Opinion
F062589
05-16-2012
THE PEOPLE, Plaintiff and Respondent, v. JONQUEL RANDELL BROOKS, Defendant and Appellant.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F07903746)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
Jonquel Randell Brooks (defendant) claims he is entitled to reversal of the judgment and remand for another hearing on his motion for a new trial or modification of the verdicts. Alternatively, he says we should order modification ourselves. For the reasons that follow, we affirm.
FACTS
Pursuant to the parties' requests, we take judicial notice of the record in case Nos. F057983 (People v. Brooks) and F062348 (Brooks v. Superior Court), defendant's prior appeal and mandate proceeding, respectively. (Evid. Code, §§ 452, subd. (d), 459.) The parties are cautioned, however, that in the future they must file a separate motion and proposed order to obtain judicial notice under Evidence Code section 459. (Cal. Rules of Court, rule 8.252(a); see also Cal. Rules of Court, rule 8.366(a).)
Our statement of the facts is adopted from our opinion in case No. F057983. Empty brackets [] indicate deletions; brackets with material enclosed indicate our insertions or additions. (See Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 11281129 & fn. 1.) Footnotes in the source material have been renumbered sequentially.
I
PROSECUTION EVIDENCE
The University Village Apartments [] 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[] has four separate bedrooms. As of May 7, 2007, Lewis Carrol resided in bedroom A, [defendant] resided in bedroom B, Rion Spears resided in bedroom C, and Guillermo Meneses resided in bedroom D.
Unless otherwise specified, all dates [in the statement of facts] refer to 2007.
About a month before May 7, [defendant] showed Meneses a gun. Carrol recalled [defendant] showing him a pistol a couple of times between Christmas and spring break. At one point, [defendant] 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, [defendant], 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 [defendant] to be nervous or [to] have a problem around large groups of people, [defendant] 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 []. At no time did Meneses see a weapon in any of their hands.
The group headed toward [defendant's] room, and Daniels and Buycks started talking to [defendant]. The conversation quickly escalated into a confrontation in the hallway in front of [defendant's] room. [] Pfeiff told [Meneses] that they thought [defendant] had stolen a PlayStation 2 console.
Daniels and Buycks accused [defendant] of taking the console; [defendant] denied it. This went back and forth a few times near the door to [defendant's] room. Meneses saw Daniels enter [defendant's] bedroom, and [defendant] loudly told him to get out. At some point, Buycks approached [defendant]; Daniels, who was trying to be the peacemaker, physically touched [defendant] 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 [defendant] admit he took the PlayStation. Meneses did not recall any other touching of [defendant] or any threatening gestures such as balling up or pounding of fists, although at some point he heard Daniels say to [defendant] that [defendant] 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 [open] any doors.
Daniels exited [defendant's] room, and the group walked toward the kitchen and the door. [Defendant] 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 [defendant] that [defendant] 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 [defendant's] hand. Those in the group asked if he were serious and told him to put it away. They kept arguing, and [defendant] 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[].
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." []
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 [defendant] 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 [defendant] 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 [defendant] took their PlayStation 2, and that he had better give it back. [Defendant] repeatedly denied having the item. []
When interviewed by Officer Williams [after the shooting], Carrol related that five subjects came to the front door and [defendant] let them in.
The argument moved to the hallway by [defendant's] room. Either Daniels or Buycks started to go into [defendant's] room, and [defendant] said the person was not about to go through [defendant's] things. When Daniels and Buycks said they just wanted to get the PlayStation back, [defendant] said he did not have it and did not know what they were talking about. Carrol believed Daniels went in [defendant's] room and [defendant] followed him inside. []
The argument seemed most intense between [defendant] and Buycks. They were kind of coming at each other, and Daniels, who was in the doorway to but a little outside of [defendant's] room, pushed [defendant] sideways into the room. [Defendant] told Daniels to get off him and not to touch him. To Carrol, Daniels's movement appeared to look to [defendant] like an aggressive act.[] Insofar as Carrol could see, however, none of the visitors had a weapon.
When the argument moved from [defendant's] room toward the kitchen, everyone noticed that [defendant] had a gun in his hand. It was a revolver [defendant] had previously shown Carrol. One of the group asked [defendant] what he needed that for. [Defendant] said they needed to leave. They asked if he was serious, and he said yes,[] that they needed to leave and he did not have their PlayStation. [Defendant] was holding the gun in his right hand and swinging it, with his elbow bent at about a 90-degree angle.
[Defendant] had shown Rion Spears [] a .22-caliber revolver that held six shots. Spears was aware that [defendant] was selling marijuana out of the residence. []
In October or November of 2006, [defendant] told Buycks, Daniels, and Jason Davenport that he had spent the day at the shooting range, firing all different kinds of guns. [Defendant] 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.
The exchanges were laced with profanity and racial epithets.
The group continued to argue. Everyone was moving around. [Defendant] 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 [defendant].
[Defendant] 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 [defendant] flinch. The group did not retreat; instead, the argument continued, and Buycks asked if [defendant] was serious. [Defendant] said he was, and that they needed to leave. Daniels said all right, that they saw how it was. Buycks made a gesture toward [defendant], which Carrol interpreted as Buycks putting up a front and acting like he was coming at [defendant] 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, [defendant] 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 [defendant]. However, Daniels and Buycks were both over six feet tall, and Buycks was stockier than Daniels. Both were taller than [defendant].
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 [defendant] 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. []
Carrol and Meneses exited Carrol's room about three to five minutes after the shots. Nobody was left in the apartment. [Defendant] 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. []
Rodrick Buycks
Buycks was six feet two inches tall, weighed about 205 or 210 pounds, and lived down the hall from [defendant] 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. [] [A]bout a day after the item went missing, [defendant] telephoned and asked if Buycks had cords for a PlayStation 2. Buycks talked to his roommates, and they concluded [defendant] 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 [defendant'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 [defendant] had shown Buycks a .22-caliber revolver once or twice before.
Buycks's group knocked on the door and rang the doorbell of [defendant's] unit, and [defendant] 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. [] Buycks demanded that [defendant] return the PlayStation 2, and [defendant] denied taking it.
[Defendant] started walking back toward his bedroom, and Buycks and Daniels followed. [Defendant] entered his room. Buycks, who was in the doorway area, saw him grab at something around his bed area. After a minute or two, [defendant] 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 [defendant's] hands until [defendant] 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 [defendant'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 [defendant] that he knew [defendant] had his PlayStation 2, and he wanted it back. There was a lot of shouting going on []. [Defendant] was yelling at them to get out. One of Buycks's group opened the door, and [defendant] shot three more times. Buycks actually saw him fire the three rounds. The first time [defendant] 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 [defendant], or knocked [defendant] 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 [] next door to [defendant's] unit. [Defendant] would occasionally come over to play video games. Once, he showed Pfeiff a revolver he was carrying on his person []. Although Pfeiff did not trust [defendant], they had no disputes when [defendant] visited.
On the evening of May 7, upon concluding that [defendant] was the one who had stolen the PlayStation 2, Pfeiff, Buycks, Shiflett, and Daniels went to [defendant's] apartment. Eric Stinnie, who [] was friends with the group and with [defendant], had gone to [defendant's] a bit ahead of the group. When [the group] arrived, the door was closed. Somebody knocked, and [defendant] answered and let them in. They walked into the common living area, and Buycks told [defendant] 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. [Defendant] became very defensive. He denied taking it, and said he did not need to steal because he had lots of money.
After Buycks and [defendant] began to go back and forth, [defendant's] roommates came out. Pfeiff had a very friendly discussion with them, and so had his back turned to the argument between Buycks and [defendant]. Pfeiff felt [defendant] go into his room. He did not know where Daniels was and did not see anyone follow [defendant] to his doorway or into his room. When [defendant] came back out, Pfeiff saw a gun in his hand. [Defendant] 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. [Defendant] 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 [defendant].
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 [defendant] 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[]. 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 [defendant's] apartment to the time he ran out.
Pfeiff made his way out the door [].[] As he ran [] 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.
To Pfeiff's knowledge, no one in his group was under the influence of alcohol or drugs when they went to [defendant's] apartment. No one forced any doors open, and he did not see anyone push or hit [defendant]. He did not [] hear anyone threaten [defendant]. He did not hear Daniels say anything about having someone to come get [defendant]. 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 [defendant], whom he had known since high school. Shiflett was aware of [defendant] being in possession of a revolver on several occasions during 2007. [] In Shiflett's opinion, [defendant] tried to project a tough guy, streetwise persona.
When Shiflett and his roommates got together before going to [defendant's] apartment to discuss the missing PlayStation, no violence was mentioned or contemplated. They had had no problems with [defendant] 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 [defendant's] apartment, Daniels either knocked or just walked in. Daniels and Buycks then started asking somewhat loudly for the PlayStation and saying they knew [defendant] had it. [Defendant] 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[].
During the initial argument, Shiflett was by the front door to the apartment. Daniels and Buycks were inside a bit farther[]. They were facing [defendant], who was somewhat in the living room. [Defendant] 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 [defendant's] room. It sounded like Daniels and [defendant] 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 [defendant].
Daniels exited [defendant's] room almost immediately. He and Buycks started walking toward the front door, and Shiflett and Pfeiff followed. When [defendant] 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 [defendant] if [defendant] was going to shoot them.
At the time [defendant] fired the first shot, Shiflett was standing right next to the front door. [Defendant] was standing near the end of the breakfast bar. Daniels was directly in front of [defendant], and Buycks was to Daniels's left, along the wall. Pfeiff was to Shiflett's left. Just prior to [defendant] 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. [Defendant] fired again, and Shiflett started to move for the door. This time, the gun was pointed at the group. []
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. []
At no time during the entire event did Shiflett see anybody force open any doors, push or shove [defendant], or knock him to the ground. Shiflett's group was standing about three feet from [defendant] at the time of the first shot.[] Nobody was touching [defendant] at that time. Shiflett did not hear anybody threaten [defendant], nor did he hear Daniels say anything about having someone to come get [defendant]. Shiflett did not see anyone pound their fist into their palm in an aggressive manner.
[] At about 11:00 or 11:15 that night, Daniels came into [his own] apartment, [told his roommate] that [defendant] 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. [] There were no signs of forced entry into the unit or into the bedrooms inside the unit. Outside apartment 128, which [] adjoined apartment 126, was a .22-caliber bullet.
II
DEFENSE EVIDENCE
[Defendant], who was 19 years old when the shootings occurred, testified that when he was 15, he [] [was badly beaten while at a party in Union City]. During the incident, 30 or 40 people were chanting the name of a local Norteno gang.
As a result of the altercation, [defendant] was hospitalized for four days [] [with serious eye and head injuries]. 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, [defendant] 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 [].
At trial, [defendant] 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 [defendant] was in high school, he [] 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 [defendant's] close friendship with Phillip, and this led to [defendant] purchasing a six-shot, .22-caliber Ruger revolver from [] Daniels. [] The weapon was solely for protection, because he was receiving death threats.
At about 10:30 or 10:45 p.m. on May 7, [defendant] was playing a video game with Kelvin King. [] [Defendant], 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, [defendant] was no longer feeling high.
[Defendant] walked King and [Eric] Stinnie to the door and then locked it. Stinnie called about five minutes later and said he was at the door, so [defendant] let him in. [Defendant] 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 [defendant] — came in. Daniels and Buycks exchanged greetings with [defendant], then started yelling and demanding to know where their PlayStation was. [Defendant] said he did not have it.
At this point, Daniels and Buycks were in the kitchen, with Shiflett and Pfeiff behind them. [] Daniels and Buycks kept accusing [defendant] of stealing the PlayStation or knowing who did, and [defendant] kept denying it. They then told him to call the person he was always with. []
[Defendant] believed they were referring to King, so he telephoned King and told him to come over. King agreed. [Defendant] 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. [Defendant] grabbed his phone and reached under his bed and grabbed his gun. He was feeling threatened. At some point, Daniels went into [defendant's] bedroom, and Buycks followed into the hallway. They were yelling and pounding their fists into their hands and demanding the PlayStation. [Defendant] 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 []. King said he was there, so [defendant] told the others that King was there and they could clear things up. As [defendant] and the others moved away from [defendant's] room, [defendant] kept telling them to get out of his house.
King was standing in the living room. [Defendant] 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 [defendant] thought the situation was going to be over. Instead, Daniels turned around. There was a little bump. [Defendant] 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. [Defendant] was in the entrance hall []. Multiple people said things. [Defendant] 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 [defendant] anyway. He and Buycks had been hitting their fists into their hands since shortly after they entered the apartment.
To [defendant'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. [Defendant] was in fear because he was wounded, he could smell liquor on [the others'] 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. [Defendant] 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 [defendant] shot again. Everyone froze and still did not leave. [Defendant] 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. [Defendant] 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.
[Defendant] threw the gun as he was on the stairs near the back parking lot. []
When [defendant] left the University Village Apartments, he did not know anyone was dead. [Defendant] did not intend to kill anybody.
Dr. Howsepian, a psychiatrist, opined that at the time of the shooting, [defendant] 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. []
[]
Howsepian explained that the 2004 attack [when defendant was in high school] was "profoundly traumatic" for [defendant]. 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. [] The serious injury to [defendant'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 [defendant] 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. []
In addition to the 2004 attack, [defendant] reported a long series of traumatic incidents[]. [He] also reported receiving a number of threatening phone calls. Someone suffering from PTSD [] may respond to a perceived threat by having the body act before the mind does. [] 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, [defendant] 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.
PROCEDURAL HISTORY
Based on the foregoing evidence, a jury convicted defendant 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 (id., §§ 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 (id., §§ 187, subd. (a), 664, 12022.53, subd. (c); count 4). His motion for a new trial or modification of the verdicts was denied, and he was given a lengthy prison sentence. He was also ordered to pay restitution and various fees and fines.
Contrary to defendant's repeated representation in his briefs in the current appeal, he was not convicted of attempted premeditated murder.
On appeal, we found no prejudicial error in the trial itself. In reaching that conclusion, we rejected defendant's claims the trial judge committed reversible error by (1) making comments during voir dire that amounted to misinstruction on proof beyond a reasonable doubt; (2) allowing defendant to be physically restrained throughout trial; (3) excluding Lewis Carrol's opinion that, during the time period after the first shot, he thought defendant might have been a little scared; (4) misinstructing the jury, pursuant to CALCRIM Nos. 505 (justifiable homicide: self-defense or defense of another) and 3470 (right to self-defense or defense of another (non-homicide)), concerning the amount of allowable force, and omitting references in those instructions to prior threats and harm; (5) failing to instruct on voluntary manslaughter and attempted voluntary manslaughter based on sudden quarrel or heat of passion; (6) failing to tell jurors 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; and (7) instructing the jury with CALCRIM No. 506 (justifiable homicide: defending against harm to person within home or on property), which defendant claimed was materially misleading. We also rejected defendant's claim of cumulative prejudice.
With respect to the new trial motion, however, we found that the trial judge had introduced an inapplicable standard of review by reciting the standard set out in People v. Kraft (2000) 23 Cal.4th 978, 1053, which pertained to an appellate court's review of the sufficiency of the evidence. We stated: "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." As a result, we reversed the judgment and remanded the matter to the trial judge to again hear and determine the motion for new trial or modification of the verdicts, using the correct standard.
Following issuance of the remittitur, defendant filed a peremptory challenge against the trial judge pursuant to Code of Civil Procedure section 170.6 and a challenge for cause pursuant to section 170.1. He also filed a motion for a new trial or to modify the verdicts based on prosecutorial misconduct and insufficiency of the evidence to support findings of first degree murder and attempted murder.
Further statutory references are to the Code of Civil Procedure unless otherwise stated.
We do not further discuss the claim of prosecutorial misconduct, as defendant does not challenge the trial judge's ruling on that issue.
The challenge for cause was heard and denied by Judge Chittick. The trial judge then heard and denied the section 170.6 challenge. The trial judge also heard and denied the motion for a new trial or modification of the verdicts. At the People's request, the trial judge modified the amount of restitution defendant was ordered to pay, then reinstated the judgment and sentence as so modified.
DISCUSSION
I. The trial judge did not misunderstand his role in deciding the motion for a new trial or modification of the verdicts.
Defendant says he is entitled to have the judgment reversed because the trial judge again misunderstood his role, and applied the wrong standard, in deciding the motion for a new trial or modification of the verdicts. Defendant says the judge performed the task of an appellate court, "scouring the record" for evidence that could have persuaded "some theoretical juror" of guilt, rather than deciding whether he himself had a reasonable doubt of defendant's guilt, or at least as to whether defendant deliberated and premeditated. We find no error.
A. Background
In their pleadings with respect to defendant's motion for a new trial or modification of the verdicts, the parties set out the applicable legal principles and agreed the trial judge was required to review the evidence independently. The parties also set out their views of the pertinent trial evidence. At the outset of the hearing on the motion, and again when argument turned from prosecutorial misconduct to insufficiency of the evidence, the judge stated he had read and considered the pleadings. He permitted both counsel to argue their views of the evidence presented at trial and the issue before the court, which they did with particular emphasis on the subject of premeditation. He also questioned both counsel about their characterizations of the trial evidence, at one point confirming defendant made a telephone call to Kelvin King while in his bedroom, and at another inquiring whether any evidence was presented that went against defendant's testimony that he was "cool."
The following took place during the course of the trial judge's ruling:
"[THE COURT:] In looking, then, at the sufficiency of the evidence, ... on the motion for new trial, the Court must weigh the evidence independently. It is, however, guided by the presumption and the correctness of the verdict, but the trial court should not disregard the verdict, but instead should consider the proper weight to be accorded to the evidence and then decide whether or not in its opinion there's sufficient credible evidence to support the verdict.
"[PROSECUTOR]: Your Honor, I would suggest there's not a presumption that the Court entertains; ... that the defendant is entitled to the independent evaluation by the Court of the evidence. And it's a little confusing because the case law does say that there should be deference given ... to the verdict of the jury, but only in the sense that, willy nilly, that verdict shouldn't be overturned. So I would suggest that there's not any presumption being entertained by the Court, ... that the Court is fully giving its own independent evaluation of the evidence. And that's just for clarification, Your Honor. [¶] ... [¶]
"[DEFENSE COUNSEL]: ... It appears he's now speaking for the Court. I mean, you've got a decision that you've written there ... or you have an outline, it appears, and you have a certain frame of mind that you're going by, and ... I'm concerned that the People now are altering kind of the rule .... [¶] ... [¶]
"THE COURT: ... If he thinks I'm messing up, and for the record, ... People versus Martin stands for that language, a 1970 case, 2 Cal.3d, 822, 832. And I agree, ... I'm quoting the same language I quoted in the last motion for a new trial, and the Fifth DCA didn't say anything about People versus Martin, which is why I quote it again, but what I'm not going to refer to at all was the People versus [K]raft case, that's not going to -- but that's [the prosecutors'] job, you know, they have to keep everyone on their toes ....
"[DEFENSE COUNSEL]: Well, I'm just concerned -- I want to make sure that what you're stating is, you know -- from the standard ... you
started with, ... or if there's an alteration of a standard that -- uhm -- makes --
"THE COURT: Let me just do this. [¶] ... [¶] ... Let me make everybody happy and I'll strike that reference to the People versus Martin case, I'm not going to rely on that at all .... [¶] ... [¶]
"Continuing, then.
"The other case which I just cited from at the end, there was the Robarge case, a 1953 case, 41 Cal.2d, 628 and 633. It's also referenced in the People's moving papers, it's one of the cases cited to.
"'While it's the exclusive province of the jury to find the facts, it's the duty of the trial court to see that this function -- or dysfunction -- 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.'
"And that's the basis for the Court's decision that it will make here today.
"In looking and considering the arguments of counsel, recollecting the evidence as I heard it in this case and that both counsel had put in their statement of facts, ... the Court recalls the testimony and ... the nature of ... the verdicts .... The Court finds that the evidence is sufficient to support that jury's verdict. There was no misapplication of the law, and I think the jury did perform its function intelligently. And likewise, the Court believes that the evidence, specifically the entry by the initial two persons, Mr. Buycks and Mr. Daniels, and then the other two gentlemen that came in, were hanging near the exit door to the apartment, the confrontation -- the telephone video that one of Mr. Brooks's roommate[s] had caught, ... measured in some way ... what was going on, ... the hectic situation, ... the argument, but ... what the Court found was that the time to leave, go into the bedroom, get the phone to call Kelvin King, because I think it was Kelvin who was going to back him up on the story that, no, this is not your PlayStation .... I believe he made -- in the bedroom he made that call to Kelvin King. Even if he didn't, there was sufficient time spent back there. He then retrieved the firearm. And the prior relationship of these gentlemen was that -- I mean, with a couple of them he even played basketball with them, they were on an intramural team. He saw them on frequent basis, they played games, they went to and from each other's apartments .... And so there was that type of pre-existing relationship. So
at the most, ... maybe the expectation was that this was going to get into a heated argument, and the last words would be we better get the PlayStation back, and then they're off, but it was elevated by the fact that a gun was brought into the situation. And that was consistent with that gun being displayed at least to one other person who testified, and who testified as to what the defendant told him, why he had the .22 or what the .22 could do -- the Court specifically remembered that -- and then the firing of the gun. Whether or not he was bumped, whether or not it was a warning shot -- and the argument was that it was a warning shot into the ground -- or into the floor that actually hit the defendant in the right thigh, I believe. One -- the gun was functional, so there was the knowledge and that planning had occurred in going back to get that gun. He testified, yeah, one of the feelings that he had was he was irritated, maybe angry with them for ... coming into his room and accusing him of having stolen the PlayStation, but ... that was sufficient, as far as under the law, along with the fact that he then raised the firearm after firing it once, and then not only fired it once again into the crowd, but I want to say a total of five shots, my recollection, were ... fired into the crowd, striking all four of them in some manner, but the decedent a number of times, including the ones in the back. And it was, as [the prosecutor] said, it was a center-punch, which means his back wasn't at an angle or anything, it was facing straight to perpendicular to the barrel of the gun when it was fired.
"Therefore, the Court finds that the evidence was sufficient to support the jury's verdict ... and the Court will deny the motion for new trial. The Court will reinstate the verdict, enter judgment as previously stated by the Court ...."
At page 832, People v. Martin (1970) 2 Cal.3d 822 (Martin) states: "A trial court ruling on a motion for new trial does so under the influence of what amounts to a presumption in favor of the correctness of the verdict and the proceedings supporting it. (Cf. People v. Robarge (1953) 41 Cal.2d 628, 633 [(Robarge)], and cases there cited.)" Martin was disapproved on another ground in People v. Chojnacky (1973) 8 Cal.3d 759, 764.
B. Analysis
Defendant contends the trial judge disregarded all evidence favorable to the defense and made no determination whether it raised a reasonable doubt in the judge's mind as to whether defendant actually premeditated and deliberated. Defendant also contends the trial judge ignored precedent that required him to act as a 13th juror, examine all the evidence, evaluate the credibility of defendant and Dr. Howsepian, and decide if the judge himself believed guilt was proven beyond a reasonable doubt. Further, defendant says that because the judge did not deny reading from something he had already prepared, he listened to the parties' arguments and made his ruling using an erroneous presumption in favor of the verdicts. An unbiased reading of the record leads us to reject these claims.
Penal Code 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 Penal Code 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.]" (Robarge, supra, 41 Cal.2d at p. 633.)
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; see also 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, citing Martin, supra, 2 Cal.3d at p. 832.) 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.)
Accordingly, unlike an appellate court, which, in deciding whether evidence is legally sufficient to sustain a verdict, reviews the whole record in the light most favorable to the judgment to determine whether substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt (People v. Johnson (1980) 26 Cal.3d 557, 578), "[t]he [trial] court extends no evidentiary deference in ruling on a ... 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, 133 (Porter).)
"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. [Citations.]" (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251-1252.)
Nothing the trial judge said or did suggests he deviated from the foregoing principles. He clearly was familiar with our opinion, the reason the judgment previously was reversed, and the contents of the parties' pleadings. The fact he did not mention Porter does not mean he "did not take cognizance" of it, as defendant claims. The judge was also aware of the evidence presented at trial, due to both the parties' pleadings and his own memory. He stated the proper standard as the one under which he was making his ruling. By eschewing any reliance on Martin, it is apparent he was also eschewing any presumption in favor of the correctness of the verdict.
Defendant argues that the trial judge's erroneous statement that all four victims were struck by gunfire (when, in fact, only three were hit) demonstrated the trial judge did not properly understand or do his job. Appellate counsel erroneously asserted defendant was convicted of premeditated attempted murder. We do not find either misstatement to be an indication of improper understanding of or failure to do one's job.
Defendant says that because the judge had his ruling written out, it is likely he nonetheless employed a presumption in favor of the verdict in any event. We categorically reject this speculative assertion. First, the record does not establish what the judge had written. Even assuming it was a ruling in which he employed the presumption, we routinely presume jurors are able to ignore testimony the court strikes and admonishes them not to consider. We see no reason not to presume the trial judge could not similarly ignore legal authority and revisit the basis for a ruling even if it was already written out.
In any event, Martin correctly states the law, as demonstrated by the fact it is cited for exactly the same point by the California Supreme Court in Davis, supra, 10 Cal.4th at page 524. Moreover, the prosecutor clarified the nature of the presumption applicable to motions for a new trial. Nothing in the record suggests the judge nevertheless applied the presumption applicable to appellate courts examining the sufficiency of the evidence.
That the trial judge found the evidence sufficient to support the jury's verdicts does not mean he was focused on evidence supportive of the jury's findings and not on an independent review of the evidence. (See Davis, supra, 10 Cal.4th at p. 524; People v. Price (1992) 4 Cal.App.4th 1272, 1275.) Nor does the fact he purportedly recited only evidence favorable to the prosecution mean he must have again misunderstood his role. "There is no requirement that he should discuss or even mention all or any of the matters considered in arriving at his decision to deny the motion." (People v. Cruz (1960) 178 Cal.App.2d 83, 87.) Rather, it is apparent he recited evidence he found particularly persuasive. Defendant's arguments to the contrary notwithstanding, that evidence showed planning, intent, and an absence of adequate provocation and a reasonable or genuine belief in the need to use deadly force to defend against imminent danger of death or great bodily injury.
II. The trial judge did not abuse his discretion in denying the motion for a new trial or modification of the verdicts.
Defendant says that "[i]f ever there was a case of sudden quarrel, panic, heat of passion, imperfect self defense, and/or rash decision making, this is it." Accordingly, he says, the trial judge abused his discretion by not modifying the verdicts to the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter, or at a minimum, second degree murder. He asks this court to make the modifications, as Penal Code section 1181, subdivision 6 permits (People v. Bechler (1998) 61 Cal.App.4th 373, 378-379), in order to "correct a great injustice."
"'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. [Citation.]' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 364, italics added.) "[R]eviewing courts are reluctant to interfere with a decision granting or denying such a motion unless there is a clear showing of an abuse of discretion." (Robarge, supra, 41 Cal.2d at p. 633, italics added.) "[T]he term judicial discretion 'implies the absence of arbitrary determination, capricious disposition or whimsical thinking.' [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72; see also People v. Williams (1998) 17 Cal.4th 148, 162.) With respect to our power to modify the verdicts, the California Supreme Court has stated: "'While the power granted to the appellate court is equal to that given the trial court the circumstances which will justify its exercise in a particular court are those which are appropriate to typical functioning of that court. In other words, upon an application to reduce the degree or class of an offense, a trial judge may review the weight of the evidence but an appellate court should consider only its sufficiency as a matter of law.'" (People v. Sheran (1957) 49 Cal.2d 101, 108, italics omitted.)
With these standards in mind, we turn to defendant's claim the killing was not shown to be premeditated and deliberate. "An intentional killing is premeditated and deliberate if it occurred as the result of reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time. Thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly. [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 213.) The speed by which the reflection takes place "may not be as short as the flicker or twinkling of an eye [citation]," but premeditation and deliberation are present if the evidence shows "a sufficient extent of reflection on the decision to kill. [Citation.]" (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1114-1115.) What matters is whether the killing resulted from preexisting reflection. (See People v. Solomon (2010) 49 Cal.4th 792, 813.)
Defendant relies on People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), in which the California Supreme Court "identified three categories of evidence typically used to resolve this issue: planning activity, motive, and manner of killing. Contrary to defendant's suggestion, Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]" (People v. Pride (1992) 3 Cal.4th 195, 247.) "In other words, the Anderson guidelines are descriptive, not normative. 'The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
The evidence in the present case showed that defendant and the victims were involved in a verbal altercation that may have involved a modicum of touching or pushing. Defendant retrieved a gun of the type and caliber he had previously called one of the best weapons with which to murder someone, and had time to telephone King. When he left his bedroom, the argument continued. By his own testimony, he pointed the gun to see if the victims would leave when they saw it. When they did not, he waved the gun and told them to get out. When they still did not leave, he fired multiple times into the group. Although he was concerned for his safety, he was also concerned about why they were not leaving. To his knowledge, however, nobody but him had a weapon.
The evidence sufficiently showed a deliberate and premeditated killing, even applying the Anderson guidelines. There was evidence of planning (defendant's arming himself and then returning to the argument, despite the fact he had enough time to use the telephone; also, his deliberate pointing and then waving the gun, and possibly even firing a warning shot, before intentionally shooting into the group of people), motive (anger because the victims would not leave), and a manner of killing indicative of a deliberate intent to kill (firing multiple shots at a vital area of at least one victim at close range). These facts were sufficient to support the verdict of premeditated and deliberate first degree murder. (See People v. Manriquez (2005) 37 Cal.4th 547, 577; People v. Koontz, supra, 27 Cal.4th at pp. 1081-1082.)
The cases defendant cites as holding that retrieving a weapon before the killing and failing to call police are not evidence of premeditation — In re Roderick (2007) 154 Cal.App.4th 242, 266-267; In re Gray (2007) 151 Cal.App.4th 379, 410; and In re Weider (2006) 145 Cal.App.4th 570, 588-589 — do not alter our conclusion. The issue in all three was whether, for purposes of release on parole, the crime was particularly heinous, atrocious, or cruel. To the extent they hold what defendant says they hold — a questionable proposition — all are thus legally inapposite.
Defendant further claims his was a case of sudden quarrel and heat of passion and/or imperfect self-defense. Accordingly, the argument runs, his offenses only rose to the level of voluntary manslaughter and attempted voluntary manslaughter.
"[A]n intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation] ...." (People v. Manriquez, supra, 37 Cal.4th at p. 583; Pen. Code, § 192, subd. (a).) "'Although [Penal Code] 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.]'" (People v. Manriquez, supra, at pp. 583-584; accord, People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [voluntary manslaughter has both subjective and objective requirement, in that defendant must kill while actually in heat of passion, and that heat of passion must be aroused by sufficient provocation judged objectively].)
"[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 (1995) 12 Cal.4th 186, 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].)
A trial court has a sua sponte duty to instruct on lesser included offenses "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) If there was insufficient evidence to trigger the court's instructional duty, there was insufficient evidence to mandate the granting of a new trial or modification of the verdicts.
Moreover, adequate provocation and heat of passion must be affirmatively shown. (People v. Gutierrez, supra, 45 Cal.4th at p. 826; People v. Steele (2002) 27 Cal.4th 1230, 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 defendant was undisputedly angry and, according to some evidence, fearful, his own testimony was that he did not lose "his cool." In other words, he did not act rashly, or without due deliberation and reflection, or from strong passion rather than judgment. (See People v. Moye (2009) 47 Cal.4th 537, 541.) While jurors (and the trial judge in ruling on the new trial motion) were free to disbelieve defendant's testimony, they were not required to do so. The circumstances shown by the evidence at trial were not such as to constitute substantial evidence of heat of passion despite defendant'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].)
"'"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." [Citation.]'" (People v. Manriquez, supra, 37 Cal.4th at p. 581.) "'[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense.... 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. "'[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.'"'" (Ibid.)
Defendant's own trial testimony revealed he harbored some fear of the victims. It provided no indication, however, that he actually believed he was in imminent danger of death or great bodily injury. Rather, he did not want to be put in a situation where he could again be jumped, and, in addition to being concerned for his safety, he was also concerned about why the victims were not leaving. This evidence was insufficient to mandate modification of defendant's verdicts to voluntary and attempted voluntary manslaughter based on imperfect self-defense. (See People v. Manriquez, supra, 37 Cal.4th at pp. 581-582.)
As already discussed, the trial judge here applied the proper standard with respect to defendant's motion for a new trial or modification of the verdicts, and found sufficient credible evidence to support the verdicts. (See Robarge, supra, 41 Cal.2d at p. 633.) We will not find an abuse of discretion simply because the trial evidence taken in the light most favorable to the accused, which is the manner in which defendant presents it, could have led to a different result. Moreover, this court is not charged with viewing the evidence in that fashion. Our review of the evidence leads us to conclude it was sufficient. Accordingly, defendant's motion for a new trial or modification of the verdicts was properly denied, and we will not countermand that ruling.
III. The trial judge did not violate due process by hearing the motion for a new trial or modification of the verdicts.
Defendant says section 170.6, subdivision (a)(2), properly interpreted, bars a judge whose judgment has been reversed from hearing a Penal Code section 1181, subdivision 6 motion on remand. Because the trial judge was biased against defendant and defendant's trial attorney, the argument continues, and because the judge either erroneously believed himself bound by the manner in which the jury resolved conflicts in the evidence or refused to consider evidence favorable to defendant, defendant was denied due process by the trial judge's hearing the motion. We disagree.
A. Background
As previously described, upon remand, defendant filed a peremptory challenge to the trial judge pursuant to section 170.6. The trial judge found the motion to have been timely filed, but denied it on the ground the proceedings before him did not constitute a new trial, and so the statute did not permit disqualification. Defendant sought review by this court. In case No. F062348, we denied his petition for a writ of mandate.
B. Analysis
Section 170.3, subdivision (d) provides, in pertinent part: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding." A petition for writ of mandate under this section "provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory. [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 444; People v. Hull (1991) 1 Cal.4th 266, 268, 271-276.)
Here, defendant sought timely review in this court of the denial of his section 170.6 motion. We summarily denied his petition. "Defendant thus received the appellate review of his statutory claim to which he was entitled." (People v. Panah, supra, 35 Cal.4th at p. 445.) "Nevertheless, a defendant may assert on appeal a claim of denial of the due process right to an impartial judge. [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 811; People v. Brown (1993) 6 Cal.4th 322, 327, 332-335.) This is so where, as here, the defendant sought writ relief, as required by section 170.3, subdivision (d), and such relief was summarily denied. (People v. Brown, supra, at p. 336.)
If the writ review afforded the substance of the procedural protections to which a litigant would be entitled on appeal, such as oral argument and a written opinion, the law of the case doctrine might preclude that litigant from claiming, on appeal, that the trial judge was not impartial. (People v. Brown, supra, 6 Cal.4th at p. 336, fn. 11.)
Relying on Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868, the California Supreme Court has set out the legal principles applicable to review of a defendant's due process claim. "[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist '"the probability of actual bias on the part of the judge ... [that] is too high to be constitutionally tolerable."' [Citation.]" (People v. Freeman (2010) 47 Cal.4th 993, 996.) "[A] constitutionally intolerable probability of actual bias exists only when the circumstances '"would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused."' [Citations.] This inquiry is an objective one, based on whether '"under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias and prejudgment that the practice must be forbidden."' [Citations.]" (People v. Cowan (2010) 50 Cal.4th 401, 457.) The United States Supreme Court has "made it abundantly clear that the due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found. [Citation.] Less extreme cases — including those that involve the mere appearance, but not the probability, of bias — should be resolved under the more expansive disqualification statutes and codes of judicial conduct. [Citation.]" (People v. Freeman, supra, 47 Cal.4th at p. 1005.)
Defendant says the standard required to show a due process violation has been met, because the trial judge was biased against defendant and defendant's trial attorney. Defendant points to several factors in support of this conclusion. None, alone or in combination, is persuasive.
Defendant first says the trial judge was "too piqued" by reversal of the judgment in the first appeal to carefully read this court's opinion, review Porter, supra, 47 Cal.4th 125, apprise himself of the standard to be used when hearing a motion under Penal Code section 1181, subdivision 6, and to use that standard. As we have already explained, however, the trial judge did not misunderstand his role in deciding defendant's motion, disregard the evidence favorable to the defense, lack familiarity with this court's opinion, digress from the standard applicable to his decision on defendant's motion, or abuse his discretion by denying the motion. Nothing in the handling of the motion supports the charge of bias. (See People v. Mayfield, supra, 14 Cal.4th at p. 811.)
Defendant also says the trial judge was "too piqued," when the section 170.6 motion was presented, to correctly interpret Peracchi v. Superior Court (2003) 30 Cal.4th 1245 (Peracchi) and recognize his duty to recuse himself and allow another judge to consider the motion for a new trial or modification of the verdicts. We are not convinced the trial judge erred in his reading of the case.
The second paragraph of subdivision (a)(2) of section 170.6 provides, in pertinent part: "A motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter." At issue in Peracchi was whether a sentencing hearing conducted on remand after a partial reversal on appeal constituted a "new trial" within the meaning of the statute. (Peracchi, supra, 30 Cal.4th at p. 1253.) In addressing the question, the California Supreme Court observed that Penal Code section 1179 defines a new trial as "'a reexamination of the issue in the same Court, before another jury, after a verdict has been given,'" while Penal Code section 1180 explains that "'[t]he granting of a new trial places the parties in the same position as if no trial had been had.'" (Peracchi, supra, 30 Cal.4th at p. 1253.) The court concluded: "Taking into consideration the applicable statutes, prior court practice, the function of a sentencing hearing, and the limited effect on the judgment of a reviewing court's order remanding for resentencing, we conclude that resentencing is not a 'new trial' within the meaning of the Penal Code or Code of Civil Procedure section 170.6." (Id. at pp. 1257-1258, fn. omitted.)
Peracchi recognized that a remand for resentencing is not equivalent to an order for a new trial (Peracchi, supra, 30 Cal.4th at p. 1254), and that when remanding for resentencing, a reviewing court typically does not reverse the judgment of conviction or remand for a new trial (id. at p. 1255). In defendant's case, of course, we did reverse the judgment. We did not, however, necessarily remand for a new trial, but rather gave the trial judge the option of reinstating the judgment and sentence. Under the circumstances, we cannot agree with defendant's position that, because a Penal Code section 1181, subdivision 6 motion is a prerequisite to a retrial, it must be treated the same as a retrial for section 170.6 purposes. A motion for a new trial is not a new trial; a remand for a new hearing on a motion for new trial is not, without more, a remand for a new trial itself. Our disposition in defendant's prior appeal simply did not place the parties in the same position as if there had been no trial. Accordingly, we conclude Peracchi's reasoning applies, and the trial judge properly denied defendant's peremptory challenge pursuant to section 170.6.
Additionally, no violation of due process has been shown. The error, if any, does not indicate bias, but rather is the type of statutory claim that could — and should — have been raised in defendant's petition for writ of mandate.
Last, defendant says the trial judge's bias against defense counsel was demonstrated in defendant's petition for writ of mandate challenging Judge Chittick's denial of the challenge for cause brought pursuant to section 170.1. Apparently this court disagreed that bias was shown, since it denied defendant's petition. In any event, we have reviewed Judge Chittick's ruling, and conclude it correctly found no basis in the facts presented for a finding of bias or prejudice, and that no reasonable reading of the evidence presented could lead one to believe the trial judge was not impartial. (See People v. Carter (2005) 36 Cal.4th 1215, 1243.) The trial judge's comment to defense counsel, made in the course of an attempt to accommodate the attorneys' schedules while also selecting a jury, that she was a "big girl" who could have renewed her driver's license the previous week rather than waiting until the week she had a murder trial assigned, was unfortunate, but, considered in context, not indicative of bias. (Contrast In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1497, 1499-1501 & fn. 5 [trial court's oral statement of decision "so replete with gender bias" that appellate court "forced" to conclude wife did not receive fair trial], disapproved on another ground in People v. Freeman, supra, 47 Cal.4th at p. 1006, fn. 4.) Likewise, telling counsel she had to object in good faith and instructing her not to waste the court's time with a particular type of objection do not indicate prejudice or bias when considered in context.
To summarize, the circumstances of this case "simply do not rise to a due process violation under the standard set forth by Caperton because, objectively considered, they do not pose '"such a risk of actual bias or prejudgment"' [citation] as to require disqualification." (People v. Freeman, supra, 47 Cal.4th at p. 1006, fn. omitted; see also People v. Carter, supra, 36 Cal.4th at p. 1244.) Accordingly, defendant's claim fails.
Because defendant does not distinguish between federal and state constitutional claims, we deny any assertion under the latter for the same reasons as under the former. (See People v. Cowan, supra, 50 Cal.4th at p. 458, fn. 16.)
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IV. We will not reconsider issues resolved adversely to defendant in the first appeal.
Defendant asks us to reconsider several issues that we decided adversely to him in the first appeal. We decline to do so.
"'The rule of "law of the case" generally precludes multiple appellate review of the same issue in a single case.'" (In re Rosenkrantz (2002) 29 Cal.4th 616, 668.) The doctrine "states that when, in deciding an appeal, an appellate court 'states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal ..., and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.' [Citations.]" (Kowis v. Howard(1992) 3 Cal.4th 888, 893, fn. omitted.) The rule applies only to an appellate court's decision on a question of law and is not applicable to questions of fact. (People v. Barragan (2004) 32 Cal.4th 236, 246.)
"The principal reason for the doctrine is judicial economy. 'Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.' [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 786-787.) The rule is procedural and does not go to the jurisdiction of the court. (Id. at p. 787.) Thus, application of the rule is "'subject to the qualifications that "the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision." [Citations.]' [Citation.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1161.) "'[A] decision on a matter properly presented on a prior appeal becomes the law of the case even though it may not have been absolutely necessary to the determination of the question whether the judgment appealed from should be reversed. [Citations].' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 442.) "An 'unjust decision' may result when 'the controlling rules of law have been altered or clarified by a decision intervening between the first and second determinations of the appellate courts. [Citations.]' [Citations.]" (People v. Ramos, supra, 15 Cal.4th at p. 1161.)
Defendant has not shown any intervening change in, or clarification of, the controlling rules of law applicable to the issues he now seeks to reargue. Similarly, he has not shown that our rejection of those claims was a manifest misapplication of the law, or that it resulted in substantial injustice. Accordingly, our prior decision constitutes the law of the case, and we will not reconsider those issues. (See People v. Jurado (2006) 38 Cal.4th 72, 97.)
DISPOSITION
The judgment is affirmed.
The requests for judicial notice of the records in case Nos. F057983 and F062348, contained in the parties' briefs, are granted.
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DETJEN, J.
WE CONCUR:
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LEVY, Acting P.J.
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GOMES, J.