Opinion
D073726
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. SHELDON ALFREDO AUCLAIR, JR., Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1401094) APPEAL from a judgment of the Superior Court of Riverside County, Graham Anderson Cribbs, Judge. Affirmed in part; vacated in part; remanded with directions. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Sheldon Alfredo Auclair, Jr. of premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). As to the charge of premeditated attempted murder, the jury found that Auclair intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) As to both charges, it found that Auclair personally used the firearm. (§ 12022.5, subd. (a).) The trial court sentenced Auclair to a total indeterminate term of 32 years to life imprisonment, consisting of seven years to life imprisonment for premeditated attempted murder and 25 years to life imprisonment for the great bodily injury firearm enhancement. The court imposed a sentence of four years for the assault conviction, which it stayed under section 654. The court also imposed and stayed sentences of 10 years each for the remaining firearm enhancements.
Further statutory references are to the Penal Code unless otherwise specified.
Auclair appeals. He contends (1) the evidence does not support the jury's finding of premeditation and deliberation, (2) the trial court erred by admitting out-of-court statements by a witness identifying Auclair under the prior inconsistent statement exception to the hearsay rule, (3) the trial court's jury instruction regarding voluntary intoxication misstated the law, and (4) his sentence should be vacated to allow the trial court to exercise its newly-effective discretion to strike the firearm enhancements found by the jury.
We conclude that Auclair's sentence should be vacated and the matter remanded for resentencing based on the trial court's newly-effective discretion to strike the firearm enhancements. Auclair's remaining contentions are unpersuasive. We therefore affirm the judgment in all other respects.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On April 17, 2014, Auclair met his cousin and several other individuals at a nightclub in Palm Springs, California. Auclair exchanged words and a few shoves with a woman inside the club. He was subsequently thrown out by Rodney C., one of the club's owners. Rodney walked Auclair out the back door. Another man, who was at the club with Auclair, finished his drink and left as well.
Rodney went to the front door to tell two security personnel, Cody K. and E.B., that Auclair had been thrown out. Approximately 10 minutes later, someone told Cody that several people were having an argument in the parking lot. Cody and E.B. went over to investigate. As they got closer, they noticed two groups of people, one group of four individuals and another group consisting of Auclair and another man. Auclair was acting aggressively toward the other group. Cody and E.B. told everyone to calm down and go home. Auclair responded, "We want to shoot these guys." E.B. said, "It's not going to happen here. You guys need to leave." The group of four individuals got in their car and left.
After the other group left, the man with Auclair told him it was time to go. Auclair was silent for a moment, but then he began to tell Cody and E.B. that he had been jumped inside the club. He appeared very upset. Cody and E.B. looked but did not see any injuries on Auclair. Cody told Auclair there was nothing that could be done and he should go home.
Auclair was silent again, and it seemed like both men would leave. But Auclair turned back, called E.B. a "bitch," and became aggressive again. Cody reiterated that Auclair and the other man should leave. When Cody took a step toward Auclair, he pulled out a handgun and pointed it at Cody's face. Cody told Auclair again that he should leave. E.B. told Auclair he should leave or he would go to jail. Auclair shifted his aim to E.B. and then back to Cody again. He told Cody, "Fuck you," turned to E.B., and fired one shot into E.B.'s stomach. Auclair and the other man ran away.
Cody drove E.B. to a hospital. E.B. had suffered a single gunshot wound. The bullet travelled through his body and exited out his back. E.B. spent 45 days in the hospital and underwent three separate surgeries. Police identified Auclair as a suspect and eventually arrested him.
At trial, Auclair testified in his own defense. He acknowledged going to the nightclub and being thrown out. He did not remember certain details, such as how he got to the club, because he had been drinking. After he was thrown out, he initially stayed near the exit and talked with a club promoter. He tried to go back inside, but was refused entry. He walked away by himself and called his wife for a ride home. He denied owning a gun or having a gun that night. He also denied arguing with anyone outside the club or having any involvement in the shooting.
Auclair knew that police had identified him as a suspect based on news reports. He did not turn himself in. He was arrested approximately five months after the shooting.
DISCUSSION
I
Premeditation and Deliberation
Auclair contends the evidence does not support his conviction for premeditated attempted murder because the jury could not reasonably find that the shooting was deliberate and premeditated. For reasons we will explain, we disagree.
" ' "When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." ' " (People v. Booker (2011) 51 Cal.4th 141, 172 (Booker).)
" ' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.] ' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " [Citation]' [¶] People v. Anderson (1968) 70 Cal.2d 15 (Anderson) discusses three types of evidence commonly shown in cases of premeditated murder: planning activity, preexisting motive, and manner of killing. [Citation.] Drawing on these three categories of evidence, Anderson provided one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. In so doing, Anderson's goal 'was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' [Citation.] But, as [our Supreme Court has] often observed, 'Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.' " (People v. Solomon (2010) 49 Cal.4th 792, 812.) Although these authorities discuss deliberate and premeditated murder, the same standards apply to the deliberate and premeditated attempted murder at issue here. (See People v. Gonzalez (2012) 54 Cal.4th 643, 663-664.)
Viewing the evidence in the light most favorable to the jury's verdict, as we must, we conclude the evidence supports the jury's finding that the shooting was deliberate and premeditated. Auclair purposely armed himself with a loaded handgun and concealed it on his person. When Cody and E.B. asked him to leave, Auclair became aggressive and drew his gun. Auclair pointed the gun at Cody's face, then at E.B., and then back to Cody again, as they tried to persuade him to leave. Auclair eventually told Cody, "Fuck you," and fired a single shot at E.B. from close range. Auclair then ran away.
The jury could reasonably find, beyond a reasonable doubt, that the shooting was a result of preexisting reflection rather than "an unconsidered or rash impulse." (See People v. Houston (2012) 54 Cal.4th 1186, 1217.) Auclair considered whether to shoot Cody or E.B. (or both) while he shifted his gun between them. He held his gun out for an appreciable amount of time, and the delay suggests he deliberated over the consequences. When he fired the gun, he was only a few feet away from E.B. This manner of shooting, at close range and without evidence of provocation or a struggle, supports the reasonable inference of deliberation and premeditation. (See People v. Thompson (2010) 49 Cal.4th 79, 114-115.)
Consideration of the Anderson framework supports this conclusion. There was at least some evidence of planning activity, since Auclair was carrying a loaded handgun at the time of the shooting. He appears to have contemplated that lethal force might be part of his evening. (See People v. Koontz (2002) 27 Cal.4th 1041, 1081.) There was evidence of a preexisting motive, since Cody and E.B. were security personnel at the club that had thrown Auclair out, in his view unjustly. And there was strong evidence that the manner of the shooting indicated deliberation and premeditation, as we have discussed. Indeed, the manner of the shooting is so striking that it could provide evidence in the category of planning as well, since the act of transferring his aim between Cody and E.B. could reasonably lead the jury to find that Auclair " 'considered the possibility of murder in advance' " and made the deliberate decision to shoot E.B. (People v. Young (2005) 34 Cal.4th 1149, 1183; see People v. Wells (1988) 199 Cal.App.3d 535, 540 [planning may occur in the moments before the shooting].) Based on this evidence, the jury could reasonably find Auclair guilty of premeditated attempted murder beyond a reasonable doubt.
Auclair's claim that he did not have any motive because E.B. himself did not throw Auclair out is unpersuasive.
Auclair's argument to the contrary relies on an alternate interpretation of the evidence. He claims he was intoxicated, became agitated in the midst of a heated confrontation, waved his gun around, and fired at E.B. We cannot credit this alternate interpretation because it is inconsistent with our standard of review. "While such a scenario might have been possible . . . , on review we do not reevaluate the credibility of witnesses or resolve factual conflicts; rather, we presume the existence of every fact in support of the verdict that could reasonably be inferred from the evidence." (Booker, supra, 51 Cal.4th at p. 173.) Under the correct standard of review, Auclair has not shown the evidence did not support the jury's verdict.
II
Prior Inconsistent Statements
Auclair next contends the court erred by admitting a police detective's testimony that E.B. identified Auclair as the shooter based on a photographic lineup while E.B. was in the hospital. At trial, E.B. testified he was very sick at the hospital, was on pain medication, and could not remember speaking with the detective. E.B. said there was no reason why he would have been untruthful with the detective, but he simply could not remember their conversation. He identified his signature on the photographic lineup, but he said he had no recollection of signing the lineup or ever seeing it before. E.B. testified that he could not identify anyone in the courtroom as the shooter either; he said, "I don't remember what the guy looked like at all." E.B. testified in detail regarding the circumstances of the shooting, but he asserted that he could not see the shooter's face because the parking lot was too dimly lit.
The prosecution sought to introduce the detective's testimony about E.B.'s hospital identification as either a prior inconsistent statement or a prior identification. (Evid. Code, §§ 1235, 1238.) Auclair's counsel objected. He argued that the prior identification exception did not apply because E.B.'s testimony was not inconsistent with the identification; E.B. simply could not recall it. The prosecutor responded that E.B.'s testimony was in fact inconsistent: "I think the fact that [E.B.] said . . . I don't recall what the individual looked like. I cannot say if that person is in the courtroom[.] [That] is inconsistent with his ability to identify an individual in a photographic lineup back in April, four days I believe after the shooting . . . ." The trial court overruled Auclair's objection. The court stated, based on what it had heard, the jury was entitled to hear the police detective's testimony.
The detective testified that he went to the hospital four days after the shooting to interview E.B. E.B. appeared alert. He described the circumstances of the shooting to the detective and said he could identify the shooter. The detective showed E.B. a photographic lineup, and E.B. identified a photo of Auclair as the shooter. E.B. signed the lineup and, on his own accord, drew an arrow pointing to Auclair's picture.
The Evidence Code provides an exception to the hearsay rule for prior inconsistent statements: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770." (Evid. Code, § 1235.) Compliance with Evidence Code section 770 is not at issue here.
"The 'fundamental requirement' of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness's trial testimony. [Citation.] Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. 'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.' [Citation.] When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper." (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220; accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 415.) A court views the testimony as a whole to determine whether it is sufficiently inconsistent to allow admission of the prior hearsay statement. (People v. Fierro (1991) 1 Cal.4th 173, 222 (Fierro).)
"The requisite finding [of inconsistency] is implied from the trial court's ruling." (People v. Ledesma (2006) 39 Cal.4th 641, 712.) We apply "the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question [citations]." (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Here, the court could reasonably find that E.B.'s trial testimony was inconsistent with his hospital identification of Auclair. E.B. did not simply deny recollection of that identification. He denied being able to identify the shooter and affirmatively testified that he could not see the shooter's face because it was too dark. This testimony directly contradicted his hospital identification, when he told the police detective that he could identify the shooter and did in fact do so (including by drawing an arrow pointing to Auclair's picture). The court did not abuse its discretion by admitting the police detective's testimony about the hospital identification.
Auclair relies on People v. Sam (1969) 71 Cal.2d 194, but it is distinguishable. In Sam, our Supreme Court considered the testimony of a witness who, at trial, said "he had no present recollection of either the incident in which defendant allegedly kicked him or the report he gave to [a police officer], because he had been drinking at the time." (Id. at pp. 208-209.) At the request of the prosecution, the trial court admitted testimony by the police officer recounting the witness's statements to him describing the incident. (Id. at p. 209.) The Supreme Court found error. It reasoned, "There is nothing necessarily inconsistent between the fact that [the witness] gave a statement to the officer over two years earlier—or the substance of that statement—and his present claim of lack of recollection." (Ibid.) "[A] present failure of memory is quite consistent with prior knowledge—especially where, as here, a two-year interval and considerable liquor have intervened between incident and trial." (Id. at p. 210, fn. 6.) Here, as we have explained, E.B. did not simply deny recollection. He testified in detail about the shooting but claimed that he could not see the shooter's face. This testimony directly contradicts his statements at the hospital, where he said he could see the shooter's face and in fact identified Auclair. Sam is therefore inapposite. (See Fierro, supra, 1 Cal.4th at p. 222 [" 'Sam stands for no more than the proposition that "prior statements are not admissible to impeach a witness whose answers to questions are exclusively of the 'I-don't-remember' variety." ' "].)
For the foregoing reasons, Auclair has not shown the court erred by admitting the police detective's testimony under Evidence Code section 1235 as a prior inconsistent statement. We therefore need not consider whether it would also be admissible under Evidence Code section 1238 as a prior identification.
III
Voluntary Intoxication and Heat of Passion
Auclair contends the court erred by instructing the jury with CALCRIM No. 625 regarding voluntary intoxication. Specifically, Auclair argues the jury should have been permitted to consider evidence of voluntary intoxication in deciding whether he acted in the heat of passion, not only in deciding whether he formed the requisite intent to commit attempted murder. The California Supreme Court recently decided a similar issue in People v. Soto (2018) 4 Cal.5th 968 (Soto). The court in Soto held that "CALCRIM No. 625 correctly permits the jury to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense." (Soto, at p. 970.) Although Soto addressed a case involving unreasonable self-defense (or imperfect self-defense as it is interchangeably called), we find the court's reasoning equally applicable to this case involving the heat of passion. We therefore conclude the trial court correctly instructed the jury that it was prohibited from considering voluntary intoxication in connection with Auclair's claim that he was acting in the heat of passion.
The instruction given by the trial court reads, in relevant part, "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. [¶] You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation. [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose." CALCRIM No. 625 is based on section 29.4.
A. General Legal Principles
"[M]urder includes, but manslaughter lacks, the element of malice." (People v. Rios (2000) 23 Cal.4th 450, 460.) "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) Malice is express when a defendant intends to kill unlawfully, i.e., " ' "there is no justification, excuse, or mitigation for the killing recognized by law." ' " (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) "Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger." (Ibid.)
Again, although the authorities we discuss involve murder and manslaughter, the same principles apply to attempted murder and attempted manslaughter. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 824.)
"Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense." (Elmore, supra, 59 Cal.4th at p. 133.) Heat of passion "reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter 'by negating the element of malice that otherwise inheres in such a homicide [citation].' " (Rios, supra, 23 Cal.4th at p. 461.) Similarly, unreasonable self-defense " 'preclude[s] the formation of malice and reduce[s] murder to voluntary manslaughter[.]" (Elmore, at p. 133) " '[O]ne who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.' " (Id. at p. 134.)
Section 29.4 provides that a criminal act is not rendered less criminal because it is committed by a person in a state of voluntary intoxication. (§ 29.4, subd. (a).) Evidence of voluntary intoxication is not admissible to negate the capacity to form any mental states for the crimes charged. (Ibid.) However, evidence of voluntary intoxication is admissible with respect to the actual formation of certain types of intent. (§ 29.4, subd. (b).) More specifically, section 29.4, subdivision (b) provides: "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."
Prior to its amendment in 1995, the California Supreme Court interpreted section 22 (the predecessor to section 29.4) to allow evidence of voluntary intoxication to negate both express and implied malice aforethought. (People v. Whitfield (1994) 7 Cal.4th 437, 450-451 (Whitfield).) The statute was amended in direct response to the Whitfield decision, to allow consideration of voluntary intoxication on the issue of whether a defendant harbored express (but not implied) malice aforethought. (See People v. Berg (2018) 23 Cal.App.5th 959, 966 ["[The] legislative history makes clear that the Legislature amended the statute to abrogate [Whitfield], where the Supreme Court had determined voluntary intoxication evidence was admissible in an implied malice murder prosecution."].)
B. The Soto Opinion
Defendant Juaquin Soto stabbed someone to death after using methamphetamine. (People v. Soto (2016) 248 Cal.App.4th 884, 887, review granted Oct. 12, 2016, S236164.) At trial, he claimed to have acted in self-defense; the jury found him guilty of second degree murder. (Ibid.) On appeal, Soto argued the trial court erred in instructing the jury that it could not consider evidence of his voluntary intoxication with respect to his claim of imperfect (or unreasonable) self-defense. (Ibid.)
The Court of Appeal held that the trial court erred in precluding the jury from considering evidence of defendant's voluntary intoxication on his claim of imperfect self-defense, but it found the error to be harmless. (People v. Soto, supra, 248 Cal.App.4th at pp. 887-888, rev. granted.) The court reasoned that the instruction "ran afoul of [s]ection 29.4 because the state of mind required for imperfect self-defense negates express malice, and [s]ection 29.4 by its express terms makes voluntary intoxication admissible on the issue of express malice." (Id. at p. 898.) The court concluded this constituted instructional error because "when a defendant honestly believes in the need for self-defense"—as Soto claimed based on his voluntary intoxication—"the intent to kill is not 'unlawful' under Penal Code section 188 and, therefore, express malice is negated." (Id. at p. 899.)
After granting review, the California Supreme Court held that the Court of Appeal incorrectly found instructional error, but that the appellate court had reached the correct result when it found that error harmless and affirmed the trial court's judgment. (Soto, supra, 4 Cal.5th at p. 982.) In reaching its decision, the Supreme Court in Soto examined both the language of section 29.4 and its legislative history. The court ultimately concluded "it is clear what the Legislature intended to achieve when it amended former section 22: to prohibit voluntary intoxication from being an excuse for poor judgment when someone kills." (Id. at p. 978.)
The Supreme Court considered defendant's reading of the statute to be "facially plausible" (Soto, supra, 4 Cal.5th at p. 794), but it ultimately rejected the defendant's position that he should be allowed to use evidence of voluntary intoxication to negate the "unlawful" component of express malice rather than just the "specific intent" component of express malice. Read in the proper context, and in light of the statute's legislative history, the Supreme Court determined that "the Legislature was particularly concerned with this 'required specific intent' (§ 29.4, subd. (b)) component of express malice." (Id. at p. 976.) "By contrast, the absence of a belief that the killing was necessary for self-defense is not a 'required specific intent.' " (Ibid.)
In analyzing the legislative intent behind the statute, the Supreme Court noted that the Legislature amended the statute to overrule Whitfield, and that it "adopted Justice Mosk's [dissenting] position [in Whitfield] that evidence of voluntary intoxication is not admissible on the question of implied malice." (Soto, supra, 4 Cal.5th at p. 977.) The Supreme Court explained that—in amending the statute after Whitfield—there was no basis to conclude the Legislature chose to treat the issue of express malice any differently than implied malice; unreasonable self-defense cannot be used to negate either theory. (Id. at p. 978 ["Justice Mosk's reasoning applies to unreasonable self-defense when it negates express malice, too. A belief that it is necessary to kill in self-defense is still a judgment that voluntary intoxication will impair, whether used to negate implied or express malice."].)
Soto explained, "Justice Mosk's reasoning . . . strongly supports the conclusion that section 29.4 does not permit evidence of voluntary intoxication on the question of whether the defendant believed it was necessary to act in self-defense. Unlike the mental state of intent to kill, a belief that it is necessary to kill in self-defense does not involve the ' "intent to do some further act or achieve some additional consequence." ' [Citation.] Rather, it involves judgment. Intoxication can distort a person's perception of the unfolding circumstances, and thereby impair the sound judgment that is needed when deciding to use lethal force in self-defense. Accordingly, voluntary 'intoxication naturally lends itself to the crime's commission because it impairs the sound judgment or lowers the inhibitions that might stop a sober individual' from killing a perceived assailant. [Citation.] The mental state for unreasonable self-defense is precisely what Justice Mosk argued voluntary intoxication should not negate." (Soto, supra, 4 Cal.5th at p. 977.)
Based on Soto, evidence of voluntary intoxication can be used to negate a mental state, such as the intent to kill, which requires an " ' "intent to do some further act or achieve some additional consequence." ' " (Soto, supra, 4 Cal.5th at pp. 977, 979.) Such evidence cannot be used, however, to show a defendant's judgment was impaired such that he erroneously believed he needed to act in self-defense. "In effect, Justice Mosk's . . . dissent in Whitfield, and the Legislature in adopting that dissent, say to a criminal defendant, . . . 'If you voluntarily choose to become intoxicated and then kill someone, you may not claim that you were so intoxicated you were unaware your victim posed no threat to you when you killed, although you may claim you were too intoxicated to intend to kill or premeditate or have the specific intent to commit some other felony.' " (Id. at pp. 978-979.)
The Attorney General requests that we take judicial notice of several legislative history documents relating to the statute. Auclair does not oppose. We will therefore grant the Attorney General's request for judicial notice, but we find it unnecessary to discuss those documents in light of the Supreme Court's decision in Soto. --------
C. The Reasoning in Soto Applies Here
Soto was decided after briefing was complete in this appeal. We solicited and received supplemental briefing regarding its effect on Auclair's argument that evidence of voluntary intoxication should be admissible in connection with heat of passion. In his supplemental brief, Auclair acknowledges that Soto likely forecloses his argument in this court. The Attorney General likewise argues that Soto is dispositive here.
As discussed above, the California Supreme Court has now concluded that section 29.4 prohibits "voluntary intoxication from being an excuse for poor judgment when someone kills." (Soto, supra, 4 Cal.5th at p. 984.) This rationale applies equally to both factors which can operate to negate malice—i.e., unreasonable self-defense and heat of passion. We therefore conclude that, under Soto, section 29.4 prohibits the admission of evidence of voluntary intoxication to prove heat of passion.
"A heat of passion theory of manslaughter has both an objective and a subjective component." (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) " ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' " (Ibid.) "The provocative conduct . . . may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id. at p. 550.) "To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation." (Ibid.)
The objective element, by its nature, already precludes consideration of voluntary intoxication. (People v. Rangel (2016) 62 Cal.4th 1192, 1226 ["[A]lthough defendant also notes . . . that there was evidence he had been drinking on the night of the murders, the test whether provocation is adequate is whether 'an average, sober person would be so inflamed that he or she would lose reason and judgment.' "].) The subjective element is satisfied by evidence that the defendant "killed while under 'the actual influence of a strong passion' " induced by provocation by the victim or by conduct the defendant reasonably attributes to the victim. (Moye, supra, 47 Cal.4th at p. 550.) This mental state—just like a belief that it is necessary to kill in self-defense—does not involve the intent to do some further act or achieve some additional consequence; it therefore is not a required specific intent under section 29.4. (Soto, supra, 4 Cal.5th at pp. 977, 979.) Evidence of voluntary intoxication therefore cannot be used to negate malice by showing defendant was acting in the heat of passion.
Moreover, just as with a defendant's unreasonable belief it was necessary to kill in self-defense, a defendant's impulse to kill in the heat of passion reflects a failure of judgment. A person's rational faculties, which would otherwise inhibit the impulse to kill, are overcome by passion. Because Soto clearly prohibits evidence of voluntary intoxication to be used as "an excuse for poor judgment when someone kills" under section 29.4 (Soto, supra, 4 Cal.5th at p. 978), Auclair is not allowed to introduce evidence of voluntary intoxication to prove he acted in the heat of passion.
In sum, the trial court did not err by instructing the jury with CALCRIM No. 625 that it was prohibited from considering voluntary intoxication in connection with heat of passion.
IV
Newly-Effective Discretion to Strike Firearm Enhancements
Auclair further contends his sentence should be vacated and the matter remanded to the trial court for resentencing based on section 12022.5, subdivision (c) and 12022.53, subdivision (h). Those subdivisions, which became effective after Auclair was sentenced, allow a trial court to exercise its discretion under section 1385 to strike the firearm enhancements in the interest of justice. (§§ 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 1; 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) The statutes previously prohibited the trial court from exercising its discretion in this way. (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) Auclair argues that the new subdivisions should be applied retroactively to him under the Estrada rule. (See In re Estrada (1965) 63 Cal.2d 740.) The Attorney General concedes that the new subdivisions should be applied retroactively (see People v. Francis (1969) 71 Cal.2d 66, 75-76), but he argues that remand is not appropriate because the record shows the trial court would not have exercised its discretion to strike the enhancements.
At sentencing, the trial court expressed its view that the shooting was "totally avoidable" and it made "no sense" why someone would choose to ruin their life by committing such a crime. It explained that it was sentencing Auclair "pursuant to the Penal Code mandatory sentencing" scheme. In doing so, it acknowledged that "I am bound, in terms of imposing the sentence that I do here today, by the law as it reads in the state of California." The court therefore sentenced Auclair to seven years to life imprisonment for premeditated attempted murder and 25 years to life imprisonment for great bodily injury firearm enhancement under section 12022.53, subdivision (d). The court imposed the upper term of four years for the assault conviction, which it stayed under section 654. The court also imposed and stayed the upper terms of 10 years each for the remaining firearm enhancements under section 12022.5, subdivision (a).
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.) The same standard applies where, as here, there has been an intervening change in the discretionary powers of the sentencing court. (People v. Chavez (2018) 22 Cal.App.5th 663, 713 (Chavez); People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).)
Here, the trial court did not provide any clear indication how it would have exercised its discretion if it had been empowered to do so at the time of Auclair's sentencing. It did not mention such discretion at all. While it imposed some upper terms under section 12022.5, subdivision (a), indicating that it believed enhanced sentences were warranted, each of those upper terms was stayed. We cannot infer based on those sentencing decisions that the trial court clearly would not have exercised its discretion to strike any of the firearm enhancements, including the one for which the court had no discretion to impose a different term (§ 12022.53, subd. (a)). Indeed, the court remarked twice that it was constrained by the mandatory sentencing statutes in California. Under these circumstances, we must vacate Auclair's sentence and remand the matter for resentencing. (See Chavez, supra, 22 Cal.App.5th at pp. 713-714; McDaniels, supra, 22 Cal.App.5th at pp. 427-428.) We express no opinion regarding how the trial court should exercise its discretion.
DISPOSITION
Auclair's sentence is vacated and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. HALLER, J.