Opinion
E077913
11-28-2023
THE PEOPLE, Plaintiff and Respondent, v. SHAUN TARA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF2002993. Matthew C. Perantoni, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant Shaun Tara shot A. Cordero, causing him serious but nonfatal injuries. Defendant's friend, J. Amerson, ran into defendant after he fled the scene. Not long afterward, Amerson confronted defendant about the shooting over Facebook. Defendant shot and killed Amerson about two weeks later.
A jury convicted defendant of first-degree, special circumstance murder of a witness to prevent the witness's testimony (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(10); count 1) and premeditated attempted murder (§§ 187, subd. (a), 664; count 2). The jury also found true the allegation that defendant personally discharged a firearm causing great bodily injury or death in the commission of the offenses (§§ 1192.7, subd. (c)(8), 12022.53, subd. (d)). The trial court sentenced him to life without the possibility of parole for count 1, plus a consecutive 25 years to life for the firearm enhancement, and a consecutive life term for count 2, plus a consecutive 25 years to life for the firearm enhancement.
Unless otherwise specified, all further statutory references are to the Penal Code.
Defendant argues his convictions must be reversed because the trial court committed various evidentiary and instructional errors and the prosecution engaged in "outrageous conduct." He also argues that even if his convictions stand, the matter must be remanded for resentencing and a parole revocation fine must be stricken. We agree the matter must be remanded for resentencing and the fine must be stricken, but we reject defendant's remaining arguments. In all other respects, the judgment is affirmed.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2020, at around 2:00 a.m., Cordero stopped at an AM/PM gas station to pump some air into his flat bicycle tire. Cordero saw a woman whose boyfriend seemed to be forcing her into his car. The boyfriend drove off and returned about 15 to 20 minutes later. The woman told Cordero that her boyfriend beat her, and Cordero said she did not need to get into his car. But when her boyfriend pulled up in his car, the woman got into the car and they drove away.
About 15 to 20 minutes later, the boyfriend returned on foot with a younger white male companion who was wearing a hood and a respiratory mask. The white companion eventually took off his mask during his interaction with Cordero, and Cordero later identified him as defendant.
Defendant told Cordero to leave twice, but he refused because he had a flat tire and was waiting at the AM/PM until morning. Defendant and his companion left and returned with a group of other men. A Hispanic man who seemed to talk for the group told Cordero that he had a gun. About 30 minutes later, the Hispanic man and defendant approached Cordero and the Hispanic man said, "Let's go talk over here," while directing Cordero to the side of the AM/PM.
Once the three of them were on the side of the building, the Hispanic man and defendant walked to a dark part of the area. Defendant then pulled out a long-barreled revolver and shot Cordero from about 15 to 20 feet away. The bullet struck Cordero's hip, ricocheted, and went through his bladder. As Cordero compressed the wound, the Hispanic man and defendant fled. Cordero crawled to an illuminated area so someone would see him before he passed out. Cordero was hospitalized for 18 days but survived.
J. Amerson was homeless and lived in the canal tunnel near the AM/PM where Cordero was shot. After he heard gunshots the night of the shooting, Amerson encountered defendant running through the tunnel away from the AM/PM.
The next day, Amerson sent defendant Facebook messages expressing his disapproval about the shooting, saying it "wasn't cool." Amerson did not like what defendant did, and defendant was angry with Amerson because he thought Amerson was "talking too much" about the shooting. Defendant denied Amerson's accusation that he shot Cordero and told Amerson to "keep his mouth shut."
Amerson told his friend, Nicholas Wege, about the shooting. He showed Wege the Facebook messages he exchanged with defendant and played audio messages for Wege that defendant had sent him. Amerson told Wege that he was scared of defendant and was worried defendant would "come after him."
Amerson also told his girlfriend, Raeleen Smith, about the shooting and his subsequent "falling out" with defendant. Amerson told Smith that he was worried about defendant.
In the evening of August 16, 2020, Amerson told Smith, who lived with him in the canal tunnel near the AM/PM, that he was leaving for the night and would be back later. Around midnight or 1:00 a.m., Smith returned to the tunnel but Amerson was not there. Smith later woke up to the sound of Amerson loudly asking who was there. Smith fell back asleep, but woke up to Amerson saying, "Greyhound," defendant's nickname, in a scared tone. Smith had met defendant a little over a week before and knew that his nickname was "Greyhound." Although it was dark, Smith could see defendant and Amerson standing next to her mattress in the ambient light.
After Smith got up, she saw Amerson backing out of the tunnel while defendant was holding a long gun or rifle to Amerson's chest. Amerson repeatedly told defendant, "'Please don't do this'" and called him Greyhound several times. While holding his hands up in a surrendering position, Amerson said, "'Please don't do this in front of her,'" and that he was sorry. Defendant told Amerson, "'You ruined my life.'" When they reached the end of the tunnel, defendant shot Amerson and then ran away. Smith ran over to Amerson, who was breathing "a little bit" but could not talk. Amerson was pronounced dead when police and medical personnel responded.
About a week later, police saw a man fitting defendant's description driving an SUV by a field near the AM/PM. The driver fled and the officer lost him.
However, police arrested defendant within a week. Officers searched his cell phone and extracted his Facebook data, including his Facebook messages.
Defendant referred to himself as "Greyhound" with several contacts. On July 30, 2020, the day after Cordero's shooting, Amerson started a conversation with defendant through Facebook Messenger, stating "'That was not cool,'" and that Amerson could not return to his "'spot'" near the AM/PM for a while. Amerson told defendant that he saw the whole thing and that defendant walked right into him in the tunnel afterward.
Defendant responded, "'I don't remember anything, Bro. I don't know what you are talking about, seeing what. And you know what this is, messenger, Doggie. You know these words are here for the world to see permanently now. And had I had something to do with that, I'd probably be wondering why the fuck you'd want the world to know about it. It is a good thing I wasn't involved. Have a good night.'"
Amerson then told defendant "'lose my number,'" and defendant responded by asking whether they would "'get down'" when they see each other next time. Amerson answered, "[W]hat the fuck. Did I say that, Greyhound? No, I didn't. I said that was bullshit and didn't need to happen. But you don't care or respect where other people are living because at the end of the day, you go home to mom's pad and the drama isn't your issue anymore, right? [¶] Well, now I'm out with nowhere to lay my head again cause you want to be a cool guy. And I'm not dumb, dude, and already know you don't fight unless it is with a knife or a gun. So where would that get me? I'm saying that was out of line because you took my place to lay my head. So lose my number. Don't call me your home boy. [¶] And have a good fucking day. And if you decide to empty your pockets and get it up like a real man, just say when. If not, then stay away from me homeboy.'"
Defendant replied, "'Fuck you and your loose lips. I will see you around.'" After some back-and-forth, defendant told Amerson, "'You put all of my fucking business out there and wonder why I'm upset. Fuck you, Dirt.'" Amerson responded, "'I didn't put no business out there. Go back and read what you are saying. You are telling on yourself, dumb ass.'"
"Dirt" was Amerson's nickname.
On the evening of August 14, 2020, a few days before defendant killed Amerson, defendant sent a message to a respected "older homeboy," asking if he knew Amerson. Defendant followed up with, "'if you do and care about him, please call me ASAP. If you don't give a f-k about him, then great.'"
The next day, defendant and his friend, Aztek Wyino, texted each other. Wyino sent defendant a text, "'[H]ey, what is up with that plate (phonetic) though?'" Defendant responded, "'I have it. Also had a few zips 245 (phonetic) a piece Pomona stuff.'"
The day after, defendant texted Wyino, "'[H]ey, need to grab that for something I'm about to deal with. I will shoot it back when I'm done, but I need it, Bro. Sorry. Only for a day or two maybe.'" Defendant later texted Wyino, "'[Y]ou call me. I don't know what one . . . it is[;] I'm going to come to you in a little bit.'"
On the night before Amerson's murder, Wyino texted defendant that he was at home and defendant confirmed he was on his way there. On August 17, 2020, at 5:20 a.m., about three hours after Amerson's murder, defendant messaged Wyino, "'[H]ey, Doggie. Need you to call me as soon as you can on my phone, K.'"
On August 20, 2020, three days after Amerson's murder, defendant told his friend Efferin Alarcon that they were "going to have to hold off on meeting up" because he was "about to take off and sell some of these tools." Defendant told Alarcon, "I will hit you up when I get back." Alarcon told defendant, "'B [sic] dangers,'" and defendant responded, "'we will talk then. I love you, brother. And you already know we're the most dangerous homeboy.'"
On the night of August 21, 2020, about three hours after police pursued the driver that matched defendant in an SUV by the tunnels near the AM/PM, a third party sent defendant a Facebook message asking about defendant's location. Defendant responded, "'My fucken house. I had to. We got into something.'" The third party responded, "'[O]kay. But who? I think it is someone we know who is talking.'" The third party and defendant also discussed having someone else pick up defendant from his home where he lived with his mother. Defendant lived on 54th Street and the pursuit occurred just south of 56th Street.
At 10:20 p.m. on August 21, 2020, defendant told Wyino, "'[H]ey, fool. I left the blue Ecco bag hanging on the back wooden fence. Can you grab it for me, please? I'm sorry I had to leave it. I was scared of your dog.'"
Defendant later followed up with Wyino to see whether Wyino got the bag. When Wyino acknowledged he got the laptop in the bag, defendant responded, "'yup and a bunch of 22's. Sorry about that. Can you hold it for me? I'm trying to get over there.'" Wyino also told defendant that "'the boys'" were looking for him and that "'shit [was] all fucking bad.'"
About an hour later, defendant got in touch with Alarcon and told Alarcon that he needed to get away from his house. Alarcon responded, "'you went back dumb ass.'" Defendant replied, "'I had to. We got in a chase in the area, and it is the only place I could go.'"
Law enforcement also reviewed defendant's Google searches around the time of the shootings. The day after Cordero's shooting, defendant searched for news of a shooting in the AM/PM area, reviewed local breaking news, and searched for information about firearms. On the day before Amerson's murder, defendant searched for information about Ruger 1022s (semiautomatic rifles) and Ruger SR22s (pistols), and Ruger 1022 "mod-kits." Defendant made these searches shortly after his discussion with Wyino about needing to borrow something for a day or two. In the days after Amerson's murder, defendant made several Google searches on how to convert a Ruger 1022 into a fully automatic rifle, and again searched for local police activity, including in the area near the AM/PM. A friend of defendant's testified at trial that he had seen defendant with a .22 caliber Ruger rifle.
Law enforcement obtained cell tower data on July 29, 2020, from 12:09 a.m. to 1:54 a.m., which showed that defendant's cell phone was in the area where Cordero was shot at the time of the shooting. Cell tower data for August 17, 2020, from 2:21 a.m. to 2:59 a.m. also showed that defendant's cell phone was in the area where Amerson was murdered. After Amerson's murder, defendant began using a new phone number and told people to contact him at the new number because he had broken his phone.
On August 30, 2020, after defendant's arrest and incarceration, undercover agents were placed in a jail cell with defendant for about four hours. In his conversation with the undercover agents, which was recorded and played for the jury, defendant introduced himself as "Greyhound" and identified Amerson as "Dirt". Although defendant said he knew Amerson and knew that he lived under a bridge, he denied being involved in Amerson's murder. He claimed to have only "heard [Amerson] got smoked," but "[did]n't know nothin' about it."
Defendant later told the undercover agents that he sent Amerson a voice message stating, "I'd appreciate it if you can make sure my name stays out of people's mouths over there." He and Amerson were talking about a different, non-fatal shooting that had occurred in a parking lot in the AM/PM area. He asked Amerson why he was accusing defendant of the shooting, and Amerson allegedly told him that there were cameras and witnesses. When one of the undercover agents responded that defendant "shoulda picked up the shells" that may have had his DNA on them, defendant responded, "Pssh. But you know in the moment," and mentioned that he usually cleaned shell casings with rubbing alcohol beforehand. The agent told defendant that he could say he touched the shell casings, but it would hurt his defense if law enforcement found the gun. Defendant responded by saying he had thrown the gun out of his car during the police chase.
Defendant later said that "nobody was with [him]," when asked about having a conversation with Amerson before he was shot. When the undercover agent said Amerson "deserved that shit," defendant said, "Straight up."
About halfway through the undercover operation, defendant told the agents that his wife and children had died, and the agents began discussing a possible mental health defense with him. The agents suggested several times that defendant should be "pleading insanity right now." In response, defendant began pretending that he had Tourette's Syndrome, asked to see a psychiatrist, and was taken out of the cell.
III. DISCUSSION
Defendant raises eight arguments on appeal: (1) the trial court erroneously admitted his statements to the undercover agents in violation of his Miranda rights, (2) the undercover agents engaged in "outrageous conduct" by suggesting defendant feign insanity, (3) the trial court erroneously failed to sua sponte instruct the jury on heat of passion voluntary manslaughter, (4) his trial counsel was ineffective by not requesting CALCRIM No. 522, the instruction on provocation for second-degree murder, (5) the trial court erroneously admitted Amerson's statements to Wege and Amerson's messages to defendant, (6) an instruction on motive, CALCRIM No. 370, impermissibly lowered the prosecution's burden of proof, (7) remand is necessary so the trial court can exercise its discretion under People v. Tirado (2022) 12 Cal.5th 688 (Tirado), and determine whether to strike the firearm enhancement, and (8) the parole revocation fine should be stricken. We agree with defendant's last two arguments but reject his remaining arguments.
A. Jailhouse Statements
Defendant moved in limine to exclude the video and audio recording of the statements he made to the undercover agents. He argued the statements were obtained in violation of Miranda because he had previously invoked his Miranda right to counsel with an investigator. The trial court rejected the argument and admitted the recording.
We first note that the parties strenuously dispute whether defendant invoked his Miranda right to counsel. We need not resolve the issue because, even if he did, there still was no Miranda violation.
The People contend defendant's argument is foreclosed by Illinois v. Perkins (1990) 496 U.S. 292, 294 (Perkins). There, an undercover agent and a former inmate, both in prison uniforms, were placed in a cell block with the defendant. (Id. at p. 295.) The agent did not Mirandize the defendant and the defendant did not know he was an undercover agent. (Ibid.) The defendant then told the undercover agent about a murder he had committed and he was charged for the offense. (Ibid.) The trial court suppressed the statements as obtained in violation of Miranda, and the state appellate court affirmed. (Ibid.)
The United States Supreme Court granted certiorari "to decide whether an undercover law enforcement officer must give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response." (Perkins, supra, 496 U.S. at pp. 295-296.) The Court held "Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement" because "[c]onversations between suspects and undercover agents do not implicate the concerns underlying Miranda." (Id. at pp. 294, 296.) This is so because "Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner." (Id. at p. 297.)
Defendant counters that Perkins does not control here because the Perkins defendant never invoked his Miranda right to counsel. In defendant's view, this case is governed by the rule in Edwards v. Arizona (1981) 451 U.S. 477 (Edwards), that all police-initiated custodial interrogation must stop after a suspect requests counsel until counsel is present or the suspect "initiates further communication" with the police.
The court in People v. Orozco (2019) 32 Cal.App.5th 802 (Orozco), held that Perkins, not Edwards, supra, 451 U.S. 477, governs "[w]hen a suspect invokes his Miranda right to counsel and law enforcement subsequently orchestrates a conversation between the suspect and someone the suspect does not know is an agent of law enforcement." (Orozco, supra, at p. 812.) In that case, after the defendant had repeatedly invoked his Miranda right to counsel, defendant spoke with his girlfriend in an interview room at the police station, and law enforcement recorded their conversation. (Id. at p. 808.) When the defendant and his girlfriend were alone, he confessed to her that he had killed their child. (Id. at p. 809.) A few minutes later, law enforcement escorted the girlfriend out of the interview room. (Ibid.) The trial court later admitted the defendant's confession to his girlfriend, finding that it was admissible under Perkins and other California case law. (Id. at p. 810.)
Orozco held that Perkins controlled for three reasons. (Orozco, supra, 32 Cal.App.5th at p. 813.) First, Edwards, supra, 451 U.S. 477 and the cases following it concern only "further 'interrogation' of the suspect," and "there is no 'interrogation' when a suspect speaks with someone he does not know is an agent of the police. (Id. at pp. 813-814.) Second, Miranda's rule is intended to dispel the psychological pressure and compulsion attendant in a "'"police-dominated atmosphere."'" (Orozco, supra, at p. 814.) The rule is "simply not implicated" in situations where a suspect speaks freely to someone who they do not suspect of being a police officer (or an agent of law enforcement). (Ibid.) Third, "California courts have uniformly come to the conclusion that Perkins controls when a suspect invokes his Miranda right to counsel but later speaks with someone he does not know is an agent of the police." (Id. at p. 815, citing People v. Guilmette (1991) 1 Cal.App.4th 1534, and People v. Plyler (1993) 18 Cal.App.4th 535.)
We find Orozco persuasive and follow it here. As in Perkins, the undercover agents here were placed into a jail cell with defendant disguised as fellow inmates and defendant did not know they were undercover agents. Defendant voluntarily spoke with them free of any semblance of coercion. Because this case is materially indistinguishable from Perkins, we join the several "California courts [which] have uniformly come to the conclusion that Perkins controls when a suspect . . . speaks with someone he does not know is an agent of the police." (Orozco, supra, 32 Cal.App.5th at p. 815.) And because Perkins forecloses defendant's argument that his voluntary statements to the undercover agents violated Miranda, the trial court properly admitted them.
B. Outrageous Conduct
Defendant argues for the first time on appeal that the undercover agents engaged in unconstitutional "outrageous conduct" by suggesting to him that he feign insanity as a defense, which deprived him of a fair trial. But because defendant did not make this argument in the trial court, he has forfeited it on appeal. (See People v. Henderson (2022) 78 Cal.App.5th 530; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11.) In his reply brief, defendant asks us to exercise our discretion to consider the issue because it presents a "pure issue of law." We decline to do so. (See People v. Henderson, supra, 78 Cal.App.5th 530.)
C. Heat of Passion Voluntary Manslaughter Instruction
Defendant next argues that the trial court erred by not sua sponte instructing the jury on the heat of passion theory for voluntary manslaughter. We disagree.
A defendant who commits an intentional and unlawful killing without malice is guilty of voluntary manslaughter, which is a lesser included offense of murder. (People v. Moye (2009) 47 Cal.4th 537, 549.) Voluntary manslaughter can be established in "'"limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'-the unreasonable but good faith belief in having to act in self-defense [citations]."' [Citation.]" (Ibid.) Under the heat of passion theory of voluntary manslaughter, "[o]bjectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Enraca (2012) 53 Cal.4th 735, 759.) "Subjectively, 'the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation. [Citation.]'" (Ibid.) "'"'[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.'"' [Citation.]" (People v. Rangel (2016) 62 Cal.4th 1192, 1225, internal quotations omitted.) Malice is not negated "[i]f sufficient time has elapsed . . . for judgment to be restored." (People v. Beltran (2013) 56 Cal.4th 935, 951 (Beltran).)
"[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117.) "The failure to instruct on a lesser included offense in a noncapital case does not require reversal 'unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citation.] 'Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' [Citation.]" (People v. Thomas (2012) 53 Cal.4th 771, 814, fn. omitted.)
In other words, there must be substantial evidence from which a reasonable jury could find that the defendant committed the lesser offense, but not the greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Thus, the question here "is whether substantial evidence supported a conclusion that defendant committed only [voluntary manslaughter] and not [first degree murder]." (People v. Wyatt, supra, 55 Cal.4th at pp. 702-703.)
There was no substantial evidence that defendant committed only voluntary manslaughter because there was no evidence that defendant killed Amerson in a heat of passion. Rather, the evidence overwhelmingly showed that, if defendant was guilty of anything, he was guilty of first degree murder of Amerson.
Amerson confronted defendant the day after Cordero's shooting via Facebook, telling defendant that what he did was "'not cool'" and that Amerson could not return to his shelter in the canal tunnel near where the shooting occurred. Although defendant denied shooting Cordero, he also threatened Amerson by saying "'fuck you and your loose lips'" and asking if they would "'get down'" the next time they met.
Defendant's messages to other people and internet searches after the shooting showed that defendant was planning to kill Amerson. On August 14, 2020, he asked a friend whether he cared about Amerson. The next day defendant borrowed something from Wyino, and returned .22 caliber bullets to Wyino shortly after Amerson's murder. After cryptically asking to borrow the item from Wyino, defendant searched Google for Ruger firearms and modification parts.
Given this evidence, including Smith's testimony that she saw defendant using a long gun or rifle at the time of the murder, and defendant's friend's testimony that he had previously seen defendant with a Ruger .22 rifle, there was substantial evidence from which a jury could reasonably conclude that defendant first attempted to obtain the murder weapon before Amerson's murder. Defendant's actions thus showed "rational thought" that was not "obscured or disturbed by passion." (People v. Vargas (2020) 9 Cal.5th 793, 828, internal quotations omitted.) The fact that defendant shot Amerson in the early morning in the canal tunnel where he lived while Smith was asleep also shows that defendant engaged in "'a concerted effort to plan and execute a surprise attack,' not rash action. [Citation.]" (People v. Rangel, supra, 62 Cal.4th at p. 1225.)
Further, defendant killed Amerson more than two weeks after their initial confrontation, showing that sufficient time had passed such that a reasonable person's passions would have "cooled off" and judgment would have returned. (People v. Beltran, supra, 56 Cal.4th at p. 951.)
More to the point, defendant's conduct at the time of the murder confirmed that defendant was not acting rashly. Smith testified that she saw defendant holding a gun to Amerson's chest while Amerson backed out of the tunnel, apologized to defendant, and begged repeatedly defendant not to kill him and to not "'do this in front of [Smith].'" Although Smith heard defendant say, "You ruined my life," there was no evidence that defendant was acting in an unprovoked, emotional state. Defendant did not just show up and shoot Amerson right away, but instead confronted Amerson, held the rifle up to Amerson's chest, and held him at gunpoint while walking toward the back of the tunnel as Amerson begged defendant not to shoot him.
Defendant's conduct leading up to and during the murder revealed that he acted with planning, deliberation, and reflection, and that he did not make a rash decision caused by "'"'"[v]iolent, intense, high-wrought or enthusiastic emotion."'"'" (Beltran, supra, 56 Cal.4th at p. 950.) All of the evidence thus showed that if defendant was guilty of anything, it was first degree murder, not voluntary manslaughter. Because there was no substantial evidence that he killed Amerson in the heat of passion, the trial court had no duty to sua sponte instruct the jury on heat of passion voluntary manslaughter.
To support his contrary position, defendant relies heavily on People v. Wright (2015) 242 Cal.App.4th 1461, but that case is distinguishable. Substantial evidence supported a heat-of-passion instruction there because there was an almost year-long "provocatory course of conduct" between the defendant and victim regarding their son's custody before the killing. (Id. at pp. 1483-1485.) The victim's incessant threats to take their son away from the defendant contributed to the stress caused by their relationship, and she testified that she lost control and did not recall driving to the victim's house on the day she killed him. (Id. at p. 1485.)
Here, however, Amerson only confronted defendant, his friend, once through Facebook about two weeks before the murder. Defendant also never claimed he acted rashly, but instead testified that he did not shoot Amerson. People v. Wright, supra, 242 Cal.App.4th 1461 therefore has no bearing on our analysis.
D. CALCRIM No. 522
Defendant next argues that his trial counsel was ineffective for failing to ask the trial court to instruct the jury with CALCRIM No. 522, the instruction on provocation in relation to second-degree murder. We disagree.
CALCRIM No. 522 provides that "[p]rovocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]." The instruction then tells the jury that, "If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"
To prevail on an ineffective assistance of counsel (IAC) claim, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1148.) A "'"reasonable probability"'" is a probability sufficient to undermine confidence in the outcome of the proceeding. (People v. Mbaabu, supra, at p. 1149; Strickland v. Washington, supra, at p. 697.) The defendant bears the burden of demonstrating by a preponderance of the evidence that defense counsel's performance was deficient and it resulted in prejudice. (People v. Centeno (2014) 60 Cal.4th 659, 674.)
"[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find IAC "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Nothing in the record explains why defendant's trial counsel did not request CALCRIM No. 522, but we can think of two reasons why counsel may have reasonably not requested the instruction.
First, there was no substantial evidence that he shot Amerson because Amerson provoked him, for the same reasons there was no substantial evidence that defendant shot Amerson in the heat of passion. As outlined above, all of the evidence strongly suggests that the shooting was planned, deliberate, and premeditated. The only provocation, if any, was Amerson's confronting defendant via Facebook once weeks before he shot Amerson. Defense counsel could have reasonably concluded that a provocation defense was weak at best, or futile at worst, and thus CALCRIM No. 522 would not have been helpful.
Second, defendant's defense was that he did not shoot Amerson and therefore was innocent of any crime. Defense counsel thus could have reasonably concluded that CALCRIM No. 522 would have undermined defendant's defense of factual innocence by suggesting to the jury that defendant was guilty of second degree murder. Because it was tactically reasonable for defendant's counsel not to request CALCRIM No. 522, we reject defendant's IAC claim. (See People v. Wader (1993) 5 Cal.4th 610, 643 [defense counsel was not ineffective for not requesting instruction on voluntary intoxication that was inconsistent with defendant's defense theory].)
E. Admission of Amerson's Statements to Wege and Messages to Defendant
The prosecution moved in limine to admit Amerson's statements to Wege and Facebook messages to defendant under Evidence Code section 1250 as non-testimonial statements on Amerson's state of mind and under the doctrine of forfeiture by wrongdoing. Over defense counsel's objection and without holding a foundational hearing under Evidence Code section 1390, subdivision (b)(3), the trial court admitted Amerson's statements and messages.
Defendant argues the trial court erroneously admitted the statements and messages to defendant without holding a foundational hearing as required by Evidence Code section 1390, subdivision (b)(3). The People implicitly concede the trial court erred in admitting this evidence without holding a foundational hearing, but argue the error was harmless because the evidence was admissible on other grounds and cumulative to other evidence, and the other evidence of defendant's guilt was overwhelming. We agree there was no prejudicial error.
To begin with, Amerson's statements to defendant were admissible as nonhearsay, circumstantial evidence to show their effect on defendant. (People v. Jablonski (2006) 37 Cal.4th 774, 820.) The statements showed that defendant had reason to believe Amerson witnessed the Cordero shooting and knew that defendant had shot Cordero, which rendered the statements admissible non-hearsay not offered to prove their truth, but to show their effect on defendant. (See ibid.) In turn, Amerson's statements bore on defendant's state of mind and motive, both of which were relevant to proving premeditation and the witness-murder special circumstance. (Id. at p. 821 [finding victim's stated fear of defendant was admissible non-hearsay to show effect on the defendant, who approached victim by stealth rather than open confrontation, and thus relevant to proving premeditation].) Because the statements were admissible on other grounds, any error in the trial court's admission of the statements on the grounds urged by the prosecution was harmless. (See People v. Turner (2020) 10 Cal.5th 786, 807.) As a result, we reject defendant's argument that defense counsel was ineffective for failing to press for a foundational hearing under Evidence Code section 1390, subdivision (b)(3).
In his reply brief, defendant does not dispute the statements' admissibility on this ground, and instead argues that they were only "minimally probative" of his state of mind at the time of Amerson's shooting. But that goes to the weight of the evidence, which is for the jury to decide, not its admissibility. (Cf. People v. Hallquist (2005) 133 Cal.App.4th 291, 297.)
As for Amerson's challenged statements to Wege, any error in their admission was harmless because they were cumulative of other evidence. Wege testified that Amerson told him that Amerson and defendant had a "falling out" because Amerson confronted him about the Cordero shooting. Wege testified about the details of the confrontation and explained that Amerson showed him defendant's texts and audio messages to Amerson, which Wege described as threatening. Wege also testified that Amerson said he was afraid of defendant and was worried defendant would come after him.
All of Wege's testimony about Amerson's statements to him was cumulative to other properly admitted evidence. As for Wege's testimony about defendant's text messages to Amerson that he showed Wege, the testimony was cumulative of the texts' contents.
To the extent defendant challenges Wege's testimony that Amerson said defendant was angry with him about the confrontation, that testimony was cumulative of defendant's testimony that he was upset with Amerson for accusing him of shooting Cordero. It was also cumulative of Smith's testimony that Amerson told her that he was afraid of defendant and worried that defendant would harm him because he accused defendant of shooting Cordero.
Even without Wege's testimony, the evidence of defendant's guilt was strong. Smith witnessed Amerson's murder and testified that he repeatedly called the murderer "Greyhound," which is defendant's nickname. She also testified that Amerson told her about confronting defendant and that he was afraid of what defendant might do to him in retaliation. Defendant's cell phone records placed him in the vicinity of the murder at the time it happened. His text message to Amerson and others showed that Amerson accused him of shooting Cordero, defendant was angry about the accusation, and that he cryptically asked to borrow something from Wyino shortly before the murder and returned it along with .22 caliber bullets. Defendant's Google searches revealed that he looked for information about how to modify a Ruger 1022 the day before Amerson's murder and looked for information about the murder in the days after.
Given that Wege's testimony was cumulative of other evidence, which strongly pointed to defendant's guilt, we conclude any error in admitting the testimony was harmless. For that reason, defendant cannot show that his trial counsel was ineffective for failing to request a foundational hearing under Evidence Code section 1390, subdivision (b)(3).
F. CALCRIM No. 370
Defendant contends CALCRIM No. 370 impermissibly lowered the prosecution's burden of proof on the witness-murder special circumstance allegation. We disagree.
We disagree with the People that defendant forfeited the argument by failing to object to the instruction in the trial court. (See § 1259; People v. Franco (2009) 180 Cal.App.4th 713, 719 ["The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights."].)
The witness-murder special circumstance requires that the victim be a witness to a crime and that the defendant intentionally kill the victim "for the purpose of preventing [the witness's] testimony in any criminal or juvenile proceeding ...." (§ 190.2, subd. (a)(10).)
CALCRIM No. 725, the instruction on the witness-murder special circumstance, however, told the jury in relevant part that the prosecution must prove "defendant intended that J[.] Amerson be killed to prevent him from testifying in a criminal proceeding."
The standard instruction on motive, CALCRIM No. 370, told the jury that "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." (Italics added.) Thus, in defendant's view, this instruction lowered the prosecution's burden of proof on the witness-murder special circumstance allegation by telling the jury that he did not need to have the specific motive "of preventing [the witness's] testimony in any criminal or juvenile proceeding." (§ 190.2, subd. (a)(10).)
Our Supreme Court rejected a similar argument in People v. Snow (2003) 30 Cal.4th 43, 98 (Snow). The defendant there, like defendant here, was convicted of first degree murder with a true finding on a witness-murder special circumstance allegation. (Id. at p. 98.) And like defendant here, the Snow defendant argued that CALJIC No. 2.51, which is materially identical to CALCRIM No. 725, conflicted with CALJIC No. 8.81.10, which is materially identical to CALCRIM No. 370. (Snow, supra, at p. 98.) The defendant argued that "[b]ecause motive and purpose are closely related concepts . . . the jury may have been misled into believing that the special circumstance allegation need not be proven." (Ibid.)
CALJIC No. 2.51 stated in relevant part "that motive 'is not an element of the crime charged and need not be shown,' but that its presence 'may tend to establish guilt,' did not further caution the jury that proof of motive alone was insufficient to establish guilt." (Snow, supra, 30 Cal.4th at p. 97.)
CALJIC No. 8.81.10 "told the jury that one element of the charged witnesskilling special circumstance was that 'the witness was intentionally killed for the purpose of preventing his testimony in a criminal proceeding.'"
The Snow court disagreed, reasoning that "[t]he instructions were not inconsistent, as CALJIC No. 2.51 referred to 'the crime charged,' i.e., murder, and not to the special circumstance allegation." (Snow, supra, 30 Cal.4th at p. 98.) The court further found it was not reasonably likely that the jurors would have construed the instructions as inconsistent given that "they were repeatedly and expressly instructed to find the special circumstance allegation true only if each element, including the purpose of preventing the victim's testimony, was proved beyond a reasonable doubt." (Ibid.)
Snow controls here. CALCRIM No. 725 did not reference motive, but instead informed the jury that the prosecution had to prove that defendant "intended to kill" Amerson and "intended that J[.] Amerson be killed to prevent him from testifying in a criminal proceeding." CALCRIM No. 252 reaffirmed the intent required for the jury to find the special circumstance true by telling the jury that it required proof of "a specific intent or mental state." As in Snow, the jury was "expressly instructed to find the special circumstance allegation true only if each element, including the purpose of preventing the victim's testimony, was proved beyond a reasonable doubt." (Snow, supra, 30 Cal.4th at p. 98.) This was reinforced by CALCRIM No. 370's reference to motive only in the context of "'the crimes charged,'" which "any reasonable juror would have understood the instruction as referring to [the murder charge] only and not to any special circumstance allegation." (People v. Noguera (1992) 4 Cal.4th 599, 637; see also Snow, supra, at p. 98.)
G. Remand under Tirado
Defendant contends that we must remand this case so that the trial court can exercise its discretion on whether to reduce or modify the firearm enhancement to an uncharged lesser included enhancement under section 12022.53. We agree.
We reject the People's argument that defendant forfeited the argument because People v. Morrison (2019) 34 Cal.App.5th 217, which was decided before defendant's sentencing, held that a trial court may strike the section 12022.53, subdivision (d), enhancement and impose one of the lesser enhancements under subdivisions (b) and (c) of that section. Tirado resolved a deep split in the Courts of Appeal and announced a new rule that applies retroactively to defendant's nonfinal case. (See Tirado, supra, 12 Cal.5th at pp. 696-697.) Under these circumstances, we are "more inclined to find an exception to the general rule of forfeiture" for defendant's failure to request a lesser enhancement at resentencing. (GreenLake Capital, LLC v. Bingo Investments, LLC (2010) 185 Cal.App.4th 731, 739, fn. 6.)
After finding 10 aggravating circumstances and no mitigating circumstances, the trial court sentenced defendant to life in prison without the possibility of parole for Amerson's murder and imposed a consecutive term of 25 years to life for the firearm enhancement under 12022.53, subdivision (d). The trial court noted that it was "aware that changes in the law [gave] the [c]ourt the ability to strike the firearm enhancement if the [c]ourt finds that to be in furtherance of justice," but found that it would not be in "[t]he furtherance of justice to strike the punishment under the enhancement, so the [c]ourt will decline to do so." The court imposed a life term for the attempted murder and again imposed a consecutive 25-year-to-life term for the section 12022.53, subdivision (d), enhancement on that count. In doing so, the court again acknowledged that it had the ability to strike the punishment, but again declined to do so because it would not be in furtherance of justice.
Section 12022.53, subdivision (d), imposes an additional and consecutive term of 25 years to life to the sentence of an offender who, in the commission of a felony, "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death . . ." (§ 12022.53, subd. (d).) Subdivision (h) of the same section gives the trial court discretion to strike a firearm enhancement "in the interest of justice." (§ 12022.53, subd. (h).)
After sentencing in this case, our Supreme Court decided in Tirado, supra, 12 Cal.5th 688, that trial courts have the discretion to reduce a section 12022.53 firearm enhancement to a lesser included enhancement under that provision. Tirado confirmed that the trial court may do so even if the lesser firearm enhancement is uncharged, "so long as the prosecution has charged the greater enhancement and the facts supporting imposition of the lesser enhancement have been alleged and found true." (Tirado, supra, at p. 697.)
The trial court unambiguously stated that it was aware of its discretion to strike the firearm enhancement and that doing so would not be in the interest of justice. The record thus shows that "the trial court clearly indicated when it originally sentenced . . . defendant that it would not . . . have stricken a firearm enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
But that does not mean the trial court would not exercise its discretion to impose a lesser included firearm-use enhancement under section 12022.53, subdivisions (b) (10 years) or (c) (20 years). (See Tirado, supra, 12 Cal.5th at p. 700.) At the time of sentencing, it was unclear whether the trial court had discretion to impose either sentence in lieu of striking the enhancement or imposing a greater, charged firearm-use enhancement. Tirado confirms that the trial courts do have that discretion. (Ibid.) Because it is not clear from the record whether the trial court would impose a 10- or 20-year firearm-use enhancement instead of striking the enhancement, we remand for resentencing.
H. Parole Revocation Fine
Defendant argues, and the People concede, that the $10,000 parole revocation fine the trial court imposed should be stricken because he is ineligible for parole. We agree with the parties.
As part of the sentence, the trial court ordered defendant to pay a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b) and a parole revocation fine in the same amount under section 1202.45. The court suspended the parole revocation fine, noting it most likely would not be applicable since Tara would not be eligible for parole. Despite that suspension, the abstract of judgment includes an imposed $10,000 parole revocation fine.
Because defendant is not eligible for parole, the parole revocation fine should not have been imposed. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184.) We therefore strike the parole revocation fine. (Ibid.)
IV. DISPOSITION
The parole revocation fine is stricken. Defendant's sentence is vacated and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P. J. MILLER J.