Opinion
C090931
07-22-2021
THE PEOPLE, Plaintiff and Respondent, v. NIRVAIR SINGH DHILLON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CR-FE-2017-0014876
KRAUSE, J.
Defendant Nirvair Singh Dhillon was convicted of crimes related to the murder of Ian Brooks (hereinafter referred to as the victim). On appeal, defendant contends the trial court erroneously admitted his statements to police because they were involuntary. He further argues the trial court improperly limited the testimony of his expert and thereby compromised his ability to present a defense. Finally, he argues the trial court erred in failing to instruct the jury with CALCRIM No. 3471 (“Right to Self-Defense: Mutual Combat or Initial Aggressor”).
The People argue the trial court erroneously failed to designate a principal term in the determinate portion of defendant's sentence. The People also contend the trial court erred in staying a portion of defendant's sentence pursuant to Penal Code section 654. We will vacate the sentence and remand for resentencing, but otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, his girlfriend, and the victim arranged via the Internet to engage in a sexual encounter on November 4, 2017, wherein the victim and girlfriend would have sex while defendant watched. They agreed to meet at the home of defendant and girlfriend.
Defendant and girlfriend had been in a relationship for more than one year and lived in the same home at the time of the murder. They referred to each other at times as husband and wife, but they were not legally married.
The victim arrived late in the evening, and defendant and the victim talked. The girlfriend joined them, and the three had drinks. At trial, the girlfriend testified that everyone was “getting along fine.” The victim and girlfriend began having sex while defendant watched. Defendant touched and kissed girlfriend, orally copulated the victim, and occasionally went into the kitchen to drink or smoke marijuana.
At one point, defendant left to purchase cigarettes, leaving girlfriend alone with the victim. It seemed to girlfriend that everyone was still “getting along fine.” Girlfriend and the victim continued having sex. Girlfriend eventually asked the victim to stop because she was tired, and he complied. The victim and girlfriend were dressed by the time defendant returned. The victim, who was sitting on the couch, asked defendant for a cigarette, and defendant angrily threw the cigarettes at him.
Girlfriend went upstairs to use the bathroom. She did not see a gun in defendant's hand when she left. While she was upstairs, she heard a gunshot. She returned downstairs and saw defendant standing two or three feet away from the victim, who was lying face-up on the floor, close to the door. The victim had a bullet wound in his forehead. Defendant had a gun in his hand and appeared nervous.
Girlfriend went upstairs and hid in a closet. She used the first phone she found, which was defendant's, to call 911. A recording of girlfriend's 911 call was played for the jury. Girlfriend tried to speak quietly to the 911 dispatcher so defendant would not hear her, and she said that she feared for her life. She said, “[Defendant] shoot this guy, and the guy, the guy tried to shoot him.” Meanwhile, defendant told her to open the closet door. Girlfriend asked defendant to give her the gun, but defendant said he did not have it.
Girlfriend admitted at trial that this testimony was based on a statement by defendant that the victim was going to kill both of them; girlfriend never saw the victim with a gun or act in a threatening manner.
Girlfriend eventually left the closet. At defendant's request, she got into bed with him and held him so he could sleep. Defendant fell asleep, but girlfriend remained awake.
The police arrived around 3:00 a.m. and used a loudspeaker to ask defendant and girlfriend to come out. A SWAT team arrived later, and at 7:14 a.m. deployed a “throw phone” (a box with a phone and cameras) to try to see what was going on inside the house and talk with defendant and girlfriend. Police saw the victim on the ground and heard him struggling to breathe. They also saw defendant come downstairs and look at the victim. Defendant lifted up a blanket or towel that was covering the victim and then put it back.
Defendant finally emerged from the house at approximately 7:30 a.m. He was placed in a police car and transported to the police station. The transporting officer testified that although he did not interview defendant, defendant “was talking to [him] a lot.” The officer placed defendant in an interview room at approximately 8:00 a.m. Defendant requested a place to lie down, and the officer responded that he needed to “talk to the bosses first and then we'll let you do that.” By bosses, the officer meant the detectives and investigators.
An officer who saw defendant at the police station at approximately 9:00 a.m. that morning testified defendant did not have any injuries, bruises, cuts, or abrasions when police interviewed him after the incident. There were no offensive or defensive wounds on his hands, and his T-shirt was not ripped. The officer testified defendant did not appear scared. Defendant told the officer he wanted to sleep, but the police did not provide a bed. Photographs of defendant taken by the police after the incident were shown to the jury.
Meanwhile, the victim was transported to the hospital. When he arrived, he was intubated because he was unable to breathe on his own. A treating physician determined that the victim's injuries were not survivable. The victim was declared brain dead on November 6, 2017, and later died. A medical examiner testified at trial that the victim died due to the gunshot wound.
A. Police interview girlfriend
The police, including Detective Daniel Peters, interviewed girlfriend at the police station just before 9:00 a.m. the morning after the incident. A recording of the interview was played for the jury. She told police that defendant invited the victim to their home to play out his sexual fantasy. Before the victim arrived, girlfriend and defendant argued about her ex-husband, and defendant threw a phone at her.
Girlfriend told police that she was upstairs when she heard a shot. She went downstairs and saw defendant holding the gun. Girlfriend asked what happened, and defendant pointed the gun at her, telling her she was next. Girlfriend got a blanket to cover the victim. Defendant said the victim was still alive and demanded she go upstairs and not call the police. Girlfriend went upstairs, hid in a closet, and called 911. Defendant found her and threatened to shoot her through the door. Defendant demanded to know why she had been intimate with the victim, and girlfriend felt like he was blaming her for the sexual encounter. She pleaded with him for mercy, reminding him that she had children. She laid down with him and he fell asleep. When he woke, the police had arrived.
B. Police interview defendant
After the interview with girlfriend was finished, Peters and Detective Joshua Gutierrez interviewed defendant. A recording of the interview was played for the jury. Defendant initially told police he shot the victim because he thought the victim was an intruder sent by girlfriend's ex-husband, who had repeatedly threatened and harassed them. The ex-husband had even threatened to have defendant killed. The victim fell to the ground after being shot, and defendant covered him up. Defendant then “panicked” because his gun was unlicensed. Defendant had purchased the gun approximately eight months before the shooting to protect his family. After the shooting, defendant returned upstairs to sleep with girlfriend.
Police gave defendant a break, offered him food, although he was not given anything to eat, gave him a blanket, and then told defendant that his story differed from what girlfriend had described. The detective also informed defendant they had been searching his house, and they found evidence that did not match defendant's story. Defendant said he wanted to pray and stop speaking to them. He eventually told police he had invited the victim to his home in order to have sex on the evening of the incident. The encounter started out well, with everyone “having fun.” The three drank alcohol and smoked marijuana. Defendant watched his girlfriend and the victim from the kitchen and occasionally joined in. About a half hour later, defendant left to purchase cigarettes. The sexual encounter resumed after he returned.
About 90 minutes after the victim first arrived, defendant went upstairs to use the restroom. When he returned, the victim was dressed. Angry that the victim was leaving, defendant asked why the victim would put up an ad, “come all this way, ” and not “be an adult about it.” The two men started arguing, but the victim did not call defendant any names. The victim stood up from the couch and took a step forward, and defendant “felt a little tension.” Defendant feared the victim would attack him, even though there was a coffee table between them and the victim did not come any closer.
Defendant walked to the kitchen and grabbed his gun, which was on top of the dining table and covered by a cloth. Defendant knew the gun was loaded and functional, and he held it at his side in his dominant hand as he walked toward the victim. The victim showed defendant his open and empty hands. Defendant felt “heated” and “angry, ” and the two men cursed at each other and argued in loud voices about the victim leaving. Both men were moving their arms. Defendant told the detectives that the victim was “provoking [him] and challenging [him], ” but defendant could not remember what the victim said. Defendant described the argument as “just words that were exchanged back and forth.” At one point, defendant asked the victim to leave.
Girlfriend, who was sitting nearby, asked defendant what he was doing, and defendant replied he was “just talkin' to [the victim].” Girlfriend asked defendant to stop, and suddenly the gun, which did not have a safety, went off. Defendant said he did not “plan” to shoot defendant, but it was “my fault.” When the detectives asked defendant why he shot the victim when all the victim did was raise his voice and stand up from the couch, defendant responded, “I think... he, um, he made some threats, ” but he could not recall what the victim said. Defendant denied ever pointing the gun at girlfriend.
The bullet hit the victim in the forehead, and he immediately fell to the floor and began bleeding. Defendant checked on the victim, but the victim was unable to speak. Girlfriend was scared and ran upstairs. Defendant covered the victim with a “cloth” so he would not be cold. Defendant put the gun down, and eventually took it to the car.
Defendant went upstairs, where he found girlfriend hiding in a closet. Defendant briefly tried to open the closet door. Girlfriend seemed scared and pleaded with defendant not to “do something” to her. At some point, defendant tried to convince her not to call 911 and took her phone. Girlfriend came out about 30 minutes later, shaking and crying, and laid down with defendant. Defendant heard something (the throw phone) crash through the window and got up. He realized police had arrived, and he complied with their orders to come outside.
Near the end of his interview with police, defendant said what happened was “on me, ” and the victim was not a “bad guy.” Still, he said “the situation just got outta hand.” Defendant said he no longer wanted to live, and that he should have shot himself before he got so angry.
C. Police investigation and medical evidence
Police investigators found a bullet casing in the family room, close to the kitchen, and an unfired ammunition cartridge in the family room. They also found a gun in girlfriend's car. Ballistics tests indicated the spent casing was fired from the same gun. DNA from the victim and girlfriend were found on the gun. A sexual assault examination and DNA analysis showed girlfriend had recent sexual contact with the victim and defendant.
D. Jailhouse call between defendant and girlfriend
During a call between girlfriend and defendant on November 14, 2017, girlfriend said she had told police that defendant and the victim had a “little argument.” Defendant said the victim got up to attack him, and he twice told the victim to leave. A recording of the call was played for the jury.
E. Medical evidence presented by defendant
Dr. Michael Laufer, a physician who practices in emergency medicine, trauma surgery and forensic pathology, testified for the defense as an expert in bullet trajectory. Dr. Laufer also had experience with firearms, including shooting competitively, teaching firearm safety, and teaching ballistics for law enforcement. Based on police reports, videos, transcripts from previous expert testimony, the autopsy report and photos, and photos from the scene, Dr. Laufer opined the bullet that killed the victim entered in the front part of the right side of his head, exited in the rear part of the right side of his head, and was on a slightly upward trajectory. The bullet appeared to have ended up in the ceiling or in the wall near the ceiling, indicating the firearm was fired below the victim's entry wound and was pointed upward. Dr. Laufer opined the shooter was holding the gun somewhere between his nipple and belly button, pointed slightly upward toward the ceiling (specifically 12 and a half degrees) and about one to two feet away from the victim's forehead.
In forming his opinion about the trajectory of the bullet, Dr. Laufer assumed the victim was standing upright. However, he testified that other scenarios were possible, and he did not know the shooter's position at the time the victim was shot-the shooter might have been kneeling or crouching, for example. Dr. Laufer also did not know the position of the victim. Dr. Laufer opined that, assuming both the victim and the shooter were standing, it was impossible for the gun to be positioned in a vertical manner.
F. Charges, verdict, and sentencing
In May 2018, defendant was charged with murder (§ 187, subd. (a); count 1), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), making criminal threats against girlfriend (§ 422, subd. (a); count 3), and inflicting corporal injury on girlfriend (a cohabitant or someone with whom defendant has or had a dating relationship) (§ 273.5, subd. (a); count 4). With respect to count 1, it further was alleged defendant intentionally discharged a firearm and proximately caused great bodily injury or death. (§ 12022.53, subd. (d).)
In June 2019, the jury found defendant not guilty of first degree murder but guilty of the lesser included offense of second degree murder. With respect to the murder count, the jury also found the firearm enhancement to be true. The jury found defendant guilty on counts 2 and 3. With respect to count 4, the jury found defendant not guilty of inflicting corporal injury on a cohabitant but guilty of the lesser included offense of battery on a cohabitant. (§ 243, subd. (e).)
In November 2019, the trial court denied defendant's motion for a new trial based on (1) prosecutorial misconduct; (2) erroneous admission of defendant's involuntary statements to police; (3) erroneous limitation of the defense expert's testimony; and (4) erroneous refusal to instruct the jury pursuant to CALCRIM Nos. 3471 (“Right to Self-Defense: Mutual Combat or Initial Aggressor”) and 3475 (“Right to Eject a Trespasser From Real Property”).
The trial court also denied defendant's motion to dismiss the firearm enhancement and sentenced defendant as follows: 15 years to life for count 1, plus 25 years to life consecutive for the firearm enhancement; two years for count 2, stayed per section 654; eight months consecutive for count 3; and credit for time served for count 4. The court also imposed various fines and fees.
DISCUSSION
I
We turn first to defendant's argument that the trial court erred in admitting his statements during the interview with police because they were involuntary.
A. Additional background
At trial, defendant similarly argued that his statements during the interview were involuntary and must be excluded. According to defendant, the police denied his requests to remove his handcuffs, give him water, or give him a break to smoke a cigarette, and provide a bed in which to lie down. Defendant also noted that the police held defendant in the room for more than five hours.
1. Evidentiary hearing
The trial court held an evidentiary hearing. (Evid. Code, § 402.) Detective Gutierrez testified he was the investigating officer for the victim's murder. Defendant was detained around 7:30 a.m. the morning after the incident and brought to the police station around 8:03 a.m. He was placed in an interview room. A video recording of defendant as he waited for the interview to start was provided to the court.
Defendant was provided water at 8:13 a.m. An officer helped him drink since he was still handcuffed with his hands behind his back. Some of the water spilled. At 8:17 a.m., defendant asked if he could have a bed because he wanted to sleep. Still, defendant seemed cordial and jovial. An officer suggested he could lean back and take a nap, but defendant declined. Instead, defendant paced around the room and yelled.
At 8:30 a.m., defendant asked officers to come in and keep him company. At 8:38 a.m., he again asked for a bed so he could sleep. When the officer came in, defendant said he was “lonely.” While alone in the room, defendant talked to God multiple times, saying, “I praise you Lord.” Defendant also said he would “give [his] life for the protection of [his] family, for the happiness of [his] family.” Defendant asked for water again at 8:50 a.m., and officers provided some at 9:02 a.m. Gutierrez was aware that defendant had slept after the incident, which Gutierrez estimated occurred between 11:00 p.m. and 3:00 a.m.
At some point, defendant mentioned he was experiencing pain in his right shoulder and asked officers to remove his handcuffs. Officers declined because the room was not secure. Defendant asked to be moved to a holding cell, an officer stated he would talk to his superiors. Defendant remained handcuffed with his hands behind his back for at least an hour. Defendant later told Gutierrez that his pain went away when the officers removed the handcuffs, although his shoulder was still hurting him.
At another point, detectives entered the room to take full body photographs of defendant. Defendant was given a paper gown to wear. Police provided defendant with a blanket at approximately 1:15 p.m.
Meanwhile, Gutierrez interviewed girlfriend for approximately 90 minutes starting around 9:00 a.m. Defendant was in the room next to girlfriend, and Gutierrez heard him yelling. An officer checked on defendant, and defendant said he was concerned about girlfriend's safety and asked the officer to protect her. Defendant said, “I will give everything up to you, God.”
Detectives Gutierrez and Peters interviewed defendant between approximately 11:14 a.m. and 4:00 p.m. A recording of the interview was provided to the court. At 11:18 a.m., Gutierrez advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and defendant agreed he understood. Gutierrez was not in the room from 11:18 to 11:48 a.m. During Gutierrez's absence, defendant appeared to be asleep. Gutierrez asked defendant how he felt, and defendant replied, “[P]hysically good.” Gutierrez interpreted this statement to mean defendant was physically okay but under stress.
Based on our review of the video of the interview, defendant appeared to take another nap while sitting on a chair with his feet up on another chair between approximately 1:22 to 1:47 p.m., or after he was provided the blanket. He was awoken by police to resume the interview.
During the interview, defendant appeared “alert” and “responsive.” Defendant was “[c]ordial” and “very talkative, ” and never indicated he did not want to speak to Gutierrez. Defendant “volunteered many details, ” such that Gutierrez found he did not have to ask many specific questions. The interview took place in two parts, with the first lasting approximately two hours. Defendant appeared upset and remorseful during the second portion of the interview, saying, “I already settled my fate, ” and, “I just want you guys to take me to a cell, so just get it over with. I just want to be in peace. I want to be at one with God and that's it. I just want to pray. I don't want to talk to anybody.” Gutierrez interpreted these statements as meaning that defendant was “having an internal struggle, and from a religious perspective wanted peace.” Gutierrez responded, “You can't be in peace.” Defendant replied, “I'm not in peace.” Defendant continued talking “freely and voluntarily” to Gutierrez after those statements for at least an hour, even initiating conversation.
Defendant was not provided any food during the interview (or during the time he was in the room before the interview started), although at one point during the interview Gutierrez asked if defendant would like some food and defendant said that he would. Defendant also asked for cigarettes, but Gutierrez denied the request, saying he had none.
At the end of the interview, Gutierrez asked defendant how he was treated that day, and defendant responded that he had been “treated well.” Gutierrez did not see defendant doze off during the interview. Defendant was able to answer Gutierrez's questions, and he did not appear to be under the influence of anything that made it difficult to communicate. Throughout the interview, Gutierrez mirrored defendant's demeanor and remained cordial.
2. Argument and trial court ruling
Defense counsel argued defendant's statements were involuntary because defendant was held from 7:30 a.m. to nearly 5:00 p.m. without being given anything to eat and only two cups of water, one of which he could not drink because he was handcuffed. In addition, the SWAT team had arrived at 3:30 a.m., defendant was arrested at 7:30 a.m., and he was kept in a police car until 8:30 a.m. Police denied defendant's repeated requests for cigarettes and told him he could have a place to lie down if the “bosses” approved and if he was cooperative. Police also told him he could lie on the cement floor, despite being clothed in a paper gown. Defendant also appeared to be in distress, since he was shouting, praying to God, hoping to be in peace, and asking Gutierrez to leave him in peace.
After reviewing the videos of defendant and considering Gutierrez's testimony, the court found defendant's statements to be voluntary and admissible. The court reasoned the interview was “quite jovial, ” and the officers and defendant seemed to get along. Police did not yell, accuse defendant of lying, or otherwise act aggressively. They also did not threaten, make promises, or otherwise deceive defendant. Although defendant had used drugs and alcohol, he did not appear to be under the influence at the time of the interview. It never appeared that he failed to understand a question, and he always answered appropriately. Defendant never appeared to be hysterical or distraught, even while he was pacing and asking God for help before the interview. He might have been uncomfortable, but he was given water. Although he was not given anything to eat, he never asked for food or indicated he was hungry. Defendant did not appear to be sleepy during the interview. In addition, there was no evidence defendant had low intelligence. At 35 years old, he was not youthful. Also, this was not his first contact with police, given his prior convictions. In sum, defendant “freely communicated with the officers.” Based on the totality of the circumstances, defendant's statements were deemed voluntary.
Defendant renewed the argument as part of his motion for a new trial. The trial court noted that it had fully reviewed defendant's statements before trial and stood by its prior finding that the statement was voluntary.
B. Defendant's argument on appeal
Citing People v. Esqueda (1993) 17 Cal.App.4th 1450, defendant argues the totality of the circumstances rendered his interrogation coercive. According to defendant, he “clearly” wanted to be left alone to sleep and pray. Defendant argues his confession was involuntary because the interrogation was long, he was stripped naked and forced to wear only a paper gown, he was distressed about his girlfriend, and police ignored his requests for a place to sleep. Defendant also argues the admission of his statements prejudiced his defense.
C. Legal standard and analysis
“ ‘ “[A]n involuntary confession may not be introduced into evidence at trial.”' [Citation.] ‘ “A statement is involuntary if it is not the product of ‘ “a rational intellect and free will.”' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's ‘will was overborne at the time he confessed.' ”' [Citation.] ‘In assessing whether statements were the product of free will or coercion, we consider the totality of the circumstances, including “ ‘ “the crucial element of police coercion, ”' ” the length, location, and continuity of the interrogation, and the defendant's maturity, education, and physical and mental health.' [Citation.] Police coercion is, indeed, crucial. To be considered involuntary, a confession must result from coercive state activity.” (People v. Sanchez (2019) 7 Cal.5th 14, 50.)
When reviewing a trial court's admission of a confession, we “accept the trial court's resolution of any factual dispute to the extent the record supports it, ” but we otherwise independently determine whether the confession was involuntary. (People v. Sanchez, supra, 7 Cal.5th at p. 48.) The People must establish the confession's voluntariness by a preponderance of the evidence. (Ibid.)
In Esqueda, the appellate court reversed the defendant's conviction for murdering his girlfriend/cohabitant because the trial court admitted statements from defendant that were coerced and obtained in violation of Miranda. (People v. Esqueda, supra, 17 Cal.App.4th at pp. 1454-1455.) The detective failed to advise the defendant of his Miranda rights until after the first hour of taped questioning at the police station, despite the questioning being very accusatory. (Id. at pp. 1457, 1465-1466, 1469.) In all, defendant was questioned for eight hours, during which time he received no rest, no food, and “little, if any, respite from the constant police pressure to confess.” (Id. at pp. 1480, 1485, 1486.) The police also lied to defendant about his girlfriend's condition and the evidence, including that his girlfriend had made a dying declaration accusing him of the crime. (Id. at p. 1485.) The police yelled at him, and questioned his manhood, telling him he would “burn in hell and prevent [his girlfriend] from resting in peace if he did not admit the killing or tell who did it.” (Id. at pp. 1468, 1473, 1486.) They also implied questioning would only stop if the defendant “gave them the story they wanted.” (Id. at p. 1485.) In addition, the defendant got sick during the interview and appeared distraught, exhausted, and confused throughout. (Id. at pp. 1466, 1469, 1480, 1485, 1486.) The defendant also indicated several times that he did not want to talk further, but the police continued questioning him. (Id. at p. 1486.) In sum, the police “used lies, accusations, exhaustion, isolation and threats to overcome [the defendant's] resistance.” (Ibid.)
Unlike Esqueda, the totality of the circumstances here indicate defendant's will was not overborne during the interrogation. The overall tone of the interview was friendly, and neither Gutierrez nor any of the other officers yelled, lied, made improper threats, promised leniency, or otherwise deceived defendant. He was “very talkative” during the ride from the crime scene and throughout the custodial interviews and never indicated he did not want to speak to Gutierrez. Defendant also was read his Miranda rights. He answered the officers' questions appropriately and did not appear exhausted or confused. He may have felt uncomfortable and in need of a bed and a cigarette, but he was given water, a blanket, and an opportunity to take a nap. Although food was not provided, he did not mention he was hungry or inquire again about the offer of food. Defendant said he felt “physically good” at the start of the interview, and at the end of the interview he said he felt he had been “treated well.” Moreover, defendant was not youthful, and there was no evidence he had low intelligence. Under the totality of the circumstances, we find defendant's statements to be voluntary.
II
Defendant next argues the trial court improperly limited the testimony of his expert, Dr. Laufer, on the positions of the shooter and the victim at the moment of the shooting. Defendant argues it was error to not allow Dr. Laufer to testify about whether the gun was pointed voluntarily, or to demonstrate the basis for his opinion. According to defendant, the decision compromised his ability to present his defense that the victim was the aggressor.
A. Additional background
During Dr. Laufer's testimony, defense counsel asked a series of questions about the position of the gun at the time the shooter (defendant) fired it, including asking Dr. Laufer to demonstrate with his hand how a gun similar to the one defendant used would be positioned. The prosecutor objected to each such question about the specific position of the gun.
The trial court sustained each objection and eventually held a bench conference. Defense counsel stated she intended to have Dr. Laufer show how the shooter was holding the gun, specifically that the gun was held at a 12-degree angle somewhere between the shooter's nipple and belly button. Defense counsel argued Dr. Laufer was able to make this determination because he knew how close the shooter was to the victim and where the bullet ended up. The prosecutor responded that there was no discovery on this issue. The prosecutor also noted that his expert had testified she was unable to opine regarding the gun's specific position, even though she also knew where the bullet ended up. The court agreed and held that it would not allow Dr. Laufer to testify as to how the shooter was holding the gun. Dr. Laufer's report did not contain the information, and such evidence was “speculation.”
During closing argument, defense counsel argued the prosecution failed to establish defendant was not acting in self-defense. She pointed to testimony from girlfriend that she was scared of the victim, and that defendant only got the gun after he and the victim began to argue. She also noted that argument had testified the victim threatened to kill them. She further argued that the prosecution's theory that defendant walked up and shot the victim was not possible given the trajectory of the bullet. She noted the bullet was fired from an upward trajectory, and the shooter was either shorter than the victim or kneeling. She also noted that only DNA from the victim and girlfriend were on the gun.
Defendant renewed his objections to the trial court's treatment of Dr. Laufer's testimony in his motion for a new trial. Defendant argued he did not receive a fair trial because Dr. Laufer was not allowed to testify about the trajectory of the bullet and what he believed to be the position of the shooter. The trial court rejected these arguments, noting that Dr. Laufer was not a ballistics expert and reasoning it had “wide discretion to decide what an expert can testify to.”
B. Legal standard and analysis
An expert's opinion testimony must be “ ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).)” (People v. Brown (2014) 59 Cal.4th 86, 101.) In addition, it “must not be based upon speculative or conjectural data.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338.) The facts assumed by an expert, or a hypothetical question posed to an expert, “must be based upon facts shown by the evidence.” (Id. at p. 339.) A trial court has broad discretion to admit or exclude expert testimony, and we review its decision for abuse of discretion. (Brown, supra, at p. 101.)
We conclude the trial court did not abuse its discretion by excluding Dr. Laufer's testimony regarding the exact position of the gun during the shooting. To be clear, Dr. Laufer was allowed to testify regarding where the shooter likely held the gun in relation to his body (i.e., somewhere between his nipple and belly button), how the gun was pointed (i.e., pointed upward toward the ceiling at a 12 and a half degree angle), and how far the gun was from the victim's forehead (one to two feet away). Dr. Laufer based these opinions on his analysis of where the bullet entered the victim, and where it ended up. To the extent Dr. Laufer was not allowed to opine on whether the gun was pointed voluntarily, to demonstrate how the gun was held, or to demonstrate the basis for his opinion, the trial court correctly held that such evidence would have been speculative. In reaching his conclusions, Dr. Laufer assumed the victim was standing upright. However, he testified that other scenarios were possible, and he did not know the position of the victim or the shooter. It would have been conjecture for Dr. Laufer to demonstrate or further opine as to how exactly defendant held the gun when he shot the victim, including whether the gun was held voluntarily.
Given our conclusion, we also reject defendant's claim that the trial court's ruling violated his right to present a defense. (Crane v. Kentucky (1986) 476 U.S. 683, 687-691 [90 L.Ed.2d 636, 643-646]; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [35 L.Ed.2d 297, 312-313].) “Although a defendant has the general right to offer a defense through the testimony of his or her witnesses, ‘a state court's application of ordinary rules of evidence... generally does not infringe upon this right....' ” (People v. Linton (2013) 56 Cal.4th 1146, 1183.) The jury heard Dr. Laufer's testimony regarding the trajectory of the gunshot, and defendant was able to argue that the evidence established that the victim was the aggressor. In sum, we find no error.
III
Defendant next contends that the trial court erred in refusing to instruct the jury with CALCRIM No. 3471, which provides that a person who starts a fight or engages in mutual combat has a right to self-defense only if (1) he actually and in good faith tried to stop fighting; (2) he indicated to his opponent that he wanted to stop fighting and that he had stopped fighting; and (3) in the case of mutual combat, gave his opponent a chance to stop fighting. According to defendant, there was sufficient evidence to support the instruction, and the failure to give the instruction left the jury without a proper basis to evaluate his defense.
A. Additional background
During trial, defense counsel requested CALCRIM No. 3471, arguing that defendant throwing the pack of cigarettes at the victim could be an “initial aggressor situation.” The court agreed with the prosecutor that the actions of defendant and the victim did not amount to mutual combat, and declined to give the instruction.
Defendant raised the issue again in his new trial motion, arguing substantial evidence supported the instruction. Defendant noted that girlfriend testified that there was an “aggressive argument” between the victim and defendant. In addition, girlfriend told the 911 dispatcher that the victim tried to shoot defendant, and defendant shot him in response. The trial court denied the motion, reasoning the instruction was not supported by substantial evidence. The trial court noted there was no evidence defendant tried in good faith to stop fighting, indicated to the victim he wanted to stop, or gave the victim an opportunity to stop.
The trial court instructed the jury with the following self-defense-related instructions: CALCRIM No. 505 (“Justifiable Homicide: Self-Defense or Defense of Another”) and CALCRIM No. 571 (“Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another”).
The jury was instructed pursuant to CALCRIM No. 505 as follows: “The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if the defendant reasonably believed that he or [girlfriend] was in imminent danger of being killed or suffering great bodily injury, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger and the defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. The defendant's belief must have been reasonable and he must have acted only because of that belief. [¶] The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified. When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not have to actually exist. [¶] The defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and if reasonably necessary to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating. [¶] Great bodily injury means significant or substantial physical injury. It's an injury that's greater than minor or moderate harm. [¶] The People have the burden of proving beyond a reasonable doubt the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder.”
The jury was instructed pursuant to CALCRIM No. 571 as follows: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. [¶] The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if the defendant actually believed he or [girlfriend] were in immediate danger of being killed or suffering great bodily injury and the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger, but at least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] Danger is imminent if when the fatal wound occurred the danger actually existed or the defendant believed it existed. The danger must seem immediate and present so it must be instantly dealt with. It may not be merely perspective or in the near future. [¶] Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder.”
B. Analysis
“A party is entitled to a requested instruction if it is supported by substantial evidence. [Citation.] Evidence is ‘[s]ubstantial' for this purpose if it is ‘sufficient to “deserve consideration by the jury, ” that is, evidence that a reasonable jury could find persuasive.' [Citation.]... ‘It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]' [Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) We independently review whether the court erred by failing to instruct on self-defense. (People v. Simon (2016) 1 Cal.5th 98, 131, 133.)
In support of his argument that sufficient evidence existed to support giving CALCRIM No. 3471, defendant points to girlfriend's statement to the 911 operator that the victim tried to shoot defendant. In addition, defendant notes he told police that he argued with the victim, and that the victim made threats during the argument that he perceived as provoking. Defendant further notes he told the victim to leave.
At best, the evidence established that the two men were arguing when the victim suddenly attempted to shoot defendant, and defendant responded by shooting the victim. Because this scenario fails to establish that defendant initiated a fight with the victim, or that the two men were engaged in mutual combat, CALCRIM No. 3471 is inapplicable. (See People v. Hecker (1895) 109 Cal. 451, 464-465 [discussing right to self-defense when the defendant engages in an act that is unlawful but not felonious], superseded by statute on other grounds as stated in People v. Hardin (2000) 85 Cal.App.4th 625, 633-634.) Given the instructions regarding perfect and imperfect self-defense, we find no error.
IV
The People contend the trial court erred in staying defendant's sentence on count 2 (being a felon in possession of a firearm) pursuant to section 654. Specifically, they argue there is insufficient evidence to establish that defendant harbored only a single intent or objective in both possessing the firearm and murdering the victim, or that the offenses arose out of the same course of conduct. They note that defendant intended to kill the victim when he shot him, but he acquired the firearm several months before meeting the victim. We agree with the People.
Defendant contends the People's argument under section 654 was forfeited and the authorities on which they rely do not support the contention that the stay imposed in this case was an unauthorized sentence. We reject defendant's attempt to recast the People's argument as a “challenge to the statement of reasons given by the trial court.” It is settled that “the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3.)
Section 654 prohibits multiple punishment for a single act or multiple acts comprising an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) If a defendant is convicted of two offenses that are part of an indivisible course of conduct, the trial court must stay the sentence for one of the offenses. (Id. at p. 592.) Whether a course of criminal conduct is divisible depends on whether the defendant had a separate objective for each offense. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) Where a defendant has been convicted of both being a felon in possession of a firearm and a crime in which he used that firearm, “multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1144.) We review a trial court's section 654 ruling for substantial evidence, considering the determination in the light most favorable to the defendant. (Id. at p. 1143.)
Here, the evidence only supported the inference that defendant harbored separate intents in the two crimes. Defendant purchased the gun eight months before shooting the victim to protect his family. His intent in possessing the gun was therefore distinct from his intent in shooting the victim, whom he had only met online a couple of days before the shooting. As such, section 654 does not apply, and the appropriate remedy is to remand for resentencing.
Given our conclusions, we need not reach the People's contention that the trial court erred in sentencing defendant to eight months on count 3 (making criminal threats against girlfriend) because it failed to designate a principal determinate term, as required under section 1170.1. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [on remand for resentencing, the trial court has jurisdiction to modify every aspect of the sentence on the counts that were affirmed].)
DISPOSITION
Defendant's sentence is vacated, and the case is remanded to the trial court for resentencing consistent with this opinion. The trial court is directed to prepare a revised abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: MAURO, Acting P. J., RENNER, J.