Opinion
A148521
08-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW PAUL CEBALLOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR221474)
Eight shots fired at his mother's one-bedroom house by defendant Andrew Paul Ceballos (also known as Andrew Paul Cesar Ceballos) resulted in the death of an occupant, Willie Troy Johnson, who was one of five persons eating breakfast in the bedroom. Defendant and his two-year-old daughter had recently moved into the home. The shots were immediately preceded by an argument between defendant and his mother concerning the wish of his mother's boyfriend, Major Carter—with whom defendant was not on good terms—that defendant should move out. Defendant testified and, while he admitted firing the shots, claimed he had no intent beyond perhaps wanting to scare Carter.
The jury rejected this version and convicted defendant of second degree murder and assault with a semiautomatic firearm, plus various firearm-related enhancements. The trial court then found true the allegation that defendant had a prior serious felony conviction that qualified as a "strike" for purposes of the "Three Strikes" law. Defendant was sentenced to state prison for an aggregate term of 55 years to life for the murder (15 years to life, doubled to 30 years to life by the Three Strikes law), plus consecutive 25 years for personal use of a firearm resulting in death (Pen. Code, § 12022.53, subd. (d)), and a concurrent aggregate term of 28 years for the assault.
Further statutory references are to this code unless otherwise indicated.
Defendant contends he was the victim of various instances of prejudicial error, starting with jury selection, and going all the way to sentencing. We address these claims in the chronological order of their alleged occurrence, concluding that they are without merit. However, there is a question of sentencing, which necessitates a remand.
JURY SELECTION
Defendant first argues that the court erred in holding that the prosecutor did not engage in discriminatory exercise of peremptory challenges in violation of Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler), specifically in connection with two prospective jurors, both African-American women: G.B. and V.M.
For consistency with the parties' briefs, we will refer to the prospective jurors by their initials.
The Setting
Jury selection began on August 5, 2015, and the court called the first 18 jurors into the jury box. Five of those 18—jurors numbered 1, 4, 6, 7, and 10—remained to serve on the jury that convicted defendant, one of whom, Juror No. 6, was African-American. The court examined each of the jurors itself, comprehensively and at length. And in response to the court's questions, G.B. said she had worked for the federal government for the last 28 years, 20 of them for the Environmental Protection Agency. She had a bachelor's degree in business, and her significant other was a retired PG&E electrician.
Defense counsel asked generally whether any prospective juror had a close friend or acquaintance involved in a criminal case (as either a victim or defendant), and G.B. volunteered that she had been a victim of an unsolved burglary and that her brother had been a defendant. This is the colloquy that ensued:
"[G.B.]: Well, my home was burglarized less than two years ago. Never found out who did it, and then I have a brother who has psychiatric issues, has been arrested multiple times and has served time for rape and attempted murder.
"MR. KEENEY: So you have both experiences. Your brother has been through the court system clearly.
"[G.B.]: Yes.
"MR. KEENEY: Do you think he got treated fairly in that system?
"[G.B.]: Don't know.
"MR. KEENEY: Was this elsewhere or in Vallejo?
"[G.B.]: No. Once was in Pennsylvania, once was in Alabama. Now he's in California.
"MR. KEENEY: Okay. So that as far as you're concerned if you sit on this jury, would have no effect whatsoever?
"[G.B.]: No. It shouldn't have an effect if I serve as a juror.
"MR. KEENEY: And the frustration of the home burglary was not solved wouldn't make you prejudice one way or the other?
"[G.B.]: No. Totally different incident.
"MR. KEENEY: Okay. That's all I would ask you. Your Honor, I have no other questions.
"THE COURT: Okay. Thank you, Mr. Keeney."
That was defense counsel's final questioning, and the prosecutor immediately began by questioning G.B. about her brother:
"MR. KAUFFMAN: Thank you. Good morning can you all hear me? I'll try to talk into the mic. So I have general questions for you and specific questions for individual jurors and I'll just start back with Ms. [B.] because you were talking last. We'll take up the subject of your brother. It sounded like you didn't really follow along with those proceedings.
"[G.B.]: No, I didn't.
"MR. KAUFFMAN: But you kind of know where he is and in general what has happened?
"[G.B.]: Based on what he told me.
"MR. KAUFFMAN: Okay. So you're in contact with him?
"[G.B.]: Yes, I am. Very much so.
"MR. KAUFFMAN: And so your brother being involved in the criminal justice system in another state but having some consequences, that doesn't give you pause sitting as a juror having to decide on a person's guilt or innocence?
"[G.B.]: No. That was his life. Those were his choices.
"MR. KAUFFMAN: Okay. So you don't sort of—obviously wasn't my office that ever prosecuted him or handled any of those matters. It was out of state.
"[G.B.]: Right.
"MR. KAUFFMAN: By the same token, you don't have the attitude of like well, system got my brother and I'm going to make sure anybody else who I think did something remotely bad should also get handled that way?
"[G.B.]: No.
"MR. KAUFFMAN: You don't have those feelings?
"[G.B.]: No, I don't.
"MR. KAUFFMAN: Thank you for your honesty."
The prosecutor's only other direct question to G.B. clarified that the burglary was in Fairfield.
The prosecutor's questioning of prospective jurors continued for several pages, at the conclusion of which both sides passed for cause. The peremptory challenges began, and with his third peremptory challenge the prosecutor excused G.B.
Following that round of peremptory challenges and one challenge for cause, seven new jurors were called. Three of them were excused for cause, and following peremptory challenges, seven new jurors were called into the box. This group of seven included V.M. and also an African-American male, Juror No. 9.
V.M. was an academic support provider for the Vallejo school district, with a bachelor's degree in psychology and a master's degree in social work. The court's questioning of V.M., which went on for six pages, revealed that she had one friend, the daughter of a police officer, who was a former prosecutor who became a corporate lawyer. She also had "about four friends who are correctional officers." V.M. had been the victim of a sexual assault in middle school. She also had a cousin who was convicted of murder in Alameda County, whom she visited while he was in jail, and who, following his release, was himself murdered, with no suspect ever found. V.M. also had an uncle who was convicted of murdering his daughter, V.M.'s cousin, and who was serving a life sentence in Texas.
Defense counsel asked V.M. no questions during his voir dire. The prosecutor, however, elicited information about V.M.'s concerns with law enforcement's failure to locate her cousin's murderer. It went as follows:
"MR. KAUFFMAN: Sure. Just briefly. Ms. [M.], good afternoon.
"[V.M.]: Good afternoon.
"MR. KAUFFMAN: I think I followed along there with some of your unfortunate family history. What I think we didn't cover was your cousin who went to prison for some kind of homicide?
"[V.M.]: Yes.
"MR. KAUFFMAN: Then did his time, was released and then he was murdered.
"[V.M.]: That is correct.
"MR. KAUFFMAN: So where did that occur? Was that in California.
"[V.M.]: That was California.
"MR. KAUFFMAN: Was there anybody ever charged or arrested for that?
"[V.M.]: For his murder?
"MR. KAUFFMAN: Yes.
"[V.M.]: No.
"MR. KAUFFMAN: That's what I thought I missed. So, you know, you've had these experiences with relatives who have been charged and sounds like incarcerated for various crimes. Do you have any feeling about the fact that your cousin who did his time for a crime was then the victim of a crime and basically that case doesn't sound like it was ever brought to the court system?
"[V.M.]: Well, of course. Because he was convicted of killing someone, and then they never found who actually killed him. So, yeah.
"MR. KAUFFMAN: Right. So let's talk about that for a second. I mean, there are two ways you can go there, right? You can say well, you know, maybe someone should have been brought out and at least tried. But they weren't, so now I hold resentment and I will hold say anyone who tries to prosecute somebody for a similar crime to a higher standard because they never got the person who killed my cousin. Do you think you feel that way?
"[V.M.]: No. I don't feel that way.
"MR. KAUFFMAN: The other way you can go with that, you can say well, I mean, if you're charged with this crime and you made it this far, certainly you must have done something because my cousin's case, they never got anybody and I'm going to make sure whoever gets this far will be held responsible because I have this person, my cousin, murdered and nobody held responsible for that. Do you have that kind of perspective or potentially bias in a case like this?
"[V.M.]: Maybe a little bit, but of course I would try as much as possible not to allow that to bias.
"MR. KAUFFMAN: Right. That's all we can ask, but that sort of seemed to strike a chord with you a little bit.
"[V.M.]: Uh-huh.
"MR. KAUFFMAN: That is good to know. I appreciate your honesty, and I appreciate you telling us about your family history. All right. I think that's all I have, Your Honor. Thank you."
Following one challenge for cause, peremptory challenges resumed, after which seven new jurors were seated. Following questioning of these new jurors, peremptory challenges resumed, at which time the prosecutor excused V.M. It was his ninth peremptory challenge. It was also his last, as the jury was sworn shortly thereafter, with the prosecutor having 11 challenges remaining.
Immediately after the prosecutor challenged V.M., defense counsel made a Batson/Wheeler motion, which the trial court ultimately denied. The entire argument on the motion was as follows:
"MR. KEENEY: I would like to make a motion, Batson Wheeler.
"THE COURT: Okay.
"MR. KEENEY: He's excused three.
"MR. KAUFFMAN: Yes.
"MR. KEENEY: And I have the notes back at my table. I didn't see any reason to excuse any of the three black jurors, and the defendant is black in this case.
"THE COURT: The Batson Wheeler motion as to Ms. [M.] at this point.
"MR. KAUFFMAN: You have to look at the others I suppose.
"THE COURT: As to Ms. [M.] hang on one second. Everyone don't talk over one another. As to Ms. [M.], I'm not inclined to find a prima facie at this point. She did have the family members who are involved in several murder incidents, but at the same time she did say—I recognize she said she could be fair. There was one question where she said—sounds like she might actually be on the fence. It's not entirely clear, but, Mr. Kauffman, let me hear your reasons. I'm not at this point finding a prima facie in light of the fact that her family members are involved in these murder incidents. I will give you an opportunity to state your reasons on the record.
"MR. KAUFFMAN: Sure. The reasons for asking her to be excused, based on her answers I didn't feel—I had a for cause challenge. Based on her history, she has a cousin who was in prison for murder who was then murdered. That was never solved by the police and an uncle currently incarcerated in prison also I believe for murder or another serious crime in another state. She knows a bit about these cases, and I'm concerned any person irrespective, any class or group she might belong to, with that history would have trouble being fair in this case. I'm concerned about her ability to process, separate that out from our situation because she did seem to have a significant amount of knowledge about what happened in those situations involving her family.
"THE COURT: Go ahead, Mr. Keeney.
"MR. KEENEY: The cousin's case I believe was that the police didn't work the case at all. Am I right about that? I think I'm right. I'm pretty sure I'm right, and this case is a case where the police worked a lower class, very lower class homicide very intensely. And they put a case together, and so the fact that another department dropped the ball, if she wants to see police—a lower class minority homicide and the DA's office gave it the Cadillac treatment by charging it very heavily, so we've had five jurors in the jury box that are black people. And three of them are gone now. I see more going.
"THE COURT: Let me take a look at my notes real quick. As to [V.M.] I won't find a Batson Wheeler violation. I [accept] Mr. Kauffman's representations, find it very credible that there was a non-race reason for the preemptory challenge. There are two other African Americans still in the panel. I would note that for the record, and you said there was two others who were excused.
"Mr. Kauffman, did you—sounds like you wanted to put on the record your reasons for those.
"MR. KAUFFMAN: If I could quickly. It was Ms. Moss who said she was uncomfortable judging guilt, and that was morale [sic] reasons. Also said she didn't think she was qualified to do that, and the third was [G.B.]. And she was the person who was the victim of a 459 first. Her brother has some I think psychological issues and was charged with a serious crime, I believe an attempted robbery. So experience with the criminal justice system I viewed as her portraying negatively.
"THE COURT: Let me take a look at something here. I wanted to confirm my notes. I have [G.B.], who was juror number 16 at that time, looks like her brother was—I have in my notes rape and attempted murder charge, mental issues. Does not know if he was treated fairly, but didn't know either way. Okay. Again, I think there are non-race base[d] reasons for the peremptory challenges. So I'm not finding any Batson Wheeler at this point. Mr. Keeney, did you wish to say anything further?
"MR. KEENEY: No.
"THE COURT: I'll just note juror number 6 and juror number 9 are both African Americans at this point. Thank you both."
The Law
We review defendant's Batson/Wheeler contention under well settled principles, set forth, for example, in People v. Manibusan (2013) 58 Cal.4th 40, 75-76:
"A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].' (Id. at pp. 612-613.)
"On appeal, we review the trial court's determination deferentially, 'examining only whether substantial evidence supports its conclusions. [Citation.]' (Lenix, supra, 44 Cal.4th at p. 613.) 'We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' (People v. Burgener (2003) 29 Cal.4th 833, 864.)" (Accord, People v. Williams (2013) 56 Cal.4th 630, 653.)
Lenix expressed it this way: "At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' (Miller-El [v. Cockrell (2003)] 537 U.S. [322,] 339.) In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. (See People v. Wheeler, supra, 22 Cal.3d at p. 281.)
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. (People v. Bonilla [(2007)] 41 Cal.4th [313,] 341-342.) 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' " ' " (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
The Trial Court Was Right
As indicated above, the trial court concluded there was no prima facie showing. We agree, and apparently so does defendant, who in his reply brief acknowledges that the explanations for the prosecutor's challenges were "race neutral." Nevertheless, the prosecutor put his reasons on the record. In light of this, we will follow the practice suggested in People v. Scott (2015) 61 Cal.4th 363, where the Supreme Court explained that even when a trial court finds no prima facie case, the preferred practice is to allow the prosecutor to state his reasons for the challenge on the record, a practice that permits the reviewing court to resolve the matter even if it finds that the trial court erred in finding there was no prima facie case. (Id. at p. 388.) We find no error.
We start with the presumption that " 'a prosecutor uses peremptory challenges in a constitutional manner.' " (People v. Williams, supra, 56 Cal.4th at p. 650.) It was defendant's burden to rebut that presumption, a task that is exceptionally difficult in circumstances such as here, where there were only two challenges, as the Supreme Court confirmed in its most recent Batson/Wheeler case: People v. Parker (2017) 2 Cal.5th 1184. There, the Supreme Court rejected defendant's challenge, concluding that the "record does not support an inference of discriminatory intent . . . in peremptorily challenging Prospective Jurors Nos. 719 and 213," who, defendant contended, were the only two African-Americans in the 136-person jury pool. This was insufficient, the court held, with language particularly pertinent here: "Even assuming the basis of defendant's argument is factually accurate—that Prospective Jurors Nos. 719 and 213 were the only two African-Americans in the 136-person jury pool, a fact neither conceded nor confirmed at trial—the bare circumstance that all African-American prospective jurors were struck from the pool would be insufficient in this case to support an inference that the two were challenged because of their race. ' "[T]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. '[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.' " ' [Citations.]" (Id. at p. 1212.)
Or, as the Supreme Court put it earlier, "While no prospective juror may be struck on improper grounds, we have found it ' "impossible," ' as a practical matter, to draw the requisite inference where only a few members of a cognizable group have been excused and no indelible pattern of discrimination appears." (People v. Garcia (2011) 52 Cal.4th 706, 747 [three challenges]; also see People v. Bonilla, supra, 41 Cal.4th at pp. 342-343 & fn. 12 [two challenges]; People v. Bell (2007) 40 Cal.4th 582, 597-598 [two challenges]; People v. Box (2000) 23 Cal.4th 1153, 1188-1189 [three challenges].)
Also weighing heavily against defendant's claim is the fact that when V.M. was challenged and removed, two African-American jurors remained—and remained on the jury that in fact convicted defendant, with the prosecutor having 11 unused peremptory challenges remaining. In the words of Lenix: "The prosecutor's acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge . . . ." (Lenix, supra, 44 Cal.4th at p. 629, citing People v. Kelly (2007) 42 Cal.4th 763, 780, and People v. Cornwell (2005) 37 Cal.4th 50, 69-70.) In People v. Kelly, the prosecution originally passed on a jury with two African-Americans, and later, after a challenge by the defense, dismissed one of the African-Americans. In People v. Cornwell, supra, the final jury had one African-American. Or as People v. Williams put it, while " ' "the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection." ' " (People v Williams, supra, 56 Cal.4th at p. 663, quoting People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7.) Indeed, this point is confirmed a few months ago in People v. Reed (2018) 4 Cal.5th 989, 1000, the case cited by defendant himself in his post-briefing letter.
Defendant's fundamental premise is that the trial court did not make a " 'sincere and reasoned' " effort to evaluate the situation. We disagree. Indeed, our review of the record reveals a trial court that was particularly involved, from beginning to end, in conscientiously selecting a proper jury. It began with the court's comprehensive questioning. It included the court taking extensive notes—to which, not incidentally, it referred in ruling on the motion. It extended to the point that on its own motion it brought to the attention of defense counsel a possible bias issue of a juror, leading to his being challenged for cause, a fact acknowledged in defendant's brief. Indeed, even before the prosecutor provided his reasons for excusing V.M., the trial court anticipated his concerns, noting not only that V.M. had family members "involved in several murder incidents," but also that V.M. was "on the fence" in responding to one question about her ability to be fair as a result. And after the prosecutor provided his reasons for the challenge, and after hearing argument by defense counsel, the trial court reviewed its notes concerning V.M.'s responses and found the prosecutor's representations about V.M. accurate and "very credible." There was no error.
Past experiences with law enforcement is well recognized as a race-neutral reason to exercise a peremptory challenge, even if that experience is not necessarily negative. (People v. Farnam (2002) 28 Cal.4th 107, 138 [upholding challenge of prospective juror who had visited an incarcerated nephew the previous year but believed he could be impartial]; People v. Turner (1994) 8 Cal.4th 137, 170-171 [juror had feelings about unsolved murder of her child's father and prosecutor could not determine if that favored the prosecution or the defense], disapproved on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
People v. Gutierrez (2017) 2 Cal.5th 1150, which defendant heavily relies on in a supplemental letter brief, is easily distinguishable. There, the prosecutor exercised 10 of 16 peremptory challenges to remove Hispanic individuals from the jury, with the result that the final jury included only one Hispanic. The trial court denied the Batson/Wheeler motion, finding the prosecutor's reasons to be neutral and nonpretextual. (Id. at p. 1150.) The Court of Appeal affirmed. The Supreme Court reversed, concluding that the prosecutor's proffered reasons for the challenge of one juror—unawareness of gang activity in Wasco, where the challenged juror lived—was pretextual, that it was difficult to give credence to the prosecutor's concern about how the prospective juror would respond when she heard that a witness from Wasco was in a criminal street gang, given that the prosecutor's brief questioning of the panelist failed to shed light on the nature of the apprehension or otherwise indicate an interest in meaningfully examining the topic. Moreover, the trial court never explained why it decided the justification was not a pretext.
As Justice Liu's concurring opinion sums up People v. Gutierrez: "Today's opinion explains how the trial court and the Court of Appeal ran afoul of these principles in evaluating the prosecutor's strike of Prospective Juror No. 2723471 (Juror 2723471). The trial court did not discharge its duty to make a sincere and reasoned attempt to evaluate the prosecutor's reason for striking this juror. In upholding the strike, the trial court relied on a reason ('lack of life experience') that the prosecutor did not give. The Court of Appeal accorded deference to the trial court's ruling even though no deference was warranted. Neither the trial court's ruling nor the Court of Appeal's opinion provided the careful and thorough examination of the record that today's opinion does in determining whether the prosecutor's stated reason was credible. And the Court of Appeal improperly refused to conduct the comparative juror analysis urged by defendants." (People v. Gutierrez, supra, 2 Cal.5th at p.1176.) The situation here is a far cry.
Defendant's counsel did not perform a comparative analysis below, and does not do so here, so this is a nonissue. That said, we note that the prosecutor challenged juror Kelley, who was not African-American, who noted that the boyfriend of her friend was the victim of an unsolved murder and she was not sure whether she could put her bias aside.
Defendant makes an argument, a claim of Batson/Wheeler violation based on race and gender. This argument was not raised below. It necessarily fails here. It also fails on the merits, for the reasons discussed above.
Defendant's alternative argument, ineffective assistance of counsel for failing to raise the gender claim below, is fatuous.
THE ASSAULT CONVICTION
The jury was instructed with CALCRIM No. 875 as follows: "The defendant is charged in Count Two with assault with a semiautomatic firearm in violation of Penal Code section 245(b). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] . . . [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to . . . hurt someone . . . . [¶] . . . [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault . . . ."
Defendant contends the evidence is insufficient to support his conviction because "the prosecution did not present sufficient evidence to prove that Mr. Ceballos was aware that any person was behind the closed door of his mother's bedroom when he shot into that door." He is wrong.
As a reviewing court, we are required to view the trial record most favorably in support of the jury's verdict, "review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. . . . [Citations.]" A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the [trier of fact's decision.] [Citation.]' " (People v. Manibusan, supra, 58 Cal.4th at p. 87.) " 'We "must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]" . . . . Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]' " (Ibid.)
And a defendant's mental state or intent is almost always an issue decided on the basis of circumstantial evidence. (See, e.g., People v. Thomas (2011) 52 Cal.4th 336, 355; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) " 'A jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.' " (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831.)
According to our Supreme Court, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
Defendant says he fired through the bedroom door, not thinking anyone was in the bedroom. He talks about not seeing any specific person "in the line of fire." He incorrectly maintains the prosecution was obliged "to prove that Mr. Ceballos knew that there was, in fact, a person behind the door." The jury had the plenary—and unreviewable—power to disbelieve defendant's testimony "that he was not aware that anyone was in the bedroom, with the possible exception of Major Carter, who he thought would be on the bed, out of the line of fire." Here, the evidence showed that defendant fired the shots knowing there were multiple persons inside. Given this, the jury could reasonably conclude defendant was aware of the likelihood that firing eight shots into a small, crowded home—whose dimensions and configuration he knew from living in it—could, in the language of the instruction, "directly and probably result in the application of force to someone."
Moreover, defendant fails to take account of the jury also finding him guilty of second degree murder, which, Batson/Wheeler notwithstanding, he does not otherwise challenge. In finding him guilty of second degree murder, the jury concluded that he had acted with implied malice, that is, in the language of CALCRIM No. 520, he had intentionally committed an act "the natural and probable consequences" of which he knew were "dangerous to human life," and in so doing he had "deliberately acted with conscious disregard for human life."
In light of the foregoing, we conclude there was ample, if not abundant, substantial evidence to support the jury's verdict that defendant was in fact guilty as charged of committing assault with a semiautomatic firearm.
PROSECUTOR MISCONDUCT
During final argument, the prosecutor made the following remarks:
"Now, there was some suggestion made that the assault with the semiautomatic firearm wasn't proven because somehow the defendant didn't actually know this was someone behind the door or there were other people in the room other than Major Carter. Well, I'm not required to prove that. . . .
" . . . He's shooting through the door in order to show Major Carter hey, I can harm you. And this is how I would harm you. That's the whole reason he's doing it. He doesn't know Tynez Johnson is sitting there, who is the subject of this charge. All four people in that room if Willie Troy Johnson habit [sic] been shot and killed could be victims of a 245(b), Count Two. Major Carter and Terrance Woods were on the other side of the room. That's not charged here. Tynez Johnson is definitely the most lucky person that he wasn't struck by one of the eight shots through the door.
"That's why that charge is alleged as to him, and I would submit to you the defendant's motive for doing this, scaring Major Carter, is proof that he knew and any reasonable person would have known shooting a gun that way could result in the application of force to somebody. Those elements are met. It's just confusing here because I can't prove the defendant knew Tynez Johnson was sitting there and he was trying to do this to him. That doesn't matter."
Defendant argues these remarks constitute misconduct, specifically, misstatements of law, in that "As explained in [his preceding argument], the prosecution was required to prove that the defendant was aware of facts which would lead a reasonable person to believe that his action probably would result in a battery. If Mr. Ceballos was not aware that there was anyone behind the closed bedroom door, then he was not aware of facts that would lead a reasonable person to believe his action would directly and probably result in a battery." (Italics omitted.)
We reject this argument on two independent grounds. First, the point was not preserved for review because the defense did not object to the remarks and request that the jury be admonished to disregard them. (E.g., People v. Blacksher (2011) 52 Cal.4th 769, 829; People v. Hinton (2006) 37 Cal.4th 839, 863.)
Second, the prosecutor's remarks were not legally incorrect. Under People v. Williams, supra, 26 Cal.4th at p. 790, the prosecution was required to prove a reasonable person in defendant's position would have had "actual knowledge" of the presence of the occupants of the house. But this standard employs an objective standard, and only requires "actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Ibid.) People v Williams did not hold that an assailant must be aware of the presence of all potential victims in order for that standard to be met.
The Attorney General cites People v. Trujillo (2010) 181 Cal.App.4th 1344 for the proposition that defendant "did not have to have a specific victim in mind when he shot through the bedroom door." The defendant in Trujillo fired shots at a moving vehicle, for which he was convicted of two counts of assault with a semiautomatic firearm. The convictions were affirmed, the Court of Appeal noting, "a person with actual knowledge that he is shooting indiscriminately at a moving vehicle would realize that his conduct would directly, naturally, and probably result in a battery to anyone and everyone inside the Civic. Passengers in cars are no less foreseeable than the pedestrian who was hit in [People v. Riva (2003) 112 Cal.App.4th 981]. Indeed, because the bullets were shot directly at the car from behind the car, the likelihood that a backseat passenger such as Arias would be hit was at least as great as the probability of hitting the pedestrian in Riva. Whether defendant was subjectively aware of such risk or had the specific intent to injure any occupant of the car is irrelevant." (People v. Trujillo, at p. 1357.) There is no reason why this sound logic should not be extended to residences.
In short and in sum, there was no misconduct because the prosecutor was not required to prove defendant intended to harm a specific person.
SENTENCING
In his opening brief, defendant makes two largely pro forma challenges to his sentence.
He first argues the use of his "juvenile adjudication as a strike prior violated his right to a jury trial under the Sixth Amendment," but he acknowledges he cannot prevail because our Supreme Court has decided otherwise (People v. Nguyen (2009) 46 Cal.4th 1007) and this court is thus bound by stare decisis.
Defendant's supplemental authorities filed after the close of briefing are not persuasive. --------
Defendant next argues his sentence, "which does not afford a meaningful opportunity for release in his lifetime, violates the Eighth Amendment and Article I, section 17, of the California Constitution." There are two preliminary points. First, the Attorney General argues this claim was forfeited because it was not raised at the time of sentencing. The point is well taken. (See People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248 and decisions cited.) And we could elect to address the merits in order to forestall a claim of ineffective assistance of counsel, "to show counsel was not constitutionally ineffective by failing to make a futile or meritless objection." (People v. Reyes (2016) 246 Cal.App.4th 62, 86.) We chose to do so.
Defendant is unable to cite a single instance where a sentence for second degree murder involving the personal use of a firearm by an adult has been struck down as cruel and/or unusual punishment. We note that defendant makes no attempt to show that his sentence qualifies as excessive under the three-part analysis spelled out in In re Lynch (1972) 8 Cal.3d 410, 425-427. "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) This is not such a case.
Finally, during the pendency of this appeal, the Governor signed Senate Bill No. 620, which as relevant here, amends section 12022.53 to give the trial court the authority to strike in the interests of justice a firearm enhancement allegation found true under that statute. Effective January 1, 2018, section 12022.53, subdivision (h) was amended to state: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2(h).) Prior to this amendment, an enhancement under section 12022.53 was mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h); Stats. 2010, ch. 711; People v. Felix (2003) 108 Cal.App.4th 994, 999.)
In a supplemental brief, defendant argues the amendment to section 12022.53 applies to him because his case is not yet final on appeal, citing the rule of In re Estrada (1965) 63 Cal.2d 740, 746. Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76; cf. People v. Superior Court (Lara) 4 Cal.5th 299, 303 ["Proposition 57 reduces the possible punishment for a class of persons . . . . For this reason, Estrada's inference of retroactivity applies"].) Defendant argues that because his case is not yet final, it must be remanded to afford the trial court the opportunity to exercise its discretion to strike the enhancement that is no longer mandatory under section 12022.53.
The Attorney General does not contest most of defendant's reasoning. But he does believe that comments made by the trial court at the time of sentencing establish that it would not exercise its new discretion in defendant's favor. The Attorney General's logic is not sufficiently persuasive.
As the Attorney General points out, at the time of sentencing the court denied defendant's motion to strike his juvenile prior in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497, concluding: "From his juvenile probation, he had an opportunity to rehabilitate himself or seek some sort of rehabilitation. His crimes continued, undeterred. Also, he had a lengthy 76-month term at CYA. That did not deter him from continued criminal conduct as an adult. [¶] So for those reasons, in terms of applying the applicable law here, the Romero motion is denied."
Still, we cannot agree that remand would be an idle act as a matter of law. The court "recognize[d] that the defendant did not intend to kill this particular victim." And it ran the sentence on the assault conviction concurrently with the murder sentence. It may not be likely that the court will give defendant another break, but it may. At bottom, this court feels a deep reluctance to assume that it knows how a trial court would have exercised a discretion it did not know it possessed. In short, we are loathe to put words in the trial court's mouth.
DISPOSITION
The cause is remanded for the sole purpose of allowing the trial court to exercise its discretion under subdivision (h) of section 12022.53. The judgment of conviction is affirmed in all other respects.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.