Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA063012, Elden S. Fox, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Dana Douglas White appeals from the judgment entered following his convictions by jury for attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (b)) as a lesser-included offense of count 1 - attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187) and on count 2 - shooting from a motor vehicle (Pen. Code, § 12034, subd. (c)) with findings as to each offense that he personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and on count 3 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). The court sentenced appellant to prison for 28 years to life. We affirm the judgment in part, reverse it in part, vacate it in part, and remand with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to count 3 is undisputed, established that during the early morning on February 4, 2007, appellant, a felon, was sitting in the driver’s seat of an El Camino located in the driveway of a West Hollywood club. Someone approached the passenger side of the car and broke its passenger side window. Appellant, still in the car, used a handgun to shoot Richard Perry, who was outside the car on its passenger side.
CONTENTIONS
Appellant contends: (1) the trial court erred by failing to give CALJIC No. 5.50 as to counts 1 and 2, (2) the trial court erred by failing to include, in CALJIC No. 5.50, language concerning self-defense, (3) the trial court erred by giving CALJIC No. 8.66.1, (4) there was no substantial evidence that appellant intended to kill Perry, (5) there was no substantial evidence of the requisite malice for count 2, (6) the trial court used the wrong standard when evaluating appellant’s motion for a new trial, (7) imposition of the Penal Code section 12022.53, subdivision (d) enhancement as to count 2 violated appellant’s rights to due process and equal protection of the laws, (8) appellant’s prison sentence constituted cruel and unusual punishment, and (9) the trial court misunderstood its discretion to strike count 2 pursuant to Penal Code section 1385.
DISCUSSION
1. The Trial Court Erred as to Counts 1 and 2, by Refusing to Give CALJIC No. 5.50.
a. Pertinent Facts.
(1) The Evidence at Trial.
(a) The Testimony of Richard Perry.
Viewed in accordance with the usual rules on appeal, the evidence established that about 1:30 a.m. on February 4, 2007, Perry was having drinks outside Miyagi’s, a West Hollywood club located at 8225 Sunset Boulevard. Perry was intoxicated. An argument involving many people started outside the club. There were over 50 people in the area. A fight started in front of the club. Perry testified he saw appellant and a man named Hemphill when the fight broke out. Appellant and Hemphill got into an argument, they were trying to leave, and males followed appellant and Hemphill out to the street. Perry testified that security officers broke up the fight and “everybody started walking back toward their cars.”
As our Supreme Court stated in People v. King (1978) 22 Cal.3d 12 (King), (discussed below), “[b]ecause the right to instructions on self-defense is the central issue in this appeal, our recital of the evidence introduced at trial is necessarily one emphasizing matters which would justify such instructions, rather than the customary summary of evidence supporting the judgment. [Citations.]” (Id. at pp. 15-16, fn. omitted.) Moreover, our resolution of appellant’s first contention, i.e., his contention concerning CALJIC No. 5.50, makes it unnecessary to consider appellant’s remaining contentions except for his sixth contention. His sixth contention pertains to his new trial motion and, for reasons discussed below, we need consider that contention only as to count 3.
Perry also testified as follows. The club’s parking lot was west of the club, and there was an alley with a driveway between the parking lot and club. Appellant, Hemphill, and other males argued. Appellant and Hemphill headed west towards the parking lot, and did so before Perry headed west. Perry testified that “two or three” of the other guys had walked up on appellant and Hemphill. Perry also testified that he saw “two or three other guys basically aggressively going towards” appellant and Hemphill. Appellant and Hemphill stopped in front of the driveway, and a fight began. Perry also described what happened as a scuffle or wrestling. Perry testified he was not sure how many people were involved in the scuffle, but “[i]t was a group” and there were about “[m]aybe ten” persons in the group. Perry was asked at trial whether “they all” were fighting against appellant, and Perry replied that Perry was “not sure what they was fighting.” (Sic.) The 10 were “[m]aybe after” appellant and Hemphill.
Perry was shown at trial a photo of appellant and told it depicted appellant after the incident. Perry testified the incident was a scuffle, a wrestle, or a “beat down,” meaning “[l]osing a fight.”
Perry also testified he saw appellant and Hemphill walking in the street, “I seen the other two guys or whatever following behind him, and then they stopped.” Perry guessed that that was when the scuffle started. There was a group of people in the street. Some were not fighting, and some were just standing there watching.
Perry further testified that he earlier had testified that Hemphill was fighting on Sunset. This was the same fight during which appellant and Hemphill, outside the club, were chased, and Perry saw people following appellant and Hemphill. It was also the fight during which appellant and Hemphill were trying to leave. Perry saw a “few people” following appellant and Hemphill into the street.
Security officers stopped the fight verbally and began dispersing the “crowd.” Perry did not see where appellant went. Hemphill went to the other side of the street. The El Camino was not in the driveway at that time.
When security officers were breaking up the fight and ushering people away, Perry talked with a security officer. By that time, some people with whom Perry had been drinking already had started walking away, and they were walking towards the parking lot.
Perry’s car was parked in the parking lot, so he walked west from the club and towards the parking lot. Perry was not running but was walking quickly. However, appellant had left maybe two minutes before Perry was walking quickly to the parking lot. According to Perry, a video depicted a lot of people at one point walking towards the lower parking lot. Perry was walking with that group. Everyone seemed to be headed towards the lower parking lot “[b]ecause everyone was going to their cars after the fight.”
Perry did not know if appellant had run to the parking lot or if appellant merely had gone down Sunset, but appellant left in that direction before the group walked in that direction. Perry never had the impression that some of the many people who were walking towards the lower parking lot were continuing to chase appellant. Six or seven of Perry’s friends, who earlier had been in front of the club with him, walked towards Perry’s car with Perry. The friends were actually in a group ahead of Perry. At some point Perry saw the El Camino parked in a parking stall about five or six cars from his car.
When Perry got to the driveway, the El Camino was in the driveway. Perry crossed in front of the El Camino. Perry did not see Hemphill at that time. A male, not Perry, broke the El Camino’s passenger side window. Perry did not see the male break the window, but heard it break and turned towards the El Camino. The male had ducked down by the passenger side window. Perry saw the driver of the El Camino holding a firearm, and the driver used it to fire one shot out the passenger window and at the male. There was no passenger in the El Camino. A bullet struck Perry on his right side, above the waist. Perry was in the middle of the driveway at the time.
At one point, Perry testified, “the white El Camino was pulled out. It was ready to leave, but we were walking in front of it.” Perry continued, “So it waited until it cleared out and pulled out.”
When Perry was shot, his six or seven friends were just ahead of him, walking and talking, although Perry could not account for all of them. Perry was walking quickly to catch up to them, but his friends might have been walking normally. Perry never had the impression that his friends were chasing appellant, and Perry denied that appellant had been chased. At some point, someone jumped appellant in an area, and Perry had testified that a large group of people all went in a northwesterly direction into the parking lot where appellant’s El Camino happened to have been. However, to Perry’s knowledge, the group of six or seven men with whom he had been associating were not chasing appellant. Perry testified, “we all walked across in front of the El Camino and was, I guess, heading toward the car. I was headed toward my car, but we all passed the white El Camino.”
After the driver fired the shot, the driver exited the El Camino briefly and everyone fled. Perry fled to a location between two parked cars. He turned and saw Hemphill standing by the passenger side of the El Camino. Perry testified Hemphill “reached for the handle.” Perry gave conflicting testimony concerning whether he saw Hemphill enter the El Camino.
A video (DVD) disk (People’s exhibit No. 11) contained surveillance footage of the club on February 4, 2007. The DVD accurately depicted Perry’s actions about 2:00 a.m. on that date. The footage did not show the shooting, but did show the El Camino after the shooting at the frame at “1:57 and 19 seconds” on the tape. Perry did not fight on that date, and did not recall hitting anyone that night.
(b) The Testimony of Oscar Flores.
About 1:30 a.m. on February 4, 2007, Oscar Flores, one of the security officers, was on the sidewalk just west of the club, by the parking lot. Flores testified he observed two large groups of males arguing, and about to fight, in front of the entrance to the club. There were 30 to 40 people involved in the argument, and Flores was about 20 or 30 feet from them. Appellant and another man, who were members of one of the groups, walked to a white El Camino. As the two were walking, members of the other group were yelling at appellant. Appellant entered the driver’s side of the El Camino, and the other man entered the passenger side. Flores did not remember whether anyone continued to talk to appellant as he entered the El Camino when it was parked in its stall.
Appellant drove to the driveway of the parking lot, then stopped. Appellant stopped because there were other pedestrians around. There were people in back of the car and all around it, and it appeared they attempted to surround the car. Flores was standing on the sidewalk when the El Camino was surrounded.
The following occurred: “Q... So you’re looking at this car that’s surrounded by a whole bunch of people. What were the people doing or saying, the ones who surrounded the car? [¶] A They were just trying to instigate a fight. [¶] Q Instigate a fight with you believe Mr. White[?] [¶] A Correct.” Flores testified that, “off and on,” he could see inside the El Camino by looking between the people surrounding it, and he was looking through the El Camino’s windshield.
While appellant was stopped, a person walked up to the passenger side of the El Camino and punched out its passenger side window. Two or three seconds later, the driver of the El Camino pulled out a gun and fired two shots through the passenger window. Flores also testified appellant pulled out a gun, fired a couple of shots, and the victim collapsed. The person who was shot was the person who had punched out the window. At the time of the shooting, Flores was about 20 feet from the El Camino. There were about 60 people around the area of Flores and the El Camino. The people were all over the parking lot and sidewalk.
Appellant exited the El Camino, walked behind the car, pointed the gun at the crowd, and scared the crowd. Appellant then walked back to the car, reentered it, and drove westbound on Sunset.
(c) The Testimony of Roy Barnett.
Roy Barnett, a security officer who was working with Flores, testified that appellant and Hemphill entered the driver’s side and passenger’s side of a white El Camino parked in the parking lot, and attempted to leave. Barnett also testified, “[p]eople were still exiting in front of them, a lot of people. Crowds were crossing in front of them, so they had to wait.” The El Camino moved a couple of feet, then stopped.
Barnett further testified that after appellant and Hemphill entered the El Camino, they could not go anywhere because there were people exiting the club, they were walking in front of the El Camino, and appellant and Hemphill “just couldn’t run over them.” The El Camino stopped because it could not get out. There were quite a few people around the El Camino. Barnett testified that there were people exiting the club who were in front of the vehicle, and “the gentlemen that were after these guys here, they were behind them. They were approaching the vehicle from the driver’s side. And you had a guy come around to the passenger side.” That person punched out the window.
The passenger leaned forward and the driver fired a gun towards the passenger window. Barnett heard two shots. The person who had punched the window had been shot. A security guard ran to appellant, but appellant struck him in the face with the gun, knocking him down. Appellant reentered the El Camino and exited the parking lot, driving away on Sunset. The parties stipulated that appellant had suffered a 2004 commercial burglary conviction.
(2) Proposed Jury Instructions.
During discussions concerning proposed jury instructions, appellant’s counsel asked the court if the court instructed on the right of self-defense and “that one doesn’t necessarily have to give ground if they’re not the aggressor.”
The parties concede the trial court understood appellant’s counsel to be referring to CALJIC No. 5.50, discussed below. There is no dispute appellant was referring to that instruction.
The court replied, “That instruction is not a proper instruction based on this particular case. I did look at that instruction, and when it involves a felon in possession of a firearm, it specifically indicates that that instruction is not to be given. [¶] In lieu of that instruction the court gives [CALJIC No.] 12.50 which addresses the issue of a person previously convicted of a felony does not violate section 12021 of the Penal Code by being in possession of a firearm if the four elements are met.” (Sic.) The court indicated it was referring to CALJIC No. 12.50, then stated, “[b]ut specifically the duty or lack of duty to retreat is specifically referenced in CALJIC not to be given in conjunction with that charge.” (Sic.)
CALJIC No. 5.50 has no use note, and nothing in that instruction at the time of the trial related the issue of the giving of that instruction to the issue of a felon being in possession of a firearm. On the other hand, CALJIC No. 12.50, discussed later, contains a use note which states, “Do not give CALJIC 5.50... if defendant was previously convicted of a felony and is accused of that crime.” (Use Note to CALJIC No. 12.50 (2007).) The use note also states, “Do not give CALJIC 12.50 if defendant was previously convicted of a felony but the defendant is not charged with a violation of Penal Code § 12021. If the defendant is not accused of that crime and raises self defense to an accusation of an assaultive crime, it would be error to give this instruction. [People v. Rhodes (2005) 129 Cal.App.4th 1339 (Rhodes).]” (Use Note to CALJIC No. 12.50 (2007).)
(3) Jury Argument.
During opening argument, the prosecutor urged that the “big issue” in this case was self-defense. Appellant later urged that self-defense was a defense to counts 1 and 2. As part of that argument, appellant frequently referred to the issue of reasonableness. Subsequently, appellant’s counsel indicated he wanted to talk about self-defense, and noted that self-defense was a defense to attempted murder and shooting from a motor vehicle. Appellant’s counsel did not then refer to count 3. Appellant’s counsel later commented to the jury concerning self-defense.
Appellant discussed the issues of whether appellant (1) reasonably believed he was in imminent danger of bodily harm, (2) reasonably believed immediate use of force was necessary, (3) used no more force than was reasonably necessary, and what a person would have believed concerning various issues. Appellant also argued that if appellant reasonably associated with Perry a threat received from the “mob,” the jury could find appellant’s actions in defending himself were reasonable.
Appellant’s counsel then stated, using language similar to that found in CALJIC No. 5.50 (discussed below), “A defendant is not required to retreat. He’s entitled to stand his ground and defend himself if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. That’s true even if safety could have been achieved by retreating.” However, the court then stated, “Counsel, you’re referring to an instruction that doesn’t apply to this particular charge.” Appellant’s counsel replied, “Sorry, your Honor. I thought I was referring to an instruction that did apply.”
During closing argument, the prosecutor urged, “[a]nd this issue of whether it was reasonable for Mr. White to shoot under those circumstances. Based on the evidence, certainly it would have been reasonable for Mr. White to have hit the person who punched through his window and possibly caused him some injury in that action. He could have driven away. That certainly would have been reasonable.”
(4) The Court’s Final Charge to the Jury.
The court instructed the jury on, inter alia, attempted willful, deliberate, and premeditated murder (count 1). The court instructed, as a lesser offense of count 1, on attempted voluntary manslaughter based on sudden quarrel or heat of passion, and based on imperfect self-defense. The court also instructed on shooting from a vehicle (count 2), and, using CALJIC No. 12.44, on possession of a firearm “by [a] person convicted of a felony – status stipulated” (count 3; capitalization omitted).
The court also gave to the jury CALJIC No. 12.50, entitled “Use of Firearm by Convicted Felon—Self-Defense[.]” That instruction stated, “A person previously convicted of a felony does not violate section 12021 of the Penal Code by being in possession of a firearm if: [¶] 1. [He] [She] as a reasonable person had grounds for believing and did believe that [he] [she] was [or] [others were] in imminent peril of great bodily harm; and [¶] 2. Without preconceived design on [his] [her] part, a firearm was made available to [him] [her]; [¶] 3. [His] [Her] possession of such firearm was temporary and for a period of time no longer than that in which the necessity or apparent necessity to use it in self-defense continued; and [¶] 4. The use of the firearm was reasonable under the circumstances and was resorted to only if no alternative means of avoiding the danger were available.”
The court, using CALJIC No. 5.30, instructed the jury on the general principle of self-defense. The court did not, however, give CALJIC No. 5.50, which is entitled “Self-defense—Assailed person need not retreat.” (Some capitalization omitted.) That instruction stated: “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of [his] [her] right of self-defense a person may stand [his] [her] ground and defend [himself] [herself] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue [his] [her] assailant until [he] [she] has secured [himself] [herself] from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”
CALJIC No. 5.30, stated, “It is lawful for a person who is being assaulted to defend [himself]... from attack if, as a reasonable person, [he]... has grounds for believing and does believe that bodily injury is about to be inflicted upon [him].... In doing so, that person may use all force and means which [he]... believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
(5) Jury Deliberations.
At 10:21 a.m. on September 11, 2007, the jury retired to begin deliberations. At 11:52 a.m., the court received a note from the jury. The note stated, “We would like to see the video from Miyagi’s.” At 1:47 p.m., the court addressed the jury concerning the note and played the video. The foreperson asked if the video could be played “from 155-15” at regular speed, and the court complied. The foreperson then asked if the video could be played from “157” at regular speed and the court complied. The foreperson again asked if the video could be played from “157,” and the court complied. At 2:00 p.m., the jury resumed deliberations.
At 3:43 p.m., the court, in the presence of the jury, indicated it had received two requests from the jury. One was that the court give the jury 11 copies of the jury instructions. The second pertained to first and second degree murder, and the difference between the two. The court read pertinent instructions on first and second degree murder, and asked if they answered the jury’s question. The foreperson did not answer but asked the court to instruct on malice aforethought. The court complied. The foreperson later indicated five copies of instructions would be sufficient. The foreperson, referring to the court’s re-reading of the instructions, said, “We’re good.” At 4:03 p.m., the jury resumed deliberations. The court indicated it would provide the five copies of instructions. At 4:20 p.m., court adjourned.
The jury indicated it did not understand the definition of “first [degree murder] vs. second degree murder.” The jury asked if willfulness, deliberation, and premeditation were requirements for first degree murder and whether, absent those factors, murder was of the second degree.
At 10:25 a.m. on September 12, 2007, the jury resumed deliberations, and recessed at 12:18 p.m. At 1:33 p.m., the jury resumed deliberations and, at 2:28 p.m., the court received another request from the jury. The request stated, “We would like to see the video one more time (1:55:30 start time).”
The court played the video again, first at regular speed, then at slow speed. When the video was played at slow speed, it started playing at “1:55.” The jury asked to see the video frame at “1:57:04.” The video was played and stopped at “1:57:04 and a half.” After the jury conferred, the foreperson asked the court to “[b]ring it up two more seconds.” The foreperson later asked to “[t]ry and get the car right by the street. I’ll tell you when and if I see it on the screen.” After the video was played at regular speed at “1:56,” the jury conferred and the foreperson asked to see “1:56:30 in slow speed” until “after the car pulls out.” The video was played and the foreperson said, “We’re fine.” The jury resumed deliberations. At 4:15 p.m., the jury announced they had reached a verdict.
b. Analysis.
(1) The Trial Court Erred as to Counts 1 and 2.
Appellant claims the trial court erroneously refused to give CALJIC No. 5.50 as to counts 1 and 2. We agree.
There is no dispute for purposes of appellant’s present contention that he shot Perry in 2007, and admitted at trial that appellant was a felon. Moreover, there is no dispute that CALJIC No. 5.50, which instructs, inter alia, that a defendant exercising a right of self-defense has no duty to retreat but has a right to stand his or her ground, is a correct statement of law, even if a defendant uses deadly force, and there is no dispute the instruction does not indicate that whether the defendant has a duty to retreat, and thus whether self-defense is available as a defense, depends upon whether the defendant is a felon.
Moreover, there is no dispute that the Legislature, by enacting in 1923 a statute which was the predecessor of former Penal Code section 12021, subdivision (a)(1), and which (like the former subdivision) proscribed possession of a concealable firearm by a felon, did not intend that felons could not possess and use a concealable firearm in lawful self-defense, and a felon could possess such a firearm in self-defense. (King, supra, 22 Cal.3d at pp. 15, fn. 1, 21-22, 24.) However, the felon had a duty to retreat if retreat was an available means to avoid the danger, and could not assert self-defense to a charge that the felon had violated the former subdivision if the felon had violated the duty to retreat. (King, supra, 22 Cal.3d at pp. 15, 24.)
The predecessor statute was codified at former Penal Code section 12021, subdivision (a)(1). (King, supra, 22 Cal.3d at pp. 21-22.) That former subdivision was at issue in King and provided, in relevant part, that “ ‘Any person who has been convicted of a felony... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person, is guilty of a public offense[.]’ ” (King, supra, at p. 15, fn. 1, italics added.)
Similarly, it is undisputed that the 2007 version of Penal Code section 12021, subdivision (a)(1), (in effect when appellant shot Perry) which proscribed possession of a firearm by a felon (whether or not the firearm was concealable), did not preclude felons from possessing and using a firearm in lawful self-defense. However, although a felon could possess a firearm in self-defense, the felon had a duty to retreat if retreat was an available means to avoid danger, and the felon could not assert self-defense as a defense to a charge that the felon had violated that subdivision if the defendant had violated that duty. (Cf. King, supra, 22 Cal.3d at pp. 15, 24.)
The 2007 version of Penal Code section 12021, subdivision (a)(1), stated, in relevant part, “Any person who has been convicted of a felony... and who owns,... receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (Italics added.)
The threshold question in this case is whether, where, as here, appellant, a felon, allegedly committed attempted murder (count 1) and shooting from a motor vehicle (count 2), and could normally assert a defense of self-defense (which would not normally impose upon appellant a duty to retreat), does the fact that appellant is a felon mean appellant had a duty to retreat, the violation of which would render self-defense unavailable as a defense to those two charges? For the reasons discussed below, we answer this question in the negative, and conclude that the trial court erred by failing to give CALJIC No. 5.50, as to counts 1 and 2, because it was a correct statement of law as to those counts, and the fact that appellant was a felon was irrelevant.
Respondent answers the above question in the affirmative, thereby implying that a defendant who otherwise can urge self-defense cannot do so if the defendant previously has been convicted of a felony, no matter what its nature, and no matter how remote in time the felony.
Respondent relies solely on King for this proposition. In King, a person handed a gun to the defendant, a felon, shortly before the defendant used it to shoot towards persons in circumstances which otherwise would have entitled him to jury instructions on the use of deadly force in self-defense. (King, supra, 22 Cal.3d at pp. 15, 18.) The defendant was charged with a violation of the previously mentioned former version of Penal Code section 12021, subdivision (a)(1) (see fn.10, ante), but the trial court refused to instruct on self-defense, and the jury convicted him of the charge. (King, at p. 15.)
King concluded, as a matter of statutory interpretation, that the Legislature, when enacting Penal Code section 12021, subdivision (a)(1), did not intend to preclude felons from possessing and using concealable firearms in self-defense. (King, supra, 22 Cal.3d at pp. 15, 20-24.)
King later stated, “Thus, when a member of one of the affected classes [a felon or a drug addict is in imminent peril of great bodily harm or reasonably believes himself... to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021. As in all cases in which deadly force is used or threatened in self-defense, however, the use of the firearm must be reasonable under the circumstances and may be resorted to only if no other alternative means of avoiding the danger are available. In the case of a felon defending himself alone, such alternatives may include retreat where other persons would not be required to do so. (King, supra, 22 Cal.3d at p. 24, italics added.)
Under Penal Code section 12021, subdivision (a)(1) (the former version reviewed under King, as well as the version in effect in 2007) both felons and drug addicts were prohibited from possessing the weapons at issue.
Respondent relies upon the above italicized language to support the proposition that the trial court in the present case properly refused to give CALJIC No. 5.50. Respondent asserts, “By its own terms, the language applies to ‘all cases in which deadly force is used or threatened in self-defense.’ Thus, appellant, a felon, could use the firearm ‘only if no other alternative means of avoiding the danger [we]re available.’ As a result, under King, appellant had a duty to retreat before using the firearm in self-defense. Because appellant, as a felon, had a duty to retreat before using the firearm in self-defense, CALJIC No. 5.50 was inapplicable, and the trial court properly refused to instruct the jury with it.”
However, first, and importantly, King was a case in which the defendant was convicted only of a violation of Penal Code section 12021, subdivision (a)(1) (the former version). The issue in King therefore was whether a felon could assert self-defense against a charge that the felon violated Penal Code section 12021, subdivision (a)(1). King had no occasion to consider whether a felon could assert self-defense against charges that, e.g., a defendant committed attempted murder (count 1 in the present case) or shooting from a motor vehicle (count 2 in the present case) when, as in the present case, the defendant happened to be charged in a third count with a violation of Penal Code section 12021, subdivision (a)(1). Cases are not authority for propositions not considered. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.)
Second, King was a case in which the defendant was not only a felon but was charged with an offense, Penal Code section 12021, subdivision (a)(1), an element of which was that the defendant was a felon. Being a felon is not an element of the offense of attempted murder or shooting from a motor vehicle. King never considered whether a felon who allegedly violated Penal Code section 12021, subdivision (a)(1) (which has being a felon as an element) might have, with respect to that alleged violation, a duty to retreat, even though a felon who allegedly committed some crime (1) other than a violation of that subdivision and (2) which did not have being a felon as an element, might not have, with respect to that alleged crime, a duty to retreat.
Penal Code section 12021, subdivision (a)(1) expressly applies to felons, i.e., persons who have suffered a felony conviction, and the legislative purpose of the former version of the subdivision was to prevent felons (and drug addicts) from having “concealable firearms readily available lest the weapons be used for crimes of violence or other unlawful purposes.” (King, supra, 22 Cal.3d at p. 23.) Accordingly, when a felon asserted self-defense to a charge that the defendant violated that former subdivision, imposing a duty to retreat when retreat was an available alternative to possession and use of a concealable firearm advanced the legislative purpose of the subdivision.
Similarly, the 2007 version of Penal Code section 12021, subdivision (a)(1) expressly applies to persons who have suffered a felony conviction, and we may reasonably infer that the legislative purpose of the 2007 version of the subdivision is to prevent felons (and drug addicts) from having firearms (whether or not concealable) readily available lest the weapons be used for crimes of violence or other unlawful purposes. Accordingly, when a felon asserts self-defense to a charge that the defendant violated the 2007 version of the subdivision, imposing a duty to retreat when retreat is an available alternative to possession and use of a firearm advances the legislative purpose of that subdivision.
However, the legislative purposes of statutes prohibiting attempted murder and shooting from a motor vehicle are not to prevent felons from having firearms readily available lest the weapons be used for crimes of violence or other unlawful purposes. Accordingly, when a defendant asserts self-defense to a charge that the defendant committed attempted murder or shooting from a motor vehicle, the legislative purpose undergirding Penal Code section 12021, subdivision (a)(1) is unavailable to support imposition of a duty to retreat if retreat would avoid the danger.
Third, the previously italicized portion of King upon which respondent relies immediately follows a discussion of the circumstances in which a felon’s “temporary possession of that weapon... to use it in self-defense... does not violate section 12021.” (King, supra, 22 Cal.3d at p. 24, italics added.) That is, the portion of King upon which respondent relies is part of a larger discussion of the circumstances in which a felon charged with a violation of Penal Code section 12021, subdivision (a)(1), may claim self-defense. No other offense is at issue.
Fourth, like appellant, we see no reason why the fact that a defendant might have been convicted in the remote past of any felony, such as stealing nuts or artichokes, (Pen. Code, §§ 17, subd. (a), 487, subd. (b)(1)(A), and 489, subd. (b)), might control whether the defendant might have a duty to retreat when asserting self-defense against charges of attempted murder and shooting from a motor vehicle.
In King, our Supreme Court, as a matter of statutory interpretation of Penal Code section 12021, subdivision (a)(1), made self-defense available as a defense to a charge that the defendant violated that subdivision. We do not believe that our Supreme Court intended that that interpretation be construed to restrict the availability of self-defense when a defendant was charged with an offense not at issue in King, i.e., an offense(s) other than a violation of that subdivision, such as attempted murder and shooting from a motor vehicle. CALJIC No. 5.50 correctly set forth the general rule applicable to counts 1 and 2 in the present case, namely, that a defendant exercising a right of self-defense has no duty to retreat but has a right to stand his or her ground. King created no “felon exception” to this general rule.
Moreover, even if King created a “felon exception,” respondent’s analysis begs the question of whether that exception applied here with the result that appellant had a duty to retreat. Respondent observes that “a felon, could use the firearm ‘only if no other alternative means of avoiding the danger [we]re available.’ As a result, under King, appellant had a duty to retreat before using the firearm in self-defense.” (Italics added.) However, respondent’s analysis here does not address the issue of whether, based on the evidence in this case, there was an alternative means of avoiding the danger. Only if there was such an alternative would a duty to retreat exist.
Rhodes, supra, 129 Cal.App.4th 1339, is illuminating on the issue of whether the trial court in the present case should have given CALJIC No. 5.50 as to counts 1 and 2. If King was a case in which the defendant was convicted only of a violation of Penal Code section 12021, subdivision (a)(1), Rhodes was a case on the other end of the spectrum, i.e., in Rhodes, the defendant was convicted only of offenses other than a violation of Penal Code section 12021, subdivision (a)(1).
In Rhodes, the victims, in one car, approached the defendant, a felon, who was driving another car. The first victim exited and approached the defendant, who fired a gun, and the bullet hit the first victim. The defendant later shot at the second victim. Similar to appellant in the present case, the defendant in Rhodes was charged with two counts of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle. However, unlike appellant, the defendant in Rhodes was not charged with a violation of Penal Code section 12021, subdivision (a)(1).
The trial court in Rhodes refused to give CALJIC No. 5.50 as to any count, and instead gave CALJIC No. 12.50 as to all counts. As to the refusal, the defendant argued to the trial court that “there was no authority stating CALJIC No. 5.50 could be refused solely because the defendant was previously convicted of a felony.” (Rhodes, supra, 129 Cal.App.4th at p. 1344.)
On appeal, the defendant claimed the trial court erred twice: by refusing to give CALJIC No. 5.50, and by giving CALJIC No. 12.50 as to all counts. Rhodes noted that CALJIC No. 12.50 was based on King, and that the language from CALJIC No. 12.50 (which we previously have italicized, and on which respondent relies) “instructed the jury there was a limited circumstance under which Rhodes could lawfully possess a gun.” (Rhodes, supra, 129 Cal.App.4th at p. 1345.)
As to the CALJIC No. 5.50 claim, Rhodes stated, “although Rhodes was a convicted felon, he had the right to defend himself, stand his ground, and use the amount of force reasonable under the circumstances. Therefore, the trial court should have instructed the jury with CALJIC No. 5.50 if there was evidence to support it.” (Rhodes, supra, 129 Cal.App.4th at p. 1346.)
Rhodes indicated that the trial court had refused to give CALJIC No. 5.50 because the trial court had relied on CALJIC No. 12.50’s use note, which indicated that CALJIC No. 5.50 was not to be given when the defendant was convicted of a felony. However, Rhodes observed that the defendant had not been charged with a violation of Penal Code section 12021; therefore, the giving of CALJIC No. 12.50 was error, and CALJIC No. 12.50’s use note prohibiting the giving of CALJIC No. 5.50, was irrelevant.
Thus, where the defendant in Rhodes, a felon, sought to assert self-defense as a defense to offenses which were not violations of Penal Code section 12021, subdivision (a)(1), Rhodes held the trial court (1) erroneously refused to give CALJIC No. 5.50, which instructed, inter alia, that the defendant had a right to stand his ground, and (2) erroneously gave CALJIC No. 12.50, which instructed, inter alia, that a defendant had a duty to retreat if that was an available alternative means to avoid the danger. In a case in which the defendant was charged only with offenses other than violations of Penal Code section 12021, subdivision (a)(1), Rhodes rejected the notion that the mere fact that the defendant had been convicted of a felony negated a right to stand his ground in self-defense and imposed a duty to retreat if retreat was an available alternative.
The trial court in the present case gave CALJIC No. 12.50 only as to count 3, which alleged a violation of Penal Code section 12021, subdivision (a)(1). There is no claim that this was error.
As mentioned, in King, the defendant was convicted only of a violation of Penal Code section 12021, subdivision (a)(1), and, in Rhodes, the defendant was convicted only of offenses other than violations of that subdivision. The present case is somewhere in between since appellant was convicted of offenses other than a violation of Penal Code section 12021, subdivision (a)(1), and was convicted of a violation of that subdivision. However, we find Rhodes illuminating and see no reason not to apply to counts 1 and 2 in this case, Rhodes’s conclusion that the trial court in that case erred by failing to give CALJIC No. 5.50 as to charges that the defendant committed offenses other than violations of Penal Code section 12021, subdivision (a)(1). In the present case, those charges are attempted murder (count 1) and shooting from a motor vehicle (count 2). We hold the trial court erred by failing to give CALJIC No. 5.50 as to counts 1 and 2 in the present case.
The problem with CALJIC No. 12.50’s use notes (upon which the trial court in Rhodes erroneously relied, and upon which the trial court in the present case erroneously relied in part) is that they do not deal with this hybrid situation.
(2) The Error Was Prejudicial.
The remaining issue is whether the above instructional error was prejudicial. For the reasons discussed below, we conclude it was. First, the trial court’s instructional error failed to inform the jury that, as to counts 1 and 2, appellant had a right to stand his ground and had no duty to retreat. That mere failure, however, did not preclude the jury from believing that appellant may have had a right to stand his ground.
However, during jury argument, appellant’s counsel, implicitly discussing CALJIC No. 5.50, expressly indicated as to counts 1 and 2 that appellant had a right to stand his ground and did not have a duty to retreat. Appellant’s counsel had not referred at that point to count 3. Nonetheless, the court replied, “Counsel, you’re referring to an instruction that doesn’t apply to this particular charge.” It is reasonably likely that the jury understood the court to be denying that the substance of CALJIC No. 5.50 applied to counts 1 and 2, and, in particular, that the trial court was denying that appellant had a right to stand his ground and had no duty to retreat as to those counts. The trial court’s reply compounded the trial court’s error in failing to give CALJIC No. 5.50.
Second, during jury argument, the prosecutor, commenting on whether it was reasonable for appellant to shoot under the circumstances, argued that it “certainly would have been reasonable” for appellant to have driven away. The prosecutor was thus arguing that it would have been reasonable for appellant to have retreated. The prosecutor not only did not comment on whether it also would have been reasonable for appellant to stand his ground and use deadly force, but did not comment that appellant had a right to stand his ground. The prosecutor’s comments suggested that the issue of retreat impacted whether appellant’s actions were lawful only as they related to reasonableness and as a matter of fact, when, in reality, the issue of retreat impacted whether appellant’s actions were lawful because he had a right to stand his ground as a matter of law.
Third, the prosecutor acknowledged it was reasonable for appellant to stand his ground and hit the person who hit appellant’s window, but the prosecutor did not acknowledge appellant had a right to stand his ground and use deadly force.
Fourth, we have set forth the pertinent facts. Although there was evidence that persons surrounded appellant’s car shortly before the shooting, it is not clear from the evidence how many persons surrounded the car, how far such persons were from the car, how far they were from each other, or where any such persons were located. Given the evidence, the jury conceivably might have concluded that the amount of space available to appellant to maneuver his car was such that he could have retreated instead of shooting. There is also evidence that a person(s) came to the driver’s side of the car, and other evidence that persons were not chasing appellant at all. Accordingly, given the trial court’s instructional errors and the prosecutor’s argument, the jury might have concluded that appellant could not assert self-defense because retreat was a reasonable alternative, the jury never having considered whether he had a right to stand his ground.
In sum, the jury might have concluded that retreat was an option available to appellant to avoid the danger and, therefore, that he had a duty to retreat which he violated, negating self-defense.
Fifth, the video pertaining to the incident was played to the jury during trial. Nonetheless, during jury deliberations, the jury, on two separate occasions, sent notes to the court asking for a playback of the video. The court honored the requests and, during each playback, the jury carefully reviewed the video at various speeds at various points in the video.
We have reviewed the video and the portions thereof on which the jury focused. The video does not depict the shooting, but appears to depict events which occurred thereafter. The video does not appear to depict the location, at the time of the shooting, of the car that appellant was in, and the video does not depict whether, at that time, persons were or were not surrounding the car. However, the portions the jury focused on were the portions which appear to depict events shortly after the shooting, including the locations of appellant and the car he was in shortly after the shooting.
In sum, although we cannot divine the jurors’ mental processes, the portions on which the jury focused were the portions depicting events closest to the time of the shooting, and the jury’s review of those portions was consistent with a jury concern about the extent to which, if at all, the car appellant was in was surrounded at the time of the shooting, and whether appellant had an opportunity to retreat. We note the jury reasonably could have concluded that the accounts of Perry, Flores, and Barnett were different, if not conflicting, on the extent to which persons aggressively approached and/or surrounded the car, and, as a result, the jury reasonably may have wanted to focus on the video to attempt to resolve the retreat issue. We also note the foreperson asked the court to “[t]ry and get the car right by the street,” which is where the car would have been about the time of the shooting.
Finally, the jury, by their verdicts, were as lenient as they could have been given the other instructions. The jury, after probing the court about first and second degree murder, found not true the allegation that the attempted murder was of the first degree. The jury, convicting appellant of attempted voluntary manslaughter, apparently accepted appellant’s claim that the shooting was mitigated by sudden quarrel and/or imperfect self-defense. This suggests that if the jury had been given CALJIC No. 5.50, they might have shown further leniency by concluding appellant had no duty to retreat and by acquitting him on counts 1 and 2.
We test the issue of prejudice under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable that a result more favorable to appellant would have occurred absent the instructional error. We note that “ ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” [Citation.]’ [Citation.]” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) We conclude the trial court reversibly erred as to counts 1 and 2 by failing to give CALJIC No. 5.50 as to those counts. Except for part 2 of our Discussion, we express no opinion about this case other than that the trial court reversibly erred as to counts 1 and 2 by refusing to give CALJIC No. 5.50.
We note the trial had severe misgivings about this case. During discussions concerning appellant’s motion for a new trial, the court indicated it had requested appellant’s counsel to talk with the district attorney’s office. The court noted it would have to sentence appellant to a minimum of 28 years to life (the sentence ultimately imposed), and the court was “very, very concerned.” The court based its concern on its review of Penal Code section 12034, subdivision (c), the legislative intent behind that section, the fact that the El Camino was not in motion and was in a public place, and appellant’s criminal record which consisted of a second degree burglary conviction. The court indicated that if it proceeded to sentencing, appellant, who was born in 1972, would likely spend the rest of his formative years in prison. The court stated, “I wanted to speak to the district attorney about these circumstances because... bad facts make bad law.” The court indicated that Penal Code section 12034, subdivision (c) was designed to prevent drive-by shootings. The court also indicated that despite its admonition to appellant not to try the case and a reasonable plea bargain offer from the People, the court had “severe misgivings on the facts of this case and looking at Mr. White and telling him he should die in prison in this case. I just have a very difficult time. And my hands are tied in this case.” The court told appellant that he did not deserve a prison sentence of 28 years to life in this case. The court also told appellant’s counsel, “... I heard the case. I know something about the facts of the case. Your client’s not a bad guy. He did a bad thing, and I don’t feel that I can sleep well at night thinking that I’m going to have him die in prison, okay? I just can’t do it.”
2. The Trial Court Used the Wrong Standard When Denying Appellant’s Motion for a New Trial as to Count 3.
a. Pertinent Facts.
On October 18, 2007, appellant filed a motion for a new trial as to his convictions on the grounds the “verdict or finding is contrary to law or evidence[.]” (Pen. Code, § 1181, subd. 6.) During argument on the motion, the court stated, “My standard -- and when I say ‘my standard,’ the trial court’s standard is to assess and evaluate the evidence that’s been presented and then determine whether it is sufficient to sustain an assessment and review on appeal. I know I can sit as a thirteenth juror, but clearly not for purposes of credibility but for purposes of the sufficiency of the evidence legally.
“So in regard to that, understanding that all of these issues were raised, were presented to the trier of fact, and in some respects were rejected in terms of the findings of the jury as to the lesser included offense as to count 1, count 2 and count 3, I’m satisfied that the evidence as presented in this matter is sufficient to sustain the verdicts in this case.”
The court later stated, “So at this point, I will not sit as a thirteenth juror on issues of credibility, and the court is not going to overturn the verdict simply because this court may have had a different interpretation of some issues raised or may or may not have agreed with the jury’s findings as to certain other issues. I don’t think I’m legally required, nor [would I] be legally justified in doing that.” The court later denied the motion for a new trial.
b. Analysis.
Respondent concedes it appears the trial court used an erroneous standard when evaluating appellant’s motion for a new trial. We accept the concession. The trial court erroneously indicated that the applicable standard of review for a trial court reviewing the motion was the same as the applicable standard of review for an appellate court reviewing an appellate challenge to the sufficiency of the evidence, and that the trial court did not, when evaluating appellant’s motion, evaluate credibility of witnesses.
Since we are reversing, because of instructional error, appellant’s convictions for attempted voluntary manslaughter and shooting from a motor vehicle, there is no need to reach appellant’s claim concerning his motion for a new trial to the extent his claim pertains to those convictions. However, to the extent his claim pertains to his conviction on count 3, his claim has merit. Unlike an appellate court reviewing a sufficiency challenge, a trial court reviewing a motion for a new trial reweighs the evidence and reevaluates the credibility of witnesses. Trial courts do not employ the same standard as appellate courts when trial courts weigh sufficiency of the evidence pursuant to a Penal Code section 1181 motion for a new trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6; People v. Trevino (1985) 39 Cal.3d 667, 694; People v. Robarge (1953) 41 Cal.2d 628, 633-635; People v. Cortes (1999) 71 Cal.App.4th 62, 71.) We will remand the matter to permit the trial court to employ the correct standard when reviewing appellant’s motion for a new trial pursuant to Penal Code section 1181, subdivision 6, as to his conviction for possession of a firearm by a felon (count 3).
DISPOSITION
The judgment is affirmed, except that appellant’s convictions for attempted voluntary manslaughter (Pen. Code, §§ 192, 664; a lesser offense of count 1 - attempted willful, deliberate, and premeditated murder) and shooting from a motor vehicle (Pen. Code, § 12034, subd. (c); count 2) are reversed, the court’s order denying appellant’s motion for a new trial pursuant to Penal Code section 1181, subdivision 6, is vacated, and the matter is remanded to the trial court for a new trial (Pen. Code, § 1262) as to counts 1 and 2, and for a new hearing, consistent with this opinion, on appellant’s motion for a new trial as to his conviction for possession of a firearm by a felon (count 3).
We concur: CROSKEY, Acting P. J., ALDRICH, J.
Later at sentencing, the court indicated that if it had possessed authority to do so, it would have stricken count 2 pursuant to Penal Code section 1385, and would have sentenced appellant to prison for a total of 10 years. However, the court indicated it lacked discretion to strike count 2. Some of the court’s concern pertained to the sentencing impact of count 2 and its Penal Code section 12022.53, subdivision (d) enhancement. At the conclusion of sentencing, the court stated, “I will tell you that I don’t sleep well tonight based on the sentence I’ve imposed in this case, but I believe that’s what the law requires. So I’m sorry in that respect. I’m not sorry that you committed the crime and you deserve a sentence in this matter, but the court feels that this sentence is certainly not commensurate with the facts and circumstances.” However, the die may have been cast once the jury did not get CALJIC No. 5.50.