Opinion
F083612
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MANUEL JESUS RUIZ, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF181239A, Charles R. Brehmer, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Appellant Manuel Jesus Ruiz was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a)) with a firearm use enhancement (§ 12022.53, subd. (d)). The trial court sentenced him to an aggregate prison term of 40 years to life.
All undefined statutory citations are to the Penal Code unless otherwise indicated.
Ruiz raises the following claims on appeal. First, there is insufficient evidence to support his conviction for second degree murder, because no reasonable juror could have found that he did not act in self-defense or in the heat of passion. Second, the trial court abused its discretion by admitting video evidence depicting the shooting of the victim. Third, the trial court erred when it improperly instructed the jury on self-defense. Fourth, the prosecutor committed misconduct during his comments in closing argument. Fifth, the matter must be remanded for a resentencing hearing to allow the trial court to exercise its discretion to strike the section 12022.53, subdivision (d) firearm use enhancement, and to impose punishment under a lesser enhancement (see People v. Tirado (2022) 12 Cal.5th 688 (Tirado)).
We agree that remand is necessary in light of our Supreme Court's decision in Tirado, which was filed after Ruiz was sentenced. Finding the remainder of Ruiz's claims meritless, we otherwise affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On July 6, 2021, the Kern County District Attorney's Office filed an amended information charging Ruiz with first degree premeditated murder (§§ 187, subd. (a), 189, count 1). The information further alleged that Ruiz had personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)).
Count 2 of the information charged codefendant Douglas Howard Hutchison with second degree murder (§ 187, subd. (a)). He is not a part of this appeal.
On July 12, 2021, a jury found Ruiz guilty of the lesser-included offense of second degree murder and found true the firearm use enhancement allegation.
On October 28, 2021, the trial court sentenced Ruiz to 15 years to life in prison for murder plus 25 years to life for the firearm enhancement.
A timely notice of appeal followed.
The Prosecution's Case
1. Robert McGowan Rents Rooms to Ruiz and Hutchison
In 2019 and 2020, Robert McGowan resided in a three-bedroom house on Bandolero Way in Bakersfield with his wife, V.M.
In December 2019, McGowan began renting out the vacant guest rooms in his house. Doug Hutchison, Hutchison's girlfriend S.B., and their infant son occupied one room. Ruiz, Ruiz's girlfriend P.C., Ruiz's minor son, and P.C.'s adult son occupied the other room. McGowan occupied the master bedroom.
McGowan claimed that the tenants paid the first or second months' rent in cash, but they failed to pay rent after that. Hutchison and P.C. both denied this, claiming they had paid three months' rent in advance. Although the tenants executed rental agreements, they did not receive receipts for their rent payments.
2. McGowan Attempts to Get His Tenants to Vacate the Home
In May 2020, McGowan vacated the home. He had fallen four years behind on his property tax payments and needed to sell the property. McGowan told the tenants that he was going to sell the home and that a real estate company was offering the tenants a onetime cash payment to incentivize them to move out. The tenants ultimately declined the offer because it would not be enough to permit them to obtain new housing.
During this time, a temporary eviction moratorium was in effect because of the Covid-19 pandemic. The tenants were aware that the moratorium protected them from being lawfully evicted. The real estate company that had offered to purchase McGowan's home was going to revoke its offer because the tenants could not be evicted. McGowan began to panic.
After McGowan moved out, he and his wife began staying in various motels. During this time, McGowan met a man named Jason. Jason told McGowan that he knew somebody that would get the tenants out of McGowan's home.
On May 26, 2020, a text message was sent from McGowan's cellular phone to a man named Jeremy Johnston. The text stated:" 'As soon as they are gone, my [sic] sold and I'll get paid. As soon as I am paid, I'll pay you $1,000. You have my word, homeboy. These guys are fucking shit . . . all up. Much love and respect. Thank you, Bobby.' "
McGowan did not recall sending Johnston this text, explaining, "I told a lot of people I'll give money just to get [the tenants] out of my house."
3. The Tenants Are Forced Out of the Home by Gunpoint
On May 26, 2020, at around 12:00 p.m., Johnston came into McGowan's house, pointed a gun at S.B., and said that everyone had to leave the house. Johnston called McGowan. On speakerphone, Johnston asked McGowan to confirm whether all the tenants needed to leave. McGowan said that everybody needed to leave and that the tenants were not allowed to take anything with them. McGowan said that the tenants' property would be made available to them.
Hutchison left immediately. S.B. grabbed some of her baby's things to take with her before leaving. She did not call the police because she did not think they would do anything. The tenants went to stay at a motel for the night, where they reconvened with Ruiz, who was not present during the incident.
At approximately 7:00 p.m. that evening, the tenants returned to the Bandolero Way house, but no one was home. The house appeared to have been ransacked. All the drawers had been dumped out and items were missing, including, a flatscreen television and an Xbox game console.
When the tenants returned to the motel, they tried to figure out what to do next and where they would live. Everyone was upset.
Subsequently, during police questioning, S.B. stated, "They were-they were pissed off like, uh, 'Yeah. We should fuck [McGowan] up and everything.' But I-I didn't think they would do anything." "It was like they wanted to fuck [McGowan] up." According to S.B., "[Ruiz] said that he wanted to fuck [McGowan] up and to kill him. Fuckin' that he deserved it. And [Hutchison] .. .was just saying that he wanted to pop his tires and just, uh, beat him up."
4. Ruiz Kills Duran McDowell
On May 27, 2020, the morning after the tenants were forcibly evicted, Ruiz and Hutchison left the motel to purchase some marijuana. Before they left, Ruiz took out a .45-caliber revolver from S.B.'s duffel bag. The gun was not loaded when Ruiz grabbed it.
Meanwhile, McGowan and his wife had returned to the Bandolero Way house. When they arrived, people were hauling stuff out of the house in trucks. McGowan claimed that he did not know who these people were, but that he had given them permission to take everything in the house. A vehicle that was owned by Hutchison was also taken away, either on a trailer or with a tow truck.
After the people left, McGowan and his wife continued cleaning up the house. Duran McDowell, a man whom McGowan had only just met, arrived to help.
As McGowan was washing the driveway off, Ruiz and Hutchinson drove up to the house, tires squealing as they turned the corner. Sensing trouble, McGowan attempted to run into the house, but he tripped and fell at the front door.
Before the truck stopped, Hutchison demanded," 'Where's my car?'" Hutchison parked halfway up the middle of the driveway, got out of the truck, stood over McGowan, and asked," 'Where's your bodyguard now? Where's your bodyguard now?'" Ruiz screamed," 'Where's my kids' stuff?'" McGowan pounded on the door yelling," 'Help, help, help.' "
McDowell, six-and-a-half feet tall and 195 pounds, came out of the house swinging a skateboard from side to side. He told Hutchison," 'Get the F out of here.'" It did not appear to McGowan that McDowell was trying to hit Hutchison with the skateboard; he "just swung it in the air." Hutchison "[t]ook off running" back to the truck.
Based upon the position of the house and the driveway, McGowan lost sight of McDowell as McDowell chased after Hutchison. Suddenly, McGowan heard two loud bangs. Afterward, he observed Hutchison back his truck out of the driveway and drive off with Ruiz in the passenger's seat. McGowan's wife found McDowell lying in front of the garage and attempted to revive him using CPR. McDowell died of a single gunshot wound to the chest.
A toxicology report showed that McDowell had multiple substances in his system at the time of his death, including amphetamine, methamphetamine, lorazepam, clonazepam, 7-Aminoclonazepam, morphine-free, hydromorphone-free, fentanyl, and norfentanyl. Inside of the Bandolero Way home, officers found McDowell's driver's license and methamphetamine.
5. Video Surveillance Evidence
An evidence technician for the Kern County District Attorney's Office, Mark Jackson, combined surveillance videos which recorded the shooting. Jackson explained that pursuant to his job responsibilities, he used video editing software to combine audio and video footage to convert these files into a format that would make it easier to play in court. He was given two videos in relation to the instant case.
One of the recordings was taken by a Ring doorbell camera that showed two vehicles travelling from right to left with one pulling into a driveway. The Ring video recording captured audio of the ensuing confrontation.
The other video, which the parties referred to as the "flag video," was a video recording from a neighbor's surveillance camera that faces McGowan's driveway. The flag video depicted the physical confrontation that culminated in the shooting, but that video did not have sound.
Jackson zoomed in the flag video to the driveway where the incident occurred. He synchronized the zoomed-in flag video with the audio from the Ring doorbell video to create one video. Jackson explained that he determined how to synchronize the videos by marking the point at which the first "bang" occurs in each video. The bang to which he was referring to occurred when McDowell struck Hutchison's windshield with the skateboard. Six seconds after the first bang, a second bang occurs, which was the sound of Ruiz discharging a firearm.
The jury was shown the original Ring video footage and the original flag video, zoomed in on McGowan's driveway. The jury was also shown a combined video from which Jackson created three separate videos, one identifying the driver, another identifying the passenger, and a third identifying the victim. The videos were not altered or manipulated in any other manner. Jackson also created a file with the Ring video and the zoomed-in flag video displayed side-by-side.
6. Events Immediately Following the Shooting
Hutchison returned to the motel alone. He appeared panicky and was yelling at S.B. Hutchison told her that he and Ruiz had gone back to McGowan's house, but he would not explain what had occurred.
When S.B. asked about her truck, Hutchison threw the keys at her and said it was around the corner. When S.B. went to check the truck, she saw that it was surrounded by police. She returned to the motel room.
Hutchison kept saying he was going to jail. He related only sparse details of the encounter, stating that McGowan was outside with a hose and the window of the truck had been broken by some guy with a skateboard. Hutchison then left the motel room.
Law enforcement subsequently discovered Ruiz and Hutchison hiding under a mobile home located on a property outside of Bakersfield. The men surrendered and were taken into custody.
Following a search of the tenants' shared motel room, officers found a bag of ammunition hidden in a wall sconce.
7. Ruiz's Statements During Police Interrogation
Following his arrest, Ruiz was interrogated by police. Ruiz stated that McGowan had asked Ruiz and his family to move out of the house and offered to find them a new place to stay. After this did not pan out, a man came to the house with a firearm, pointed it to Hutchison's wife's face, and forced everybody to leave.
When the tenants returned later that evening, they discovered "all kinds of stuff missin[g]" from the house including two Xbox game systems and three televisions. Ruiz claimed that when he returned to the home a second time, he wanted to speak to McGowan about what had happened.
When Hutchison and Ruiz arrived at the home, McGowan was initially outside but rushed to get into the house, fell, and started yelling, "Help." Hutchison was attempting to assist McGowan back up when a man with a skateboard came rushing out of the house. Ruiz claimed that by the time he retreated to the truck, the man with the skateboard was bashing in the front window of the vehicle. When the man started walking toward Ruiz with the skateboard, Ruiz claimed that's when "[the man] got popped." When the interrogating officer asked Ruiz how the man got "popped," Ruiz replied, "Well I just heard a gunshot. I don't know."
The Defense Case
Ruiz testified that S.B. gave him a gun for protection at some point before he returned to the Bandolero Way home. On May 27, 2020, after they visited a marijuana dispensary, Hutchison and Ruiz decided to drive over to the Bandolero Way home to clean it up so that they could move back into the home.
Ruiz claimed that on the way over, they ran into a friend at a stoplight. Ruiz's friend decided to follow them to the house so that she could talk to them about something.
In the surveillance videos depicting the shooting, a silver compact vehicle followed Hutchison's truck and parked right behind him. The silver vehicle drove away shortly before McDowell was shot. Ruiz never identified the driver of the silver vehicle.
When Ruiz and Hutchison arrived, McGowan was outside and attempted to flee, but fell near the front door. McDowell emerged from the home swinging a skateboard, causing Hutchison and Ruiz to retreat to their truck.
Ruiz retrieved the gun from the truck for protection. He claimed that he brought the gun with him in the event that Jeremy Johnston was at the house. He assumed the gun was loaded.
Hutchison got into the truck and shut the door. McDowell smashed the window of the truck with the skateboard. Ruiz claimed that McDowell proceeded to walk toward him, giving Ruiz the impression that McDowell was going to hit him with the skateboard. Ruiz shot McDowell with the firearm.
Ruiz estimated that when he shot McDowell, he was five or six feet away from him, "but it could have been further." He admitted that after McDowell hit the windshield of the vehicle, the video depicted McDowell backing up towards the garage door. Ruiz maintained that in his mind, McDowell was coming towards him as if he were going to hit Ruiz with the skateboard.
After the confrontation, Ruiz and Hutchison drove away. Ruiz exited the vehicle at the corner of Patton Way and Bandolero and walked all the way back to the motel where the tenants were staying. Along the way, he disposed of the firearm. After visiting his brother's house, Ruiz reconvened with Hutchison, went to a friend's house, and finally, to the trailer where they were apprehended by law enforcement.
DISCUSSION
I. Sufficiency of the Evidence Supporting Ruiz's Conviction for Second Degree Murder
The jury was instructed on self-defense, both reasonable and otherwise, as well as "heat of passion" voluntary manslaughter. It returned a verdict of second degree murder, finding that Ruiz had acted with malice. However, Ruiz challenges his conviction for murder, arguing that "no rational juror could have found proof beyond a reasonable doubt that [he] was not acting" in perfect or imperfect self-defense or in the heat of passion. We disagree.
A. Relevant Legal Principles
At the conclusion of trial, the jury was instructed on first and second degree murder [CALCRIM Nos. 500, 520, 521, 522], perfect self-defense or the defense of others [CALCRIM No. 505], heat of passion [CALCRIM No. 570]; imperfect selfdefense or the defense of others [CALCRIM No. 571]; that the right to self-defense cannot be contrived [CALCRIM No. 3472]; and that the right to self-defense or the defense of others continues only as long as the danger exists [CALCRIM No. 3474].
1. Self-Defense
There are two types of self-defense under California law: perfect or imperfect. (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172.) "For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury." (People v. Randle, at p. 994.) A bare fear of the danger is not enough-"the circumstances must be sufficient to excite the fears of a reasonable person, and the party [attempting to] kill[ ] must have acted under the influence of such fears alone." (§ 198.) Perfect self-defense is a complete defense to the crime of murder. (People v. Elmore (2014) 59 Cal.4th 121, 134.)
In contrast, imperfect self-defense" 'arises when a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury. '" (People v Steskal (2021) 11 Cal.5th 332, 345, citing People v. Duff (2014) 58 Cal.4th 527, 561.) "Voluntary manslaughter - an unlawful killing without malice - is a lesser included offense of murder, an unlawful killing with malice aforethought." (People v. Steskal, at p. 345.)
2. Killing Resulting from a Sudden Quarrel or in the Heat of Passion
An unlawful homicide may be reduced to voluntary manslaughter in two ways: When the defendant kills in imperfect self-defense-that is, in the unreasonable but good faith belief in having to act in self-defense; or when the defendant kills in a sudden quarrel or heat of passion. (People v. Schuller (2023) 15 Cal.5th 237, 252.)
The act of provocation distinguishes this form of manslaughter from murder. (People v. Rangel (2016) 62 Cal.4th 1192, 1225.)" 'To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection.... [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.'" (Ibid.)
The heat of passion requirement for manslaughter has both objective and subjective components. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively." (Ibid.) The objective component requires that the passion be such" 'as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,'" because" 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.'" (Id. at pp. 1252-1253.)
"If provocation is properly presented in a murder case, then, proving the element of malice requires the People to prove the absence of provocation beyond a reasonable doubt." (People v. Thomas (2013) 218 Cal.App.4th 630, 644.)
B. Standard of Review
On review for sufficiency of the evidence supporting a conviction, we must" 'examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.'" (People v. San Nicolas (2004) 34 Cal.4th 614, 657658.)
We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) "Given this deferential standard of review, a 'defendant bears an enormous burden in claiming there is insufficient evidence' to support a conviction." (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.)
We do not evaluate whether guilt was established beyond a reasonable doubt and we will not set aside the judgment unless it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "Simply put, if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Farnam (2002) 28 Cal.4th 107, 143.)
C. Analysis
Following our review of the record, we conclude that substantial evidence supports the jury's finding that Ruiz did not believe, reasonably or otherwise, that either he or Hutchison were in imminent danger of death or great bodily injury, and that Ruiz did not kill McDowell in the heat of passion because of legally sufficient provocation.
Ruiz testified that he shot McDowell, believing that McDowell was coming towards him with the skateboard after McDowell broke Hutchison's windshield with it. However, Ruiz admitted that while he believed McDowell was coming towards him, the video depicted McDowell backing away, towards the garage. As the Attorney General observes, the jury's verdict demonstrates that it did not credit Ruiz's testimony that he subjectively believed that he was in imminent danger of great bodily injury or death. This skepticism was justified.
The prosecutor also asserted in closing argument that Hutchison and Ruiz were on the other side of the truck when McDowell broke the windshield with the skateboard.
In the surveillance videos, at least seven seconds elapsed between when McDowell broke Hutchinson's windshield and when Ruiz shot McDowell. McDowell was backing away toward the garage when he was shot. Further, the shot occurred almost at the same time as the truck was backing out of the driveway, suggesting that the men could simply have driven away, thereby eliminating any danger.
"The subjective elements of [perfect] self-defense and imperfect self-defense are identical," and under each theory the defendant "must actually believe in the need to defend himself against imminent peril to life or great bodily injury." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Here, the jury likely did not credit Ruiz's testimony that he believed McDowell posed an imminent threat of death or great bodily harm to either himself (Ruiz) or to Hutchison.
The fact that the jury could have, but did not, credit Ruiz's testimony does not provide grounds to reverse his conviction for second degree murder." '" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'" '" (People v. Avila (2006) 38 Cal.4th 491, 590, quoting People v. Lewis (2001) 26 Cal.4th 334, 361.)
The jury may also have concluded that any threat or danger McDowell posed had ended at the time he was fatally shot (CALCRIM No. 3474 "[t]he right to use force in self-defense or defense of another continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends). Whatever the jury based its verdict upon, we do not second-guess its factual findings. (See People v. Avila, supra, 38 Cal.4th at p. 590.)
We also disagree with Ruiz's assertion that no reasonable juror could have found, beyond a reasonable doubt, that he did not act in the heat of passion or with provocation. Although there was ample evidence of subjective provocation, which the jury apparently credited by convicting Ruiz of second degree murder, evidence of objectively adequate provocation that is necessary to reduce murder to voluntary manslaughter was thin.
To begin, the evidence showed that Ruiz and Hutchison, and perhaps the third person in the silver compact vehicle following them, were prepared for a confrontation. McGowan had unquestionably arranged with Johnston to have the tenants forcibly removed from the home. He also gave away the tenants' possessions. McDowell, who was not previously known to either Hutchison or Ruiz and had only just met McGowan, was simply in the wrong place at the wrong time.
While McDowell, an imposing figure, did threaten Hutchison and Ruiz with a skateboard, culminating in the windshield of Hutchison's truck being broken, neither Ruiz nor Hutchison were physically injured. McGowan testified that McDowell was not even swinging the skateboard at Hutchison and Ruiz; he was swinging it in the air. Moreover, the damaged vehicle did not even belong to Ruiz.
" '[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused'" unless the provocation was" 'such as would naturally tend to arouse the passion of the ordinarily reasonable man.'" (People v. Beltran (2013) 56 Cal.4th 935, 950.) Here, the jury likely concluded that while Ruiz was subjectively provoked, the circumstances were insufficient to have provoked a reasonable person to act emotionally rather than rationally. Whether someone killed with malice aforethought (constituting murder) or killed in the heat of passion (constituting voluntary manslaughter) is a factual matter for the jury to decide. (See, e.g., People v. Wright (2015) 242 Cal.App.4th 1461, 1482 ["whether adequate provocation and heat of passion have been shown are fundamentally jury questions"].)
II. Admissibility of the Audio/Video Evidence
Ruiz contends the trial court abused its discretion in admitting video surveillance of the shooting because it did not satisfy the Kelly rule for admissibility. The Kelly rule, formerly known as the Kelly/Frye rule, governs the admissibility of evidence based on a new scientific method, which requires a showing that the method is generally accepted as reliable within the relevant scientific community. We conclude that the surveillance video evidence is not scientific evidence that was subject to the Kelly rule. Because we reject Ruiz's claim of error, we do not address his request for a conditional remand for a hearing on the admissibility of the video surveillance evidence.
People v. Kelly (1976) 17 Cal.3d 24.
A. Background
Prior to trial, trial counsel for Hutchison requested an Evidence Code section 402 hearing and a Kelly hearing on the admissibility of a home surveillance video to which sound had been added from a Ring doorbell surveillance video, otherwise referred to as "the combined video." Trial counsel argued that "there [was] a discrepancy of almost 2 seconds as to when the fatal shot was fired." Counsel asserted that because of this delay, the combined video was misleading to the jury and should be ruled inadmissible by the trial court. Otherwise, the video would enable the prosecutor to argue that Hutchison and Ruiz were seated in the pickup truck and backing out of McGowan's driveway when McDowell was fatally shot.
Trial counsel also moved to exclude the combined video under Kelly/Frye. According to trial counsel, the combined video necessitated expert testimony and evidence to establish the accuracy of the procedures employed in its production. Trial counsel for Ruiz joined in Hutchison's motion.
On June 15, 2021, the trial court held an in limine hearing on the admissibility of the video evidence depicting the shooting. The trial court conducted an Evidence Code section 402 hearing, permitting the parties to question Mark Jackson, an evidence technician for the district attorney's office, who had combined the audio and video surveillance recordings.
Exhibits A through C were played at the hearing. Exhibit A depicted the Ring doorbell surveillance video with audio; Exhibit B is the combined video which includes the audio from the Ring doorbell video and the visual from the flag video; and Exhibit C is the flag video in its original format, zoomed in on McGowan's driveway.
Jackson explained that the audio in Exhibit A "does skip sometimes because it's Cloud base[d]" and "[t]he timing is not always accurate." In the audio from Exhibit A, the first bang noise occurs at 42 seconds and the second bang is at 49 seconds, which is a seven second gap.
In Exhibit B, the first bang can be heard at 40 seconds, and the second can be heard at 48 seconds. Thus, between Exhibit A, the Ring doorbell audio, and Exhibit B, the combined video, there is a one second difference between when the two bangs occur.
Jackson explained that the flag video from Exhibit C did not match up exactly with the audio from Exhibit A. He attempted to match up the audio from the noise of the skateboard hitting the windshield, "but because they're different formats, they don't match up exactly."
The trial court observed that one of the issues presented by Exhibit B, the combined video, was that there is "about a one-second difference" between the second bang and the truck backing up and the "jury will have to make that determination with an explanation from Mr. Jackson as to why things don't match up exactly." The court explained that the parties would be permitted to examine and cross-examine Jackson as to this discrepancy and could argue its relevancy in closing arguments. The parties agreed that Jackson would do an analysis of the frames per second from Exhibits A and C and submit the results to the parties.
During his opening statement, the prosecutor played the Ring doorbell video, People's Exhibit No. 4, for the jury and provided the jury with a transcript of the audio recording. The prosecutor also played the combined video, People's Exhibit No. 3, for the jury. During McGowan's testimony, People's Exhibit No. 4, the combined video, was played for the jury again.
Jackson described the process he employed in synchronizing the surveillance videos. He explained that he used video editing software to combine the audio and video footage for easier playback. Jackson also zoomed in on the flag video, focusing on McGowan's driveway.
Using Movie Studio Editor, Jackson overlaid the sound from the Ring doorbell video with the zoomed in flag video, and then synchronized them. He "analyzed both videos as [Hutchison and Ruiz] pulled up to the driveway and to get close to that sound, marking where the first bang happens, . . . when the skateboard hits the windshield." Other than zooming in on the flag video, synchronizing the audio from the Ring doorbell video with the flag video, and isolating each of the individuals depicted in the surveillance video, Jackson did not otherwise manipulate the videos.
During cross-examination, Jackson confirmed that he synchronized the videos using the sound of the skateboard striking the windshield with the reflection of the sun shining on the skateboard. He acknowledged that there was a "little bit" of a difference between the timing of the combined video and the original flag video. According to Jackson, there was a problem with one of the applications, Adobe Primer, which caused a .2 second offset between the videos. Jackson described the offset as a "jitter."
Jackson acknowledged that he had to make a subjective determination as to when to cut in the sound. If he did not overlay the sound and audio correctly, that "would effect when we see the truck move on the video."
The day after Jackson testified, trial counsel for Hutchison renewed his Kelly-Frye motion and moved to strike Jackson's testimony and People's Exhibit No. 3, the combined video with three parts, showing Hutchison, Ruiz, and McDowell each isolated; People's Exhibit No. 4, the Ring doorbell video; and People's Exhibit No. 8, the combined video, with the original flag video side-by-side.
Hutchison's trial counsel argued that the photograph of McDowell lying on the ground did not match where the video showed McDowell was standing when he was shot. Counsel argued that "[t]hese videos are not videos of what happened. They are videos that have been massaged per the testimony of the tech. [¶] They've been enhanced and enlarged, then we've taken a sound video from one Ring doorbell to-or surveillance to a video portion of that. We compiled them together."
The trial court recalled that Jackson had admitted to some subjectivity about establishing a sound point and that "he was assuming it was the bang from the skateboard and trying to match that up." However, the court observed that "[t]he videos are the videos" and "we have the attempt to match up the sound with the video." The court ruled that the accuracy of Jackson's synchronization efforts was an issue for the defense to argue before the jury, but that it did not make the video evidence unreliable. According to the court, "It may be right or it may not be right. The jury will have to decide that, not the witness, and I don't think it's a Kelly-Frye issue at all. I do think it's clear in the CALCRIM instruction 332."
CALCRIM No. 332 pertains to expert witness testimony. This instruction provides the following: "Witnesses are allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
The court observed that the jury had all relevant videos, including the original footage and the combined video. From this evidence, the jury could independently determine what the videos depict. With respect to trial counsel's assertion that the video evidence had to pass the Kelly-Frye test for admissibility, the prosecutor represented that the computer program Jackson had used was not new scientific process or an unaccepted process.
The trial court agreed, explaining, "I don't think it's a new technique. As far as what software programs are used, that changes all the time. I can think of multiple trials in the last - - beginning in 2011 where similar technology was used to put videos together from different locations, match them up with some point of reference, including sounds, and in front of me that was beginning in 2011."
The court added, "It's not new technology. It may be new software, but that continues to develop, and there's no issue with putting these together because this isn't an end product that's being shown to the jury only. It's each individual [video] that was shown ... which means that the jury can look at those and see whether they think it matches up or not."
B. The Kelly Rule
"Under the Kelly rule,' "when faced with a novel method of [scientific] proof, [we] have required a preliminary showing of general acceptance of the new technique in the relevant scientific community" before the scientific evidence may be admitted at trial.' [Citations.] Kelly 'renders inadmissible evidence derived from a "new scientific technique" unless the proponent shows that (1) "the technique is generally accepted as reliable in the relevant scientific community"; (2) "the witness testifying about the technique and its application is a properly qualified expert on the subject"; and (3) "the person performing the test in the particular case used correct scientific procedures." '" (People v Nieves (2021) 11 Cal.5th 404, 444.)
"[T]here is no clear definition of science" and, thus, "the application of that term is guided by resort to the 'narrow "common sense" purpose' behind the rule: 'to protect the jury from techniques which ... convey a" 'misleading aura of certainty.'"' ... The analysis is designed to address 'scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.'" (People v. Lucas (2014) 60 Cal.4th 153, 223-224, disapproved in part on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
"Not every subject of expert testimony needs to satisfy the Kelly test. Courts determining whether Kelly applies must consider, first, whether the technique at issue is novel, because Kelly ' "only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law."' [Citation.] Second, courts should consider whether the technique is one whose reliability would be difficult for laypersons to evaluate. A' Kelly hearing may be warranted when "the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury."' [Citation.] Conversely, no Kelly hearing is needed when '[j]urors are capable of understanding and evaluating' the reliability of expert testimony based in whole or in part on the novel technique." (People v. Peterson (2020) 10 Cal.5th 409, 444, italics omitted.)
"Appellate courts review de novo the determination that a technique is subject to Kelly" (People v. Jackson (2016) 1 Cal.5th 269, 316), and we also review de novo "the trial court's evaluation regarding whether a new scientific technique is generally accepted as reliable in the relevant scientific community" (People v. Nieves, supra, 11 Cal.5th at p. 444).
C. Analysis
1. The Kelly Rule Did Not Apply
We conclude that Jackson's method of synchronizing the videos, as described, did not fall under the purview of the Kelly rule. Kelly"' "only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." '" (People v. Peterson, supra, 10 Cal.5th at p. 444; People v. Jackson, supra, 1 Cal.5th at p. 316 ["To be new, a technique must be meaningfully distinct from existing techniques"].)
The technique described by Jackson in combining the videos was not new to science or the law. (People v. Peterson, supra, 10 Cal.5th at p. 444.) In fact, based upon the trial court's own experience, the process of combining videos in some fashion has been occurring in criminal trials since at least 2011.
Further, the technique that Jackson utilized to synchronize the videos was not so complex that its reliability would have been difficult for a layperson to evaluate. (People v. Peterson, supra, 10 Cal.5th at p. 444.) Jackson used Adobe Premier and Movie Studio Editor to create the video exhibits shown to the jury. Movie Studio Editor allows the video files to be "dragg[ed] and dropp[ed]" into the program. Jackson explained that he zoomed in on the flag video, which had no audio, and combined it with the audio from the Ring surveillance video. He tried to synchronize the videos using the first "bang" as a marker-the point at which McDowell struck the windshield with a skateboard. Jackson used the reflection of the sun on McDowell's skateboard as the point to which he matched the "bang."
Even if the jury did not understand how these software applications work, since it was shown the original surveillance videos, as well as the combined video, it could determine for itself whether Jackson's judgment was reasonably accurate. The prophylactic purpose of the Kelly rule is to protect the jury from techniques which, though "new," novel, or" 'experimental,'" convey a" 'misleading aura of certainty.'" (Kelly, supra, 17 Cal.3d at pp. 30-32.)" '[J]urors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently "scientific" mechanism, instrument, or procedure. Yet the aura of infallibility that often surrounds such evidence may well conceal the fact that it remains experimental and tentative.'" (People v. Jones (2013) 57 Cal.4th 899, 953, citing People v. Stoll (1989) 49 Cal.3d 1136, 1157.)
Here, the process Jackson described in preparing the videos for Ruiz's trial included zooming in on the flag video, synchronizing the flag video and the Ring Doorbell video, and isolating the defendants and the victim, did not carry a "misleading aura of scientific infallibility." (People v. Stoll, supra, 49 Cal.3d at p. 115.) To the contrary, trial counsel cross-examined Jackson about a .2 discrepancy between People's Exhibit B, the combined video, and People's Exhibit C, the zoomed in flag video. As Jackson explained, this was caused by an issue in Adobe Premier during the conversion process.
Jackson further explained that in synchronizing the Ring doorbell video and the zoomed in flag video, he used the point at which the first loud bang occurred, matching that sound to when the light hit the skateboard that McDowell was wielding in the zoomed-in flag video. Based upon Jackson's testimony, the jury understood that the synchronization of the videos was subject to some degree of subjective judgment. The jury could determine for itself whether Jackson's judgment was objectively accurate.
Based upon the foregoing, we conclude that the video surveillance evidence was not subject to the Kelly rule. Thus, a Kelly hearing was not required.
2. The Trial Court Did Not Abuse its Discretion by Finding Jackson Qualified to Testify as an Expert Witness
Under the purview of his claim that the combined video was subject to the Kelly rule, Ruiz further contends that the trial court abused its discretion by treating Jackson as an expert witness. We disagree.
a. Relevant Legal Principles
Opinion testimony is generally inadmissible at trial. (People v. Torres (1995) 33 Cal.App.4th 37, 45; People v. Williams (1992) 3 Cal.App.4th 1326, 1332.) This rule is subject to two exceptions.
First, a properly qualified expert, with "special knowledge, skill, experience, training [or] education" may provide an opinion. (Evid. Code, § 801, subd. (b).) The subject matter of such an opinion is limited to "a subject that is sufficiently beyond common experience that [it] would assist the trier of fact." (Id., subd. (a).) "Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres, supra, 33 Cal.App.4th at p. 45.) "[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (People v. Cole (1956) 47 Cal.2d 99, 103.) Thus, the purpose of expert testimony, to provide an opinion beyond common experience, dictates that the witness possess uncommon, specialized knowledge.
Second," '[a] lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony (Evid. Code, § 800, subd. (b)), "i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed." [Citation.]' [Citation.] Such a situation may arise when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on 'subtle or complex interactions' between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations. [Citations.] A lay witness generally may not give an opinion about another person's state of mind, but may testify about objective behavior and describe behavior as being consistent with a state of mind. [Citation.] Matters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony." (People v. DeHoyos (2013) 57 Cal.4th 79, 130-131.)
"[W]e do not have a third category of admissible opinions provided by highly experienced, nonexpert, lay witnesses." (People v. Chapple (2006) 138 Cal.App.4th 540, 548.)
b. No Error
Ruiz argues that despite Jackson being treated as an expert and referred to as such by the parties, Jackson failed to provide any details regarding his educational background or the training he underwent on the software used to create the combined video. Ruiz further observes that Jackson conceded he is not an expert on speed and sound, yet he testified that the time discrepancies between the Ring doorbell video and the flag video may have been due to one camera being closer than the other.
The failure to object to an expert's qualifications forfeited the issue on appeal. (People v. Morales (2020) 10 Cal.5th 76, 98.) It is undisputed that trial counsel did not object to Jackson's qualifications as an expert, despite the fact that the trial court and the parties classified Jackson as an expert. Consequently, Ruiz has forfeited this issue on appeal.
Forfeiture aside, Ruiz's claim fails on its merits."' "A person is qualified to testify as an expert if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject to which his [or her] testimony relates." [Citation.] An expert witness's testimony in the form of an opinion is limited to a subject "that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.]' [Citation.] The witness's qualifications may be established by his or her own testimony." (People v. Fuiava (2012) 53 Cal.4th 622, 672; see Evid. Code, §§ 720 &801.)
Jackson was employed as an evidence technician with the Kern County District Attorney's Office, a position he has held for the last year-and-a-half. He explained that his job position entails "tak[ing] anything from media, autopsy photos, any kind of surveillance footage, and . . . mak[ing] it easier to play back in court." Prior to his employment with the district attorney's office, Jackson served as a help desk technician for a school district, where he was responsible for diagnosing computer issues.
Based upon the foregoing, Jackson clearly possessed technical knowledge and experience in combining video and audio files that was sufficiently beyond the common experience of the jury. (Evid. Code, § 801, subd. (a).) While the record does not contain any indication as to whether Jackson had an advanced degree, "[a] university degree, earned by scientific pursuits, is helpful, but it is not indispensable to the qualification of an expert to testify on subjects in the field of his specialty." (People v. Smith (1956) 142 Cal.App.2d 287, 293.) "It is the function of a trial court to determine the qualifications of an expert, and the degree of [the expert's] knowledge is a matter which affects the weight of his testimony, not its admissibility." (People v. Stuller (1970) 10 Cal.App.3d 582, 597.)
The Attorney General contends that "[c]ombining and synching separate audio and video recording is a 'subject that is sufficiently beyond common experience' such that expert testimony on its process would assist the trier of fact." (Evid. Code, § 801, subd. (a).)
The trial court's implied determination that Jackson qualified as an expert was not an abuse of discretion. (People v. Farnam (2002) 28 Cal.4th 107, 162 ["Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness '" 'clearly lacks qualification as an expert'"' "]; People v. Parker (2022) 13 Cal.5th 1, 49 [the trial court's ruling is subject to review for abuse of discretion].)
c. No Prejudice Assuming Error
Even assuming the trial court erred by admitting Jackson's testimony, the record does not support the conclusion that Ruiz was prejudiced as a result thereof. As discussed, the original surveillance videos depicting the shooting of McDowell were shown to the jury, as well as the combined videos, and individual videos isolating Hutchison, Ruiz, and McDowell. The jury could determine for itself whether Jackson's efforts to synchronize the videos were accurate. We conclude that any prejudice from the admission of Jackson's testimony was negligible, and certainly, not enough to have changed the outcome of Ruiz's trial. (See People v. Bradley (2012) 208 Cal.App.4th 64, 84 [erroneous admission of opinion testimony harmless when "it is not reasonably probable the jury would have reached a result more favorable" absent the error].)
3. The Video Evidence Was Not Substantially More Prejudicial Than Probative
Ruiz further contends that the trial court erred by admitting the combined video because this evidence was substantially more prejudicial than probative. (Evid. Code, § 352.) According to Ruiz, the combined video failed to "meet a minimum standard of reliability" to be admissible.
Preliminarily, we do not agree with Ruiz's assertion that the video was not shown to be sufficiently reliable. While Jackson acknowledged a .2 offset between the original video and the combined video, that did not render the combined video unreliable. Moreover, because the combined video assisted the jury with understanding the events preceding the shooting, it was clearly probative.
III. Trial Counsel's Failure to Request a Pinpoint Instruction
Ruiz contends the trial court improperly instructed the jury on the elements of self-defense. He specifically asserts that the trial court failed to instruct the jury, sua sponte, on his right to remain in or return to the Bandolero Way house, following the instruction on contrived self-defense (CALCRIM No. 3472). Ruiz submits that the totality of the trial court's instructions left the jury with the misimpression that he had no right to be at the Bandolero Way home, and that by returning, he was" 'picking a fight.' "
We conclude that Ruiz's failure to seek a pinpoint instruction as to his legal tenancy rights resulted in forfeiture of his claim of instructional error on appeal. Insofar as Ruiz alternatively contends that his trial counsel was constitutionally ineffective for failing to preserve his claim of error, we further conclude that Ruiz has failed to meet his burden of demonstrating prejudicial error.
A. Background: The Jury Instructions &Trial Counsel's Comments in Closing Argument
The jury was instructed on murder, perfect and imperfect self-defense, and provocation/heat of passion. At the request of trial counsel, the jury was also instructed that "A person who obtains possession to property by forcible entry does not have the right to retain possession."
Additionally, the jury was instructed that a claim of self-defense has limitations, including that "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force" (CALCRIM No. 3472) and, "The right to use force in self-defense or defense of another continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting an injury, then the right to use force ends (see CALCRIM No. 3474).
With respect to CALCRIM No. 505, the instruction on self-defense, the trial court omitted a portion of the instruction:" 'Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures.'" The trial court explained that this language did not apply to the instant case because "[T]here's no evidence that either defendant was [previously] threatened by Duran McDowall." However, the trial court instructed the jury," 'If you find that the defendant received a threat from someone else that he reasonably associated with the victim, you may consider that threat in deciding whether the defendant was justified in acting in self-defense or defense of another.' "
Trial counsel further requested the jury be instructed pursuant to CALCRIM No. 506, defending against harm to a person within a home or on property. CALCRIM No. 506 would have instructed the jury that Ruiz was not guilty of murder if he killed to defend himself or another person in his home and that the killing was justified if: (1) Ruiz reasonably believed that he was defending his home against McGowan, who intended or tried to commit a crime; (2) Ruiz reasonably believed the danger was imminent; (3) he reasonably believed that the use of deadly force was necessary to defend against the danger; and (4) he used no more force than was reasonably necessary to defend against the danger. (CALCRIM No. 506.) The trial court declined counsel's request, explaining there was no evidence showing the defendants were defending the home against anyone.
Finally, the trial court also declined trial counsel's request to instruct the jury on CALCRIM No. 3476, the right to defend real or personal property, citing insufficient evidence to warrant the instruction. The trial court explained that the evidence shows Ruiz and Hutchison were coming to get their property, which they had every right to do, rather than attempting to defend it.
The jury received no explicit instructions on Ruiz's and Hutchison's right to remain in or return to the Bandolero Way house. However, during his comments in closing argument, trial counsel for Hutchison acknowledged that McGowan did not obtain lawful possession of the Bandolero Way home by having the tenants evicted by gunpoint.
B. Forfeiture
A trial court "has a sua sponte duty to instruct on all elements of an offense and on the general principles of law governing a case." (People v. Singh (2019) 42 Cal.App.5th 175, 183.) However, "[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of the law without a request from counsel [citation], and [the] failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638; People v. Hillhouse (2002) 27 Cal.4th 469, 503 ["A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial"].)
Ruiz acknowledges that there is no pattern instruction that addresses the factual scenario at issue here. That is, an instruction which advises the jury that McGowan did not obtain lawful possession of the home by forcibly evicting the tenants. Nonetheless, Ruiz maintains that the trial court had a sua sponte duty to provide guidance to the jury regarding his right to return to and remain in the Bandolero Way home. In the absence of such an instruction, Ruiz contends that his defense was undermined by the prosecutor's repeated insinuations that Ruiz and Hutchison had no legal right to return to the Bandolero Way house.
As the Attorney General correctly observes, what Ruiz essentially argues should have been given is a pinpoint instruction. Pinpoint instructions "are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Trial counsel's failure to request a pinpoint instruction on Ruiz's right to return to and remain in the home forfeits his claim of instructional error on appeal. (See People v. Jones (2014) 223 Cal.App.4th 995, 1001.) We therefore turn to Ruiz's claim of ineffective assistance of counsel.
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must establish "not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." (People v. Bolin (1998) 18 Cal.4th 297, 333.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Following our review of the record, we conclude that Ruiz has failed to show that trial counsel's failure to request a pinpoint instruction on landlord/tenant law fell below an objective standard of professional reasonableness. (See In re Gay (2020) 8 Cal.5th 1059, 1073 [the constitutional right to the effective assistance of counsel ensures defendants the right to effective performance" 'assessed according to the prevailing norms at the time' "].) Ultimately, Ruiz's legal right to be at and remain in the Bandolero Way home was irrelevant to why he returned on the day of the shooting, which was ostensibly to confront McGowan. Trial counsel may have declined to seek a pinpoint instruction on Ruiz's legal rights as a tenant because the issue may have distracted the jury from Ruiz's self-defense claim.
However, the more plausible reason that such a pinpoint instruction was not requested was that it was not necessary. Trial counsel asserted during his comments in closing argument that McGowan was the trespasser because he did not have "a legal right to enter the rooms that were leased" to the tenants. The prosecutor did not dispute trial counsel's claim that the tenants had been unlawfully evicted. He argued that this did not give Hutchison and Ruiz the right to seek retribution, explaining, "I'm not suggesting that these guys weren't wrong over the eviction. They were wrong. It was not right. I'm not saying that at all. What I am saying is that it doesn't allow [Hutchison and Ruiz] to pack a gun, a loaded weapon, in a motor vehicle, drive over there and confront whoever they need to confront, armed. He added, "I'm not saying that they couldn't go back to the house, just don't go back armed." Ultimately, the prosecutor emphasized that Ruiz's legal right to be at the Bandolero Way home was collateral to his claim of self-defense.
From the evidence adduced at trial, the comments made by both parties in their closing arguments, and the jury instructions given, it became evident that Ruiz had not been legally evicted. Indeed, no reasonable juror could conclude otherwise. Providing a specific instruction to advise the jury that Ruiz retained the right to return to the Bandolero Way home would therefore have been superfluous.
But even assuming error, the record does not support Ruiz's claim of resultant prejudice. To prove a claim of ineffective assistance of counsel, the defendant must prove prejudice as a" 'demonstrable reality.'" (People v. Williams (1988) 44 Cal.3d 883, 937.) Mere speculation as to the effect of counsel's errors or omissions is not enough. (Ibid.) We conclude that Ruiz has not shown, beyond speculation, that he was prejudiced by trial counsel's failure to request a pinpoint instruction as to his right to return to and remain in the Bandolero Way home. We find Ruiz's claim of ineffective assistance without merit.
IV. The Trial Court's Instruction on CALCRIM No. 3472
Ruiz further contends that there was no factual predicate for the jury's instruction on CALCRIM No. 3472. This instruction provides: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." According to Ruiz, the testimony adduced at trial did not support the conclusion that he intentionally provoked a quarrel to justify the use of deadly force.We find neither error, nor prejudice assuming error.
Ruiz does not contend that CALCRIM No. 3472, as given to the jury, was improper. CALCRIM No. 3472 contains bracketed language that was not read to the jury: "[However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting.]" This language is required where there is evidence that the defendant intended to provoke only a non-deadly confrontation and the victim responded with deadly force. (People v. Ramirez (2015) 233 Cal.App.4th 940, 952.)
A. Relevant Legal Principles
" 'It is error to give an instruction [that], while correctly stating a principle of law, has no application to the facts of the case.'" (People v. Debose (2014) 59 Cal.4th 177, 205; see People v. Cross (2008) 45 Cal.4th 58, 67 ["[g]iving an instruction that is correct as to the law but irrelevant or inapplicable is error"]; People v. Marshall (1997) 15 Cal.4th 1, 39-40 [" 'unsupported theories should not be presented to the jury' "].)
"A trial court may instruct on a theory only if it is supported by 'substantial evidence.'" (People v. Quiroz (2013) 215 Cal.App.4th 65, 76.) In determining whether substantial evidence supports a jury instruction, "we view the evidence most favorably to the judgment presuming the existence of every fact that reasonably may be deduced from the record in support of the judgment." (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290.) We review the trial court's assessment de novo. (People v. Quiroz, supra, 215 Cal.App.4th at p. 76.)
B. Analysis
In People v. Enraca (2012) 53 Cal.4th 735 at page 761, our Supreme Court explained that the self-defense doctrine"' "may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified." '" The fact the defendant was not the first person to make physical contact does not preclude the applicability of this rule. (See People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 [defendant did not have the right to use physical force to settle a physical confrontation he arguably created with aggressive conduct of yelling and gesturing regardless of whether the victim kicked the defendant and his mother in response to that conduct].) What is required is that defendant sought, provoked, or invited the quarrel with the intent of creating a pretext for attacking the assailant. (People v. Holt (1944) 25 Cal.2d 59, 66; People v. Hinshaw (1924) 194 Cal. 1, 26; People v. Hecker (1895) 109 Cal. 451, 462, abrogated on other grounds by statute as stated in People v. Hardin (2000) 85 Cal.App.4th 625, 631-634.)
Here, the jury could reasonably conclude that Ruiz and Hutchison initiated the confrontation, and that they initiated the confrontation as a pretext to employ force against McGowan, as suggested by the circumstantial evidence. The night before the shooting, S.B. heard Ruiz state that he "wanted to fuck [McGowan] up," and to "kill [McGowan]." The following day, Ruiz and Hutchison showed up at the Bandolero Way home with backup, tires squealing as they turned the corner to the street. Their abrupt appearance, coupled with their loud yelling directed at McGowan, led McGowan to fall and call for assistance.
When McDowell exited the home and threatened Ruiz and Hutchison with a skateboard, he was acting in defense of McGowan, responding to the defendants' threatening conduct. The fact that Ruiz had a loaded .45-caliber firearm in the truck is further evidence of the fact that he had anticipated a confrontation. From the circumstantial evidence, the jury could reasonably conclude that Ruiz and Hutchison provoked the confrontation with the intent to use force, even deadly force, though their initial target was McGowan not McDowell.
Assuming however that the trial court erred by giving the instruction on contrived self-defense, any presumed error was harmless upon the instant record for two reasons. First, "giving an irrelevant or inapplicable instruction is generally' "only a technical error which does not constitute ground for reversal." '" (People v. Cross, supra, 45 Cal.4th at p. 67.)" 'The error of instruction on an inapplicable legal theory is reviewed under the reasonable probability standard of [Watson].'" (People v. Debose, supra, 59 Cal.4th at pp. 205-206; see People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [an erroneously given jury instruction is subject to the harmless error analysis under Watson ]; People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247 [" 'giving an irrelevant or inapplicable instruction' ... does not implicate the defendant's constitutional rights and is subject to harmless error review under [Watson]"].) The record does not supply a reasonable probability that if the challenged instruction had not been given, Ruiz would have had a different outcome at trial.
Ruiz further contends that the cumulative effect of the alleged instructional errors he has identified necessitates reversal of his convictions. Finding no individual error, we reject his claim of cumulative prejudice.
Assuming the evidence adduced at trial did not support the conclusion that Ruiz and Hutchison provoked the confrontation as a pretext for initiating an assault, deadly or otherwise, substantial evidence refuted Ruiz's claims of self-defense. Our analysis is fully set forth in part I, ante, but to summarize, Ruiz was separated from McDowell by the truck. McDowell was also already backing up from the truck towards the garage when Ruiz fatally shot him. Ruiz testified that in his mind, McDowell as coming towards him with the skateboard when he shot McDowell, but he acknowledged that the video evidence showed otherwise. From the surveillance videos, Ruiz's claim of self-defense was not reasonable.
Second, assuming Ruiz's assertion is correct and the record lacks substantial evidence to have warranted an instruction on contrived self-defense, the jury would have disregarded the instruction. The jury was explicitly told that self-defense would be unavailable if they concluded that Ruiz had deliberately provoked a "fight or quarrel with the intent to create an excuse to use force." We presume the jury followed the trial court's instructions (People v. Frandsen (2011) 196 Cal.App.4th 266, 278), including the trial court's instruction to "follow the instructions that . . . apply to the facts as you find them."
If the evidence did not support the conclusion that Ruiz had provoked a fight with the intent to use force, it is reasonable to assume that the jury would not have applied this instruction. (See, e.g., People v. Eulian, supra, 247 Cal.App.4th at p. 1335 ["If CALCRIM No. 3472 was erroneously given because it was irrelevant under the facts, the error is merely technical and not grounds for reversal."].) And, if the jury did not apply the challenged instruction, Ruiz cannot show error from the fact that the instruction was given.
V. Prosecutorial Misconduct Claim
Ruiz contends that the prosecutor repeatedly made misleading arguments during his comments in closing argument concerning Jeremy Johnston, suggesting that Johnston did not exist or that the tenants had fabricated their claim about Johnston forcibly evicting them. Ruiz acknowledges that trial counsel failed to object to the comments he now challenges on appeal and contends that counsel was constitutionally ineffective as a result. We find no error upon the record.
A. Background
During the trial, S.B. testified that the individual who had forced them out of the house by gunpoint had identified himself as Jeremy Johnston. Ruiz testified also that he was informed the person responsible for evicting the tenants by gunpoint was Jeremy Johnston, someone he knew from jail and recognized as formidable. Ruiz declined to disclose Johnston's name to the police due to fear of any repercussions.
Johnston invoked his Fifth Amendment right not to testify, though the trial court denied the defense's request to have Johnston do so in front of the jury, or alternatively, to inform them of his invocation.
The prosecutor represented that he was not going to dispute the witnesses' accounts concerning Johnston or argue that Johnston does not exist. The prosecutor expressed certainty that the Jeremy Johnston in question was the same individual he had prosecuted previously. However, the prosecutor asserted that Johnston's existence was collateral to the events occurring on the day of the shooting.
Eventually, the court permitted the defense to introduce evidence from the court's website regarding a Jeremy Johnston who had been charged with robbery and burglary.
Throughout trial, Jeremy Johnston was a recurring topic in closing arguments. The prosecutor made the following comments, which Ruiz contends informed the jury that Johnston did not exist:
"[The Prosecutor]: An argument that he reasonably believed that he was exercising self-defense is just not believable based on the facts of this case. That would reduce the case to manslaughter, voluntary manslaughter.
"So I urge you not to find the depthness [sic] of what was presented in this case. At the end of the day, these two defendants [were] admittedly done wrong by Bobby McGowan and whether they were inappropriately denied their tenancy, whether the property was still there, whether the property was missing, whether Jeremy Johnston or Johnson or whoever came and kicked out the family the day before.
"Given all that to be true, whether it is or not, it does not justify or explain how Duran McDowell was killed the following day. It just doesn't. The circumstances are that it's unfortunate that Bobby McGowan was disreputable in dealing with these guys, but you cannot take the law into your own hands."
Trial counsel for Ruiz highlighted Johnston's criminal record and Ruiz's reluctance to identify him. Trial counsel for Hutchison argued that if Ruiz and Hutchison possessed the intent to kill anybody, it would have been Bobby McGowan. However, Ruiz's intent to kill McGowan, if that intent existed, could not be transferred to Duran McDowell.
During his argument in rebuttal, the prosecutor stated:
"[The Prosecutor]: So the big argument and the objections and the interpretation in closing argument is about the intent to kill. I'll assert to you that the intent to kill was entered into by these two gentlemen when they went over there to . . . Bandolero Way. It wasn't to kill Duran McDowell because they didn't know who . . . was there.
"It wasn't an intent to kill this mysterious Johnston character. They didn't know if he was there or not. It was to kill Bobby McGowan, but when they got there, the circumstances were not amendable."
The prosecutor also addressed trial counsel's assertion that Sergeant Robles failed to thoroughly investigate Jeremy Johnston:
"[The Prosecutor]: So we get all this information about how bad Mr. Johnson is and how the police didn't investigate who he was. Let's do a quick character assignation of the sergeant and his investigation. He didn't do anything to find this Jeremy Johnston. Well, that's part of the problem. He was told it was Jeremy Johnson. These people, on one end, claim we're not going to make a police report because the cops won't do anything, except [Ruiz] says I don't want to tell the cops who it was because they would go arrest him, and I would be ratted out.
"What are the police supposed to do? Investigate a crime these people don't want to report? What's the expectation? So the defense produces convictions for Jeremy Johnston. We don't know if that's the same guy or not. He's never been ID'd and presented to you.
"There's also the printout [trial counsel] alluded to. There are 39 Johnsons or Johnston, Jeremy. So somehow they expect Sergeant Robles to go investigate 93 different cases of a Johnson or a Johnston when the people that were involved won't say how old he is, won't say whether he's black, white, Hispanic, Asian. He's not Asian, but based upon the name, won't give him any information about that.
"They don't want to suspend the homicide [investigation] to go looking for something where these people aren't even cooperative, when he wasn't even there on the day that Duran McDowell was killed. Even worse than that, all of this stuff about the big bad boogeyman, Jeremy Johnston, when Duran McDowell walked out of the house in protection of Bobby McGowan, he knew it wasn't Jeremy Johnston. "
B. Relevant Legal Principles
"A prosecutor's conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
C. Forfeiture
To preserve a claim of prosecutorial misconduct or error, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct or error. (People v. Hinton (2006) 37 Cal.4th 839, 863;
People v. Earp (1999) 20 Cal.4th 826, 858.) "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
The instant record fails to disclose that trial counsel for Ruiz made a timely and specific objection to the prosecutor's statements that he now challenges in appeal. Consequently, Ruiz's claim of prosecutorial misconduct is forfeited. We therefore turn to Ruiz's alternative claim that trial counsel was constitutionally ineffective for his failure to preserve this issue for appeal.
D. Ineffective Assistance of Counsel
To prevail on a claim for ineffective assistance of counsel, an appellant must show his counsel's representation "fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 688.) Following our independent review of the record, we conclude that trial counsel's failure to object to the prosecutor's challenged statements in his closing argument did not fall below an objective standard of reasonableness. The record does not support Ruiz's claim that the prosecutor insinuated that Jeremy Johnston did not exist.
Viewing the challenged statements in the context of the record, the prosecutor did not suggest that Johnston was a fictional character, or that the incident involving Johnston threatening the tenants with a firearm had been fabricated by Ruiz and Hutchison. To the contrary, the prosecutor acknowledged that the incident involving Johnston on May 26, 2020, had occurred, and that it was undisputed that the tenants had been illegally evicted. However, he urged the jury to focus on the events on the day of the shooting, arguing that the events relating to Jeremy Johnston were collateral to the shooting.
The record also makes clear that the prosecutor referenced Johnston to rebut trial counsel's claim that Johnston's crime and his identity had not been thoroughly investigated. During his comments in closing argument, trial counsel for Ruiz observed that Sergeant Robles, one of the investigating officers, had Johnston's phone number and further asserted that it would have been easy to find Johnston. In rebuttal, the prosecutor explained that Ruiz had refused to identify Johnston, and the remaining tenants had identified Johnston as Jeremy "Johnson." There were 39 Jeremy Johnson's or Jeremy Johnston's on the court's website alone, and the tenants would not give Sergeant Robles a description of the man that held them at gunpoint.
Sergeant Robles testified that he attempted to contact Jeremy Johnston, but the phone number he had for Johnston was no longer in service.
The record does not support Ruiz's assertion that the prosecutor insinuated that Johnston did not exist. We conclude that there was no error from trial counsel's failure to object to the prosecutor's statements challenged on appeal. Because the record does not support Ruiz's claim of error, Ruiz has failed to meet his burden of proving ineffective assistance of counsel.
VI. Remand for Resentencing is Required
Ruiz contends that his case must be remanded back to the lower court for a resentencing hearing to allow the trial court to exercise its discretion to strike the section 12022.53, subdivision (d) enhancement, and impose punishment under a lesser firearm enhancement pursuant to Tirado, supra, 12 Cal.5th 688. In Tirado, our Supreme Court held that Senate Bill No. 620's amendments to section 12022.53 "permits a court to strike the section 12022.53[, subdivision] (d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead." (Tirado, at p. 692.)
The Attorney General agrees that remand is warranted, observing that at the time of Ruiz's sentencing hearing, this court held that a trial court did not have discretion to impose a lesser firearm enhancement pursuant to section 12022.53, subdivision (h). The Attorney General further observes that nothing within the record indicates that the court would have declined to exercise such discretion if it had been aware of its authority. We agree with the parties.
As the Tirado court explained, "When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53[, subdivision] (d) enhancement, and the court determines that the section 12022.53[, subdivision] (d) enhancement should be struck or dismissed under section 12022.53[, subdivision] (h), the court may, under section 12022.53[, subdivision] (j), impose an enhancement under section 12022.53[, subdivisions] (b) or (c)." (Tirado, supra, 12 Cal.5th at p. 700.) "[T]he Legislature has permitted courts to impose the penalties under section 12022.53[, subdivisions] (b), (c), or (d) so long as the existence of facts required by the relevant subdivision has been alleged and found true." (Id. at p. 702.)
Ruiz was sentenced before our Supreme Court filed its decision in Tirado. Consequently, the trial court did not have the benefit of Tirado's clarification of the law and its holding that lower courts have the discretion to impose a lesser, uncharged section 12022.53, subdivision (b) or (c) enhancement where the prosecution has charged the greater enhancement and the facts supporting imposition of the lesser enhancement have been alleged in the accusatory pleading and found true. (Tirado, supra, 12 Cal.5th at p. 697, see id. at pp. 700-701.) A defendant facing sentencing is entitled to decisions made by a court exercising its informed discretion. (Tirado, supra, 12 Cal.5th at p. 694, citing People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "A court acting while unaware of the scope of its discretion is understood to have abused it." (Tirado, at p. 694.)
Where the trial court lacks informed discretion, remand for resentencing is appropriate "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) The record here lacks any indication of how the trial court would have sentenced Ruiz had it been aware of its discretion to strike or impose a lesser uncharged firearm enhancement. We will therefore remand the matter back to the lower court so that it may exercise its discretion regarding whether to impose a lesser firearm enhancement.
DISPOSITION
The matter is remanded back to the trial court to consider Tirado, supra, 12 Cal.5th 688 and whether to exercise its discretion to strike the section 12022.53, subdivision (d) firearm enhancement and to impose a lesser firearm enhancement and, if appropriate following the exercise of that discretion, to resentence Ruiz accordingly. In all other respects, the judgment is affirmed.
WE CONCUR: PENA, Acting P.J., SNAUFFER, J.