Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07903746, Gary R. Orozco, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Jonquel Brooks stands convicted, following a jury trial, of one count of first degree murder in which he personally and intentionally discharged a firearm, proximately causing death (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d); count 1), two counts of attempted murder in which he personally and intentionally discharged a firearm, proximately causing great bodily injury (§§ 187, subd. (a), 664, 12022.53, subd. (d); counts 2 & 3), and one count of attempted murder in which he personally and intentionally discharged a firearm (§§ 187, subd. (a), 664, 12022.53, subd. (c); count 4). His motion for a new trial or modification of the verdict was denied, and he was sentenced to prison for an aggregate term of nine years four months plus 100 years to life, and ordered to pay restitution and various fees and fines. He now appeals. As we shall explain, although we find no prejudicial error in the trial itself, we will reverse the judgment in order to afford appellant a new hearing on his motion for a new trial or to modify the verdict.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
I
Prosecution Evidence
The University Village Apartments is a three-story complex on East Barstow near Cedar. It provides housing for students at Fresno State University. The individual apartment units consist of separate sleeping quarters, each with lock on the door, and a common living room/kitchen area. Apartment 126, which is on the ground floor, has four separate bedrooms. As of May 7, 2007, Lewis Carrol resided in bedroom A, appellant resided in bedroom B, Rion Spears resided in bedroom C, and Guillermo Meneses resided in bedroom D.
Unless otherwise specified, all dates refer to 2007.
About a month before May 7, appellant showed Meneses a gun. Carrol recalled appellant showing him a pistol a couple of times between Christmas and spring break. At one point, appellant told Carrol that he had “gotten jumped” by some Mexicans and hit with a bottle, and that his left eye had been hurt and he could go blind if he were hit there again. As a result, appellant, who was African-American, was not quick to trust Hispanics. However, he and Carrol, who was Native American and Hispanic, had only normal roommate problems that were not attributable to race. Although Carrol never observed appellant to be nervous or have a problem around large groups of people, appellant did not like to be touched.
Eyewitness accounts differed as to what took place on May 7.
Guillermo Meneses
Meneses was in his room, studying, at approximately 11:00 p.m. Taking a break, he went into Carrol’s room to play video games. He saw Brant Daniels, Rodrick Buycks, Drew Pfeiff, Kodi Shiflett, and a couple of other people walk in through the hallway. At no time did Meneses see a weapon in any of their hands.
The group headed toward appellant’s room, and Daniels and Buycks started talking to appellant. The conversation quickly escalated into a confrontation in the hallway in front of appellant’s room. Shiflett and Pfeiff were kind of in the back, and, when Meneses stepped out of Carrol’s room, Pfeiff told him that they thought appellant had stolen a PlayStation 2 console.
Daniels and Buycks accused appellant of taking the console; appellant denied it. This went back and forth a few times near the door to appellant’s room. Meneses saw Daniels enter appellant’s bedroom, and appellant loudly told him to get out. At some point, Buycks approached appellant; Daniels, who was trying to be the peacemaker, physically touched appellant in an attempt to create space between the two. He told Buycks, “‘calm down, he’s going to give it to us, ’” although Meneses had never heard appellant admit he took the PlayStation. Meneses did not recall any other touching of appellant or any threatening gestures such as balling up or pounding of fists, although at some point he heard Daniels say to appellant that appellant had better tell them where the PlayStation was. It did not appear to Meneses that anyone was under the influence of alcohol, and he did not see anyone force any doors.
Daniels exited appellant’s room, and the group walked toward the kitchen and the door. Appellant told the group more than once to get out of his house. It seemed to Meneses that the four visitors were starting to walk out. Daniels told appellant that appellant had better give them a call when he got the PlayStation 2 back. As the four were on their way out, Meneses saw a gun in appellant’s hand. Those in the group asked if he were serious and told him to put it away. They kept arguing, and appellant fired a warning shot at the ground. At the time, Daniels was by the kitchen counter.
When the group moved back into the kitchen, and prior to seeing the gun, Meneses activated his cell phone’s video recorder because he thought there was going to be a fight. He recorded 15 seconds, which was all his phone allowed. The video was played for the jury. Loud arguing and the first shot can be heard on the recording, which we have viewed.
Fearing for his own safety, Meneses grabbed Carrol and they locked themselves in Carrol’s room. Meneses then heard what sounded like at least four shots and “a bunch of commotion.” Meneses could not tell whether it stayed in the room or moved elsewhere.
Lewis Carrol
Carrol and Meneses were in Carrol’s room at about 11:00 p.m. Someone knocked at the apartment door, but Carrol did not see if appellant opened it. The conversation started off “real loud, ” but Carrol did not think anything of it at first. When it stayed loud, however, he and Meneses left the bedroom. Carrol saw appellant arguing with Daniels and Buycks. Shiflett and Pfeiff were also there, as was another male Carrol did not know, but that person left. Daniels and Buycks said they knew appellant took their PlayStation 2, and that he had better give it back. Appellant repeatedly denied having the item. The subject of a stolen PlayStation was a surprise to Carrol, but he remembered hearing appellant talking on the phone and asking somebody for some cords.
When interviewed by Officer Williams at the apartment complex, Carrol related that five subjects came to the front door and appellant let them in.
According to Carrol, appellant had his own PlayStation before the first week of May.
The argument moved to the hallway by appellant’s room. Either Daniels or Buycks started to go into appellant’s room, and appellant said the person was not about to go through appellant’s things. When Daniels and Buycks said they just wanted to get the PlayStation back, appellant said he did not have it and did not know what they were talking about. Carrol believed Daniels went in appellant’s room and appellant followed him inside. Pfeiff, who was acting normally, told Carrol they knew appellant had the PlayStation. Carrol was ready to take appellant’s side if things got violent.
The argument seemed most intense between appellant and Buycks. They were kind of coming at each other, and Daniels, who was in the doorway to but a little outside of appellant’s room, pushed appellant sideways into the room. Appellant told Daniels to get off him and not to touch him. To Carrol, Daniels’s movement appeared to look to appellant like an aggressive act. Insofar as Carrol could see, however, none of the visitors had a weapon.
Carrol told Officer Williams that there were two main people arguing with appellant, that they were arguing in appellant’s bedroom, and that it appeared Daniels was restraining appellant from attacking the third person.
When the argument moved from appellant’s room toward the kitchen, everyone noticed that appellant had a gun in his hand. It was a revolver appellant had previously shown Carrol. One of the group asked appellant what he needed that for. Appellant said they needed to leave. They asked if he was serious, and he said yes, he was serious, that they needed to leave and he did not have their PlayStation. Appellant was holding the gun in his right hand and swinging it, with his elbow bent at about a 90-degree angle.
Appellant had shown Rion Spears, who also lived in apartment 126, a.22-caliber revolver that held six shots. Spears was aware that appellant was selling marijuana out of the residence. Spears kept two guns in his room when he lived at the University Village Apartments, although he did not sell marijuana.
The exchanges were laced with profanity and racial epithets.
The group continued to argue. Everyone was moving around. Appellant was in the area between the living space and the kitchen. Shiflett and Pfeiff were in and out. Daniels was in the kitchen, and Buycks was in the kitchen toward the apartment entryway. Nobody made any kind of threatening gesture toward appellant.
Appellant stomped his foot and again said the group had to leave. About this time, the first shot went off. The gun was pointed down, and Carrol saw appellant flinch. The group did not retreat; instead, the argument continued, and Buycks asked if appellant was serious. Appellant said he was, and that they needed to leave. Daniels said all right, that they saw how it was. Buycks made a gesture toward appellant, which Carrol interpreted as Buycks putting up a front and acting like he was coming at appellant although he really was not. This occurred kind of in the doorway. The door from the kitchen into the hallway outside the apartment was open, and Daniels was restraining Buycks.
Carrol estimated that all told, appellant asked the group to leave about five times.
Meneses and Carrol went back into Carrol’s room. Carrol still did not see any of the visitors with any weapons. At no time did he see any of the group pound his fist into his hand in a threatening way, and he did not hear Daniels say anything about having people who would come and get appellant. However, Daniels and Buycks were both over six feet tall, and Buycks was stockier than Daniels. Both were taller than appellant.
As Carrol started to shut the door to his room, he looked back down the hallway. He believed someone who had been at the apartment earlier that evening had returned, and that this person sort of “sparked” the group, which had been starting to leave, so that another argument erupted. Carrol saw appellant on the side of the breakfast bar with the gun pointed toward the entrance. Carrol shut and locked his door, then heard several shots. It sounded like a few were fired inside the apartment and a few outside. It then sounded like appellant went back to his room, shut and locked his door, and then took off.
There was confusion over whether this person was Eric Stinnie or Kelvin King.
Carrol and Meneses exited Carrol’s room about three to five minutes after the shots. Nobody was left in the apartment. Appellant telephoned Carrol half an hour to an hour later and asked if Carrol knew he did not want to shoot them and that they would not leave. Appellant gave the impression of wondering if what he did was right and asking what Carrol had seen and if Carrol thought it was justified.
Rodrick Buycks
Buycks was six feet two inches tall, weighed about 205 or 210 pounds, and lived down the hall from appellant at the time of events. They were on a recreational basketball team together, along with Shiflett and Daniels. Their relationship was friendly. Shiflett and Pfeiff were Buycks’s roommates, and Daniels was a friend. The front door of their unit was usually unlocked so that their friends could come and go.
A week or two before May 7, Buycks’s PlayStation 2 went missing from the common living area of the unit. Certain cords had to be plugged into it to make it work.
Buycks suspected the item was either in appellant’s apartment or a particular apartment upstairs, but, about a day after the item went missing, appellant telephoned and asked if Buycks had cords for a PlayStation 2. Buycks talked to his roommates, and they concluded appellant had probably stolen the PlayStation 2. They decided to talk to him about it. As a result, at about 11:00 p.m. on May 7, Buycks, Daniels, Pfeiff, and Shiflett headed over to appellant’s apartment. They were dressed casually in shorts and T-shirts. No one had any kind of weapon; they were not anticipating trouble, even though appellant had shown Buycks a.22-caliber revolver once or twice before.
Buycks’s group knocked on the door and rang the doorbell of appellant’s unit, and appellant answered the door. The group then went into the living room/kitchen area and started talking. There was a period of regular conversation, then things became heated. Daniels and Buycks were mostly doing the talking; Buycks demanded that appellant return the PlayStation 2, and appellant denied taking it.
Appellant started walking back toward his bedroom, and Buycks and Daniels followed. Appellant entered his room. Buycks, who was in the doorway area, saw him grab at something around his bed area. After a minute or two, appellant came back out. He seemed to become more angry.
The discussion moved back toward the living room/kitchen area. Buycks did not notice anything in appellant’s hands until appellant pulled a gun and shot at the ground. This was in the kitchen/living room area. Buycks believed that he was standing in front of the door at the time, while Daniels was near the end of the counter. Someone else was standing by the refrigerator, which put that person closer to the apartment entrance than Daniels. Just before the shot was fired, a friend of appellant’s, whom Buycks did not know but believed may have been Kelvin King, came into the apartment.
When the first shot was fired, Buycks and his group moved closer to the door. Buycks told appellant that he knew appellant had his PlayStation 2, and he wanted it back. There was a lot of shouting going on, and Buycks could not remember clearly whether anyone else said anything to appellant. Appellant was yelling at them to get out. One of Buycks’s group opened the door, and appellant shot three more times. Buycks actually saw him fire the three rounds. The first time appellant fired, he was pointing the gun at Pfeiff; the second time, he was pointing it at Daniels; and the third time, he was pointing it at Buycks. Buycks and his companions ran. The whole incident lasted 10 to 15 minutes.
Buycks was shot once in the neck. During the incident, no one in his group forced open any door, pushed appellant, or knocked appellant to the ground. Nobody made any threats of physical force or violence or that they were going to come back. Buycks believed Daniels probably gestured with his hands during the incident, but it was not done in a threatening manner. It was just how Daniels talked. Buycks did not see anyone take a fist and pound it into the palm of his hand.
Drew Pfeiff
As of May 7, Pfeiff, who was approximately six feet tall and 250 pounds, lived with Buycks, Shiflett, and a third person in apartment 128, which was next door to appellant’s unit. Appellant would occasionally come over to play video games. Once, he showed Pfeiff a revolver he was carrying on his person as he came in from an exit that led outside onto a public street. Although Pfeiff did not trust appellant, they had no disputes when appellant visited.
On the evening of May 7, upon concluding that appellant was the one who had stolen the PlayStation 2, Pfeiff, Buycks, Shiflett, and Daniels went to appellant’s apartment. Eric Stinnie, who lived on the third floor of the complex and was friends with the group and with appellant, had gone to appellant’s a bit ahead of the group. When they arrived, the door was closed. Somebody knocked, and appellant answered and let them in. They walked into the common living area, and Buycks told appellant that they knew he was the one who took the PlayStation, and that they wanted to give him the opportunity to do the right thing and give it back. Buycks’s demeanor was very calm at this time. Appellant became very defensive. He denied taking it, and said he did not need to steal because he had lots of money.
After Buycks and appellant began to go back and forth, appellant’s roommates came out. Pfeiff had a very friendly discussion with them, and so had his back turned to the argument between Buycks and appellant. Pfeiff felt appellant go into his room. He did not know where Daniels was and did not see anyone follow appellant to his doorway or into his room. When appellant came back out, Pfeiff saw a gun in his hand. Appellant began yelling at the group to get out of his house. People were yelling back, and somebody questioned the need for a firearm. No one in the group was armed. Appellant did not say anything in response to the comment that the gun was not needed; instead, he just fired. Those in the group were making their way toward the door to leave, and the shot was fired in their direction. When the first shot was fired, Pfeiff was three to six feet from appellant.
Pfeiff and his companions tried to get to the door as fast as they could. They were no longer arguing about the PlayStation, but were making comments about the gun and saying don’t shoot. Daniels was ahead of Pfeiff, getting ready to go out the door, and he turned back and asked if appellant was going to shoot them. Pfeiff heard a gunshot and saw a pained look on Daniels’s face. Pfeiff was shot in the shoulder and may have actually been the first person shot, but initially did not realize he was wounded. No more than half a minute elapsed between the first shot and the remaining shots. Pfeiff estimated that approximately five minutes elapsed from the time he entered appellant’s apartment to the time he ran out.
Pfeiff made his way out the door and turned left toward his apartment. As he ran south down the hallway, he heard shots being fired behind him. It sounded like the gun was being fired in the hallway, not inside apartment 126.
Pfeiff recalled hearing Kelvin King outside the apartment as Pfeiff was exiting.
To Pfeiff’s knowledge, no one in his group was under the influence of alcohol or drugs when they went to appellant’s apartment. No one forced any doors open, and he did not see anyone push or hit appellant. He did not see appellant knocked to the ground, and did not hear anyone threaten appellant. He did not hear Daniels say anything about having someone to come get appellant. He did not see anyone pound their fists into their hands.
Kodi Shiflett
As of May 7, Shiflett resided in apartment 128. He was on the same recreational basketball team as appellant, whom he had known since high school. Shiflett was aware of appellant being in possession of a revolver on several occasions during 2007. Most of the time, it was in his pocket. In Shiflett’s opinion, appellant tried to project a tough guy, streetwise persona.
Fresno Police Detective Alcorn interviewed Shiflett not long after the shooting. Shiflett told him that this was the first time he had ever seen appellant with a gun, although appellant had said he had one.
When Shiflett and his roommates got together before going to appellant’s apartment to discuss the missing PlayStation, no violence was mentioned or contemplated. They had had no problems with appellant prior to that time, but they believed he had the PlayStation, and so they were going to go to his apartment and get it back from him. It did not appear to Shiflett that anyone was under the influence of alcohol or drugs.
When the group arrived at appellant’s apartment, Daniels either knocked or just walked in. Daniels and Buycks then started asking somewhat loudly for the PlayStation and saying they knew appellant had it. Appellant responded that he did not have it and did not know what they were talking about. The argument then got very loud and went back and forth, with Daniels and Buycks saying they knew appellant had the PlayStation and appellant denying it.
During the initial argument, Shiflett was by the front door to the apartment. Daniels and Buycks were inside a bit farther, between the breakfast bar and a wall. They were facing appellant, who was somewhat in the living room. Appellant then went to his room. Daniels went with him. Buycks went to the hallway, but did not go all the way into the room. Shiflett went to the start of the hallway that led from the living area to appellant’s room. It sounded like Daniels and appellant were still arguing, then Daniels said “‘what’s that’” or “‘what’s this.’” It appeared Daniels was pointing. Up to this point, Shiflett had not seen anyone touch or be physical with appellant.
Daniels exited appellant’s room almost immediately. He and Buycks started walking toward the front door, and Shiflett and Pfeiff followed. When appellant came out of his room, Shiflett saw that he had a gun by his side. Shiflett did not remember anyone arguing at that point, although Daniels asked appellant if appellant was going to shoot them.
At the time appellant fired the first shot, Shiflett was standing right next to the front door. Appellant was standing near the end of the breakfast bar. Daniels was directly in front of appellant, and Buycks was to Daniels’s left, along the wall. Pfeiff was to Shiflett’s left. Just prior to appellant firing, nobody had touched or pushed him or made any threatening gesture toward him.
The first shot was fired at the floor. After it went off, it seemed like Shiflett’s group was kind of frozen. Shiflett could not remember if anything was said. Appellant fired again, and Shiflett started to move for the door. This time, the gun was pointed at the group. Shiflett could not recall it being pointed at anyone in particular.
Shiflett, who was uninjured, was first out the door. As he ran, he heard other shots being fired. It sounded like the gun had travelled from inside the apartment out into the hallway. Shiflett turned into one the breezeways, then saw appellant and someone he believed to be King, going upstairs. King had been present in appellant’s apartment just before the first shot.
At no time during the entire event did Shiflett see anybody force open any doors, push or shove appellant, or knock him to the ground. Shiflett’s group was standing about three feet from appellant at the time of the first shot. Nobody was touching appellant at that time. Shiflett did not hear anybody threaten appellant, nor did he hear Daniels say anything about having someone to come get appellant. Shiflett did not see anyone pound their fist into their palm in an aggressive manner.
Shiflett testified that his group was about a foot to a foot and a half away, but, when asked to demonstrate the distance at trial, pointed to something the court described as a minimum of three feet away.
As of May 7, Albert Ticer lived in apartment 102. Daniels was his roommate. At about 11:00 or 11:15 that night, Daniels came into the apartment, said that appellant had just shot him, and collapsed.
Daniels, who was six feet two and a half inches tall and weighed about 156 pounds at the time of his death, sustained five gunshot wounds. He was grazed on the neck and one finger, and shot in the left front chest, the left back, and the left arm. The wounds were inflicted by.22-caliber bullets from a distance of more than two to two-and-a-half feet. The cause of death was perforation of the heart, liver, and left lung, due to multiple gunshot wounds. Toxicology tests showed Daniels had a small amount of marijuana in his system, and his blood-alcohol content was 0.06 percent.
Police were dispatched to the University Village Apartments at approximately 11:16 p.m. on May 7. Inside apartment 126, officers found possible bullet strike marks on a kitchen wall, the kitchen floor, and inside the entry door to the apartment. The marks were consistent with a small caliber such as a.22. There were no signs of forced entry into the unit or into the bedrooms inside the unit. Outside apartment 128, which was directly south of and adjoined apartment 126, was a.22-caliber bullet.
II
Defense Evidence
Appellant, who was 19 years old when the shootings occurred, testified that when he was 15, he attended his cousin’s graduation, then they and two friends went to a party in Union City. Appellant was uncomfortable, and he and his cousin started to leave. As they did, appellant commented that he had told his cousin they should have gone to another party in Hayward or Oakland, because the party they were at was “‘fucking weak.’” Someone said, “‘What?’” Because they were in a cul-de-sac, the sound echoed and appellant could not tell who said it, so he repeated that the party was “‘fucking weak.’” Someone said it was his sister’s party. As appellant turned, someone swung at him. Appellant ducked, but was hit in the head with a bottle. His cousin ran. Appellant was hit in the head with another bottle, punched four or five times, and kicked for about a minute. No one came to his assistance, but, because appellant kept getting back up, his assailants finally ran. During the incident, 30 or 40 people were chanting the name of a local Norteno gang.
As a result of the altercation, appellant was hospitalized for four days and had to have surgery. He had a piece of glass inside his left eye, and also suffered a brain hemorrhage, detached retina, brain trauma, a concussion, and a fractured skull. An eye specialist told him that if he took a shot to the head or the eye, he could lose his eye and possibly his life. After the attack, appellant was no longer able to trust many Hispanics and did not want to be touched by too many people, and he had a fear of being around too large a crowd and not knowing exactly how they were going to react.
At trial, appellant acknowledged that he had two Hispanic roommates as of May 7, and that of the four in Daniels’s group, only Shiflett was Hispanic. Pfeiff was Caucasian, while Daniels and Buycks were African-American.
While appellant was in high school, he did a lot of volunteer work, including talking to and mentoring at-risk youth. As a result, he became friends with a lot of people, and in fact became so close to his friend Phillip that he referred to Phillip as his brother. Phillip was murdered on March 23, 2007. There were “a lot of threats behind his death” because of appellant’s close friendship with Phillip, and this led to appellant purchasing a six-shot, .22-caliber Ruger revolver from Brant Daniels. Although appellant smoked marijuana and kept it in his room, and occasionally sold some to some of the residents in the apartment complex, he did not have a gun due to his marijuana use. The weapon was solely for protection, because he was receiving death threats.
At about 10:30 or 10:45 p.m. on May 7, appellant was playing a video game with Kelvin King. Eric Stinnie was also there. He had wanted to use a program on appellant’s computer to burn a CD, and appellant had set up the program for him, but instead Stinnie just watched appellant and King play their game. When King got a call from his girlfriend and went to leave, Stinnie told appellant that he did not have a CD to burn and would be back. Appellant, who was five feet nine inches tall and weighed about 143 pounds at the time, had smoked marijuana with King about two hours earlier; by the time of the incident, appellant was no longer feeling high.
Appellant walked King and Stinnie to the door and then locked it. Stinnie called about five minutes later and said he was at the door, so appellant let him in. Appellant closed the door and thought he locked it, and he returned to his room. He was on the phone when he heard the door open. Daniels, Buycks, Shiflett, and Pfeiff – all of whom were taller than appellant – came in. Daniels and Buycks exchanged greetings with appellant, then started yelling and demanding to know where their PlayStation was. Appellant said he did not have it.
At this point, Daniels and Buycks were in the kitchen, with Shiflett and Pfeiff behind them. Appellant was at the beginning of the tiles for the kitchen floor. Daniels and Buycks kept accusing appellant of stealing the PlayStation or knowing who did, and appellant kept denying it. They then told him to call the person he was always with. Appellant agreed, and told them that when he got it done, it was over, and they all should get out of his house.
Appellant believed they were referring to King, so he telephoned King and told him to come over. King agreed. Appellant walked toward his bedroom. He knew the others were following him, but he had already told them that they were not coming in his room, so he did not think they would enter. As he got to his doorway, however, he felt a nudge or push in his back. Daniels was closest to him at the time. Appellant grabbed his phone and reached under his bed and grabbed his gun. He was feeling threatened. At some point, Daniels went into appellant’s bedroom, and Buycks followed into the hallway. They were yelling and pounding their fists into their hands and demanding the PlayStation. Appellant said he did not have it and told Daniels to get out of his room. He then made one more call to King to tell him to hurry and ask where he was. King said he was there, so appellant told the others that King was there and they could clear things up. As appellant and the others moved away from appellant’s room, he kept telling them to get out of his house.
King was standing in the living room. Appellant asked him if they had the PlayStation, and King said no and told the group to now get out of the house. The visitors began to walk like they were going to leave, and appellant thought the situation was going to be over. Instead, Daniels turned around. There was a little bump. Appellant had his hand on the gun and the gun by his side, and he squeezed the trigger and shot himself in the right thigh. The bullet went into the ground, nicking his foot. Appellant was in the entrance hall, by the end of the breakfast counter. Multiple people said things. Appellant continued to tell the group to get out of his house. King also told them to leave. Daniels said, “‘it’s like that, dawg, what the fuck you gonna do, shoot us?’” Daniels also said he had people on the way who could beat appellant anyway. He and Buycks had been hitting their fists into their hands since shortly after they entered the apartment.
To appellant’s knowledge, nobody but him had a weapon. He had never seen any weapons in apartment 128, but there were a lot of bottles in there, and he had been hit by a bottle before. Appellant was in fear because he was wounded, he could smell liquor on their breath, and he did not want to be put in a situation to be jumped again. Nobody was leaving, so he pointed the gun to see if they would leave when they saw it. They did not. Appellant waved the gun sideways and told them to get out. They still did not go, and so he fired into the crowd. Buycks lunged at him, and appellant shot again. Everyone froze and still did not leave. Appellant was concerned for his safety because he was wounded, and he was also concerned about why they were not leaving. He shot into the crowd one more time, but by then they had opened the door and so were turning to leave, but he had already fired. They then ran out the door, and he ran into his room. Scared and not knowing what was going to happen, he put on his shoes and fled. Appellant estimated that perhaps 15 to 20 minutes elapsed between when he realized Daniels and the others were in his apartment to when he put on his shoes.
Appellant threw the gun as he was on the stairs near the back parking lot. After leaving the complex, he tucked his hair into his beanie and started walking to a friend’s house. On the way, he received an instant message from Will, who said he had heard what happened. Will told appellant to watch out for himself because there were people from Los Angeles out looking for him. In fear of these people, appellant cut his hair and changed his clothes at his friend’s house, then got a ride to another location. He then called his mother, who lived in Houston, Texas, and his father, who lived in Hayward. He told them he had been involved in a shooting and he needed them to get him an attorney. His father retained an attorney, and appellant’s surrender to police was arranged. Although appellant’s attorney advised police where he believed the gun could be located, it was never found.
Appellant knew Will to be an associate of Daniels. Both were from Los Angeles.
When appellant left the University Village Apartments, he did not know anyone was dead. Appellant did not intend to kill anybody.
Dr. Howsepian, a psychiatrist, opined that at the time of the shooting, appellant was suffering primarily from posttraumatic stress disorder (PTSD). He also had a dependency on marijuana.
PTSD is a response to a traumatic event. A traumatic event involves a perception of danger that is associated with a feeling of horror, helplessness, or intense fear. This is followed by a series of symptoms that can be clustered into three general areas: reexperiencing symptoms, such as nightmares or intrusive thoughts; avoidance and numbing symptoms, where the individual avoids reminders of what traumatized him or her; and hyperarousal symptoms, which are symptoms that keep a person in a constant state of arousal tension, being on edge, or being vigilant and watching his or her environment to try to avoid being retraumatized. For a diagnosis of PTSD, the person must have a certain number of symptoms in each cluster, must have been exposed to a trauma, must have significant distress or impairment in function as a result, and must have had the symptoms for at least a month. If the person is treated properly, many individuals will no longer meet the criteria after a few months to a few years. Without proper treatment, the median time course is approximately three years. Some people remain chronic for decades. Psychiatric injuries make one more vulnerable to later psychiatric injuries.
It is common for people with PTSD to abuse alcohol or street drugs. In the case of marijuana, most people report feeling calmed and hungry. In a significant minority, however, other symptoms such as significant anxiety or even paranoia may be present. Appellant told Howsepian that the drug did not make him paranoid, but instead caused him to be more alert and energetic. It is also not uncommon for people with PTSD to carry weapons. They do so to protect themselves, as the world is perceived to be dangerous.
According to Fresno Police Detective Galvan, drug dealers will carry weapon to protect themselves, their money, and their drugs. In his experience, it is common for street-level dealers to have guns on them at the time they are selling the drugs.
Howsepian explained that the 2004 attack was “profoundly traumatic” for appellant. One of the most important consequences of being traumatized in a way that precipitates PTSD is that the world is viewed very differently after the trauma. It is viewed as being dangerous and unpredictable, and the individual has a sense of significant insecurity. That appellant’s cousin and friends left his side during the assault was highly likely to have amplified the sense of unpredictability, insecurity, and dangerousness of his world. The serious injury to appellant’s eye caused him to have anxiety about reinjuring his eye and going blind, and caused a heightened sense of trying to keep his head and face safe from trauma.
Given that the attack was perpetrated by Hispanic men, it was not surprising that appellant had anxiety and fear and wanted to avoid Hispanic men walking in groups at the mall, for example, shortly after the attack. Moreover, due to generalization, an individual might be traumatized by one ethnic group, but then perceive potential threats by other people in different groups. Most people have the ability to tolerate people of the same ethnic group that might have assaulted them, as long as there is no sense of threat from them. The important ingredient is whether the individual senses some threat or perceives something in his environment that he feels is dangerous to him.
In addition to the 2004 attack, appellant reported a long series of traumatic incidents, starting with significant physical abuse at the hands of his mother’s boyfriend when he was very young, as well as several firearm-related traumas, being robbed at gunpoint at age 16, and a series of deaths of friends. Appellant also reported receiving a number of threatening phone calls. Someone suffering from PTSD following a series of assaults with firearms may respond to a perceived threat by having the body act before the mind does. The usual progression is a sense of threat causing fear that will result in escape if possible or in the person acting to deflect the threat. Stressful events unrelated to the trauma an individual has experienced may put that person into a kind of physiological hyperdrive that amplifies the sense of threat. When an individual is caught up in the kind of confrontation with which people suffering from PTSD have to contend, he or she often will not be able to clearly think through his or her options, such as using one’s cell phone to call for help.
With respect to the present case, appellant was approached in a confrontational manner by a group of angry individuals. He felt trapped, had physical disabilities, and had a history of being traumatized. He felt he had nowhere to go and no way to flee the potential threat. In Howsepian’s opinion, these things added up to an individual who perceived the threat in an amplified way and felt the need to act quickly to save himself.
DISCUSSION
I
Trial Court’s Comments During Voir Dire
A. Background
Near the outset of jury selection, the trial court informed prospective jurors that in a criminal case, “a defendant is presumed to be innocent. This presumption requires the People to prove each element of a crime beyond a reasonable doubt, and that includes any special allegation. Until and unless this is done, the presumption of innocence prevails. And proof beyond a reasonable doubt is defined as follows: It’s proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.”
The next day, the trial court was questioning prospective jurors about prior jury experience, when one related that she had been a juror in an attempted murder case and had not liked the experience. She explained: “I’m kind of a black and white person, … it’s either right or wrong, and it dealt in what people were thinking. And – I mean, if you’re holding a smoking gun, I think it’s pretty sure that you’ve fired it and – and I wasn’t pleased with the verdict.” When the court asked if she felt the experience would have any lingering effects, given that this was a completely different case, she responded that she did not know. She stated: “It’s kind of like when you get in a jury room and you’re deliberating, the majority rules, … and you have to take under consideration what the person thought, and you have no idea what they’re thinking, … so you have to guess, and I just … didn’t find it a good experience.” The court then asked if she would be able to deliberate on this case, or if she would “turn it off” because of her prior experience. The prospective juror responded that she would listen to the facts. The court again asked if she would be able to deliberate. She answered, “Well, what choice do you have?” She then elaborated that in the prior case, she and another juror were opposite everyone else, and the others kind of talked her into reasonable doubt. This ensued:
“THE COURT: Let me – let me just say this: This applies to everybody. Again, that’s why I ask that question with those folks who know each other. You’re going to decide a case for yourself, but would you listen to reason and logic
“PROSPECTIVE JUROR …: Yes.
“THE COURT: – and – and as one of the attorneys explained, … and I’ve given you the instruction what reasonable doubt is.
“PROSPECTIVE JUROR …: But how do you know what a person is thinking? There is no way of knowing.
“THE COURT: We’ve got a little bit into that. If I’m up here eating a burrito and I’m just wuffing [sic] it down, your thoughts are, ‘I think he’s hungry, ’ – I mean, you look at conduct sometimes.
“PROSPECTIVE JUROR …: Maybe you’re stressed. Maybe you’re eating under stress.
“THE COURT: But you have to make your best efforts, whatever you can do, give it – it’s the same thing. When – on major decisions, and again, I’m not in any way correlating this trial to any of these things when I talk about them, but they are major decisions in our life; when we buy a car, when we buy that house, you know, do we just decide like buying that house like we decide buying groceries? No. We spend time on it. We look at a lot of facts. And do you ever buy a house or any major – you know, having all the facts before you, you know, you’re always satisfied, like I have no concerns at all, here’s my $500,000, $400,000 for that house? There’s always something – you wish you had some more information. You just got to do the best you can do with what you got. Now, if you are the type of person that is not going to be able to do that, that’s okay, maybe this is not the trial for you. If you say I can do that, albeit, maybe I had – my first experience wasn’t that good, but I’m going to do it, I know what to expect this time, I can do it. You tell me. If – if you have some hesitation and you feel that, ‘I better not sit on this, ’ now is the time to tell us.
“PROSPECTIVE JUROR …: Well, I wished they – because I still feel the way I felt and, you know, it’s been probably ten years, but I still feel like maybe I should have. I mean, I still feel that I – that maybe I should have held out for what I thought was –”
Defense counsel then questioned the prospective juror, who explained that she felt like she was talked into agreeing with the majority of the other jurors, not because she agreed with what they were thinking, but because she basically gave in, something she now regretted. After brief further questioning by defense counsel, the court invited a stipulation that the prospective juror be excused for cause. Both counsel agreed.
Appellant now contends the judgment must be reversed because the trial court’s comments led jurors to believe they could decide the facts on the same quantum of evidence used in making important decisions in everyday life, and thus amounted to a misinstruction on proof beyond a reasonable doubt. Appellant says this misstatement of the applicable standard of proof violated the federal Constitution and is reversible per se.
B. Analysis
In a criminal case, the due process clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessarily to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 (Winship).) The beyond-a-reasonable-doubt requirement applies in state as well as federal proceedings. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 (Sullivan).)
When a trial court instructs the jury with a misdescription of the burden of proof by, for example, suggesting a higher degree of doubt than is required for acquittal under the reasonable doubt standard, reversal is required. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277, 281; see Cage v. Louisiana (1990) 498 U.S. 39, 40-41 (Cage), disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) The same result obtains when the trial court’s instructions lower the prosecution’s burden of proof by equating reasonable doubt with the standard people use to make decisions in their everyday lives. (People v. Brannon (1873) 47 Cal. 96, 97; People v. Johnson (Glen) (2004) 119 Cal.App.4th 976, 985-986; People v. Johnson (Danny) (2004) 115 Cal.App.4th 1169, 1171-1172.) The constitutional question in such a case “is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Victor v. Nebraska (1994) 511 U.S. 1, 6; People v. Flores (2007) 153 Cal.App.4th 1088, 1093.)
Although it has no impact on our analysis and ultimate conclusion, we note that appellant appears to labor under the misapprehension that the appropriate question for determining whether error occurred is that articulated in Cage, supra, 498 U.S. at page 41, i.e., whether a reasonable juror could have interpreted the instruction(s) to allow a finding of guilt based on a degree of proof below that required by the due process clause. However, in Estelle v. McGuire, supra, 502 U.S. at page 72 and footnote 4, the Supreme Court made it clear that the proper inquiry is not whether the instruction could have been applied in an unconstitutional manner, but whether there is a reasonable likelihood the jury did so apply it. (See Victor v. Nebraska, supra, 511 U.S. at p. 6; Boyde v. California (1990) 494 U.S. 370, 380 (Boyde).) The court in Sullivan accepted the Cage standard as controlling because the state failed to challenge it below, and expressly declined to consider whether the instruction before it would have survived review under the Boyde standard. (Sullivan, supra, 508 U.S. at p. 278, fn. *.)
In the present case, appellant did not object to the trial court’s comments. “[O]bjections to noninstructional statements or comments by the trial court must be raised at trial or are waived on appeal. [Citations.].” (People v. Anderson (1990) 52 Cal.3d 453, 468.) The trial court here was conducting voir dire, and nothing in the record suggests its comments were intended to be, or were understood by prospective jurors to be, a substitute for formal instructions. (See People v. Avila (2009) 46 Cal.4th 680, 716.)
Assuming the issue was not forfeited for appeal, the trial court made it clear that it was not equating its examples with the case. More importantly, the challenged comments were made not in the context of elaborating on the definition of reasonable doubt or explaining the standard or burden of proof, but instead were made in the course of the trial court’s attempt to explain the use of circumstantial evidence to the particular prospective juror and to ascertain whether she would be able to deliberate. In fact, when the trial court defined proof beyond a reasonable doubt for prospective jurors and asked whether anyone had any quarrel with the standard, it explicitly stated that this was not the standard used in everyday life. Moreover, the court correctly and fully instructed the jury on the presumption of innocence and proof beyond a reasonable doubt both prior to the evidentiary portion of trial and prior to deliberations.
The court stated: “Does anyone have any problems or quarrel with this being the standard or the rule of law in a criminal case? That’s the standard you apply. You know, when you leave this room, that standard goes out the window, you know, you go decide what – you know, I’m going to buy a blue car or a red car, am I going to buy a Ford or a Chevy. I mean, maybe you do apply that standard, but you don’t do that in everyday life; you know, low fat or one percent milk. You don’t do that. Here, that’s the standard in making a decision, and the burden is only on the People to prove that case beyond a reasonable doubt.”
In light of the foregoing, People v. Johnson (Glen), supra, 119 Cal.App.4th at pages 980-981 and 985-986, and People v. Johnson (Danny), supra, 115 Cal.App.4th at pages 1171-1172, both of which found reversible error where, during jury selection, the trial court equated proof beyond a reasonable doubt with everyday decision-making in a juror’s life, are legally and factually distinguishable. Moreover, were we to find some ambiguity or contradiction between the trial court’s comments during voir dire and its formal instructions, in light of all the circumstances there would simply be no reasonable likelihood jurors applied the court’s remarks in an unconstitutional manner. Accordingly, there was no violation of due process and, hence, no cause for reversal. (See Victor v. Nebraska, supra, 511 U.S. at p. 6; Estelle v. McGuire, supra, 502 U.S. at p. 72 & fn. 4.)
II
Physical Restraints
A. Background
Shortly after the case was assigned for trial, the following took place:
“[THE COURT:] The shackling issue – is your client currently shackled, Ms. Boulger?
“MS. BOULGER [defense counsel]: Yes.
“THE COURT: And what’s your position on shackling?
“MS. BOULGER: We would ask for – he’s got both legs. We would ask for a single leg.
“THE COURT: Single – okay. [¶] And Deputy McCutcheon, you can work on that, on the – on the single tether, quiet tether underneath the table.”
Defense counsel noted that, in these types of cases, it was her practice to let prospective jurors know her client was in custody. She did so in this case. Later, when appellant testified, he was placed in the witness box before the jury was brought into the courtroom.
During the jury instruction conference, the trial court first listed the instructions it would be giving. In pertinent part, it stated: “[CALCRIM No.] 204, defendant physically restrained. Obviously when I give the jury a copy of their instructions, anything that’s worded like that will be – I’ll alter so it will reflect as defendant in custody. And I’ve changed that per our informal discussions to the fact that the defendant is in custody is not evidence. Do not speculate about the reason – and it reads the rest of the way as the instruction originally read. And that was at defense request to prepare it like that, I just made that suggestion, and there is no objection.”
As read to the jury, the instruction stated: “The fact that the defendant is in custody is not evidence. Do not speculate about the reason. You must completely disregard the circumstances in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.” Written copies of the instructions were given to jurors for use in their deliberations. Insofar as the clerk’s transcript shows, the written copy of CALCRIM No. 204 bore the caption “Defendant Physically Restrained.”
Appellant now contends reversal is required because he was shackled throughout trial, without cause. He says jurors learned of the shackling, if not because appellant failed to stand when the jury entered the courtroom and/or his failure to leave the courtroom during breaks or adjournments (neither of which find any support in the record, and both of which we dismiss as mere speculation on appellant’s part), then from the written instructions. He says the due process clause of the Fourteenth Amendment to the United States Constitution was therefore violated and the shackling was inherently prejudicial, and he suggests that unwarranted shackling constitutes structural error and calls for automatic reversal. In any event, he says, respondent cannot show beyond a reasonable doubt that the shackling did not contribute to the guilty verdicts as required by Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Respondent argues that appellant forfeited the issue by failing to object at trial and has failed to show prejudice.
B. Analysis
“[T]he Fifth and Fourteenth Amendments [to the federal Constitution] prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” (Deck v. Missouri (2005) 544 U.S. 622, 629.) Under state law, “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted.) A defendant’s record of violence does not by itself justify shackling. (People v. Cunningham (2001) 25 Cal.4th 926, 986; People v. Duran, supra, at p. 293; but see People v. Medina (1995) 11 Cal.4th 694, 730.)
“The decision of a trial court to shackle a defendant will be upheld by a reviewing court in the absence of an abuse of discretion. [Citations.] When the record does not reflect ‘violence or a threat of violence of other nonconforming conduct’ by the defendant, a trial court’s order imposing physical restraints will be deemed to constitute an abuse of discretion. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 987.) While the trial court must make its own independent determination of the need for physical restraints and may not rely solely on the judgment of court security personnel (People v. Mar (2002) 28 Cal.4th 1201, 1218; People v. Hill (1998) 17 Cal.4th 800, 841) or on “rumor and innuendo even if supplied by the defendant’s own attorney” (People v. Cox (1991) 53 Cal.3d 618, 652. disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), “[t]he court [is] not obliged to hold a formal evidentiary hearing on the matter, but [can] base its determination on factual information properly brought to its attention. [Citation.]” (People v. Medina, supra, 11 Cal.4th at p. 731.)
Here, the record does not reflect violence, a threat of violence, or other nonconforming conduct by appellant, or that the trial court made its own independent determination of the need for physical restraints. Accordingly, we normally would find an abuse of discretion. However, defense counsel was asked her position on the issue. Instead of objecting or asking that physical restraints be completely removed, she made a specific request that was accommodated. “It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal. Defendant’s failure to object and make a record below waives the claim here. [Citations.]” (People v. Tuileapa (1992) 4 Cal.4th 569, 583, affd. sub nom. Tuileapa v. California (1994) 512 U.S. 967; accord, People v. Ward (2005) 36 Cal.4th 186, 206.)
Appellant argues that, by asking for less onerous restraints than were in place, defense counsel thereby indicated that she opposed restraints but believed it was futile to object to the sheriff’s general policy of imposing such restraints on inmates accused of violent crimes. First, the record does not indicate how appellant came to be shackled or that the sheriff had any sort of general policy on the subject. Second, appellant’s interpretation exceeds what reasonably may be inferred from what took place. Nothing in the record suggests an objection would have been futile or that defense counsel believed it would be. Since an attorney can waive the right of his or her client to appear before the jury in civilian clothes instead of jail garb, a right which is of federal constitutional dimension (In re Avena (1996) 12 Cal.4th 694, 731) and which has been equated by the United States Supreme Court with shackling (Holbrook v. Flynn (1986) 475 U.S. 560, 568; see People v. Jenkins (2000) 22 Cal.4th 900, 996), we see no reason an attorney should not be able to waive the right to have his or her client unrestrained in front of the jury absent the requisite showing of manifest need.
Moreover, were we to address the issue, we would find no prejudice. The California Supreme Court has “consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participating in his defense. [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Deck v. Missouri, supra, 544 U.S. 622, is not to the contrary; there, the United States Supreme Court held that a due process violation occurred, with the error subject to the Chapman standard of review, where the physical restraints were visible to the jury. (Deck v. Missouri, supra, at p. 635; see People v. Stevens (2009) 47 Cal.4th 625, 633.)
In the present case (momentarily leaving aside the written jury instruction), the record does not support an inference the restraint was visible, either when appellant was at counsel table or when he was testifying. Nor will we assume, absent affirmative evidence, that the single leg tether prevented appellant from rising when the jury entered the courtroom and thereby somehow tipped the jury off to the presence of the restraint. (See People v. Ward, supra, 36 Cal.4th at p. 206.) Appellant was clearly not prevented from testifying, and the record contains no hint the restraint affected the quality or content of his testimony, his demeanor, or his ability to communicate with counsel or participate in the defense. (See People v. Ervine (2009) 47 Cal.4th 745, 773-774; People v. Mar (2002) 28 Cal.4th 1201, 1224-1225; compare People v. Miller (2009) 175 Cal.App.4th 1109, 1115-1117; People v. McDaniel (2008) 159 Cal.App.4th 736, 745-746.)
As for the written jury instruction, we are not convinced it necessarily informed jurors appellant was shackled. A defendant who is in custody is physically restrained in the sense that his or her freedom is curtailed. In any event, if the instruction told jurors appellant was shackled, it also told them to completely disregard and not consider that circumstance. (See People v. Sheldon (1989) 48 Cal.3d 935, 946.) We presume jurors followed the instruction. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Although it was not given until after appellant testified, jurors were unaware appellant was physically restrained until the written instruction was given to them at the time of deliberations, if then. Thus, the fact appellant was shackled could not have tainted jurors’ impression of him, his testimony, and his credibility. (Compare People v. McDaniel, supra, 159 Cal.App.4th at pp. 746-747.) Appellant has shown no cause for reversal.
III
Exclusion of Evidence of Fear
A. Background
Appellant’s defense at trial was that he was afraid and acted in self-defense. During defense counsel’s cross-examination of Lewis Carrol concerning what took place during the confrontation, the following occurred:
“Q. And you stated earlier that – that Jonquel seemed angry?
“A. Right.
“Q. Did you ever see him become frightened?
“MR. FRANCIS [prosecutor]: Objection. Speculation.
“THE COURT: I’ll sustain. It’s vague also.
“MS. BOULGER: Yes.
“Q. During this time period after the first shot, did you – did it ever appear to you that Jonquel was frightened?
“A. I think he might have been a little scared.
“MR. FRANCIS: Objection. The answer is non-responsive. It is based on speculation.
“THE COURT: Hold on. The objection is speculation? Lacks foundation?
“MR. FRANCIS: Yes.
“THE COURT: Sustained.
“MR. FRANCIS: Ask that it be stricken.
“THE COURT: Answer will be stricken. Jury is admonished not to consider it.
“MS. BOULGER: Q. Okay. You discussed that you saw he was angry. Did you see him display any other emotions?
“A. Frustration.” (Italics added.)
Appellant now contends the judgment must be reversed because the trial court excluded evidence that appellant was afraid during the confrontation. Appellant says that because Lewis was a percipient witness, a foundation was laid for him to render an opinion, and his opinion – that appellant seemed scared – was not speculation but instead was proper lay opinion testimony. Appellant further says the prosecutor was allowed to present evidence that appellant lacked fear, but appellant was not allowed to present testimony supporting his claim that he was afraid. Because the impressions of the percipient witness were vital to his defense, the argument runs, their erroneous exclusion constituted federal constitutional error.
B. Analysis
“A lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony. (Evid. Code, § 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) “Perception” is “the process of acquiring knowledge ‘through one’s senses’ [citation], i.e., by personal observation.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1306, fn. omitted.) The rule “merely requires that witnesses express themselves at the lowest possible level of abstraction. [Citation.] Whenever feasible ‘concluding’ should be left to the jury; however, when the details observed, even though recalled, are ‘too complex or too subtle’ for concrete description by the witness, he may state his general impression. [Citation.]” (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.) A trial court’s decision whether to admit lay opinion “will not be disturbed ‘unless a clear abuse of discretion appears.’ [Citations.]” (People v. Mixon (1982) 129 Cal.App.3d 118, 127; see People v. Medina (1990) 51 Cal.3d 870, 887, affd. sub nom. Medina v. California (1992) 505 U.S. 437.)
In the present case, defense counsel asked if it appeared to Carrol that appellant was frightened. The question – which, we note, did not elicit an objection – was proper and, had Carrol responded affirmatively, no valid objection could have been raised to the answer. (See People v. Chatman (2006) 38 Cal.4th 344, 397 [although lay witness generally may not give opinion about another’s state of mind, percipient witness may testify about objective behavior and describe behavior as being consistent with particular state of mind]; In re Lucas (2004) 33 Cal.4th 682, 710 [witness observed that defendant avoided and seemed afraid of certain individuals]; People v. Petznick (2003) 114 Cal.App.4th 663, 670 [witness testified that defendant seemed nervous and scared].)
Courts do not always draw such a fine distinction between state of mind and objective behavior. For example, in People v. Kennedy (2005) 36 Cal.4th 595, 621, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459, the high court concluded that a witness’s “opinion about defendant’s state of mind on the night of the murder was admissible because it was based on her perceptions and helped to better understand her testimony. [Citations.]” (See also People v. Webb (1956) 143 Cal.App.2d 402, 412 [holding that lay witnesses may given opinions as to state of mind short of insanity affecting the formation of a specific intent].)
Carrol did not answer affirmatively, however; instead, he testified as to what he thought appellant might have been feeling. It was this answer that drew the objection, and rightly so. Appellant says Carrol was actually only relating the impression he received from his observations, namely that appellant seemed scared. Although it is conceivable the answer could have been interpreted this way, it is clearly not how the prosecutor or the trial court interpreted it. We cannot say the trial court abused its discretion by interpreting the answer as calling for speculation and constituting conjectural lay opinion. (See People v. Thornton (2007) 41 Cal.4th 391, 429 [under deferential abuse-of-discretion standard, reviewing court would not second-guess trial court’s ruling that asking witness whether it appeared from vehicle occupants’ behavior that they knew each other was speculative].)
Appellant complains that the prosecutor was able to present similar testimony over defense objection. He points to the prosecutor asking Meneses if he was familiar with the term “claustrophobia” and if he noticed anything like that with appellant. As previously noted, however, the prosecutor did not object when defense counsel asked a somewhat similar question to Carrol, but only to Carrol’s answer. Meneses’s answer, by contrast, was clearly based on his observations of appellant. When the prosecutor asked Carrol what appellant’s state of mind or mood was when he was being accused of taking the PlayStation, defense counsel’s objection, that the question called for speculation, was sustained. A similar defense objection was sustained when the prosecutor asked Carrol whether the fact there were a lot of spectators seemed to prevent appellant from possibly fighting someone during an intramural basketball game. Accordingly, we reject the notion that the trial court’s rulings were somehow unfair or one-sided.
Last, assuming error occurred, in light of the record as a whole, it is not reasonably probable the error affected the outcome of trial. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. San Nicolas (2004) 34 Cal.4th 614, 663.) Contrary to appellant’s assertion, this is simply not a situation in which the error rises to a level of constitutional dimension. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; compare Green v. Georgia (1979) 442 U.S. 95, 97; Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
IV
Self-Defense and Related Instructions
A. Amount of Allowable Force
1. Background
Appellant claimed he was not guilty of any crime because, at the time he fired his gun, he was acting reasonably in self-defense. In support, and as described in the statement of facts, ante, appellant testified that, inter alia, because of the injuries he received when he was 15 years old, he was told that if he was hit too hard in the head or eye, he could lose his eye and possibly his life. During the confrontation, although it appeared none of the others were armed, appellant felt in danger and did not want to be put back in a situation of being hurt again. Appellant also presented evidence that he suffered from PTSD caused primarily by the beating, and that core symptoms of PTSD were avoidance and hypervigilence, i.e., a sense of potential threat when confronted with things that recalled the traumatic event. In Dr. Howsepian’s opinion, appellant’s history of being traumatized, together with the circumstances of the confrontation in the present case, added up to an individual who perceived the threat in an amplified way and felt the need to act quickly to save himself.
The People and appellant both requested that the trial court give the jury CALCRIM No. 505 (justifiable homicide: self-defense or defense of another). Appellant also requested CALCRIM No. 3470 (right to self-defense or defense of another (non-homicide)). The trial court agreed the instructions would be given as requested. Pursuant to CALCRIM No. 505, the court subsequently instructed the jury, in pertinent part:
CALCRIM No. 3470 was given concerning self-defense to assault with a deadly weapon, a lesser included offense of counts 2, 3, and 4. Because CALCRIM No. 3470 is virtually identical to CALCRIM No. 505, our analysis of appellant’s claim is the same as to each. Accordingly, while we will henceforth refer only to CALCRIM No. 505, our discussion applies equally to CALCRIM No. 3470.
“The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:
“One, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury.
“Two, the defendant reasonably believed … that the immediate use of deadly force was necessary to defend against that danger.
“And three, the defendant used no more force than was reasonably necessary to defend against that danger.
“Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
“The defendant’s belief that he was threatened may be reasonable even if he relied on information that that was not true. However, the defendant must actually and reasonably have believed – the defendant must actually and reasonably have believed that the information was true. [¶] … [¶]
“The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder.”
Appellant now contends the trial court erred by instructing jurors that a “defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation, ” and that the error was exacerbated by the trial court’s omission of the following optional portions of CALCRIM No. 505:
“[Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.]
“[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with _____ <insert name of decedent/victim>, you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).]”
Appellant appears to suggest the trial court agreed to give the jury one version of instructions, but then did not actually give the version it had agreed to give. If this is indeed the implication, it is wholly unsupported by the record. The parties went over the instructions informally before discussing them on the record, and the record shows that some modifications were made as a result of the informal conference. As neither party objected when the court instructed the jury, we are confident that none of the modifications or omissions were made without their prior knowledge.
Appellant says the group confronting him in 2007 was, in his mind, much like and, thus, closely associated with the group that confronted him in 2004; hence, he was justified in acting more quickly and taking harsher measures for self-protection than persons who had not been beaten in the past. The jury, he says, was led to believe the opposite was true. While the trial court correctly told jurors they should take into consideration appellant’s individual circumstances when determining whether his beliefs were reasonable, appellant contends, the court barred the jury from considering those circumstances when determining whether appellant’s actions were reasonable.
2. Analysis
“For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense, ’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder, ’ but can be convicted of manslaughter. [Citation.] To constitute ‘perfect self-defense, ’ i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, ‘[T]he circumstances must be sufficient to excite the fears of a reasonable person.…’ [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear of future harm – no matter how great the fear and no matter how great the likelihood of the harm – will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury.’ [Citation.]
“Although the belief in the need to defend must be objectively reasonable, a jury must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge.…’ [Citation.] It judges reasonableness ‘from the point of view of a reasonable person in the position of defendant.…’ [Citation.] To do this, it must consider all the ‘“‘facts and circumstances … in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.’”’ [Citation.] As [the California Supreme Court] stated long ago, ‘… a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind.…’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, italics & fn. omitted (Humphrey).)
Appellant's claim of error turns on the meaning of “reasonable” and the effect of his PTSD and prior experiences in that regard. This is because, “[a]lthough the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found [him]self.” (Humphrey, supra, 13 Cal.4th at p. 1083.) Moreover, “any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]” (People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on another ground in People v. Williams, supra, 49 Cal.4th at p. 459; see also People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
Although not cited by either party, People v. Jefferson (2004) 119 Cal.App.4th 508 (Jefferson) is very instructive. In that case, the defendant was convicted of three counts of battery upon correctional officers, committed while he was incarcerated in a prison psychiatric services unit. (Id. at pp. 510, 511.) There was evidence that he had mental disabilities, including possibly schizophrenia, and that he was hearing voices when the offenses were committed. (Id. at pp. 513-514.) On appeal, he claimed the trial court failed to account for his mental illness when, inter alia, instructing on his defense of self-defense and ruling on the admissibility of certain evidence. (Id. at p. 510.)
The appellate court disagreed and affirmed the judgment. (Jefferson, supra, 119 Cal.App.4th at p. 510.) It rejected the defendant’s argument that, for purposes of applying, in the defendant’s case, the “reasonable person” test as stated in Humphrey, a reasonable person was one who was confined in a prison’s psychiatric services unit, and that evidence of the conditions of confinement, including his mental illness, should be considered by the jury to determine whether the defendant had reasonable grounds for a genuine belief that he was in imminent danger. (Jefferson, at p. 518.) The court explained:
“Defendant misstates the objective ‘reasonable person’ test. The issue is not whether defendant, or a person like him, had reasonable grounds for believing he was in danger. The issue is whether a ‘reasonable person’ in defendant’s situation, seeing and knowing the same facts, would be justified in believing he was in imminent danger.…
“By definition, a reasonable person is not one who hears voices due to severe mental illness. In blunt fashion, our Supreme Court long ago defined a reasonable person as a ‘normal person.’ [Citation.] The reasonable person is an abstract individual of ordinary mental and physical capacity who is as prudent and careful as any situation would require him to be. [Citations.]” (Id. at p. 519.)
The appellate court deemed erroneous the defendant’s claim that Humphrey required the admission of his mental condition as part of establishing the reasonable person standard. The court stated:
“Nowhere did the Humphrey court state the expert evidence could be used to redefine the ‘reasonable person’ standard as one who suffered from battered women’s syndrome or, as defendant argues here, one who suffered from hearing voices.
“To the contrary, the Supreme Court stated: ‘[W]e are not changing the standard from objective to subjective, or replacing the reasonable “person” standard with a reasonable “battered woman” standard.… The jury must consider defendant’s situation and knowledge, which makes the evidence relevant, but the ultimate question is whether a reasonable person, not a reasonable battered woman, would believe in the need to kill to prevent imminent harm. Moreover, it is the jury, not the expert, that determines whether defendant’s belief and, ultimately, her actions, were objectively reasonable.’ [Citation.]” (Jefferson, supra, 119 Cal.App.4th at p. 520.)
The appellate court observed that the jury knew the defendant was an inmate in a prison psychiatric services unit, heard voices every day telling him the staff was poisoning his food and, before each incident, that the correctional officers were going to hurt him, and that the defendant believed he had no choice but to follow the voices and do what he did. The jury also knew the facts of the incidents, including that there was no evidence of any attempt by, or intent of, the officers to harm the defendant. The court concluded: “The jury thus had before it all of the relevant facts and circumstances in which defendant found himself. The trial court correctly denied defense counsel’s efforts to define the reasonable person as a mentally ill person hearing voices. Under the rule of Humphrey, the jury was to determine whether a person of ordinary and normal mental and physical capacity would have believed he was in imminent danger … under the known circumstances. The jury was so instructed, and defendant was not denied the opportunity to present his defense in the manner allowed by law.” (Jefferson, supra, 119 Cal.App.4th at p. 520.)
In the present case, the jury was instructed that appellant was entitled to use the amount of force a reasonable person would believe was necessary in the same situation. The “same situation” consists not only of the state of affairs confronting appellant, but also his own specific situation, including any mental and physical issues. The jury was aware of all the relevant circumstances. Since, following Jefferson’s logic, a “reasonable person” is not a “reasonable PTSD sufferer, ” the trial court did not misstate the amount of force appellant was entitled to use.
Nor did the trial court err by omitting the optional portions of CALCRIM No. 505 that referred to prior threats and harm. First, as this court held in People v. Garvin (2003) 110 Cal.App.4th 484, 488-489 (Garvin), a trial court has no obligation to instruct on antecedent threats or assaults on its own motion. CALCRIM No. 505, as given, instructed the jury on the basic principles of self-defense; if appellant felt it was incomplete, he was required to request the additional material. (People v. Welch (1999) 20 Cal.4th 701, 757; see People v. Young (2005) 34 Cal.4th 1149, 1200.) That the omitted paragraphs are now contained in a unified instruction instead of in multiple instructions as was the case in the CALJIC scheme discussed in Garvin does not turn paragraphs that “highlight[] a particular aspect of this defense and relate[] it to a particular piece of evidence” (Garvin, supra, 110 Cal.App.4th at p. 489) into general principles of law upon which a trial court must instruct sua sponte (see People v. Daya (1994) 29 Cal.App.4th 697, 714). Indeed, the Bench Notes to CALCRIM No. 505 state that the trial court must instruct on antecedent threats and assaults upon defense request and when supported by sufficient evidence. (Bench Notes to CALCRIM No. 505 (2009-2010) p. 237.)
Second, even if we assume appellant requested that instructions on antecedent threats and assaults be given, the instructions were properly omitted here. “The jury need not be instructed on a theory for which no evidence has been presented. [Citation.]” (People v. Roberts (1992) 2 Cal.4th 271, 313; see also People v. Hill (2005) 131 Cal.App.4th 1089, 1101, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Cases holding that a defendant is entitled to such instructions all involve the making of prior threats or commission of harm by the victim (e.g., People v. Moore (1954) 43 Cal.2d 517, 527-529; People v. Pena (1984) 151 Cal.App.3d 462, 475, 476-477; People v. Bush (1978) 84 Cal.App.3d 294, 304; People v. Torres (1949) 94 Cal.App.2d 146, 151) or by third parties the defendant reasonably associated with the victim (e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1060, 1065-1067 (Minifie)).
Because appellant addresses this issue solely in terms of genuine self-defense, we do not discuss the effect, if any, of the alleged error on imperfect self-defense.
Appellant cites Minifie in support of his assertion that the group confronting him in 2007 was much like, and thus closely associated with, the group that confronted him in 2004. However, Minifie involved a situation in which the threats were made by friends and cohorts of a man the defendant previously killed. The victim of the charged offenses was a friend of the deceased. (Minifie, supra, 13 Cal.4th at pp. 1060-1061, 1063-1064.) Nothing in the opinion suggests the requisite association may exist only in the defendant’s mind. Even the Salman Rushdie example that is given requires the defendant to reasonably associate the victim with the threats. While what is reasonable will vary according to the circumstances, the association addressed in Minifie is not the type of “association” that existed in appellant’s mind due to his traumatic memory of a prior assault by a completely unrelated group. Moreover, evidence of appellant’s previous experiences was before jurors, who were sufficiently instructed on the issue when told to consider all the circumstances as they were known to and appeared to appellant, and to consider what a reasonable person in a similar situation with similar knowledge would have believed.
“The Attorney General asks rhetorically, ‘May Salman Rushdie shoot any person of the Islamic faith, indeed anyone who reasonably appears to be a person of the Islamic faith, when that person reaches into a bulging pocket for a handkerchief?’ That would be a question for a jury after considering all the circumstances of a specific case. The more pertinent question for our purposes is whether, if Rushdie were claiming self-defense, evidence of threats against his life would be admissible as part of the overall circumstances for the jury to consider. The answer is yes, if there was also evidence from which the jury could infer that the defendant reasonably associated the victim with those threats.” (Minifie, supra, 13 Cal.4th at p. 1069.)
Appellant says remarks made by the trial court during jury selection likely increased the harm done by the instructional error. We find no instructional error. Moreover, in each instance, the court was discussing the importance of this country’s jury system and jury service. We fail to see how its remarks in this regard could have had any possible effect on jurors’ interpretation of the evidence or the instructions, or how, as asserted by appellant, they led jurors to erroneously suppose they should hold appellant to an objective standard and not consider his experiences or history in deciding issues related to self-defense.
Appellant points to the trial court’s statements that jurors “lay down those lines for society where – where behavior that is acceptable and not acceptable begins and ends, ” and “You decide what are the parameters that are acceptable to you as a member of society, you draw limits.…”
B. Sudden Quarrel/Heat of Passion
1. Background
Evidence was presented that appellant was angry during his argument with Daniels’s group. Appellant himself testified that the accusation he stole the PlayStation did not make him angry, but instead surprised him. As the argument continued, however, he started “getting irritated a little bit.…” He explained: “I had my words, I got irritated and may have got a little angry, but not to where I lost my cool.” When the prosecutor asked whether, at the time he was shooting, appellant was “still keeping [his] cool, ” appellant responded that he was trying to protect himself. When the prosecutor asked if he still knew what he was doing, appellant responded, “Yeah.” Appellant subsequently testified that he got angry, but was trying to be as cool as possible. While he was mad, he raised the gun and asked the group to leave. Appellant testified:
“Q. [by the prosecutor] Okay. And you pulled the trigger of the gun and fired into the crowd when you were mad; correct?
“A. Yes. And out of fear.
“Q. But you didn’t lose your cool, you knew what you were doing; right? [¶] … [¶]
“A. I felt I was protecting myself, yes.”
During the on-the-record instructional conference, the court ran through the list of instructions it would be giving. This ensued:
“[THE COURT:] [CALCRIM No.] 571, voluntary manslaughter, imperfect self-defense, lesser-included offense. That is, again 571. That will be given as requested.
“MR. FRANCIS: And I’d note for the record, Your Honor, that in our previous discussions of this, there was no request by the defense for a voluntary manslaughter, other than the type of imperfect self-defense that we have here.
“THE COURT: Okay. And are you requesting that, Ms. Boulger?
“MS. BOULGER: I’m only requesting the instructions I have submitted formally, Your Honor.
“THE COURT: So – let me see.
“MS. BOULGER: It would be nothing other than the 571.…
“THE COURT: You didn’t request 571.
“MS. BOULGER: Oh, yeah. I’m only going with
“THE COURT: So double check.
“MS. BOULGER: I’m going with an acquittal, Your Honor, that’s what we’re going for.
“THE COURT: Okay. So you are requesting 571?
“MS. BOULGER: We’ll take it. But I’m not requesting anything else.
“THE COURT: Well, don’t – don’t say that ’cuz you just said that and you’re wrong.
“MS. BOULGER: Well, I’m – I’m saying – he suggested that I was asking for another theory of manslaughter. And I am not. In fact, I – we are – our – our theory is it’s not manslaughter.”
Jurors subsequently were instructed on voluntary and attempted voluntary manslaughter based on imperfect self-defense. They were not instructed, however, on voluntary or attempted voluntary manslaughter based on sudden quarrel or heat of passion (CALCRIM Nos. 570 & 603, respectively). Appellant now contends omission of these instructions constituted reversible error.
2. Analysis
Manslaughter is a lesser included offense of murder. (People v. Cruz (2008) 44 Cal.4th 636, 664.) It follows that attempted voluntary manslaughter is a lesser included offense of attempted murder, although, unlike murder and voluntary manslaughter, which can be predicated on either intent to kill or conscious disregard for life (People v. Lasko (2000) 23 Cal.4th 101, 107-109), attempted murder and attempted voluntary manslaughter require a specific intent to kill (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550).
“A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation], but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871, italics omitted.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘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. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
An appellate court reviews independently a trial court’s failure to instruct on a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) Although speculation is an insufficient basis upon which to require such an instruction (People v. Valdez (2004) 32 Cal.4th 73, 116), in determining whether there is substantial evidence of a lesser offense, courts do not evaluate the credibility of witnesses, as that is a task for the jury (People v. Breverman, supra, 19 Cal.4th at p. 162). The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the trial court to instruct on its own initiative. (People v. Lewis (2001) 25 Cal.4th 610, 646.)
The parties argue over whether any error here was invited. “[T]he sua sponte duty to instruct on lesser included offenses … arises even against the defendant’s wishes, and regardless of the trial theories or tactics the defendant has actually pursued.” (People v. Breverman, supra, 19 Cal.4th at p. 162.) Nevertheless, “a defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 198.) Although the error is still error, it does not furnish cause for reversal. (Ibid.)
Whether error is invited turns on whether counsel deliberately caused the court to fail to fully instruct. (People v. Cooper (1991) 53 Cal.3d 771, 831.) Accordingly, “the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it.” (Ibid.) Although here defense counsel clearly had a tactical purpose for wanting only those instructions she had requested, which did not include instructions on sudden quarrel and heat of passion (see People v. Horning (2004) 34 Cal.4th 871, 905), we cannot say she would have opposed the giving of such instructions if offered, inasmuch as she accepted the giving of instructions on imperfect self-defense even though she had not requested them. Under the circumstances, we question whether the doctrine of invited error applies. (See People v. Cooper, supra, 53 Cal.3d at p. 831.)
We need not determine whether any error was invited, however, because we conclude the instructions were properly omitted. As the California Supreme Court explained in People v. Manriquez (2005) 37 Cal.4th 547, 583-584:
“‘Although section 192, subdivision (a), refers to “sudden quarrel or heat of passion, ” the factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim 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. [Citations.] “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’” [Citation.]’ [Citation.]
“Thus, ‘[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago …, “this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, ” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” [Citation.]’ [Citations.]”
“‘“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.’” [Citation.]’ [Citation.]” (People v. Manriquez, supra, 37 Cal.4th at p. 584.) Because the circumstances giving rise to the heat of passion are viewed objectively, a defendant’s “‘extraordinary character and environmental deficiencies, ’” including “psychological dysfunction due to traumatic experiences, ” are irrelevant to the inquiry. (People v. Steele (2002) 27 Cal.4th 1230, 1252, 1253.)
“[A] voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing [or attempted killing] was no more than taunting words, a technical battery, or slight touching. [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) Neither does simple assault rise to the level of provocation necessary to support such an instruction. (Id. at p. 827.) “The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.” (People v. Lee (1999) 20 Cal.4th 47, 60 (plur. opn. of Baxter, J.).) An argument with unarmed acquaintances with whom there had apparently been no trouble in the past, even one occurring in one’s own home and involving accusations of theft, the use of profanity and name-calling, and individuals who were slow to leave when told to do so, is not provocation that would incite an average, sober person to homicidal passion. (Compare People v. Breverman, supra, 19 Cal.4th at pp. 163-164 [sufficient provocation where group of young men, armed with deadly weapons and harboring specific hostile intent, trespassed on domestic property occupied by defendant, acted in menacing manner and challenged him to fight, and used weapons to smash defendant’s vehicle that was parked in driveway not far from front door]; People v. Barton, supra, 12 Cal.4th at p. 202 [sufficient provocation where victim tried to run defendant’s daughter’s car off road and spat on it; when confronted by defendant, victim acted “‘berserk’” and assumed fighting stance; when defendant asked daughter to call police, argument escalated and victim taunted defendant, and defendant thought victim was armed with knife]; People v. Elmore (1914) 167 Cal. 205, 211 [sufficient provocation where fatal wound inflicted in response to “unprovoked attack and violent blows” of victim].)
Moreover, adequate provocation and heat of passion must be affirmatively shown. (People v. Gutierrez, supra, 34 Cal.4th at p. 826; People v. Steele, supra, 27 Cal.4th at p. 1252.) “‘It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant’s reason was in fact obscured by passion at the time of the act. [Citations.]’” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015, italics added.) Although appellant was undisputedly angry and, according to at least some evidence, fearful, his own testimony was that he did not lose “his cool” and act rashly, or without due deliberation and reflection, or from strong passion rather than judgment. (See People v. Moye (2009) 47 Cal.4th 537, 540.) While jurors were free to disbelieve appellant’s testimony, the circumstances shown by the evidence at trial were not such as to constitute substantial evidence of heat of passion despite appellant’s testimony. (Compare People v. Villanueva (2008) 169 Cal.App.4th 41, 52-53 [jurors could have found intentional shooting in self-defense or imperfect self-defense, despite defendant’s testimony he shot victim accidentally, where defendant begged victim to leave and only fired after victim stepped on accelerator in apparent attempt to run defendant over]; People v. Elize (1999) 71 Cal.App.4th 605, 610 [jurors could have disbelieved defendant’s testimony that he fired accidentally, and concluded instead that he fired intentionally to stop physical attack].)
Last, assuming the trial court erred by failing to instruct on voluntary manslaughter based on sudden quarrel or heat of passion, the error was harmless. Pursuant to CALCRIM No. 522, jurors were told that if they found provocation, they were to consider it in determining whether the crime was first or second degree murder, and whether it was murder or manslaughter. Despite this instruction and one telling jurors that the People had the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime, jurors found Daniels’s killing to be deliberate, premeditated murder. Under the instructions given, they necessarily found appellant “carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill.” They thus necessarily rejected the notion appellant’s reason was obscured. (See People v. Carasi (2008) 44 Cal.4th 1263, 1306 [state of mind required for premeditated murder is “‘manifestly inconsistent’” with having acted under heat of passion, even if provocation present]; People v. Manriquez, supra, 37 Cal.4th at p. 586; People v. Lewis, supra, 25 Cal.4th at p. 646.)
Jurors were instructed: “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.”
Although there was no charged allegation or finding of premeditation with respect to the attempted murders, in light of the evidence presented and instructions given, it is not reasonably probable jurors would have found premeditation with respect to appellant’s shooting of one victim, but voluntary manslaughter based on sudden quarrel or heat of passion with respect to his shooting of or at the other victims. Accordingly, the failure to instruct, assuming it was error, was harmless. (See People v. Breverman, supra, 19 Cal.4th at p. 178 [applying Watson standard to failure to instruct on lesser included offense in noncapital case].)
We would reach the same conclusion under the Chapman standard, since there is no basis in the record upon which jurors could have found appellant acted with premeditation and deliberation as to one shooting, but rashly and without judgment as to others that occurred at the same time and for the same reason(s). In short, there was no basis upon which to distinguish appellant’s shooting of Daniels from his shooting of or at the other victims.
C. Malice
Appellant says that, even if the trial court’s error in failing to instruct on voluntary manslaughter and attempted voluntary manslaughter based on sudden quarrel or heat of passion was invited, the court had a sua sponte duty to tell jurors that there was no malice and, hence, no murder or attempted murder, if the killing and attempted killings occurred upon a sudden quarrel or in the heat of passion. He says that because the existence of malice, which is required for murder and attempted murder, depends on the absence of sudden quarrel and heat of passion, such absences are included within malice as an essential element of murder, and the jury must find that element true in order to reach a murder or attempted murder verdict. Under the instructions given here, the argument runs, the jury was permitted to treat required elements as irrelevant and allowed to reach verdicts of murder and attempted murder without considering or finding requisite elements of the offenses.
Heat of passion and unreasonable self-defense, as forms of manslaughter, a lesser offense included in murder, come within the broadest version of a trial court’s duty, under California law, to produce sua sponte instructions on all material issues presented by the evidence. (People v. Breverman, supra, 19 Cal.4th at pp. 159-160.) In light of our conclusion, ante, that either the trial court did not err by omitting instructions on sudden quarrel/heat of passion or that any error was harmless under both the Watson and Chapman standards, however, appellant’s argument fails. The trial court instructed jurors that the prosecutor had the burden of proving, beyond a reasonable doubt, that, with respect to count 1, appellant acted with malice and, with respect to the remaining counts, that he intended to kill. This was sufficient under the circumstances of this case.
People v. Rios (2000) 23 Cal.4th 450 (Rios), on which appellant relies, does not lead to a different result. In that case, the California Supreme Court held that, while neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that the People must prove beyond a reasonable doubt in order to obtain a conviction for that offense, “where murder liability is at issue, evidence of heat of passion or imperfect self-defense bears on whether an intentional or consciously indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus the lesser offense of voluntary manslaughter. In such cases, the People may have to prove the absence of provocation, or of any belief in the need for self-defense, in order to establish the malice element of murder.” (Id. at p. 454.) The court referred to sudden quarrel/heat of passion and imperfect self-defense as “mitigating circumstances” that reduce an intentional, unlawful killing for murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide. (Id. at pp. 460-461.) It stated:
“Thus, where the defendant killed intentionally and unlawfully, evidence of heat of passion, or of an actual, though unreasonable, belief in the need for self-defense, is relevant only to determine whether malice has been established, thus allowing a conviction of murder, or has not been established, thus precluding a murder conviction and limiting the crime to the lesser included offense of voluntary manslaughter. Indeed, in a murder case, unless the People’s own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant’s obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. [Citations.]
“If the issue of provocation or imperfect self-defense is thus ‘properly presented’ in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. [Citations.]” (Id. at pp. 461-462, italics omitted.)
The court reiterated: “[I]n a murder trial, the court, on its own motion, must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.] Hence, where the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter. By the same token, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding ‘that the offense was less than that charged, ’ is lacking. [Citations.]” (Rios, supra, 23 Cal.4th at p. 463, fn. 10.)
In the present case, the jury was instructed on the People’s burden of proving the absence of imperfect self-defense. Because evidence of sudden quarrel or heat of passion sufficient to support a finding of voluntary manslaughter was lacking, the trial court had no sua sponte duty to instruct the jury on the People’s burden of proving that provocation and heat of passion were lacking. Moreover, even if we were to find that error occurred, it would be harmless for the reasons stated in part IV.B., ante. (See Neder v. United States (1999) 527 U.S. 1, 19; People v. Flood (1998) 18 Cal.4th 470, 489-490, 502-503; People v. Tillotson (2007) 157 Cal.App.4th 517, 538-539.)
D. Right to Defend Self in One’s Home
1. Background
The People and appellant both requested that the court give CALCRIM No. 506 (justifiable homicide: defending against harm to person within home or on property). The trial court agreed to do so, and subsequently instructed:
“The defendant is not guilty of murder if he killed to defend himself in his home. Such a killing is justified and therefore not unlawful, if:
“One, the defendant reasonably believed that he was defending his home against Brant Daniels, who intended to or tried to commit assault, or violently, riotously, or tumultuously tried to enter that home intending to commit an act of violence against someone inside.
“Two, the defendant reasonably believed that the danger was imminent.
“Three, the defendant reasonably believed that the use of deadly force was necessary to defend against the danger.
“And four, the defendant used no more force than was reasonably necessary to defend against the danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, then the killing was not justified.
“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself, and if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.
“The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder.”
Appellant now contends the instruction was materially misleading because, although it correctly told the jury appellant could be acquitted of murder if he reasonably believed he was defending his home against Daniels, the instruction did not tell the jury appellant could also be acquitted of the murder of Daniels and the attempted murders of Buycks, Pfeiff, and Shiflett if he reasonably believed he was defending his home against Buycks. Under the doctrine of transferred intent, the argument runs, the instruction should have allowed the jury to acquit appellant of the murder of Daniels based on a reasonable fear of Buycks, and of the attempted murders of Buycks, Pfeiff, and Shiflett based on a reasonable fear of Daniels or Buycks.
2. Analysis
As a preliminary matter, we question whether appellant’s claim has been forfeited for purposes of appeal, since appellant did not request any clarification or modification of CALCRIM No. 506. A trial court must instruct, sua sponte, on any defense for which the record contains substantial evidence, unless that defense is inconsistent with the defendant’s theory of the case. (People v. Salas (2006) 37 Cal.4th 967, 982.) If, however, the court gives an instruction correct in law, but the party complains it is too general or incomplete, he or she must request an additional or amplifying instruction in order to have the asserted error reviewed. (People v. Welch, supra, 20 Cal.4th at p. 757.) Here, appellant made no such request.
Once again, appellant suggests the trial court modified the instruction in a manner not discussed with the parties. The record does not support this assertion.
In any event, appellant’s claim of error fails on the merits. The claim is based on People v. Mathews (1979) 91 Cal.App.3d 1018 (Mathews). In that case, the defendant attempted to kill someone who, at least some evidence showed, was pointing a gun at her. Her attempt to kill this person was unsuccessful; instead, she fatally shot the target’s companion. (Id. at pp. 1021-1022.) On appeal, she claimed the trial court should have instructed, sua sponte, “that a homicide is justified under the doctrine of self-defense where the act of self-defense, though directed towards the unlawful aggressor, inadvertently results in the death of an innocent bystander.” (Id. at p. 1023.)
Although finding no sua sponte duty to so instruct, at least under the circumstances of the case, the appellate court found the legal principle applicable in California. It reasoned that decisions of other jurisdictions have held that self-defense is available to relieve a person of criminal liability where his or her legitimate act of self-defense results in the inadvertent death or injury of an innocent bystander. Cases so holding generally rest on the theory of transferred intent, under which one’s criminal intent follows the corresponding criminal act to its unintended consequences. (Mathews, supra, 91 Cal.App.3d at p. 1023.) Thus, “‘[i]t has been long accepted that if A shoots at B, intending to kill B, but instead the bullet strikes C, then A has committed a criminal act as to C. In such instance, the “malice follows the blow” and the criminal intent of A to harm B is transferred to C. [¶] However, if A had no criminal intent with respect to B, as where A is exercising a lawful right to self-defense, none could exist as to C. It follows, then, that A in shooting C has not committed a criminal act, the essential of a mens rea being impossible of proof. The inquiry must be whether the killing would have been justifiable if the accused had killed the person whom he intended to kill, as the unintended act derives its character from the intended.’” (Id. at pp. 1023-1024, fn. omitted.)
The Mathews court determined that the common law doctrine of transferred intent is recognized and followed in California. It further found nothing in section 197, which codified the law of justifiable homicide, to preclude application of transferred intent to self-defense circumstances. (Mathews, supra, 91 Cal.App.3d at p. 1024.) Since Mathews, it has been considered settled that, under the doctrine of transferred intent, self-defense applies not only where the defendant injures or kills the person who poses the threat, but also “where the defendant intends to injure or kill the person who poses the threat, but inadvertently kills an innocent bystander instead. [Citation.]” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1357.)
There are two reasons why appellant’s argument fails under the circumstances of the present case. First, transferred intent, the principle upon which Mathews is based, does not apply to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 328.) Second, Mathews addresses inadvertent or unintended consequences. Under the instructions given in appellant’s trial, in order to convict appellant of the attempted murders of Buycks, Shiflett, and Pfeiff, jurors necessarily found appellant specifically intended to kill each separate victim. (See People v. Smith (2005) 37 Cal.4th 733, 739.) Moreover, jurors found the murder of Daniels to be premeditated and deliberate, meaning they also had to find a specific intent to kill him. (See People v. Solomon (2010) 49 Cal.4th 792, 812; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223.) Since jurors clearly rejected the notion that any of the shootings were inadvertent or unintentional, any error was harmless.
If anything, the instruction was arguably more favorable to appellant than was warranted. Jurors essentially were told Daniels need only be intending or trying to commit assault. In People v. Ceballos (1974) 12 Cal.3d 470, 477-479, however, the California Supreme Court interpreted subdivisions 1 and 2 of section 197, the principles of which are embodied in CALCRIM No. 506, to require an intent or attempt to commit “a forcible and atrocious crime” such as murder, mayhem, rape, robbery, or, under certain circumstances, burglary.
V
Cumulative Prejudice
Appellant says that even if we find no single error requires reversal, the cumulative impact of the errors denied him a fair trial. (See, e.g., People v. Hill, supra, 17 Cal.4th at pp. 844-845.) We disagree. Any errors we have found or assumed were harmless, whether considered individually or collectively. Appellant received a fair trial. (See, e.g., People v. Gutierrez, supra, 45 Cal.4th at pp. 828-829; People v. Cunningham, supra, 25 Cal.4th at p. 1009.)
VI
New Trial Motion
A. Background
Appellant moved for a new trial or to modify the verdict on a number of grounds, including insufficiency of the evidence. The People opposed the motion. The parties agreed that, in ruling on a motion based on alleged insufficiency of the evidence, the trial court was required to review the evidence independently. The court acknowledged that it had read the submitted documents, and stated, in pertinent part: “In the motion for new trial, the trial court must weigh the evidence independently. It is, however, guided by a presumption in favor of the correctness of the verdict and the proceedings supporting it. The trial court should not disregard the verdict, but should instead consider the proper way [sic] to be accorded to the evidence, and then decide whether or not in its opinion there is sufficient credible evidence to support the verdict. The trial court does not supplant the jury as to [sic] the exclusive finder of fact. But in the exercise of its supervisory capacity, insures only that the jury has performed justly and intelligently. The reviewing court must examine the whole record in light most favorable to the judgment to determine whether it discloses substantial evidence, that is evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Italics added.) As authority, the court cited People v. Kraft (2000) 23 Cal.4th 987, 1053 (Kraft). It found sufficient evidence to support the convictions and special findings, and, accordingly, denied the motion for new trial or for modification of the verdict.
Appellant now contends the court correctly acknowledged the requirement that it independently weigh the evidence, but then erroneously viewed the evidence in the light most favorable to the verdicts, the standard for a reviewing court on appeal, not a trial court on a motion for new trial. The error, appellant says, requires that his convictions be vacated and the matter remanded. Respondent argues that the record shows the court was aware of the appropriate standard to be applied; hence, absent contrary evidence, the court should be presumed to have followed established law. Respondent agrees, however, that if the court applied the wrong standard, the appropriate remedy is to remand the matter to the trial court for a new hearing on the motion using the correct standard.
B. Analysis
Section 1181, subdivision 6 authorizes the granting of a new trial, or modification of the verdict or judgment to a lesser degree of the crime or lesser included offense, “[w]hen the verdict … is contrary to law or evidence.…” “‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.’ [Citations.] “‘“A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.”’ [Citations.]” (People v. Thompson (2010) 49 Cal.4th 79, 140.) Although there is a “strong presumption” that a trial court ruling on such a motion properly exercised its “broad discretion” (People v. Davis (1995) 10 Cal.4th 463, 524 (Davis)), “an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations].” (People v. Knoller (2007) 41 Cal.4th 139, 156.)
In ruling on a motion for a new trial under subdivision 6 of section 1181, the trial court is required to weigh the evidence independently. (Davis, supra, 10 Cal.4th at p. 523.) “While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.]” (People v. Robarge (1953) 41 Cal.2d 629, 633 (Robarge).)
The California Supreme Court has said that “a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.]” (Robarge, supra, 41 Cal.2d at p. 633; People v. Sarazzawski (1945) 27 Cal.2d 7, 15, overruled on another ground in People v. Braxton (2004) 34 Cal.4th 798, 817.) This does not mean the court should disregard the verdict or decide what result it would have reached had the case been tried without a jury (Robarge, supra, 41 Cal.2d at p. 633); the trial court is “guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.]” (Davis, supra, 10 Cal.4th at p. 524.) Instead, the court “should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]” (Robarge, supra, at p. 633.)
In the present case, the trial court acknowledged its obligation to weigh the evidence independently, and properly stated the standard applicable under Robarge and Davis. By its recitation of the standard set forth in Kraft, supra, 23 Cal.4th at page 1053, however (see italicized portion of court’s statement, ante), it introduced a different standard of review that does not apply to a motion made under section 1181. As the California Supreme Court has explained:
“In the trial court, a defendant may attack the evidence against him in two ways. A motion under section 1118.1 seeks a judgment of acquittal for insufficient evidence.… A motion under section 1181(6) seeks a new trial because the verdict is ‘contrary to law or evidence.’ The court performs significantly different tasks under these two provisions.
“In ruling on an 1118.1 motion for judgment of acquittal, the court evaluates the evidence in the light most favorable to the prosecution. If there is any substantial evidence, including all inferences reasonably drawn from the evidence, to support the elements of the offense, the court must deny the motion. [Citations.] In considering this legal question, ‘a court does not “‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] This test is the same as that used by appellate courts in deciding whether evidence is legally sufficient to sustain a verdict.…
“A grant under section 1181(6) is different. The court extends no evidentiary deference in ruling on an 1181(6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’ [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury’s verdict is ‘contrary to the … evidence.’ [Citations.] In doing so, the judge acts as a 13th juror who is a ‘holdout’ for acquittal.” (Porter v. Superior Court (2009) 47 Cal.4th 125, 132-133, original italics omitted, italics added; accord, People v. Trevino (1985) 39 Cal.3d 667, 694-695, disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221; People v. Serrato (1973) 9 Cal.3d 753, 761, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
“An appellate court cannot order a new trial on the ground of insufficiency of the evidence if there is any substantial evidence by which the verdict can be supported. [Citations.] But a trial court can grant a motion for new trial where the evidence is legally sufficient and even where the only evidence is that of the prosecution. [Citations.]” (People v. Sarazzawski, supra, 27 Cal.2d at p. 16.) “Although the trial court is to be ‘guided’ by a presumption in favor of the correctness of the jury’s verdict [citation], this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence. The trial court is not bound by the jury’s determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence. [Citations.] Thus, the presumption that the verdict is correct does not affect the trial court’s duty to give the defendant the benefit of its independent determination as to the probative value of the evidence. [Citation.] If the court finds that the evidence is not sufficiently probative to sustain the verdict, it must order a new trial. [Citation.]” (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251-1252.)
Because the trial court recited the standard set out in Davis and Robarge and was clearly aware it was required to independently weigh the evidence, respondent urges us to presume, pursuant to Evidence Code section 664, that the trial court followed the correct law. That statute provides in part that “[i]t is presumed that official duty has been regularly performed”; under it, we are entitled to presume, absent any contrary evidence, that the trial court properly followed established law (Ross v. Superior Court (1977) 19 Cal.3d 899, 913). The record here contains such contrary evidence, however, both in the trial court’s recitation of the Kraft standard and in the court’s reference to that standard in making its ruling that sufficient evidence existed to uphold the convictions. The trial court understood its duty to weigh the evidence independently, but the record suggests the trial court may have misunderstood what that function entailed.
In conclusion, the court stated: “The Court finds that there was sufficient evidence, and that the evidence was reasonable, credible, and of solid value, and so the trier could find the defendant guilty beyond a reasonable doubt as to the murder charge, and the attempt[ed] murder charges they came back on, along with the findings that they made. Therefore, the Court will deny the motion for new trial or modification of the verdict.”
As respondent implicitly acknowledges, “‘A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.’ [Citation.] Where the trial court decides the case by employing an incorrect legal analysis, reversal is required regardless of whether substantial evidence supports the judgment. [Citation.]” (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 174.) While we express no opinion concerning the merits of appellant’s motion, we are unable to say that the only proper exercise of the trial court’s discretion would be to deny the motion in its entirety. Accordingly, the error requires that we reverse the judgment and remand the matter to the trial court to again hear and determine said motion using the correct standard. (See Robarge, supra, 41 Cal.2d at p. 635.) Upon remand, the trial court will be “‘limited to the three options specified in [section 1181]: (1) It can … grant the defendant a new trial; (2) it can deny the motion and enter judgment on the verdict reached by the jury; or (3) it can modify the verdict either to a lesser degree of the crime reflected in the jury verdict or to a lesser included offense of that crime as specified by [section 1181(6)].’ [Citation.]” (Porter v. Superior Court, supra, 47 Cal.4th at p. 133.)
Our review of the record shows that the abstract of judgment lists the wrong date of conviction and does not make clear that the enhancements imposed pursuant to section 12022.53, subdivision (d) are for indeterminate terms of 25 years to life, in keeping with the sentence as orally pronounced. These errors should be corrected if sentence is again imposed.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to hear and determine appellant’s motion for new trial or for modification of the verdict in accordance with the views expressed in this opinion. If the trial court grants the motion for new trial, it shall proceed accordingly to retry appellant. If the trial court modifies the verdict, it shall enter the verdict and sentence appellant accordingly. If the trial court denies the motion, it shall reinstate the judgment and sentence.
WE CONCUR: Cornell, J., Gomes, J.
In October or November of 2006, appellant told Buycks, Daniels, and Jason Davenport that he had spent the day at the shooting range, firing all different kinds of guns. Appellant specifically mentioned a.22. He said it was one of the best weapons with which to murder someone because it was a revolver, so there were no shell casings, and a person did not really have to aim with it but just hit the target in the upper body because the bullets rattle around.