Opinion
H046400
11-18-2021
THE PEOPLE, Plaintiff and Respondent, v. ROMAN JUAN ALVARADO, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1649948
ELIA, J.Jeffrey Cooper borrowed his friend Randy Sandoval's car and did not return it. A few days later, Sandoval's neighbor and friend, defendant Roman Alvarado, saw Cooper with the car and made him return it to Sandoval. That night, Sandoval and Alvarado celebrated with drinks. They became intoxicated and decided to go confront Cooper. Cooper lived in his vehicle, which he kept parked in a Lowe's parking lot. Sandoval and Alvarado drove to the parking lot. Alvarado approached the vehicle, opened the door, and stabbed Cooper once in the chest. In an interview that was played for the jury at trial, Alvarado told police he was startled by Cooper and acted on instinct and to protect himself.
Sandoval and Alvarado were tried together to separate juries for Cooper's murder. Both were convicted of second degree murder. Alvarado's jury also found that he personally used a deadly and dangerous weapon in the commission of the crime. The trial court sentenced Alvarado to a state prison term of 15 years to life on the murder count consecutive to one year on the personal use enhancement. On appeal, Alvarado challenges the denial of his motion to suppress the statements he made to police, which he contends were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. He also notes an error in the abstract of judgment and raises claims of prosecutorial misconduct, instructional error, cumulative error, and Dueñas error. Finally, he requests the conditional reversal of the judgment and remand for the trial court to conduct a mental health diversion eligibility hearing. Finding no prejudicial error, we affirm the judgment as modified to correct a clerical error in the abstract of judgment.
People v. Dueñas (2019) 30 Cal.App.5th 1157.
I. Background
A. Factual Summary
Alvarado and his wife lived in San Jose, next door to Sandoval and his girlfriend, Margaret Z. Sandoval and Alvarado were friends. They socialized, drank, and sometimes used methamphetamine together. Margaret testified that on "the majority of days" Sandoval would drink a case of beer "and totally be out of it." She said that in October 2016 he was drinking a bottle or two of hard alcohol each night.
Sandoval also was friends with Cooper. In mid-2016, Cooper was living in his vehicle, a Pontiac Aztec SUV that he kept parked in the parking lot of the Lowe's on Ridder Park Drive.
On October 7, 2016, Cooper borrowed Sandoval's car to go buy food. Cooper was only supposed to be gone an hour, but he still had not returned the car three days later. Sandoval and Margaret contacted Cooper to convince him to return the car without success. Early on the evening of October 10, Alvarado happened to run into Cooper, who was with Sandoval's car. Knowing Sandoval wanted his car back, Alvarado drove the vehicle to Sandoval's house with Cooper in the passenger seat. Sandoval went outside when Alvarado and Cooper arrived in his car. According to Margaret, who was watching out the window of the home she shared with Sandoval, Sandoval was frustrated and punched or slapped Cooper in the face. Sandoval then took Cooper's belongings- including a suitcase and a storage bin-out of the car and threw them on the ground.
Margaret testified that Cooper eventually left in a cab. Records from Yellow Checker Cab Company showed that, on October 10, 2016, a passenger by the name of Jeffrey was picked up by a cab at Sandoval's address at 6:54 p.m. and was dropped off on Ridder Park Drive at 7:19 p.m.
Margaret testified that, after the car was returned, Sandoval took a bag with several bottles of hard alcohol in it over to Alvarado's backyard shed. Forty-five minutes to an hour later, she went to the shed to check on Sandoval. He and Alvarado were drinking hard alcohol. Margaret saw a pipe for smoking methamphetamine and a lighter on the table but did not see either man use methamphetamine that night. She went back inside after 10 or 15 minutes. At about 8:00 p.m., Sandoval and Alvarado came inside too. They sat in Sandoval's kitchen drinking beer. According to Margaret, both men were intoxicated. She further testified that they were "in this rage, all hyped up," and saying they were going to teach Cooper a lesson.
Margaret testified that the two men left the house at about 9:00 p.m. Alvarado told Margaret, "We're going to take care of him." They returned at about 10:00 p.m., at which time Alvarado said to Margaret, "He's not gonna bother you no more. I stabbed him in the chest and I stabbed him in the arm."
At approximately 10:00 p.m. on October 10, 2016, a passerby discovered Cooper's body in the parking lot of the Lowe's on Ridder Park Drive. Cooper was on the ground outside his vehicle with one arm in the front driver's side wheel well. The rear driver's side door of Cooper's vehicle was open. The passerby flagged down a security guard 15 to 20 minutes later. The security guard notified his dispatcher, who called police. Paramedics pronounced Cooper dead at 10:43 p.m.
The chief medical examiner for the Santa Clara County Medical Examiner Coroner's Office testified that she autopsied Cooper. She testified that Cooper had suffered a round puncture wound to the upper right chest. In her opinion, the wound was not consistent with a knife. The wound punctured the chest plate, traversed the entire aorta, and punctured the underlying airway. The chief medical examiner testified that it would have required "great force" to cause those injuries. The injury to the aorta "caused a tremendous amount of bleeding inside the pericardial sac," which surrounds the heart. She opined that so much blood accumulated in the pericardial sac that Cooper's heart could no longer pump, killing him. The injury to the airway also caused bleeding into the lungs.
Margaret submitted an online tip to police on October 13, 2016 identifying Alvarado as Cooper's killer. Police contacted Margaret by text message and interviewed her in person on October 28 and November 1, 2016.
Sandoval and Alvarado were arrested on November 2, 2016. Police interviewed Alvarado that evening. Alvarado told police he was an alcoholic and had experienced "past trouble" with methamphetamine. He told police about returning Sandoval's car to him and said Sandoval gave him a couple of bottles of good whiskey to thank him. Alvarado said he and Sandoval drank together and he "got fucked up." Initially, Alvarado claimed he stayed home all night. Later, he said that he and Sandoval went to 7-Eleven. He was "pretty buzzed" and "fucked up." After police employed a ruse, telling Alvarado that they knew from witnesses and surveillance video that he and Sandoval went to Cooper's vehicle that night, Alvarado confessed. He said that he and Sandoval went to the Lowe's to confront Cooper about taking Sandoval's car. Alvarado tried to look in the back window of Cooper's vehicle to see if he was there. Alvarado said he could not see anything, so he opened the vehicle's door to look in. When he did, Cooper "jumped up" and Alvarado stabbed him once. Alvarado told police his decision to stab Cooper was "just an instinct" and that he "got startled" and was "in a defensive mode." Alvarado said it happened "in the heat of the moment" and that he was not trying to hurt Cooper. Alvarado was not able to describe the weapon clearly. He said it was "like [a] cheap knife," but that it "wasn't necessarily a knife." It had a flat blade and he had found it in his shed.
A DNA expert testified that Alvarado's DNA was found on the driver's side rear passenger door of Cooper's vehicle.
Two defense experts testified as to the effects of drug and alcohol use on the brain, including their impact on executive functioning, judgment, planning, and impulse control.
B. Procedural History
The Santa Clara County District Attorney charged Sandoval and Alvarado with Cooper's murder (Pen. Code, § 187). The information alleged that Alvarado had personally used a deadly and dangerous weapon in the commission of the crime. (§ 12022, subd. (b)(1)).
All further statutory citations are to the Penal Code unless otherwise indicated.
The defendants were tried jointly to separate juries in May and June 2018. On June 15, 2018, Alvarado's jury returned verdicts of not guilty of first degree murder but guilty of second degree murder. The jury further found true the allegation that Alvarado had personally used a deadly and dangerous weapon in the commission of the crime. Sandoval's jury likewise found him not guilty of first degree murder but guilty of second degree murder.
On September 28, 2018, the trial court sentenced Alvarado to an indeterminate term of 15 years to life on the murder count consecutive to one year on the personal use enhancement. The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)) with an additional $300 parole revocation fine, which was suspended pending successful completion of parole (§ 1202.45); a $40 court operations assessment fee (§ 1465.8); and a $30 court facilities assessment fee (Gov. Code, § 70373). The court orally awarded defendant a total of 696 days of presentence credit.
Alvarado timely appealed.
II. Discussion
A. Motion to Suppress Alvarado's Confession
Alvarado moved in limine to suppress his statements to police on grounds he never expressly waived his Miranda rights and police continued questioning him after he invoked his right to counsel. The trial court denied that motion, which Alvarado now argues was error. The Attorney General responds that Alvarado implicitly waived his rights and did not unambiguously request counsel, such that there was no error.
1. Standard of Review
" '[I]t is well established that we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.'" (People v. Flores (2020) 9 Cal.5th 371, 418.)
2. Alvarado Waived His Miranda Rights
a. Legal Principles
"It is well settled that law enforcement officers are not required to obtain an express waiver of a suspect's Miranda rights prior to a custodial interview and that a valid waiver of such rights may be implied from the defendant's words and actions. [Citations.]" (People v. Parker (2017) 2 Cal.5th 1184, 1216 (Parker); Berghuis v. Thompkins (2010) 560 U.S. 370, 384 (Berghuis) ["a waiver of Miranda rights may be implied"].) "If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate 'a valid waiver' of Miranda rights. [Citation.] The prosecution must make the additional showing that the accused understood these rights. [Citations.] Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis, supra, at p. 384.) "Although there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation." (People v. Cruz (2008) 44 Cal.4th 636, 668.)
b. Analysis
Our review of the record and the totality of the circumstances surrounding Alvarado's statements leads us to conclude that he implicitly waived his Miranda rights when he spoke with the officers.
Near the start of the interview, after obtaining Alvarado's full name and address, Detective Wayne Smith read Alvarado his Miranda rights. After reading each right, Detective Smith asked, "do you understand?" As to each right, Alvarado affirmed that he understood. Detective Smith and his partner, Sergeant Barg, then continued the interview. Alvarado "actively participate[d] in the conversation with the [officers]- answering questions . . . and generally contributing to [the] discussion . . . ." (Parker, supra, 2 Cal.5th at p. 1216.)
Nothing in the record indicates that Alvarado did not understand his Miranda rights. He was 40 years old. He had graduated from high school, attended some college, and completed an Emergency Medical Technician program. And Alvarado had at least some familiarity with the criminal justice system, having been previously convicted of one felony and seven misdemeanors.
While Alvarado "did not expressly waive his Miranda rights during the interview, he did so implicitly by voluntarily answering the [officers'] questions after acknowledging that he understood those rights." (People v. Jones (2017) 7 Cal.App.5th 787, 811; People v. Gonzales (2012) 54 Cal.4th 1234, 1268-1270 [affirming finding of implied waiver and denial of suppression motion where the defendant "received a complete advisement of his rights," "both nodded his head and mouthed the word 'yes' when asked if he understood the Miranda warnings," and then gave a statement].) Alvarado's reliance on State v. Wilson (1981) 183 Conn. 280, a decades-old decision by the Supreme Court of Connecticut, does not convince us otherwise.
3. Alvarado did not Unambiguously Invoke His Right to Counsel
a. Factual Background
Approximately one hour into the 90-minute interview, Alvarado said, "I mean if I'm being charged with anything you know, I'd rather speak to a lawyer, man." The following exchange then occurred:
"[Det.] SMITH[:] Well we'd like to get your side of the story Roman. We'd like to keep talking to you and get your side of the story because we've got physical evidence and you know we've got physical evidence [that] says one thing. We've got witness statements that say one thing. We wanna give you the opportunity to tell us what happened.
"[Sgt.] BARG[:] Only you guys were there so it's . . .
"SMITH[:] Yeah.
"ALVARADO[:] I mean I'm-I'm trying to tell you man, like fuckin' I don't-I told you my part, you know what I mean, I told you what as far as I can tell you, you know what I'm saying. Even if I did know, I mean, I- why would I really wanna say anything man? I'm saying if it was not on myself but if Randy-if Randy mentioned anything to me about it, you know, I'm not trying to fuckin' put him on blast about it, you know what I mean? It's kind of how it goes.
"SMITH[:] Well it wasn't just Randy. I mean, it wasn't just Randy we're talking about.
"BARG[:] So what are you-what are you saying, do you wanna keep talking to us about this?
"ALVARADO[:] Well I mean I feel like I'm being charged-am I being charged with something? You guys, you guys are trying to-are you gonna hit me with some-with the-with the . . .
"BARG[:] We don't charge, the DA's Office charges. We take all of the evidence over to the DA's Office.
"SMITH[:] Correct.
"BARG[:] They decide what charges are gonna be appropriate. And, uh, you know in order for us to get the bigger picture, get the truth, you know, it's-it's our responsibility to talk to people that . . .
"ALVARADO[:] No I-I understand what you . . .
"BARG[:] And you got exactly what . . .
"ALVARADO[:] You're doing your job.
"BARG[:] So-so we're trying to get your side of the story here Roman to figure out what happened out there and figure out if there's more than just, you know, cold blooded murder. But I mean if there's more-if there's more at play, then we need to get-we need to hear from the guys that were there.
"SMITH[:] Mm-hm.
"BARG[:] Okay we heard from one guy, we're gonna hear from the other guy.
"SMITH[:] Mm-hm.
"BARG[:] Um, you're the only person that can tell that story. Um, so we're giving you an opportunity.
"ALVARADO[:] I was fucked up, dude. Honestly.
"SMITH[:] Okay.
"ALVARADO[:] And when I can't-I-I mean I don't know what you want me to say man. And . . .
"BARG[:] We just want the truth but if you wanna keep talkin' to us about this? You, you mentioned a lawyer and
"ALVARADO[:] I mean it's just
"BARG[:] that's, that's your right
"ALVARADO[:] I just
"BARG[:] but if you wanna keep talkin' to us you can.
"ALVARADO[:] I just feel like-I just feel like it's-I mean, if I say more and more I don't-I don't want [to] put myself in some kind of hole man. You know what I mean because I mean obviously, people are pointing fingers in our direction. And Randy is saying this and that. I mean I'm obviously in a - in a - in a rut because of this shit. You know what I mean?" Thereafter, the interview continued, and Alvarado confessed to stabbing Cooper.
b. Legal Principles
"Miranda [held] that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance." (Davis v. United States (1994) 512 U.S. 452, 462.) "In Edwards v. Arizona, 451 U.S. 477 (1981), [the United States Supreme Court] held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation." (Id. at p. 454.) A suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Id. at p. 459.) "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." (Id. at pp. 461-462.) Nor are they required to ask clarifying questions. (Id. at p. 461.)
c. Analysis
Here, Alvarado said, "I mean if I'm being charged with anything you know, I'd rather speak to a lawyer, man." "On its face, defendant's statement was conditional; he wanted a lawyer if he was going to be charged. The conditional nature of the statement rendered it, at best, ambiguous and equivocal because a reasonable police officer in these circumstances would not necessarily have known whether the condition would be fulfilled since, as these officers explained, the decision to charge is not made by police." (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126 (Gonzalez).)
Although the officers were not required to ask clarifying questions, Sergeant Barg did, asking "what are you saying, do you wanna keep talking to us about this?" Alvarado responded by asking whether he was being charged, suggesting that he was not "request[ing] the immediate presence of an attorney." (Gonzalez, supra, 34 Cal.4th at p. 1126.) After explaining that the district attorney makes charging decisions, not the police, and some further back and forth, Barg reaffirmed Alvarado's right to counsel. Alvarado did not mention counsel again and continued to answer questions.
California Supreme Court precedent compels us to conclude that Alvarado did not clearly assert his right to counsel and therefore that the officers were not required to stop their questioning. In Gonzalez, our Supreme Court held that the defendant's statement" 'if for anything you guys are going to charge me I want to talk to a public defender'" was not an unambiguous invocation of the right to counsel. (Gonzalez, supra, 34 Cal.4th at p. 1119.) In People v. Suff (2014) 58 Cal.4th 1013, 1068, the court held that a similar statement-" 'I need to know, am I being charged with this, because if I'm being charged with this I think I need a lawyer' "-likewise was not an unambiguous assertion of the right to counsel. Alvarado's reference to counsel here was similarly equivocal.
Alvarado's attempts to distinguish Gonzalez fall short. He maintains police failed to explain the difference between arrest and charges being filed, ignored his reference to counsel, and gave him no opportunity to clarify his desire for counsel. We disagree.
Barg explained that the District Attorney's office files charges, not the police; asked Alvarado if he wanted to keep talking; and reaffirmed Alvarado's right to counsel. Alvarado had the opportunity to clearly assert his right to counsel and instead chose to continue answering the officers' questions. Alvarado also notes that he "was clearly a person the police suspected of involvement in Cooper's death, [such that his] remark about speaking to a lawyer if he was being charged could only be interpreted as [a] request for counsel due to his reasonable suspicion he was about to be charged with a crime." But Gonzalez also was clearly a person the police suspected of involvement in a murder at the time of his questioning. Gonzalez's brother-in-law brought him to police headquarters for questioning after police executed a search warrant at the brother-in-law's home based on information that Gonzalez had gone there after a shooting and after a detective told the brother-in-law that he wanted to talk to Gonzalez about the murder. (Gonzalez, supra, 34 Cal.4th at pp. 1118-1119.)
In sum, the trial court did not err in denying Alvarado's motion to suppress because he validly waived his rights and did not unambiguously assert his right to counsel.
B. Prosecutorial Misconduct
Alvarado argues the prosecutor committed misconduct during closing argument by incorrectly arguing that evidence of Alvarado's voluntary intoxication could not be considered in deciding whether he committed second degree murder. The Attorney General acknowledges that voluntary intoxication evidence can be considered in deciding whether a defendant committed express malice second degree murder. But the Attorney General contends that the prosecutor's only theory of second degree murder was implied malice murder and that, because voluntary intoxication evidence may not be used to negate implied malice, there was no misconduct. We conclude that the prosecutor did misstate the law, but that Alvarado suffered no prejudice, such that reversal is not required.
1. Factual Background
The jury was instructed on express and implied malice second degree murder with CALCRIM No. 520. The jury also was instructed with CALCRIM No. 625 regarding the proper use of evidence of defendant's voluntary intoxication. Specifically, they were instructed that they could consider such evidence only in deciding whether Alvarado "acted with an intent to kill; . . . acted with deliberation, and premeditation; and . . . intended to make a surprise attack as required for first-degree murder on a lying-in-wait theory."
In closing, the prosecutor explained that the elements of murder are that "[t]he defendant killed another person" and" the killing was done with malice aforethought." He explained that there are two types of malice: express malice and implied malice. He then went on to argue: "So express malice, easy, means, that Roman Alvarado intended to kill the victim. That's one way to prove express malice. So he killed Jeffrey Cooper and he did so, and at that moment he intended to kill him. There's no other mental status required. If you find those two elements proven, that is a second-degree murder charge. [¶] But you don't have to find an intent to kill to find him guilty of second-degree murder because there's also implied malice. Now, implied malice means that Roman Alvarado did an intentional act. The consequences of that act are dangerous to human life. You know, stabbing someone in the chest with an instrument, that is inherently dangerous to someone's life. And we know it is because it actually killed him. And that when he did it, he had knowledge that that act was - that he knew the danger of the act. [¶] So in other words, when he stabbed him in the chest, did he know that by stabbing him in the chest that that potential[ly] is dangerous to human life? Yes. So by the mere act of stabbing someone in the chest is, by definition, implied malice. That's all you need to find for second-degree murder."
Defense counsel objected at this point that the prosecutor's argument "[m]isstates the elements of the crime." That objection was overruled.
The prosecutor went on to discuss first degree murder, manslaughter, and self-defense. He then addressed voluntary intoxication. Among other things, he stated: "you can use voluntary intoxication as it relates to express malice or first-degree murder. . . . [I]t doesn't apply to second-degree murder at all. It has no impact whatsoever on your decision as to whether or not the defendant committed a crime with conscious disregard for human life." The prosecutor further argued, "there is a very limited way that you can use any voluntary intoxication evidence. It really comes down to you can use it as it relates to decisions on first-degree murder or whether or not he had an intent to kill, but it's inapplicable to your decision as to whether or not he committed second-degree murder."
Defense counsel objected twice that the prosecutor was misstating the law as to the use of voluntary intoxication evidence. Those objections were overruled.
Later, the prosecutor argued that, based on the evidence, "there are basically four potential circumstances to explain what happened." First, Alvarado "went to the Lowe's parking lot with the premeditated intent to kill Jeffrey Cooper," making him guilty of first degree murder. Second, Alvarado had committed the murder by lying in wait, likewise making him guilty of first degree murder. Third, Alvarado "went to the Lowe's parking lot to physically attack Jeffrey Cooper, not to kill him" but ended up stabbing him in conscious disregard for human life, making Alvarado guilty of second degree murder. Fourth, Alvarado killed Cooper in self-defense.
2. Legal Principles
a. Homicide and Voluntary Intoxication
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be either express or implied. (§ 188.) "Express malice is an intent to kill. [Citation.] . . . Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses." (People v. Gonzalez, supra, 54 Cal.4th at p. 653.)
There are two degrees of murder. Any willful, deliberate, and premeditated killing is first degree murder. (§ 189.) First degree murder necessarily entails express malice. (People v. Cook (2006) 39 Cal.4th 566, 597.) Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements of willfulness, premeditation, and deliberation. (People v. Knoller (2007) 41 Cal.4th 139, 151.) Second degree murder may involve either express malice (intentional, unpremeditated killing) or implied malice (killing resulting from a deliberate act carried out with conscious disregard for life). (People v. Rogers (2006) 39 Cal.4th 826, 867; CALCRIM No. 520.)
"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) That is, evidence of a defendant's voluntary intoxication can negate express malice but not implied malice. (People v. Soto (2018) 4 Cal.5th 968, 977; People v. Timms (2007) 151 Cal.App.4th 1292, 1301.)
b. Prosecutorial Misconduct
"Under state law,' "[a] prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct . . . ."' [Citation.] Prosecutorial misconduct violates the federal Constitution when it results in a fundamentally unfair trial. [Citation.] When a claim of misconduct is based on remarks to the jury, we consider whether there is a reasonable likelihood the jury construed the remarks in an improper fashion. [Citation.]" (People v. Steskal (2021) 11 Cal.5th 332, 350.) "We consider the remarks in the context of the argument as a whole and '" 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements."' [Citation.]" (Id. at p. 353.)"' "[A] defendant need not show that the prosecutor acted in bad faith or with appreciation for the wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated by a showing of the prosecutor's subjective good faith."' [Citations.]" (People v. Doane (2021) 66 Cal.App.5th 965, 976 (Doane).) Where the prosecutor has committed misconduct, reversal is warranted only where the misconduct prejudiced the defendant's case. (People v. Roberts (2021) 65 Cal.App.5th 469, 481.)
3. The Prosecutor Committed Error
The prosecutor misstated the law. While voluntary intoxication cannot negate implied malice, it can negate express malice. And because-as the jury here was instructed-second degree murder can be based on implied or express malice, the prosecutor's assertions that voluntary intoxication "doesn't apply to second-degree murder at all" and is "inapplicable to your decision as to whether or not he committed a second-degree murder" were incorrect.
The Attorney General argues that there is no reasonable likelihood that the jury construed the foregoing remarks in an improper fashion, particularly when those remarks are considered in the context of the prosecutor's closing as a whole. As we understand it, the Attorney General's position is that the jury would have understood that the prosecutor was relying only on an implied malice theory of second degree murder and that his references to second degree murder (in the context of his voluntary intoxication comments) were shorthand for that theory.
We are not persuaded. The prosecutor did (albeit briefly) advance an express malice theory of second degree murder, telling jurors that if they found that Alvarado had killed Cooper "and at that moment he intended to kill him," then Alvarado was guilty of second-degree murder. And the trial court instructed on both express malice and implied malice second degree murder. Therefore, jurors would have understood that they could convict Alvarado of second degree murder under either an express or implied malice theory. There is a reasonable likelihood that jurors would have understood the prosecutor's comments to mean just what they said-that voluntary intoxication is irrelevant to second degree murder. The prosecutor did correctly state that voluntary intoxication evidence can be used in deciding whether a defendant harbored express malice (e.g., intent to kill). However, given his comments about the inapplicability of such evidence to second degree murder, jurors may have understood the prosecutor to mean that they could consider voluntary intoxication evidence in assessing whether Alvarado intended to kill in the context of first degree murder only.
Also relevant to our analysis is the fact that the trial court overruled a defense objection to the prosecutor's argument that voluntary intoxication is "inapplicable to your decision as to whether or not [Alvarado] committed a second-degree murder." By doing so, the trial court "conveyed to the jury that the prosecutor was correct . . ., increasing the risk that the jury would accept the prosecutor's misstatement of the law." (Doane, supra, 66 Cal.App.5th at p. 978.)
4. Prejudice
Prosecutorial misconduct that renders the trial fundamentally unfair violates the due process clause of the federal Constitution and requires reversal if the misconduct was not harmless beyond a reasonable doubt. (People v. Rivera (2019) 7 Cal.5th 306, 334.) Prosecutorial misconduct that violates state law but not the federal Constitution warrants reversal "if there was a 'reasonable likelihood of a more favorable verdict in the absence of the challenged conduct' . . . ." (Ibid.; People v. Martinez (2010) 47 Cal.4th 911, 955 ["under our state law, prosecutorial misconduct is reversible error where . . .' "it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' "].) For the following reasons, here, we conclude that the misconduct did not render the trial fundamentally unfair and that it is not reasonably probable the trial outcome was affected.
First, the evidence that Alvarado was guilty of implied malice second degree murder was strong. The first element of implied malice second degree murder is that the defendant committed an act that caused the victim's death. (CALCRIM No. 520.) Alvarado admitted to police that he stabbed Cooper. Alvarado's confession was corroborated by the presence of his DNA on the door of Cooper's vehicle, other physical evidence (e.g., the presence of a single stab wound), and Margaret's testimony that Alvarado told her he stabbed Cooper on the night his body was discovered.
The second element of implied malice second degree murder is that the defendant acted with implied malice. A defendant acted with implied malice if he or she intentionally committed an act, the natural and probable consequences of which were dangerous to human life, the defendant knew of that danger, and the defendant deliberately acted with conscious disregard for human life. (CALCRIM No. 520.) The evidence showed that Alvarado stabbed Cooper in the chest with a sharp object with sufficient force to puncture the chest plate, traverse the entire aorta, and puncture the underlying airway. The chief medical examiner testified that "great force" must have been applied to cause those injuries. The foregoing evidence shows that Alvarado committed an act, the natural and probable consequences of which were dangerous to human life. The evidence also strongly supports an inference that defendant knew of that danger and thus acted with conscious disregard for human life. Indeed, common sense dictates that plunging a sharp object into a person's chest with great force is dangerous to human life, and there is no evidence suggesting that Alvarado lacked such knowledge. And the jury's verdict-guilty of second degree murder-shows jurors necessarily concluded that Alvarado intentionally stabbed Cooper. Either jurors convicted Alvarado under an implied malice theory and the misconduct had no impact on the verdict, or they convicted him under an express malice theory, concluding he acted with intent to kill. Even assuming that, absent the misconduct, jurors would have found that Alvarado's voluntary intoxication negated that intent, it is not reasonably probable that they would have acquitted him of implied malice second degree murder, concluding that he acted unintentionally, particularly given the inapplicability of the voluntary intoxication evidence to that theory.
Second, jurors rejected Alvarado's claim of imperfect self-defense by convicting him of second degree murder. The analysis of that claim was unaffected by the misconduct. Accordingly, contrary to Alvarado's contention on appeal, it is not reasonably probable that, absent the prosecutorial misconduct, jurors would have accepted that claim.
Third, given the verdict, there is no reasonable likelihood that, absent the prosecutorial misconduct, jurors would have convicted Alvarado of voluntary manslaughter under a heat of passion theory, as he now contends. The jury was instructed with CALCRIM No. 570 that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." Accordingly, before returning their verdict of guilty of second degree murder, jurors necessarily concluded that Alvarado did not kill Cooper in the heat of passion, and thus that the murder should not be reduced to voluntary manslaughter. The prosecutorial misconduct did not implicate the heat of passion theory, so there is no reason to believe jurors would have accepted that theory absent the misconduct.
In sum, the prosecutorial misconduct was not prejudicial, so reversal is not warranted.
C. Claims of Instructional Error
1. Failure to Instruct on Involuntary Manslaughter Based on Unconsciousness Caused by Voluntary Intoxication
Alvarado contends that the trial court erred by denying his request that the court instruct the jury with CALCRIM No. 626 regarding involuntary manslaughter based on unconsciousness caused by voluntary intoxication.
a. The Duty to Sua Sponte Instruct on Lesser Included Offenses
A trial court is obligated to instruct on all lesser included offenses" 'when the evidence raises a question as to whether all of the elements of the charged offense were present'" and "evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.)" 'Substantial evidence' in this context is' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed." (Id. at p. 162.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.) Of course, the court need not instruct on lesser included offenses" 'when there is no evidence that the offense was less than that charged.'" (Id. at p. 154.) We independently review the court's decision whether to instruct on lesser included offenses. (People v. Leal (2009) 180 Cal.App.4th 782, 792.)
b. Analysis
Voluntary manslaughter is a lesser included offense of murder. (People v. Duff (2014) 58 Cal.4th 527, 561.) CALCRIM No. 626 provides, in part: "If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter." Alvarado's contention that jurors should have been given that instruction lacks merit because there was no substantial evidence that Alvarado was unconscious at the time of the killing. Alvarado described the stabbing to police. He never claimed that he blacked out or could not remember committing the stabbing. To the contrary, he recalled the entire course of events-trying to look into Cooper's vehicle, opening the door, Cooper leaping at him, and stabbing Cooper. He remembered certain details, including where Cooper was in the vehicle and stabbing him once. As Alvarado notes, he was unable to describe the weapon in any detail and claimed not to remember where he disposed of it. He also could not specify where he stabbed Cooper. But those memory lapses do not support an inference that Alvarado was unconscious at the time of the stabbing, given his recollection of the entire event.
The court did not err in declining to instruct the jury with CALCRIM No. 626.
2. Voluntary Manslaughter Instructions
Alvarado challenges three of the jury instructions-CALCRIM Nos. 522, 570 and 571-on grounds they violated his due process rights. Each of the challenged instructions addresses the reduction of murder to voluntary manslaughter under certain circumstances. According to Alvarado, the reduction language effectively relieved the prosecution of the burden to prove every element of murder beyond a reasonable doubt and shifted to the defense the burden to prove that murder should be reduced to manslaughter. He further contends that the challenged instructions interfered with the order in which the jury deliberated. The Attorney General responds that Alvarado forfeited this claim by not objecting below and that, alternatively, the claim fails on the merits.
a. The Relevant Jury Instructions
The jury was instructed with CALCRIM No. 522 as follows: "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] 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."
The trial court instructed jurors regarding heat-of-passion voluntary manslaughter with CALCRIM No. 570. As given to the jury, that instruction provided, in part, "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." It further instructed, "The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
Jurors were instructed regarding imperfect-self-defense voluntary manslaughter with CALCRIM No. 571. That instruction stated, in part, "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder."
The trial court further instructed jurors that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt."
Finally, jurors were instructed that they could "consider these different kinds of homicide"-first degree murder, second degree murder, and voluntary manslaughter- "in whatever order you wish."
b. Legal Principles and Standard of Review
"In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) "We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
c. Analysis
We shall assume Alvarado's claim of error is not forfeited and address it on the merits. The instructions did not create an impermissible burden-shifting presumption in favor of a murder verdict, as Alvarado contends. Jurors were instructed that the People bore the burden of proving defendant's guilt beyond a reasonable doubt. And two of the challenged instructions expressly stated that the People bore the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion and did not act in imperfect self-defense. We presume the jury understood and followed those instruction.
Nor did the instructions improperly require jurors to deliberate in any particular order. To the contrary, jurors were expressly told that they could "consider these different kinds of homicide"-first degree murder, second degree murder, and voluntary manslaughter-"in whatever order you wish."
D. Cumulative Error
Alvarado contends that the cumulative effect of the foregoing claimed errors was to deprive him of his due process rights. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.'" (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.'" (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) We have found a single, nonprejudicial error-the prosecutorial misconduct-so there are no errors to cumulate. Thus, the claim fails.
E. Mental Health Diversion
Alvarado seeks the conditional reversal of the judgment and remand for the trial court to conduct a mental health diversion eligibility hearing under section 1001.36 as it was initially enacted. Anticipating the Attorney General's argument that he forfeited this claim of error by failing to request diversion before sentencing, Alvarado asserts trial counsel was ineffective in failing to make that request. On the merits, the Attorney General maintains that, as a defendant charged with murder, Alvarado is statutorily ineligible for diversion. Alvarado disagrees, arguing that while section 1001.36 applies retroactively to all nonfinal cases, the amendments making murderers ineligible for diversion apply prospectively only.
The Attorney General also maintains that section 1001.36 does not apply retroactively. As discussed below, our Supreme Court held otherwise after briefing was completed in this case.
1. Legal Principles
"Section 1001.36 authorizes a pretrial diversion program for defendants with qualifying mental disorders." (People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs).) The statute took effect on June 27, 2018, after Alvarado was convicted but approximately three months before his sentencing. (Stats.2018, ch. 34, § 24.) "As originally enacted, section 1001.36 provided that a trial court may grant pretrial diversion if it finds all of the following: (1) the defendant suffers from a qualifying mental disorder; (2) the disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to mental health treatment; (4) the defendant consents to diversion and waives his or her speedy trial right; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (Former § 1001.36, subd. (b)(1)-(6).)" (Frahs, supra, at pp. 626-627.) About three months after the statute took effect, the Legislature amended section 1001.36 to exclude defendants charged with murder, among other crimes. (§ 1001.36, subd. (b)(2), added by Stats. 2018, ch. 1005, § 1.) The amendment became effective on January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c), par. (1); Gov. Code, § 9600, subd. (a).)
In Frahs, our Supreme Court held that section 1001.36 applies retroactively to all cases not yet final on appeal. (Frahs, supra, 9 Cal.5th at pp. 632-637.) The court further held that "a conditional limited remand for the trial court to conduct a mental health diversion eligibility hearing is warranted when . . . the record affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion - the defendant suffers from a qualifying mental disorder (§ 1001.36, subd. (b)(1)(A))." (Id. at p. 640.)
2. Analysis
The success of Alvarado's mental health diversion claim, and of his alternative ineffective assistance of counsel claim, hinge on whether the amendment to section 1001.36 making it inapplicable to those convicted of murder applies to him. If it does, then Alvarado's claims fail (if preserved, his claim for mental health diversion fails on the merits because he is statutorily ineligible; if the underlying claim was forfeited, the ineffective assistance of counsel claim fails for lack of prejudice).
Alvarado maintains that application of the amendment to him contravenes section 3 of the Penal Code, which provides, as a general matter, that "No part of [the Penal Code] is retroactive, unless expressly so declared." (§ 3.) He further argues that applying the amendment to him would violate the ex post facto clauses of the California and Federal Constitutions, his due process rights by denying him his vested right to a mental health diversion hearing, and the rule of lenity.
The threshold question is whether applying the amendment to Alvarado would constitute a retroactive application of the statute." '[D]eciding when a statute operates "retroactively" is not always a simple or mechanical task' (Landgraf v. USI Film Products (1994) 511 U.S. 244, 268) and 'comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event' (id. at p. 270)." (People v. Grant (1999) 20 Cal.4th 150, 157.) "In exercising this judgment, 'familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.' [Citation.]" (Ibid.) "To be considered retroactive, the law must' "change[] the legal consequences of an act completed before [the law's] effective date," namely the defendant's criminal behavior.' [Citations.]" (People v. Trujeque (2015) 61 Cal.4th 227, 256 (Trujeque).)
"Here, when defendant committed the crime, he was not eligible for pretrial diversion, because Penal Code section 1001.36 did not yet exist. Now, he is not eligible for pretrial diversion, because of the murder exclusion. Thus, the enactment of the murder exclusion did not change the consequences of his crime as of the time he committed it. The fact . . . that he was briefly eligible for pretrial diversion under Penal Code section 1001.36, as originally enacted, is irrelevant to the retroactivity analysis." (People v. McShane (2019) 36 Cal.App.5th 245, 260.) Therefore, applying the murder exclusion to Alvarado does not violate "retroactivity principles." (Ibid.)
Alvarado's claim that applying the amendment to him would violate the ex post facto clauses of the California and federal Constitutions likewise fails, as" 'no statute falls within the ex post facto prohibition unless . . . [it is] retroactive'" and either "(1) criminalize[s] conduct that was innocent when done; (2) aggravate[s] or make[s] greater a crime than when committed; (3) change[s] and increase[s] the punishment; [or] (4) alter[s] the rules of evidence to reduce the legal sufficiency necessary to support a finding of guilt." (Trujeque, supra, 61 Cal.4th at p. 256.) Again, the application here is not retroactive. Moreover, "the Legislature's amendment of section 1001.36 to eliminate eligibility for defendants charged with [certain] offenses did not make an act unlawful that was not formerly unlawful, nor did it increase the punishment for the offenses with which [Alvarado] was charged. [Citation.] That is, [Alvarado] was subject to the same punishment when he committed his offense[] as he was after the Legislature narrowed the scope of defendants eligible for diversion." (People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1054.)
Alvarado also relies on the principle that "retrospective application [of a statute] is impermissible if it 'impairs a vested . . . right without due process of law.'" (In re Marriage of Fellows (2006) 39 Cal.4th 179, 189.) We have already concluded that application of the amendment to Alvarado is not retroactive. But even if it were, we would find no due process violation. Alvarado simply asserts that he had a vested right to a mental health diversion eligibility hearing. Yet" 'it is presumed that a statutory scheme is not intended to create private contractual or vested rights . . .,' and a party claiming otherwise must overcome the presumption. [Citation.]" (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1106-1107.) Alvarado makes no attempt to do so. "As there is no deprivation of a vested right, no due process analysis is required." (Id. at p. 1107.) And even if we were to undertake such an analysis, we would find no violation. "In determining whether a given provision contravenes the due process clause we look to 'the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.'" (In re Marriage of Buol (1985) 39 Cal.3d 751, 760-761.) Alvarado could not have relied on the pre-amendment version of the mental health diversion law, as he committed his crime before it was enacted. For all these reasons, he has no viable due process claim.
Finally, Alvarado invokes the rule of lenity to the extent there is any ambiguity as to whether the Legislature intended the amendment to apply to him. That rule "applies' "only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule." '" (People v. Manzo (2012) 53 Cal.4th 880, 889.) As we see no ambiguity, the rule does not apply.
F. Dueñas
Relying on Dueñas, Alvarado maintains the trial court violated his due process and equal protection rights by imposing fines and fees without ascertaining his ability to pay them. Alvarado argues the case should be remanded for an evidentiary hearing on his ability to pay the $40 court operations fee, $30 criminal conviction assessment, and $300 restitution fine.
In Dueñas, Second Appellate District, Division Seven of the held that due process requires the trial court (1) to conduct a hearing to ascertain a defendant's ability to pay before it imposes a court operations assessment or a court facilities assessment and (2) to stay execution of any restitution fine (§ 1202.4) unless and until it holds an ability-to-pay hearing and concludes that the defendant has the ability to pay the restitution fine.
Some courts have disagreed with Dueñas's due process analysis or have limited the case to its facts. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329 [declining to follow Dueñas]; People v. Kingston (2019) 41 Cal.App.5th 272, 279 [following Hicks]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 [declining to follow Dueñas]; People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [declining to extend Dueñas beyond "[its] extreme facts"]; People v. Allen (2019) 41 Cal.App.5th 312, 326 [expressing agreement with "the reasoning of the numerous courts that have rejected Dueñas's due process analysis"].) Panels of this court have reached conflicting conclusions as to whether Dueñas was correctly decided. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 927 (Santos) [following Dueñas]; id. at pp. 935-940 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828, 832 (Adams) [concluding that "Dueñas was wrongly decided"]; id. at pp. 832-833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 (Petri) [finding that Dueñas was not "persuasive"]; id. at p. 95 (dis. opn. of Premo, J.).) The issue of whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments is pending before the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844.
We remain convinced that Dueñas was wrongly decided for the reasons articulated in Petri, supra, 45 Cal.App.5th at p. 90; Santos, supra, 38 Cal.App.5th at pp. 935-940 (dis. opn. of Elia, J.); and Adams, supra, 44 Cal.App.5th at p. 832. Accordingly, we reject defendant's challenges to the court facilities assessment and court operations assessment and decline to stay the restitution fine.
The Attorney General argues that Dueñas was wrongly decided as to restitution fines, and that the issue should be analyzed under the excessive fines clause of the Eighth Amendment to the federal Constitution. We decline to do so because defendant does not raise an Eighth Amendment challenge.
G. Abstract of Judgment
The court orally awarded defendant 696 days of presentence credit. The abstract of judgment indicates an award of just 693 days of presentence credit. As the parties agree, where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (Id. at p. 185.) On these grounds, we will order correction of the abstract of judgment.
III. Disposition
The judgment is modified to reflect 696 days of presentence conduct credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: GREENWOOD, P.J., GROVER, J.
Greenwood, P.J., concurring:
I concur in my colleagues' analysis of appellant's claims, and agree that the judgment should be affirmed as specified in the disposition.
I write separately to clarify that I believe that People v. Dueñas (2019) 30 Cal.App.5th 1157 was decided correctly. Under certain circumstances, a trial court violates an appellant's federal constitutional right to due process by imposing fines and fees without first assessing the ability of the appellant to pay them. (See People v. Santos (2019) 38 Cal.App.5th 923.) But I agree that no due process violation occurred here because such circumstances are not presented on the facts before us. Alvarado was sentenced to a significant prison term as a result of his conviction for second degree murder and a use enhancement, and the trial court imposed minimum fines and fees. Courts have generally accepted that a defendant's ability to pay fines and fees includes the prospect of earning prison wages, and appellant has been sentenced to a prison term that will make payment of the sums achievable. (Penal Code, § 2700; People v. Aviles (2019) 39 Cal.App.5th 1077.) I thus conclude that the trial court's failure to conduct an ability-to-pay hearing did not constitute a violation of due process.