal., Crim. Jury Instns. (2008) Preface, p. xi.) 'Malice is another word of multiple meanings in criminal law. . . .' (1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, § 11, p. 213.) The definition of malice may be interesting to lawyers and judges and law professors, but it does not aid the task of lay jurors to inform them that, when the defendant acts in an honest but unreasonable belief in the need to defend another, he is acting without malice. Consequently, the CALCRIM instructions are not erroneous in their failure to tell the jury the role that malice (or lack of malice) plays in reducing murder to voluntary manslaughter." (Genovese, supra, 168 Cal.App.4th at pp. 830-831.
Appellant urges us not to follow Genovese but offers no persuasive reason not to do so. His claim that the jury would have viewed voluntary manslaughter as "a minor throwaway offense involving some mental state short of intent to kill or conscious disregard of life" is not borne out by the language of CALCRIM No. 571. The jury was advised that "a killing that would otherwise be murder" could be reduced to voluntary manslaughter if certain findings were made; a killing could not "otherwise be murder" (at least for purposes of the instructions in this case) if there was no malice. Also, the jury did find the killing of Garza was voluntary manslaughter, showing it did not give short shrift to that lesser offense.
5. Instruction on "Wrongful Conduct"
Appellant challenges a portion of CALCRIM No. 571 that advised the jury: "Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force." He acknowledges the instruction could not have been prejudicial as to Garza, whose killing the jury found to be voluntary manslaughter. But he argues it was prejudicial as to the second degree murder convictions involving Darrell and Williams. We disagree.
In In re Christian S. (1994) 7 Cal.4th 768, 771 (Christian S.), the California Supreme Court summarized the doctrine of imperfect self-defense as follows: "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." The court explained this rule by analogizing it to the doctrine of perfect self-defense: "It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense." (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
Citing Christian S., appellant argues that the "wrongful conduct" by the defendant that will lead to the rejection of imperfect self-defense is limited to " 'the initiation of a physical assault or the commission of a felony.' " Because the jury was not told as much, he reasons, the reference to "wrongful conduct" was impermissibly vague and would have permitted the jurors to reject imperfect self-defense even if they found he did not first assault Darrell or Williams before they assaulted him.
We assume appellant's objection to this paragraph of CALCRIM No. 571 was sufficient to preserve his challenge based on vagueness.
We do not read Christian S. to mean that self-defense is precluded only when a defendant assaults or commits a felony against the homicide victim. Christian S. stated the doctrine of imperfect self-defense "may not be invoked by a defendant who, through his own wrongful conduct. . . has created circumstances under which his adversary's attack or pursuit is legally justified." While the "circumstances under which his adversary's attack or pursuit is legally justified" includes assaultive or felonious conduct directed against the homicide victim, it also includes circumstances that warrant a response by that victim (as in the example cited in Christian S. itself, which involves the homicide of a responding police officer). Here, there was evidence that appellant shot Garza in the kitchen—a circumstance that would warrant Darrell or Williams trying to disarm appellant. In convicting appellant of voluntary manslaughter as to Garza, the jury found appellant engaged in felonious and assaultive conduct against him. That assault created the impetus for others to intervene and appellant was not justified in using that intervention as a further excuse for his violence against those others.
We note that CALCRIM No. 571 by its terms only limits imperfect self-defense when a defendant's wrongful conduct "has created circumstances that justify his adversary's use of force." Thus, it does not on its face apply to wrongful conduct unconnected to any act of force by the homicide victim, and it limits the type of wrongful conduct that precludes the application of imperfect self-defense in a manner consistent with Christian S. (See Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
Finally, any error was harmless under the circumstances of this case. Although there was substantial evidence that appellant actually (if unreasonably) feared the infliction of death or great bodily injury at the hands of Garza, there was no evidence that Darrell or Williams were armed when appellant walked into the living room and shot them. Even if the jurors had been told that the reference to "wrongful conduct" by appellant in CALCRIM No. 571 meant assaultive or felonious conduct, they would have applied the doctrine of unreasonable self-defense to the counts involving Darrell and Williams only if they found appellant actually feared imminent harm at Darrell or Williams's hands. Since appellant was the only one with a gun, this is not reasonably probable.
In a noncapital case, "[a]ny error in failing to instruct on imperfect defense. . . is state law error alone, and thus subject, under article VI, section 13 of the California Constitution, to the harmless error test articulated in [Watson, supra, 46 Cal.2d at p. 836]." (People v. Randle (2005) 35 Cal.4th 987, 1003, overruled on another ground as stated in People v. Chun (2009) 45 Cal.4th 1172, 1201; see also People v. Breverman (1998) 19 Cal.4th 142, 178 [concluding "error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson".) We apply that standard here and conclude appellant was not prejudiced.
6. Instruction Regarding Disposition to Commit Crimes
Two of appellant's felony priors were admitted as impeachment evidence, and he testified on direct examination that he was convicted of first degree burglary in 2013 and of corporal injury upon a cohabitant in 2014. The court instructed the jury with CALCRIM No. 316, which advised them, "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." Appellant argues this instruction was deficient because it did not specifically state that the jury could not use the priors to prove criminal propensity. We disagree.
When a defendant asserts that a jury instruction is ambiguous, a reviewing court considers "whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Smithey (1999) 20 Cal.4th 936, 963.) Here, there is not a reasonable likelihood that the jury misunderstood and misapplied CALCRIM No. 316 by considering appellant's prior convictions to prove criminal propensity. The instruction explicitly informed the jury that it could consider a prior felony conviction only for the purpose of evaluating credibility. Thus, the plain language of the instruction was unambiguous and in no way informed the jury that it could construe a prior conviction as propensity evidence. The jury is presumed to have followed that instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Yeoman (2003) 31 Cal.4th 93, 139 [a reviewing court presumes that jurors understand and correctly follow instructions, especially "where the relevant instructional language seems clear and easy to understand"].)
Moreover, to the extent that defendant contends the trial court should have modified the instruction to specify that prior felony convictions cannot be considered evidence of propensity to commit a crime, the claim is not cognizable on appeal. " ' "Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." ' " (People v. Castaneda (2011) 51 Cal.4th 1292, 1348, abrogated on other grounds as recognized in People v. Hardy (2018) 5 Cal.5th 56, 100.) Because appellant failed to request language that amplified or clarified the trial court's legally correct instruction, we cannot find error in the instruction's silence regarding the relationship between felony convictions and propensity to commit a crime.
Finally, we note that there was nothing about appellant's prior convictions that suggests he was prejudiced in any way. CALCRIM No. 316 instructed the jury not to consider the prior convictions for any reason other than witness credibility. The details of the prior convictions were omitted and those crimes were nowhere near as serious as the charged murders. The jury obviously believed at least a portion of appellant's account of the events leading to the shooting, as it convicted him of voluntary manslaughter and second degree murder rather than three counts of first degree murder. His claim that the court should have further instructed on propensity is unavailing.
7. Restitution Fine and Fees
Appellant was ordered to pay a $10,000 restitution fine under section 1202.4, subdivision (b), a $40 per-conviction court operations assessment under section 1465.8 and a $30 per-conviction criminal conviction assessment under Government Code section 70373. He contends these fines and assessments must either be stricken, or the case remanded for a hearing on his ability to pay, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and the Eighth Amendment's proscription against excessive fines. We reject the claim.
The issue of whether Dueñas was correctly decided is pending on review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844.
At the beginning of the sentencing hearing, the court gave an indicated sentence that included a $10,000 restitution fine. Defense counsel asked that the court consider not imposing the fine, noting that actual restitution of $20,000 had been claimed and it would be very difficult for appellant to pay the restitution fine on top of this amount out of his minimal resources, which did not include any savings. Counsel did not object on the ground that a $10,000 fine was excessive punishment. The court imposed the restitution fine and assessments as part of the sentence.
To the extent appellant seeks an additional hearing on the issue, he has already made his arguments regarding ability to pay. This is not surprising, as Dueñas was decided January 8, 2019, and the sentencing hearing in this case occurred on May 31, 2019, more than four months later. Appellant did not request an additional hearing with respect to his ability to pay the fine and assessments.
Appellant did request a hearing with respect to direct victim restitution, and the court set the matter for a hearing on that issue. He does not raise any challenge to direct victim restitution on appeal.
To the extent appellant is arguing that the fine and assessments should be stricken, we agree with those courts that have concluded that Dueñas, although possibly correct on its facts, was incorrect to the extent it stated a broader rule that, as a matter of constitutional due process, a determination of ability to pay is required. (See e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) In contrast to the two strands of authority on which Dueñas relied, the failure to determine whether a defendant is able to pay a restitution fine and assessments does not, absent unusual circumstances, impair a defendant's access to the courts or subject him to imprisonment as a consequence. Imposition of the fine and assessments in the present case do not violate appellant's right to due process.
As for appellant's claim that the fines and assessments were excessive under the Eighth Amendment, any objection under the state and federal excessive fines clauses was available to appellant at the time of sentencing and has been forfeited. (People v. Baker (2018) 20 Cal.App.5th 711, 720.) But we would also reject such a claim on the merits.
We must give deference to the Legislature's determination regarding the appropriate punishment. (United States v. Bajakajian (1998) 524 U.S. 321, 336 (Bajakajian).) The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: " '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' " (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
Here, appellant was convicted of two counts of murder and one count of voluntary manslaughter, all of which involved the use of a firearm. The sentencing court determined this was an egregious case. When the relevant factors are examined, the $10,000 maximum restitution fine imposed against appellant was not "grossly disproportional" when compared to his crimes. (Bajakajian, at p. 334; People v. Lowery (2020) 43 Cal.App.5th 1046, 1058; People v. Aviles (2019) 39 Cal.App.5th 1055, 1071-1072 [$10,000 fine for murder of two peace officers did not violate Eighth Amendment].) As such, we reject appellant's assertions that the excessive fines clause of the Eighth Amendment was violated.
8. Cumulative Error
Appellant argues the cumulative effect of the errors he alleges requires reversal even if they were harmless when considered individually. (People v. Hill (1998) 17 Cal.4th 800, 845.) Although we have found error in the striking of a portion of Rachel Hall's testimony, this bore no logical relationship to the instructional errors asserted by appellant. And, with the exception of assuming error for the sake of argument as to some of these instructions, we have not found them to be erroneous. There is no basis for assuming that any of the asserted errors had a cumulatively prejudicial impact beyond that of each one individually, and we reject the claim of cumulative error.
DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P.J. /s/_________
REARDON, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.