Opinion
F074635
09-05-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSE BEHILL, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF164627A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant, Jesse Bryan Behill, was convicted by jury trial of attempted voluntary manslaughter and several other crimes arising out of an incident where he fired a single shot into a residence. He received a 17-year two-month sentence including a 10-year firearm enhancement under Penal Code section 12022.5, subdivision (a).
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, he contends his attempted voluntary manslaughter conviction must be reversed on the following grounds: (1) the court abused its discretion by allowing the prosecution to amend the information midtrial to change the alleged victim from a specific person to a group; (2) the court prejudicially erred by failing to instruct sua sponte that the jury must unanimously agree which person the defendant intended to kill; and (3) the court prejudicially erred by giving, over objection, a special instruction regarding the intent requirement of attempted murder. He also contends the matter should be remanded to allow the trial court to exercise its discretion whether to strike the firearm enhancements pursuant to Senate Bill 620. We agree the matter should be remanded for the limited purpose of permitting the trial court to exercise its discretion whether to strike the firearm enhancement. We reject all other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the nature of appellant's contentions, it is necessary to first summarize the evidence taken at the preliminary hearing. As he challenges only the attempted voluntary manslaughter conviction, we limit our summary to the facts related to that charge.
At the preliminary hearing, Officer Schindler testified that on June 21, 2016, he was dispatched to a residence on Tulare Street, where he contacted a female, V.R. V.R. told Officer Schindler that at approximately 12:20 a.m., appellant arrived at the residence and requested to see his ex-girlfriend. Appellant's ex-girlfriend was occasionally at the residence because she was dating V.R.'s brother, M.L., who also lived there. V.R. told Officer Schindler she crawled out her bedroom window, which is at the front of the residence, to talk to appellant from the front porch. Appellant got angry because V.R. told him his ex-girlfriend was not there, and he shot a firearm at her once, and the bullet hit her bedroom window. V.R. was standing about a foot to the left of the window when appellant fired. Officer Schindler testified that the window was shattered and that he found a spent bullet in the windowsill. V.R. told Officer Schindler she was alone outside, but her two children were in the bedroom appellant shot into.
Detective Feola testified when he interviewed V.R. later that day, she told him appellant came to the residence looking for a female, became angry, started to leave, and then fired a shot at her bedroom window. She told Detective Feola she was on the porch with her seven-year-old child standing next to her when appellant shot. Her 10-year-old child was in the bedroom. Appellant was in the street, approximately 35 to 40 feet away from the residence when he fired.
Detective Feola testified he reviewed surveillance footage from a nearby business that captured the incident. He testified the video showed a vehicle arrive at the residence. A male subject exited the driver's seat, walked around to face the house and appeared to be talking with someone in the front yard. The subject started to walk back to the vehicle, then turned around, and there appeared to be a muzzle flash in the direction of the front bedroom window of the residence. The driver reentered the vehicle and drove away. No one else can be seen in the video.
Detective Feola testified he also contacted appellant. Appellant told Detective Feola he went to the residence and got into an argument with a male subject, and that the male subject pulled out a firearm. Detective Feola testified appellant told him he pulled out a firearm as well, and "there was a shot fired."
At the close of the preliminary hearing, appellant was held to answer to the charge of attempted murder of V.R., as well as other charges.
At trial, V.R. testified it was not true that she was outside on the porch when appellant shot. She lied to law enforcement because she was nervous and in shock. She testified she, her brother M.L., and her son were inside the front bedroom near the window when appellant arrived at the residence. The rest of her testimony was rather consistent with the evidence at the preliminary hearing. She testified appellant asked for his ex-girlfriend, and M.L. told him not to come around. She saw appellant get angry and take a gun from his pocket. She got scared and ran toward her son who was behind her. Appellant did not point the gun at her; he shot at the window. She testified appellant shot at her son. She also testified that the bullet was not meant for her and that she told the police it was meant for her brother. She testified appellant knew children lived at the house.
M.L.'s testimony was consistent with V.R.'s trial testimony. He testified he was in the bedroom with V.R. and some children. Appellant came to the house to ask for something, and M.L. told him from inside the bedroom not to "come over here." Appellant responded, "fuck you" and shot at the window. M.L. testified he was a victim. He testified there was a total of 16 people in the house, and 10 of them were children.
Detective Feola testified he interviewed appellant, and the entire video of the interview was played for the jury. In the interview, appellant stated he went to Tulare Street on the night in question, and his ex-girlfriend's current boyfriend "[M.L.]" told appellant not to come around asking for his ex-girlfriend. M.L. then pulled a gun on him and scared him. Appellant told Detective Feola, M.L. was outside by the window, but M.L.'s sister was not outside. Appellant stated repeatedly that no shot was fired. He was asked if he meant for the gun to go off, and appellant replied, "No. I d- I got- I got scared. I did. I'm not gonna lie."
It is clear from the context of the interview that appellant was referring to M.L.
On the day before the close of the People's case, the prosecutor moved to amend the information to conform to proof in regard to the victim of the attempted murder charge. After a hearing on the matter and over defense counsel's strenuous protest, the court allowed the prosecution to change the name of the attempted murder victim from "[V.R.]" to "[V.R.] ... and/or a person at ... Tulare Street." Defense counsel moved for a three- to four-week continuance, which the court denied.
The jury convicted appellant of one count of attempted voluntary manslaughter, as a lesser included offense of attempted murder (Pen. Code, §§ 664/192, subd. (a); count 1), one count of maliciously discharging a firearm at an occupied building (§ 246; count 2), two counts of felon in possession of a firearm (§ 29800, subd. (a)(1); counts 3 & 4), and one count of possession of stolen property, a firearm valued in excess of $950 (§ 496, subd. (a); count 5). The jury found true he personally used a firearm during the commission of counts 1 and 3. He was sentenced to the upper term of five years, six months for count 1; the upper term of seven years for count 2; the upper term of three years for count 3; eight months, one-third the middle term, to run consecutive for count 4; and the upper term of three years for count 5. He was sentenced to the upper term of 10 years on both firearm enhancements. The court stayed the sentences on counts 2, 3, and 5 and the sentence for the firearm enhancement tied to count 3. Appellant was sentenced to an additional one-year enhancement for a prior conviction pursuant to section 667.5, subdivision (b). His total prison sentence was 17 years, two months.
All further statutory references are to the Penal Code unless noted otherwise.
After the verdict was pronounced, defense counsel moved for a new trial on the ground that the midtrial amendment was improper. After a hearing on the matter, the court denied the motion.
DISCUSSION
I. MIDTRIAL AMENDMENT
Appellant argues the court abused its discretion when it allowed over objection the prosecution to amend the information midtrial and when it denied counsel's request for a three- to four-week continuance. We disagree.
Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, the court may grant a reasonable postponement not longer than the ends of justice require.
The questions of whether the prosecution should be permitted to amend the information and whether a continuance in a given case should be granted are matters within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a clear abuse of discretion. Allowing an amendment of an information to properly state the offense at the conclusion of the trial is a correct exercise of discretion. (People v. Jones (1985) 164 Cal.App.3d 1173, 1178-1179; People v. George (1980) 109 Cal.App.3d 814, 818-819; People v. Flowers (1971) 14 Cal.App.3d 1017, 1019-1021; People v. Baldwin (1961) 191 Cal.App.2d 83, 87.)
Here, the prosecutor moved to amend the attempted murder count of the information to conform to proof. He admitted at the hearing on the motion that "[the information] should have been filed as someone at ... Tulare Street." The original information was based on V.R.'s statement that she was outside on the front porch at the time appellant fired the shot. At trial, she stated she lied about being outside. She testified she was actually inside the front bedroom with M.L. and her son. She testified appellant got into an argument with M.L., not her. Her testimony at trial was consistent with M.L.'s, who testified he got into an argument with appellant from inside the bedroom, and V.R. and some children were in the bedroom with him when the shot was fired. The trial court amended the information, changing the victim of the attempted murder charge from "[V.R.]" to "[V.R.] ... and/or a person at ... Tulare Street."
Though appellant was ultimately convicted of attempted voluntary manslaughter, our discussion refers to attempted murder because that was the original charge. Our analysis equally applies to attempted voluntary manslaughter because it requires the specific intent to kill. (See People v. Montes (2003) 112 Cal.App.4th 1543; CALCRIM No. 603; CALCRIM No. 604.)
The trial court based its decision primarily on sections 952 and 956, regarding charging documents and the California Supreme Court cases, People v. Foster (1926) 198 Cal. 112 (Foster) and People v. Stone (2009) 46 Cal.4th 131 (Stone). The court concluded the amendment properly stated the offense, and we find its analysis did not constitute an abuse of discretion.
Section 952 reads:
"In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another."
Section 956 reads in pertinent part: "When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, ... is not material." In Foster, the California Supreme Court interpreted section 956, holding the section authorizes a midtrial amendment where there is an erroneous allegation as to the victim so long as the charge is supported by evidence taken at the preliminary hearing. (Foster, supra, 198 Cal. 112.) This is not limited to when the allegation misstates the name of the victim, but when it names the wrong person altogether. (Id. at pp. 121-122.) "The person injured is not material if the crime is described in the information with sufficient certainty as to identify the act." (Id. at p. 122, original italics.)
In Stone, the California Supreme Court discussed whether an information alleging attempted murder was required to name a particular person as the victim. In that case, the defendant fired a gun at a group of rival gang members and was convicted of attempted murder of one person in that group, Joel F. On appeal, this court reversed the conviction, finding the evidence was insufficient because it established, at most that the defendant "'intended to kill someone but not specifically Joel F. and not everyone in the group.'" (Stone, supra, 46 Cal.4th at p. 135.) The Supreme Court granted review and concluded "that a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (Id. at p. 140.)
The Stone court observed the allegation in the information that the defendant intended to kill Joel F. "was problematic given that the prosecution ultimately could not prove that defendant targeted a specific person rather than simply someone within the group." (Stone, supra, 46 Cal.4th at p. 141.) The court noted it would have been sufficient to allege the defendant committed attempted murder in that he attempted to murder a member of a group of people who were gathered together. (Ibid.) The Supreme Court reversed the judgment and remanded the matter to this court to reconsider the issues in light of the views expressed in its opinion, directing us to "consider any issues regarding the variance between the information—alleging defendant intended to kill Joel F.—and the proof at trial—showing defendant intended to kill someone, although not specifically Joel F.," citing section 956. (Id. at p. 142.) Thus, where a shot is fired toward a group of people and the defendant had the intent to kill anyone in that group, a particular person need not be named in the information.
The preliminary hearing evidence showed that on June 21, 2016, at approximately 12:20 a.m., appellant shot into the bedroom of the residence on Tulare Street. The record reveals no dispute that the information refers to this act. Further, the evidence supported there were other possible victims. There was evidence V.R.'s seven-year-old child was standing next to her when appellant shot, and there was evidence another child or more were in the bedroom when he shot. Appellant himself stated a male subject was present. This evidence was sufficient to support the charge of attempted murder of "a person at ... Tulare Street."
Because Stone does not require a particular victim to be named in the context of a group shooting, and the preliminary hearing evidence showed appellant shot toward a house where multiple people were gathered, we find it was not an abuse of discretion for the trial court to find a particular victim need not have been named. Pursuant to Foster, an erroneous allegation as to victim can be corrected in the middle of trial so long as the evidence adduced at the preliminary hearing supports the charge. Appellant was sufficiently notified of the time, date, place, and general circumstances of the act through the information and evidence adduced at the preliminary hearing. The court did not abuse its discretion by allowing the amendment.
The next question we must decide is whether appellant's substantial rights were prejudiced by the amendment such that the court should have granted a continuance. Defense counsel requested a three- to four-week continuance primarily so he could interview everyone who was alleged to be in the house at the time of the shooting. He claimed he was surprised by the evidence of the people who were present at the residence on the night of the incident. The trial court denied the request after determining that all people alleged to be in the house at the time of the incident were listed in the police reports already provided to the defendant.
Where a midtrial amendment makes no substantial change in the offense charged and requires no additional preparation or evidence to meet the change, the denial of a continuance is justified and proper. (People v. George, supra, 109 Cal.App.3d at pp. 818-819.)
Sections 952 and 956 and the decisions in Foster and Stone establish there was no substantial change in the offense charged. Additionally, we find the amendment did not impair appellant's defense. As the trial court noted, appellant had notice of the possible witnesses to the incident not mentioned at the preliminary hearing through the police reports.
Further, there is no indication appellant's defense had anything to do with whether V.R. was a victim. In his opening statement, defense counsel focused on the various "mix-up[s]" in the investigation, primarily having to do with whether appellant was in fact the shooter or not. In appellant's own statement, he denied a shot went off and suggested if he had shot, it was out of fear because M.L. had pulled a gun on him. In a lengthy closing argument, defense counsel argued several reasons the People did not meet their burden in proving appellant was the shooter. Alternatively, he argued appellant was "probably [guilty of] grossly negligent discharge of a gun" and "[w]hat likely happened is, this guy probably came outside with a gun ... get the F out of here, blah, blah, blah, and somebody fires a shot. That's what happened. That's probably what happened. And that's not attempted [murder]." He also argued appellant fired in self-defense. At the close of evidence, appellant moved for acquittal for insufficient evidence, pursuant to section 1118.1, as to the attempted murder charge, and during the hearing on the matter, defense counsel told the court, "this is an ID case, fully ID case." Appellant's defense was never based on V.R. being the named victim.
Defense counsel argued he would have had more questions for the witnesses had the information been filed as amended. However, all witnesses were subject to recall, and when defense counsel informed the court he might have to recall witnesses, the court replied, "[d]o what you have to do," indicating it would not prevent him from doing so. Defense counsel did not recall any witnesses.
The court did not abuse its discretion in denying the request for continuance. II. INSTRUCTIONAL ERROR
A. Unanimity Instruction as to Victim
Appellant argues the court was required to instruct the jury sua sponte that it needed to unanimously agree on who the intended victim of the attempted murder charge was. We find a unanimity instruction as to the victim was not required.
In a criminal case, a jury verdict must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132; see Cal. Const., art. I, § 16.) The court here so instructed the jury. (See CALCRIM 3550.) The jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) Cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Castro (1901) 133 Cal. 11, 13; People v. Williams (1901) 133 Cal. 165, 168.)
This requirement of unanimity as to the criminal act "is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed." (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) Where, for example, defendant is convicted of a single count of bribery, but the evidence showed two discrete bribes, the absence of a unanimity instruction can constitute reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (See People v. Diedrich, supra, 31 Cal.3d at pp. 280-283.) "The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count." (People v. Deletto (1983) 147 Cal.App.3d 458, 472, original italics.)
Here, we do not find the verdict could have been supported by more than one discrete act. There is no question as to which act supports the verdict: appellant firing a single shot into the residence on Tulare Street. Appellant appears to be contending this single shot constitutes discrete acts, because, as he argues, the evidence shows there were discrete intended victims. Appellant cites several authorities that he argues require unanimity as to victim. We are not persuaded by these authorities because in all the cases he cites, the court required unanimity as to "victim" because multiple discrete acts, implicating different victims, could have supported the verdict, and none of the cases consider a situation where one act is alleged to support the verdict. (See United States v. Gonzalez (9th Cir. 2015) 786 F.3d 714; Saenz v. State (Tex.Crim.App. 2014) 451 S.W.3d 388; State v. Lotches (2000) 331 Or. 455 ; State v. Hale (2003) 335 Or. 612 .) Because the cases appellant cites are unpersuasive to support his argument, determining whether the single shot could have constituted multiple discrete crimes, based on who the victim was, requires us to examine the intent requirement of attempted murder.
We find, under the facts of this case, the jury was not required to find appellant had the intent to kill a particular person. "'"[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." [Citations.]' [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 229-230, fn. omitted.) When an information charges several alleged victims, "'guilt of attempted murder must be judged separately as to each alleged victim.'" (Stone, supra, 46 Cal.4th at p. 141.) However, a shooter who fires a single shot into a group of people, intending to kill one of the group, but not knowing or caring which one, could be convicted of a single count of attempted murder. (Id. at p. 134.; see also Perez, supra, 50 Cal.4th 222). "The mental state required for attempted murder is the intent to kill a human being, not a particular human being." (Stone, supra, at p. 134, original italics.) In other words, to establish specific intent, the prosecution does not in every case need to show defendant intended to kill a particular person.
The gravamen of appellant's argument is that his case is distinguishable from Stone. He argues that, unlike Stone, the evidence did not show he shot into the house not knowing or caring which person he killed. Rather, he contends the evidence showed appellant had one of multiple possible specific intended targets, namely V.R. and M.L. and possibly V.R.'s seven-year-old son. He suggests if some of the jurors could have found he intended to kill V.R. only, and other jurors could have found he intended to kill M.L. only, the burden of proof was lowered. Appellant's argument seems predicated on the fact the jury was presented with multiple iterations of the incident (i.e. V.R.'s pre-preliminary hearing statement to law enforcement, V.R.'s and M.L.'s trial testimonies, and appellant's own statement); appellant argues in each iteration, there is a different intended target. We do not agree. These different iterations do not necessarily change who the intended target was but rather reveal inconsistencies of who was where in relation to the residence and who appellant was arguing with. These inconsistencies are not material in determining whether appellant had the requisite intent to kill under the facts of this case.
People v. Amperano (2011) 199 Cal.App.4th 336 (Amperano) is instructive. In Amperano, the defendant shot into the home of Anita Rodriguez, wounding her. He was charged and convicted of attempted murder of Rodriguez. On appeal, he argued the evidence was insufficient to support he intended to kill Rodriguez because the evidence at trial revealed he thought he was shooting at a rival gang house. The appellate court affirmed the judgment. The court noted the jury was instructed that attempted murder required an intent to murder a human being, and the prosecutor argued in closing this element was established by the evidence that defendant shot into a window and fired toward a sofa in front of a television that was on. (Amperano, supra, at p. 343.) The court held that in light of the instructions and argument, the intended target was not significant because the evidence showed the defendant intended to kill a person inside the house. (Id. at p. 344.) Amperano illustrates that if the evidence shows the defendant shot into a house intending to kill a person inside, the evidence is sufficient to uphold an attempted murder, no matter who the intended target is.
Here, the evidence overwhelmingly supports the following facts and inferences. Appellant shot toward the residence on Tulare Street and into the bedroom window. There were people inside the bedroom. There was extensive questioning at trial as to whether a bamboo covering on the window could be seen through, with the majority of the evidence supporting that it could be. Appellant approached the residence with the headlights of his vehicle off , and he got out of the vehicle with a firearm on his person. There was evidence he had been to the house on multiple occasions to pick up the children he shares with his ex-girlfriend and knew multiple people lived at the residence. He wanted to see his ex-girlfriend, became angry when he could not, and shot toward the house from 30 feet away. "'"[T]he act of firing toward a victim at a close, but not point blank, range 'in a manner that could have inflicted a mortal would had the bullet been on target is sufficient to support an inference of intent to kill ....' [Citation.]" [Citations.]'" (Perez, supra, 50 Cal.4th at p. 230; see also Amperano, supra, 199 Cal.App.4th 336.) Thus, appellant's intent to kill was not based on there being a specific intended target but on his act of shooting into a residence where he knew a person or people were gathered. Under the facts of this case, a unanimity instruction as to victim was not appropriate, and the court did not err by failing to give one.
Even if the jury did interpret the evidence as appellant suggests, and it was split as to whether appellant intended to kill a particular person or anyone in the bedroom, we are not convinced by appellant that this lowers the prosecution's burden of proof. "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (§ 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.]" (People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.) Similarly, this is not a case where the evidence showed appellant shot at one victim on Elm Street on Tuesday and another on Maple Street on Wednesday. This was a single act, and whether appellant intended to kill one victim, another victim, or any victim in the residence with that single act was, under these facts, merely the theory of the offense, and would not require unanimity.
B. Special Instruction # 2
Appellant argues the court erred when it gave the jury the following instruction over objection : "A person who intends to kill can be guilty of attempted murder, even if the person has no specific target in mind. An indiscriminate would-be killer targeting an unknown random person is just as culpable as one who targets a specific person so long as he has the specific intent to kill another human being present at ... Tulare Street, ... on or about June 21, 2016. The People are not required to name a specific intended victim for a charge of attempted murder."
Appellant challenges the instruction on two grounds. First, he argues the instruction was prejudicial because it referred to appellant as an "indiscriminate would-be killer." Although it is questionable whether the instruction refers to appellant, rather than a defendant in general, our duty is to look at the instructions as a whole, not in isolation. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) First, the clear primary purpose of the challenged instruction was to clarify that a defendant (a person) did not need to have had intent to kill a particular person, just intent to kill someone at the residence on Tulare Street. The phrase "indiscriminate would-be killer" was an identifying phrase that had no bearing on what the instruction was intended to convey. Further, the jury was instructed they must not be biased against the defendant just because he had been arrested, charged with a crime, or brought to trial and that he was presumed to be innocent. It was also instructed the People must prove their case beyond a reasonable doubt in order to find the defendant guilty. There is no reasonable probability that the one reference to a defendant as an "indiscriminate would-be killer" in the context of the instructions as a whole would prejudice the jury so as to affect their verdict.
Appellant's other contention is that the instruction misstates the law. The instruction was modified from a line in Stone that read: "[W]e conclude that a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person." (Stone, supra, 46 Cal.4th 140.) Appellant argues the addition of the language "so long as he intended to kill a person at ... Tulare Street...," misstated the point made in Stone. We do not agree. In our view, the line narrows the charge to the place and time of the charged offense and does not change the general concept that a defendant can have either the intent to kill a specific target or a random person. We do not find the addition misstated the law; at most the line is superfluous because there was no evidence the defendant intended to kill anyone not present at the residence on Tulare Street.
Even assuming there was error, any such error was harmless. "'Any "misdirection of the jury" [citation], that is instructional error [citation], cannot be the basis of reversing a conviction unless "'an examination of the entire cause, including the evidence,'" indicates that the error resulted in a "'miscarriage of justice.'" [Citation.]'" (People v. Larsen (2012) 205 Cal.App.4th 810, 829.) The evidence here overwhelmingly supports the jury's finding that appellant had the specific intent to kill a person at the residence, which as discussed, was sufficient to support the jury's verdict of guilty on the attempted voluntary manslaughter charge. There is no reasonable probability the jury would have returned a different verdict had Special Instruction # 2 not been given. (See People v. Watson (1956) 46 Cal.2d 818, 836.) III. SENATE BILL NO. 620
The jury found true firearm enhancements pursuant to section 12022.5, subdivision (a) tied to counts 1 and 3. At the time appellant was sentenced, section 12022.5, subdivision (a) mandated a consecutive enhancement of three, four, or 10 years for persons who personally use a firearm in the commission of a felony or attempted felony. (§ 12022.5, subd. (a).) The trial court enhanced appellant's sentence pursuant to section 12022.5, subdivision (a) by imposing 10-year terms tied to counts 1 and 3, staying the term tied to count 3.
After appellant was sentenced, but while this case was pending on appeal, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1, 2.) As of January 1, 2018, section 12022.5, subdivision (c) provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
In supplemental briefing, appellant contends his case should be remanded to give the trial court the opportunity to exercise the discretion authorized by the amended subdivision (c) of section 12022.5. Relying on People v. Francis (1969) 71 Cal.2d 66 and In re Estrada (1965) 63 Cal.2d 740, respondent concedes the foregoing amendment applies retroactively to appellant's case when the amendment went into effect and that his case is appropriate for remand.
We accept respondent's concession without further analysis and remand this matter for the limited purpose of allowing the trial court to consider whether to exercise its discretion under section 12022.5, subdivision (c) to either strike or dismiss the enhancements authorized by section 12022.5, subdivision (a).
DISPOSITION
We remand this matter for the limited purpose of allowing the trial court to consider whether to exercise its discretion under Penal Code section 12022.5, subdivision (c) to either strike or dismiss the firearm enhancements authorized by Penal Code section 12022.5, subdivision (a).
In all other respects, the judgment is affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.