Opinion
D072282
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. HAUATI FAANUNU, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana C. Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE357222) APPEAL from a judgment of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Remanded for resentencing, and in all other respects affirmed. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana C. Butler, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Hauati Faanunu guilty of one count of first degree murder (Pen. Code, § 187, subd. (a)) and six counts of misdemeanor child endangerment (§ 273a, subd. (b)) after he shot and killed his wife in their home where the couple's six children were present. In connection with the murder conviction, the jury found that Faanunu personally and intentionally discharged a firearm in committing the murder (§ 12022.53, subd. (d).) The trial court sentenced Faanunu to a prison term of 50 years to life, with a 36-month determinate prison term for the misdemeanor counts to run concurrently.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Faanunu raises three issues on appeal. First, he contends that the trial court erred by ruling that the victim's family members and friends could wear T-shirts during trial memorializing the victim. However, Faanunu concedes in his reply brief that he is unable to establish that the ruling caused any prejudice because there is no indication in the record that any of the spectators wore the T-shirts during trial. Second, Faanunu argues that we should remand this matter to the trial court for a new sentencing hearing for the trial court to decide whether to exercise its discretion to strike the firearm enhancement pursuant to newly enacted section 12022.53, subdivision (h). Third, Faanunu contends that insufficient evidence supports five of the six misdemeanor child endangerment convictions because the children at issue in those counts were not in the same room when Faanunu shot and killed their mother and did not see their mother's dead body.
We conclude that this matter should be remanded to allow the trial court to decide whether to exercise its discretion to strike the firearm enhancement pursuant to the newly enacted section 12022.53, subdivision (h), but that Faanunu's remaining contentions lack merit. Accordingly, this matter is remanded for resentencing for the limited purpose of considering whether the firearm enhancement should be stricken, and in all other respects the judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Faanunu and his wife, Mary, had six children. At the time of the relevant events, the oldest child was 13, and the youngest child was two or three years old. In October 2015, Mary filed for divorce from Faanunu, but the couple and their children were still living in the same home, with Mary and Faanunu sleeping in different bedrooms. Faanunu was upset about the divorce and about an intimate online relationship that Mary had with a man she met through work but had never met in person.
At the time of trial, which took place approximately 16 months after the murder, the children's ages were 15, 12, 11, 9, 5, and 4.
On December 31, 2015, the family stayed at home together celebrating New Year's Eve. At approximately 12:30 a.m. on January 1, 2016, Faanunu walked into the bedroom that Mary was sharing with the couple's eight-year-old child, where Mary and the child were lying in separate beds. Faanunu spoke briefly with Mary, and the child asked whether Faanunu had a gun in his hand. Faanunu denied having a gun and told the child to go into another room. The child did not leave, and Faanunu then shot Mary in the head with a gun from a distance of six to 15 inches. The gunshot killed Mary instantaneously. The child screamed and ran into the room where the two oldest children were, and told them "dad shot mom." The oldest child remembered hearing the gunshot inside the house as a loud pop that sounded like a firework.
Faanunu reported the shooting to 911 and then put all six children into the car and drove them to their grandparents' house, which was nearby. Before getting in the car, the 13-year-old child sent a text message to his grandfather, stating "Help mom now." On the way to the grandparents' house, Faanunu showed the 13-year-old child a note he had typed on his cellphone, which the child understood as indicating that Faanunu was going to kill himself. The child pleaded with Faanunu not to do so. After Faanunu dropped off the children, he went to the police station and turned himself in for killing his wife. When the children spoke to the grandparents, they told them that "dad shot mom." The grandparents described the children as being "in shock."
Faanunu was charged with one count of murder (§ 187, subd. (a)) along with an allegation that Faanunu personally and intentionally discharged a firearm in causing the death (§ 12022.53, subd. (d)); one count of felony child endangerment for the child who was in the room during the killing (§ 273a, subd. (a)); and five counts of misdemeanor child endangerment for the five other children who were in the house during the killing (§ 273a, subd. (b).) The jury found Faanunu guilty of first degree murder and made a true finding on the firearm allegation. On the count alleging felony child endangerment, the jury found Faanunu guilty of the lesser included offense of misdemeanor child endangerment, and it found Faanunu guilty of the remaining five misdemeanor child endangerment counts.
On the murder count, the trial court imposed a sentence of 25 years to life, plus an additional term of 25 years to life for the firearm enhancement, for a total indeterminate sentence of 50 years to life. On the misdemeanor child endangerment counts, the trial court imposed a collective sentence of 36 months, which it ordered to run concurrent to the indeterminate prison term.
II.
DISCUSSION
A. Faanunu Has Not Established Prejudice from the Trial Court's Ruling Allowing Spectators to Wear T-shirts Memorializing Mary
During an in limine hearing, the prosecutor asked the trial court to allow Mary's family members and friends to wear T-Shirts in the courtroom memorializing Mary. The graphic on the front of the proposed T-shirts had Mary's name in the middle, surrounded by numerous positive adjectives and nouns. The graphic on the back of the proposed T-shirts said, "In Loving Memory" and Mary's full name. The trial court ruled that it would not allow the graphic proposed for the front of the T-shirts because it would be impermissibly testimonial, but after taking the matter under submission for several days, the trial court ruled immediately before opening statements began that it would allow the graphic on the back of the T-shirts stating, "In Loving Memory" of Mary. Trial proceeded, and defense counsel made no record as to whether the T-shirts were, in fact, printed and worn in the courtroom during trial in the presence of the jurors.
In Faanunu's opening appellate brief, he argues that the trial court erred in allowing the T-shirts with the graphic stating "In Loving Memory" of Mary because the display of the T-shirts in the presence of the jurors deprived Faanunu of his right to a fair trial. Faanunu's argument is based on the principle that " '[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment' " and "[b]ecause the presumption that a defendant is innocent until proved guilty is a 'basic component of a fair trial under our system of criminal justice,' 'courts must be alert to factors that may undermine the fairness of the fact-finding process' and 'must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.' " (People v. Zielesch (2009) 179 Cal.App.4th 731, 744 (Zielesch).)
As Faanunu recognizes, case law has evaluated whether spectators' display of buttons or placards showing a murder victim's likeness violates a defendant's right to a fair trial, taking into account, in part, whether the trial court admonished the jury to disregard the displays. (See Zielesch, supra, 179 Cal.App.4th at p. 745 [spectators' wearing of buttons with the murder victim's likeness was not unduly suggestive of guilt in part because of trial court admonition, and defendant's "claim to the contrary is an insult to the intelligence, integrity, and resolve of jurors"]; People v. Houston (2005) 130 Cal.App.4th 279, 311, 318 [in a case where the trial court admonished the jury, spectator buttons and placards bearing the likeness of the murder victim did not threaten defendant's right to a fair trial].)
Faanunu argues that the T-shirts were impermissible here because (1) "the jurors' perceptions of [Mary] were directly relevant to the issues" and the T-shirt "had the same effect as if a spectator had been allowed to directly approach a juror to speak of that spectator's sense of loss;" and (2) the trial court failed to give an admonition to the jury regarding the T-shirts.
As the People point out, the record contains no evidence that the T-shirts were ever printed and worn at trial. "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see also People v. Cornwell (2005) 37 Cal.4th 50, 88 ["the defendant must establish prejudice" to succeed on a claim of spectator misconduct].) Based on this principle, the People argue that "because the record does not reveal that any shirts were worn at trial, by whom, how often, or prominently, [Faanunu] has not affirmatively demonstrated that the error of which he complains actually occurred." In his reply brief, Faanunu concedes that the record does not establish that the T-shirts were worn during trial, and that accordingly "on this record there is an insufficient basis to find prejudice" from the trial court's ruling allowing the T-shirts to be worn.
Here, because Faanunu concedes that he cannot establish that he incurred any prejudice due to the trial court's ruling, we reject the argument set forth in Faanunu's opening brief that reversal of the judgment is required due to the trial court's ruling regarding the T-shirts. B. The Matter Will Be Remanded for the Court to Consider Whether to Exercise Its Discretion to Strike the Firearm Enhancement
Faanunu's second argument is based on section 12022.53, subdivision (h), which went into effect on January 1, 2018, and gives the trial court discretion, in the interest of justice, to strike an enhancement for firearm use alleged and found true under section 12022.53, subdivision (d).
The firearm enhancement in section 12022.53, subdivision (d) states, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." Here, the trial court imposed a prison term of 25 years to life for the firearm enhancement.
The newly enacted section 12022.53, subdivision (h), states that "[t]he 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." (§ 12022.53, subd. (h).) Prior to the amendment, the imposition of the enhancement was mandatory. In this case, because the statutory amendment went into effect after the trial court sentenced Faanunu in May 2017, the trial court did not have an opportunity to consider whether to exercise its discretion to strike or dismiss Faanunu's firearm enhancement. Faanunu contends that because his case is not yet final he should be given the opportunity to have the trial court consider whether to strike or dismiss the 25-year-to-life enhancement for firearm use that the trial court imposed in this case under section 12022.53, subdivision (d).
The People do not dispute that the amendment to section 12022.53 allowing the trial court to strike a firearm enhancement applies retroactively to cases, such as this, that are not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66; People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) However, the People contend that it is unnecessary for us to remand this matter because "there is no reasonable likelihood in light of the facts of this case that the court would exercise its discretion to strike the firearm enhancement."
We reject the People's argument that remand is unnecessary. "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Only if " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand to exercise discretion to strike prior strike convictions is not required where "the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations"].) Here, the trial court did not make any comments at the sentencing hearing that would permit us to conclude that the court categorically would not exercise its discretion under section 12022.53, subdivision (h) to strike the subdivision (d) enhancement.
This case is not like People v. Almanza (2018) 21 Cal.App.5th 1308, in which the trial court concluded that because there were other indications in the record that the trial court has chosen not to be lenient in sentencing the defendant, it would be futile to remand the matter for the trial court to decide whether to strike the firearm enhancement. Here, the limited sentencing options available to the trial court did not require the trial court to decide whether to take a lenient approach to sentencing.
We therefore remand this case to allow the trial court to exercise its discretion as to whether to strike the firearm enhancement. We express no opinion as to how the trial court should exercise that discretion on remand. C. Substantial Evidence Supports the Misdemeanor Child Endangerment Verdicts for the Children Who Were Not in the Room Where the Shooting Occurred
Faanunu's final argument is that insufficient evidence supports the verdict against him on the five counts of misdemeanor child endangerment for the five children who were not in the same room as Faanunu when he murdered Mary.
Faanunu does not challenge the sufficiency of the evidence as to the misdemeanor child endangerment verdict relating to the eight-year-old child who was in the same room and witnessed the murder.
"In considering a challenge to the sufficiency of the evidence . . . we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
As set forth in section 273a, subdivision (b), "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor." (§ 273a, subd. (b).) "Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct." (People v. Burton (2006) 143 Cal.App.4th 447, 454 (Burton).) "When a charge of child abuse is based on the mental suffering resulting from a child being exposed to physical abuse by one parent against the other, the theory at issue is indirect child abuse, for which criminal negligence is the requisite mental state." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1441.)
The People's theory of guilt is that because Faanunu killed Mary while the children were in the same house, Faanunu is guilty of misdemeanor child endangerment because he inflicted "unjustifiable . . . mental suffering" on the children within the meaning of the statute. Faanunu, in contrast, contends that the evidence is not sufficient to support such a finding because "the children . . . were not aware of the shooting when it occurred," and "[a]lthough they became aware shortly after, they did not see [Mary's] body or the gun."
The case most closely on point is Burton, supra, 143 Cal.App.4th 447. In that case, the defendant was convicted of misdemeanor child endangerment toward his son when the defendant slashed the face of the child's mother several times while the child was nearby, but on the other side of a wall. (Id. at pp. 450, 451.) Although the child did not see the attack and was not in physical danger, he was nearby during the attack and saw his mother's bloody face immediately afterwards. (Id. at p. 454.) Burton concluded that substantial evidence supported the conviction of misdemeanor child endangerment. "A reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being on the scene while his father slashed his mother's face several times, and then immediately seeing the horrible, bloody aftermath." (Id. at p. 455.) As Burton summarized its holding, "we conclude that a parent may be convicted of misdemeanor child endangerment under section 273a, subdivision (b), by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene." (Id. at p. 450.)
The defendant attacked the mother near her car while the child was on the other side of a wall urinating before getting into the car. (Burton, supra, 143 Cal.App.4th at p. 451.) --------
Here, as in Burton, Faanunu inflicted serious violence on the children's mother while the children were at the scene, and thus a reasonable juror could conclude that the children endured unjustifiable mental suffering due to Faanunu's conduct. As in Burton, in determining whether the children endured unjustifiable mental suffering, "[w]e must bear in mind that the attacker was not just anyone, but the [children's] father, and the victim was not just anyone, but the [children's] mother." (Burton, supra, 143 Cal.App.4th at p. 455.)
We acknowledge, as Faanunu points out, that this situation is somewhat different from Burton because the children did not see their mother's body after she was shot. However, the record nevertheless contains ample evidence of unjustifiable mental suffering inflicted on the children. For one thing, the situation here was significantly more traumatic for the children in comparison to Burton because Faanunu killed their mother while they were at the scene rather than merely injuring her as in Burton. Further, although the children did not directly witness the shooting by seeing it, they were in the same house, and were able to hear the gunshot as their mother was killed. Moreover, immediately after the shooting, the children were confronted with the screams and emotional anguish of their eight-year-old sibling, who had witnessed the shooting.
Under the circumstances, we conclude that the mental suffering inflicted on the children in this case was at least as great as the mental suffering inflicted on the child in Burton due to the fact that Faanunu violently murdered their mother while they were in the same house and they found out about it immediately afterwards. Accordingly, as in Burton, the evidence in this case was sufficient to support a finding of misdemeanor child endangerment on each of the five counts challenged by Faanunu.
DISPOSITION
This matter is remanded for resentencing for the limited purpose of allowing the trial court to decide whether to exercise its discretion to strike the firearm enhancement pursuant to section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.