Opinion
No. A149987
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BROOKS CONKRIGHT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR173702)
Defendant Joseph Brooks Conkright appeals from a judgment of conviction after jury trial. Among other things, Conkright was found guilty of the involuntary manslaughter of his mother, Danae Conkright, and to have personally used an assault weapon in this crime under Penal Code section 12022.5, subdivision (b). He challenges the imposition of this personal use enhancement on multiple grounds, argues the prosecutor engaged in prejudicial misconduct in closing argument, and contends that in any event, we must remand this matter for resentencing in light of the recent amendment of section 12022.5 to give the trial court the opportunity to exercise its discretion to strike the firearm enhancement in the interest of justice. We agree that defendant is entitled to remand for resentencing, but otherwise affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In an April 2015 information, the Napa County District Attorney alleged in count one that defendant murdered his mother, Danae (§ 187, subd. (a)), and in doing so intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and further alleged in count two that defendant was in unlawful possession of an assault weapon (§ 30605, subd. (a)). At trial, the parties disputed defendant's intent and the details of the event that resulted in Danae's death. We summarize only the evidence relevant to the issues raised in this appeal.
To avoid confusion, we refer to the victim and her husband, Bruce, by their first names because they share the same surname. We mean no disrespect by doing so.
I.
The Prosecution's Evidence
The prosecution presented evidence that at 3:27 p.m. on December 8, 2014, defendant's father, Bruce, called the 911 operator on his mobile phone and reported that defendant had just shot and killed Danae in their Napa family home. Bruce said he returned home to find defendant outside crying, and that defendant said he had shot Danae accidentally. Danae was "slumped on the couch" and was dead. Bruce locked defendant's gun in his pickup truck.
Two minutes later, defendant called the 911 operator from inside the family's home. He said, "I just shot my mom on accident!," that he had been cleaning his AR-15 rifle and did not know it was loaded, and that the gun accidentally "[w]ent off on her" about five minutes before his call. As suggested by the operator, he put Danae's body on the floor.
Napa County sheriff's deputies reached the family's home at around 3:48 p.m. They found Danae's dead body lying on the living room floor, shot in the chest. The backs of a nearby futon couch and the body's shirt were stained with blood and the couch's seat was stained with what appeared to be urine. A spent shell casing was located in between the living room and dining room areas. A gun-cleaning kit, two metal gun-cleaning rods, a can of spray adhesive and a glove were on top of a coffee table that was within about two feet in front of the couch. Defendant's rifle, seized from Bruce's truck, had a magazine containing 29 live rounds, including one in the chamber.
That evening, defendant was interrogated by Deputy John Dunagan of the Napa County Sheriff's Department. The interrogation was video-recorded and played for the jury. After informing defendant of his rights, Dunagan told him that Dunagan was aware from visiting the family home of Danae's problematic "temperament." Defendant said, "I would never hurt her on purpose, like, I mean, I, I know me and my mom never really got along but I mean I love her." He said they were in the living room and "I was like cleaning my AR and it, I, when I was setting it uh, I guess I, I kind of dropped it a little bit on the table and as soon as like the butt hit, it just went off and, it hit her . . . ." He also said, "I was standing up, . . . . I had put it on the, I, I don't understand how it, I might have had my finger on it, I don't know, like . . . I, I put it on the table it just, it got, I don't know if I hit it too hard against the, the butt against the table but . . . [i]t went off." He indicated on a diagram that he was standing in front of a coffee table and "was setting [the rifle] down towards, the barrel was towards her and the, the (unintelligible), the stupidest thing I've ever done in my life. I should have checked it." He said the butt hit the table "at an angle" and the shot would have fired upwards, and that he held the rifle by its top, did not see the round hit his mother and remembered getting "burnt kind of." Asked if he was positive the butt hit first, he said, "it might not have just been the butt but the whole gun, I mean but the butt definitely hit first . . . like kind of like just solid." He also indicated the rifle's barrel extended over the coffee table and was the same distance from Danae as defendant was from Dunagan.
Defendant said he had brought out some of the rifle cleaning items he needed from his room and was not sure he had grabbed the right ramrod. He had cleaned the rifle about three times and had never dropped it, and the rifle had not gone off accidentally before. He kept the rifle on his bedroom wall, loaded but without a round in the rifle's chamber. He had not checked to see if a round was in the chamber before preparing to clean it.
Defendant said he spent the night at the home of his friend Sean. That morning the two "hung out," defendant smoked "a little bit of weed" and he drove home around 1:00 p.m. or 1:30 p.m. in his Jeep. The Jeep broke down along the way, so he called his parents, who picked him up and drove him home. Bruce was "all pissed off" that defendant let his Jeep break down and at some point went to fix it while defendant stayed home with Danae. He changed his clothes, then remembered he had not cleaned his rifle after shooting about 2,000 rounds through it the weekend before. His mother was "crazy, but normal" that day, not drunk and not mad, as she was taking medication for her schizophrenia and bipolar disorder.
Defendant also told Dunagan that when the shooting occurred, Bruce was away trying to fix the Jeep. Defendant pushed on Danae's chest, "panicked," "freaked out" and cried. He could tell Danae was not going to make it by the way she was shaking and tried to keep her awake, but she could not respond to him. Bruce arrived 10 or 15 minutes later, or perhaps 25 to 30 minutes later, defendant was not sure.
Dr. Joseph Cohen, a pathologist for Napa County, testified about his autopsy of Danae's body. A gunshot wound to the chest caused her death. A bullet entered her front and passed through her body from right to left and downward. The entrance wound was "associated with quite a business of . . . stippling," i.e., "the gunpowder that's deposited on the skin from a close range gunshot wound." There was an "exit defect" on the left side of the back and another would possibly be caused by a bullet fragment. The right lung was perforated, the left lung and heart were fragmented (Cohen also referred to the heart being "pulpified"), and two sections of the aorta were torn in half, which were "devastating" injuries.
Cohen also testified about the defense expert's reconstruction of the shooting. In his opinion, a person seated on a couch's front edge with her weight more toward the front would collapse forward and downward, not backward.
Jonathyn Priest testified that he was a forensic analyst with many years of experience as a homicide investigator. Based on the autopsy and other evidence, he thought Danae was killed by a bullet shot on about a 23-degree angle downward, fired "at an angle above . . . and to the right of the victim and very close, properly within a couple of inches." Also, given the bloodstain in the couch, Danae was shot when she either was sitting on the couch so that she could fall backward or standing so that she could collapse onto the couch.
Priest also opined that the defense expert's reconstruction of the shooting depicted the rifle's misfiring inconsistent with Priest's own experience, as he had "never been able to get a firearm to discharge without perpendicular strikes to the buttstock or the barrel." Also, if Danae was leaning forward on the couch, she would have fallen forward onto the floor due to gravity, not back as depicted in the reconstruction, and the blood staining would have been on the floor, not on the couch. Priest said he had experience drop testing a weapon that was similar to defendant's rifle and had never experienced a misfire as described by defendant, although he had not tested a buttstock hitting a table at an angle.
Samantha Evans, a criminalist with the Department of Justice, testified that the bullet that killed Danae was fired from defendant's rifle. The gunshot residue on Danae's shirt indicated that the distance from the rifle muzzle to Danae was greater than contact and less than one foot. Evans also said she tested defendant's rifle for misfires. With the rifle ready to fire, she tapped it hard in several places with a rubber mallet, but the hammer did not fall. When she dropped it directly onto its butt on a hard floor from eight to ten inches away, the hammer fell five out of twelve times. In 12 drops of the rifle at a 45-degree angle onto its stock, the hammer did not fall.
Donald Finley, a forensic supervisor in the Contra Costa County sheriff's crime lab, testified that he examined defendant's AR-15 rifle and found no reason for it to misfire. He dropped it from a height of 8 to 10 inches directly onto the butt of its stock and the hammer fell about one-third of the time.
A blood sample drawn by police from defendant at 10:39 p.m. on the day of the shooting was tested by two Department of Justice criminalists. The first criminalist found the sample had a 0.03 percent blood alcohol content, and estimated its content was 0.15 percent at 3:48 p.m. This would result in "mental and physical impairment," including greater risk-taking and emotional effects. The second criminalist found the sample tested positive for marijuana, Ecstasy and ethylene. Ecstasy and ethylene were stimulants that created a "fight or flight" response in the body.
Napa County Sheriff's Department Sergeant Mark Foster, a department firearms expert, testified that defendant's AR-15 rifle, as it was seized, was an illegal assault weapon because it contained a modified magazine holding 29 live rounds. Also, the gun cleaning materials found on top of the coffee table were not useful for cleaning an AR-15 rifle. The spray adhesive would only gum up the rifle; the gun-cleaning box was empty and marked for a shotgun, not an AR-15 rifle; and only one of the two metal cleaning rods fit an AR-15. Other cleaning accessories needed to clean the rifle were missing.
Sean Slack testified that he was defendant's long-time friend, and his manager at work at the time of Danae's shooting. The night before the shooting, the two drank liquor at Slack's house and went "clubbing" in San Francisco. Slack consumed some of a drug he identified as "Molly" in defendant's presence, but could not "verify" if defendant consumed any. They returned to Slack's home in Napa after midnight. Slack drank some more, went to sleep and woke at 5 p.m. After hearing a tearful voicemail from defendant about the shooting, he went to defendant's home and spoke to police. He testified that a couple of months before the shooting, defendant missed work because someone had taken his Jeep; at first defendant thought it was stolen but learned his mother had taken it. He told Slack he could kill her, but Slack thought he was just saying his mother made him mad.
Sergeant John Hallman of the Napa County Sheriff's Department testified that on the day of the shooting, Slack told him that when Danae took defendant's vehicle defendant "said she's so annoying I could fucking shoot her." Hallman recovered an image from defendant's phone from September 8, 2014. It depicted a rifle like defendant's and stated that "the cops better find my Jeep before I do." Hallman also found a text message from defendant to Bruce in August 2014 stating that his mother was gone and "I'll kill her if not, . . . no fucking joke dude."
Kelly Alvarez testified that she lived close to the Conkright home, their residences separated by a gully. From the time she moved in up to the day of the shooting, she heard yelling between defendant and Danae, up to three times a week during the summer but less so when Bruce was around. She heard defendant say in "[j]ust about every argument," "I'm going to fucking kill you," and also say he hated Danae.
II.
Defense Evidence
Bruce and his sister, Carolyn Hancock, testified that Danae had serious mental and emotional problems that caused her to behave erratically. She was better when she took her medications, but sometimes did not take them and instead drank or took drugs, leading to her engaging in odd and difficult behavior. Bruce said he told defendant growing up about Danae's condition, and that defendant understood, did not resent her and "definitely" loved her, but that defendant would avoid or argue with her when she was not on medication. Danae was on her medication at the time of the shooting and was "absolutely fine." Also, Danae typically watched television sitting on the front edge of the living room couch because of her short stature.
Bruce also testified that when he arrived at his home after the shooting, he found defendant outside the house wearing his undershorts and a tee shirt. He acknowledged that he taught defendant how to safely handle any gun, that it was "basic" that one never cleans a gun when it is loaded and that defendant knew this and claimed he was very familiar with the rifle. Bruce also indicated that while defendant was growing up, he, Bruce, went by himself to work in Alaska for four months during the summers.
Craig Fries testified that he prepared a three-dimensional visual reenactment of the shooting, as described by defendant to Dunagan, after Fries laser scanned the living room and examined the available evidence. In Fries's opinion, the bullet's downward trajectory through Danae's body would be consistent with defendant's account of the rifle tilting up when it misfired if Danae was sitting on the front edge of the couch and leaning forward. He adamantly disagreed with Priest, that Danae would have fallen forward when shot because she could have moved for a few seconds, given that her brain and spine were not damaged.
Dr. Judy Melinek, a forensic pathologist, testified that, based on her review of the evidence, particularly the stippling, it "made sense" that at the time of the shooting, Danae was leaning forward with her arm somehow pressed against her breast either because she was leaning on her knees or on the couch with her hands. Melinek "emphatically" disagreed that upon being shot, Danae would have collapsed forwards due to gravity because she could have moved for at least several seconds and would have moved backwards in part due to a startle reflex.
Kenton Wong, a forensic scientist, testified that a person with .015 blood alcohol content "has progressed far beyond just mental impairment," and may have a lack of coordination and difficulty remembering what has happened. Wong thought that if Danae were sitting on the front edge of the couch, she could have moved forward or backward upon being shot, depending on where her weight was positioned. Danae also could have been seated in other positions.
III.
Verdict , Sentencing and Appeal
The jury acquitted defendant of murder, but convicted him of the lesser included offense of involuntary manslaughter (§ 192, subd. (b)), and found he personally used an assault weapon in committing this crime (§§ 12022.5, subd. (b), 30515), and also convicted him of illegal possession of an assault weapon (§ 30605, subd. (a)). Defendant moved to modify the verdict to strike the jury's finding that he personally used an assault weapon, contending it was not supported by sufficient evidence. The court found "plenty" of evidence supporting it and denied the motion. It sentenced defendant to a total prison term of eight years, consisting of three years for involuntary manslaughter, a consecutive term of five years for personal use of an assault weapon, and a concurrent term of two years for illegal possession of an assault weapon, and ordered 809 days of time served and worktime credits. Defendant filed a timely notice of appeal.
DISCUSSION
I.
The Jury's Finding That Defendant Personally Used an Assault Weapon in Committing
Manslaughter Was Supported by Sufficient Evidence.
Defendant first contends that the jury's finding that he personally used his assault rifle in the course of committing the involuntary manslaughter of Danae is not supported by sufficient evidence. We disagree.
Section 12022.5, subdivision (b) provides that "any person who personally uses an assault weapon . . . in the commission of a felony . . . , shall be punished by an additional and consecutive term of imprisonment in state prison for 5, 6 or 10 years." " 'By employing the term "uses" instead of "while armed" the Legislature requires something more than merely being armed.' " (People v. Bland (1995) 10 Cal.4th 991, 997.) A person may so "use" a firearm if, for example, he intentionally fires the firearm or displays it in a menacing or intimidating manner. (See, e.g., People v. Granado (1996) 49 Cal.App.4th 317, 322-325 [intimidating manner designed to facilitate underlying crime] (Granado).) This personal use enhancement has been applied when attached to an involuntary manslaughter conviction. (See People v. Quesada (1980) 113 Cal.App.3d 533, 540 (Quesada); People v. Read (1983) 142 Cal.App.3d 900, 906 (Read).) In reviewing a claim that an enhancement finding is not supported by sufficient evidence, we review the record as a whole in the light most favorable to the finding to determine whether the finding is supported by substantial evidence. (See People v. Frausto (2009) 180 Cal.App.4th 890, 897.)
Defendant argues the evidence does not support the jury's personal use finding because the jury found he "did not purposely shoot his mother, much less use the gun to facilitate his accidental crime," presumably because the jury did not find him guilty of murder, but of the lesser included offense of involuntary manslaughter. He contends it is significant that, in contrast to the crimes discussed in Granado, Read and Quesada, he was found guilty based on his criminally negligent use of a firearm, i.e., of involuntary manslaughter, rather than based on his intentional use of that firearm, and that "[t]here was no finding that he intentionally used the weapon in a menacing manner or that he intentionally fired the weapon." The most analogous case he cites in support of his argument is People v. Southack (1952) 39 Cal.2d 578. There, our Supreme Court, interpreting a statute regarding probation eligibility for a person convicted of manslaughter, indicated that merely holding a loaded gun without due caution would not be "use" under that probation statute. (Id. at p. 591.)
The jury was instructed that defendant committed involuntary manslaughter if he committed a lawful act in an unlawful manner or committed the act with criminal negligence, in either case resulting in the death of Danae. The prosecutor highlighted criminal negligence when discussing involuntary manslaughter in his closing argument.
The problem with defendant's theory is that the jury did find he intentionally used his AR-15 rifle by finding the special allegation to be true. The prosecution's approach to the evidence in closing argument could have led them to this conclusion. In the course of discussing murder, involuntary manslaughter, and the relevant special allegations, the prosecutor challenged the defense contention that the killing was an accident, highlighting the evidence that the barrel of the rifle was very close to Danae's body when she was shot. He told the jury, "we really don't know how long Danae Conkright laid there . . . . [¶] So we don't know . . . how long [defendant] mucked around in that house after he shot her and whether he staged this cleaning and grabbed a can of spray adhesive thinking that it's cleaning solution." He also contended the evidence showed that the rifle could not misfire as defendant claimed.
Further, substantial evidence supports the jury's finding. This evidence was perhaps best summarized by the trial court in denying defendant's motion to modify the verdict to strike the jury's personal use of an assault weapon finding. The court stated, "The jury is not required to accept the defendant's theory [of an accidental discharge]. There was plenty of evidence to believe that [defendant] fired the firearm. This doesn't mean he intended to kill his mother." It found "plenty of evidence for the jury to disregard the theory that [defendant] was in fact even cleaning" the rifle, including that the cleaning materials on the coffee table were not entirely consistent with what would be used to clean the weapon, that defendant had only cleaned the weapon two or three times in the three years he had owned the rifle, that it was "certainly questionable for the jury to think why [defendant] decided on this particular day when he was under the influence of alcohol, he hadn't had much sleep, his car had broken down, the gun was loaded, and he then decided that he's going to clean his gun and clean it within a foot of his mother."
Further, the court said, "defendant's theory that the firearm accidentally was dropped and went off was also not necessarily adopted by the jury based on the fact that . . . Cohen testified that the firearm was most likely pointed from above the victim based on the bullet trajectory, and that it was being pointed downward while [defendant] was standing up. In other words, the defendant had the firearm aimed at his mother less than a foot from her chest while he was standing and then fired the weapon. The jury did not find that he intended to kill his mother, but they certainly made the finding that he had used the firearm." The court also noted that defendant told the 911 operator he "just shot" Danae by accident and said nothing about the rifle misfiring, that there was testimony that one never cleans a gun when it is loaded, and that Evans indicated that the rifle never misfired when she dropped it as defense contended defendant had dropped it.
We add to the court's summary the evidence that defendant was repeatedly heard yelling at Danae and threatening to kill her; that he told Dunagan that Bruce was upset he let his Jeep break down, suggesting tensions were in the air when he came home that day; and that Bruce testified he found defendant after the shooting crying in his underwear and a tee shirt, an incomplete state of dress that conflicted with defendant's statement to Dunagan that he had changed his clothes before remembering he needed to clean his rifle. We conclude, as did the trial court, that there is sufficient evidence to support the jury's finding that defendant personally used an assault weapon in committing the involuntary manslaughter of Danae.
II.
Defendant Has Forfeited His Claim that Imposition of the Section 12022 .5
Enhancement Was Unlawful.
Defendant next argues that the section 12022.5 personal use of an assault weapon enhancement should be set aside because it was not alleged in the information and was not a lesser included enhancement of the allegation alleged under section 12022.53 that he intentionally discharged a firearm, thereby denying him his constitutional due process right to notice of the charges against him. We shall not set aside the enhancement because, as the People contend, defendant has forfeited this appellate claim.
The People contend and defendant concedes that the parties agreed below that the jury would be instructed to determine whether defendant personally used an assault weapon under section 12022.5, subdivision (b) if the jury found he committed involuntary manslaughter. Thus, defense counsel did not object to the court's adding an instruction to the jury that, in the event the jury found defendant guilty of the lesser included charge of involuntary manslaughter, it should also consider whether he personally used an assault weapon or firearm, and the court so instructed. "[I]t has been uniformly held that where an information is amended at trial to charge an additional offense, and the defendant neither objects nor moves for a continuance, an objection based on lack of notice may not be raised on appeal. [Citations.] There is no difference in principle between adding a new offense at trial by amending the information and adding the same charge by verdict forms and jury instructions. [Citation.] The risk of unfair surprise to the defendant is the same in either case, as is the potential benefit to the defendant of affording the jury a wider range of verdict options. To prevent speculation on a favorable verdict, a reasonable and fair rule in both situations is that a failure to promptly object will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice." (People v. Toro (1989) 47 Cal.3d 966, 976, fn. omitted, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) Therefore, defendant has forfeited his appellate claim.
In his reply brief, defendant concedes that his counsel agreed to the "substitution" of the section 12022.5 enhancement allegation, and contends for the first time that he received ineffective assistance of counsel. We disregard this claim as tardily made without a showing of good cause. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) In any event, as we next discuss, the court properly instructed the jury to consider the section 12022.5 enhancement allegation.
Even if defense counsel had objected, there would be no basis to set aside the enhancement on appeal. When a specific enhancement is alleged in an information, the defendant is put on notice that his conduct could also be in violation of an uncharged enhancement that '' 'would be applicable in any case' " in which the charged enhancement applies. (See People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1397 (Fialho).) Such was the case here, as the information alleged that defendant intentionally fired a firearm and also included a charge that he possessed an assault weapon, i.e., his AR-15 rifle modified to fire 30 rounds from its magazine, which was the only firearm involved in the shooting. Therefore, defendant had ample notice that he could be found to have intentionally used an assault weapon under section 12022.5, subdivision (b).
Defendant contends that Fialho's holding is limited to " 'lesser included' enhancement[s]." This is not the case. Fialho adopted the " 'would be applicable in any case' " standard from People v. Strickland (1974) 11 Cal.3d 946, 961. (Fialho, supra, 229 Cal.App.4th at pp. 1395-1397.) Strickland acknowledged that the firearm enhancement statute in question "is not a lesser included offense" of the other firearm enhancement involved, "but . . . would be applicable in any case in which [the other enhancement statute] applies." (Strickland, at p. 961.) The same is true here.
III.
Defendant Has Forfeited His Claim of Prosecutorial Misconduct.
Defendant next argues that we must reverse his convictions because the prosecutor committed prejudicial misconduct during closing argument by unfairly disparaging defense counsel and by appealing to the sympathies of the jurors. We disagree.
A. The Relevant Proceedings Below
Defendant points out that the prosecutor began his rebuttal argument by commenting on the defense counsel's closing argument as follows: "[W]asn't that quite a performance . . . by [defense counsel] on the closing argument? I thought, kind of felt like I was at a play or that we should applaud or—and then at some point I kind of felt like maybe it had gone too long, and maybe that fourth act of the play was where it kind of slowed down for me. So we almost got a couple tears out of him, and so it was fairly dramatic. And we're talking about the evidence in this case and it made me think of the victim in this case, and that is Danae Conkright. Where is the justice for her?
"You know, she was a troubled woman. She had problems. She had apparently had some kind of mental illness. And she had a family like this that she lived with, and she had a son, this defendant, who treated her this way. And apparently the father didn't treat her much better."
Later in his rebuttal, the prosecutor said about defense counsel's presentation, "Maybe we could have had it a little bit earlier in his presentation or his one act show, but you know, he's doing the best he can for his client. Can't blame him for that." He stressed, as he did in his initial remarks, that the defense had spent a lot of money to convince the jury that the shooting was an accident.
The prosecutor asked the jury to consider if Danae deserved to die as she did. He said, "[W]here's the justice in that? Where's the justice for her friends that care about her and the family that cared about her? Where's the justice in her being killed this way, with her heart pulverized?" He told jurors to "think about Danae Conkright and how she was feeling when she saw that gun coming out and pointed at her, and her life was over just like that. And what would she say if she could be here to say what had happened?" He concluded by saying: "[T]hink about this woman with her mental problems and other issues. Did she deserve to die this way? She did not. So justice, justice for Danae Conkright here is what this case is about. Show the defendant you will carry out justice and find him guilty."
B. Relevant Law
A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct. (People v. Friend (2009) 47 Cal.4th 1, 29.) Under the federal Constitution, we reverse if such methods infect the trial with " 'such " 'unfairness as to make the resulting conviction a denial of due process.' " ' " (Ibid.) Under state law, we reverse even when such methods do not result in a fundamentally unfair trial if it is reasonably probable defendant would have otherwise achieved a more favorable result. (Ibid.; People v. Wallace (2008) 44 Cal.4th 1032, 1071.)
In reviewing a claim of prosecutorial misconduct in closing argument, " ' "the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Williams (2013) 56 Cal.4th 630, 671 (Williams).) We may not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (People v. Brown (2003) 31 Cal.4th 518, 553-554.) When a defendant highlights objectionable words, phrases and sentences in a prosecutor's argument, we "must view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522).
The People contend that defendant has forfeited his misconduct claims by failing to object to the prosecutor's statements below. To preserve a claim of error or misconduct, a defendant must make a timely objection and request an admonition; " 'only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' " (Williams, supra, 56 Cal.4th at p. 671.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. . . . In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.' " (People v. Brown, supra, 31 Cal.4th at p. 553; see also People v Dykes (2009) 46 Cal.4th 731, 757 ["trial counsel's failure to object in a timely manner to asserted prosecutorial misconduct . . . results in the forfeiture of the claim on appeal"].)
C. Analysis
Defendant contends the prosecutor engaged in misconduct in two respects. First, the prosecutor improperly disparaged defense counsel by intimating counsel had "conjured up a defense" by referring to the "performance, "play" and "show" counsel performed. Second, the prosecutor improperly appealed to the jurors' sympathies and emotions by encouraging them to place themselves in Danae's position as a victim. Because the defense did not object to any of the prosecutor's challenged statements or ask the court admonish the jury, defendant has forfeited these appellate claims. (Williams, supra, 56 Cal.4th at p. 671.)
Even if we were to reach the merits of defendant's first contention, we would conclude it lacks merit. A prosecutor commits misconduct in closing argument by impugning the integrity of defense counsel or suggesting that counsel has fabricated a defense. (People v. Cash (2002) 28 Cal.4th 703, 732.) We find no such misconduct in the prosecutor's statements about defense counsel's "show," etc. upon our review of the record as a whole. In his closing argument defense counsel had made a dramatic personal appeal to the jury, telling them that defendant "has taught me a lot. . . . Truth and justice. I'd forgot[ten] that. As you get long in the tooth and your hair turns gray and you worry about making the mortgage and you worry about making the car payment and you worry your daughters can get through college, you forget at middle age, my life's half over. Why did I ever do this? I've asked myself that many [an] early morning. Now I know why. Justice. That's all I've ever asked you for." He went on to tell the jurors, "A not guilty verdict in this case is justice. . . . [¶] There is [an] exorcism that takes place called justice, and occasionally in these sterile rooms, and I've never seen a flower growing in one of these rooms, occasionally it rises up. And it takes over. And we need some justice in this case. He concluded with a story about a "young smart aleck" who tried to make a beloved old man in his village look like a fool by catching a little sparrow and asking the old man in public if the bird in his hand was dead or alive. The old man, figuring the youth held a live sparrow that he could crush in his hands if the old man answered that the sparrow was alive, "said simply, 'The bird is in your hands.' " Said defense counsel, "I place this bird in your hands."
It was following these remarks that the prosecutor referred to defense counsel's "performance," "play" and "show." We do not think there is a reasonable likelihood that jurors would perceive these comments as an attack on defense counsel's integrity or a suggestion that he fabricated a defense, particularly when the prosecutor said defense counsel could not be "blame[d]" for "doing the best he can for his client." Rather, the prosecutor's remarks would likely be taken for what they appear to be—a fair comment on the theatrical nature of defense counsel's appeals.
As for defendant's second contention, that the prosecutor improperly appealed to the jurors' sympathies and emotions by encouraging them to place themselves in Danae's position as a victim, this was misconduct. "It is 'settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt. [Citations.]' " (People v. Arias (1996) 13 Cal.4th 92, 160.)
Defendant argues that this misconduct was prejudicial, highlighting in particular the jury's notes to the court during their deliberations suggesting they were focusing on whether the shooting was an excusable, accidental homicide, as defendant contended. However, we think the prosecutor's misconduct was harmless, whether evaluated under the federal or state standards, in light of the overwhelming evidence that we have already discussed. This evidence was such that the jury could only reject the involuntary manslaughter charge and personal use enhancement if it concluded defendant, in the midst of the tension caused by his Jeep's breakdown and while still under the influence of alcohol and drugs, decided to clean a rifle he only infrequently cleaned while in his underwear in the family living room, aimlessly pointed the barrel directly at Danae's chest from less than a foot away, innocently failed to determine whether the rifle was loaded despite his safety training, and accidentally caused the rifle to misfire in a manner that the only expert for either side who tried, Evans, could not recreate, an event defendant did not mention until his interrogation with Dunagan. No reasonable juror could reach such a conclusion. In contrast, the prosecutor's misconduct was not very significant. We conclude it was undoubtedly harmless in light of this overwhelming evidence.
IV.
Defendant Is Entitled to Remand for Resentencing in Light of the Recent
Enactment of Senate Bill No. 620.
The court sentenced defendant to a consecutive five-year term for the personal use of an assault weapon enhancement imposed under section 12022.5, subdivision (b). He argues in a supplemental opening brief that we must remand the matter to the trial court to decide whether to strike this enhancement in light of newly enacted Senate Bill No. 620, effective January 1, 2018, which gives trial courts the discretion to impose this enhancement when they previously were required to impose it. The People agree. The parties are correct.
Former section 12022.5, subdivision (c) prohibited a trial court from striking a section 12022.5 enhancement finding. (Stats. 2011, ch. 39, § 60.) The new law amends section 12022.5, subdivision (c) 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, § 1.) This statutory amendment applies retroactively in any case in which is not yet final on appeal. (People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) Therefore, the amendment applies to defendant's case, and remand is necessary to give the trial court the opportunity to exercise its recently given discretion. We shall so order.
DISPOSITION
This matter is remanded to the trial court for resentencing so that the court may exercise its discretion regarding the assault weapon personal use enhancement imposed under section 12022.5, subdivision (b). The judgment is otherwise affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.