Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA028641, Sam Ohta, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, Judge
Defendant Reginald M. Fields was convicted by a jury of two counts of first degree murder arising out of an incident which occurred on September 24, 1990. With respect to each count, the jury found true the allegation that he personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a)(1). The trial court sentenced him to two consecutive terms of 25 years to life for the murders, plus two consecutive terms of 10 years for the firearm enhancements, for a total sentence of 70 years to life.
Further statutory references are to the Penal Code.
Fields contends the trial court committed reversible error in denying his Wheeler/Batson motion, in declining to instruct the jury on involuntary manslaughter, and in the manner in which it instructed on the doctrine of transferred intent. We reject Fields’s assertions of instructional error, but agree with his claim that the court erred in ruling that he had not made a prima facie case on his Wheeler/Batson motion. Fields, who is African-American, objected to the prosecutor’s use of a peremptory challenge on an African-American woman. He attempted to make his prima facie case by referencing the prosecutor’s prior use of peremptory challenges on two African-American men. The court refused to allow Fields to discuss the prior challenges, limiting the discussion to the peremptory challenge that was the subject of Fields’s motion. The court improperly precluded Fields from showing a pattern of discriminatory challenges. Based on our review of the entire record of voir dire, we conclude that a prima facie case existed. Accordingly, we conditionally reverse the judgment and remand the matter to the trial court for further proceedings on Fields’s Wheeler/Batson motion.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
The parties agree that the trial court erred in sentencing Fields on the firearm enhancements and in making its award of presentence credits because the court applied statutory law which post-dated the offenses and could not be applied retroactively. In the event the court denies Fields’s Wheeler/Batson motion, we direct the court on remand to recalculate Fields’s credits and to correct the sentencing errors.
BACKGROUND
The crimes charged in this case occurred on September 24, 1990 in Los Angeles. Fields was apprehended in Mexico on April 5, 2006 and extradited to the United States. An information filed August 15, 2007 charged Fields with the 1990 murders of Jason Combs and Leon Jefferson. It also alleged that Fields personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a)(1). Fields represented himself at trial.
I. Prosecution Case
On the day of the shooting, but many hours earlier, Fields was with a woman named Caroline Lard. Lard was an eyewitness to the shooting which occurred later that evening. Fields and Lard had spent the previous three days together. They were involved in a sexual relationship. They had grown up in the same neighborhood in Los Angeles and had known each other for many years. Fields drove Lard back to the neighborhood and dropped her off.
Lard also was having a sexual relationship with another man named Jason Combs, also known as J. Rock. Combs is one of the two murder victims. Lard was confident that Fields had learned about her relationship with Combs and that this information would have made Fields angry. Fields and Combs did not know each other. But four or five hours before the shooting, Lard saw Fields and Combs come into contact with one another. Fields ran by Combs, “bumped into him [Combs], looked at him, and kept running.”
In the evening, Lard went to the home of her godfather, Leon Jefferson. Jefferson is the other murder victim. Also at Jefferson’s home that night were Combs, Yolanda Griffith and Dariel Jones. Like Lard, Griffith had grown up in the same neighborhood as Fields and had known him for at least 20 years. The group at Jefferson’s home was drinking, smoking crack cocaine and playing cards and dominoes. They were gathered in the front room of Jefferson’s home. Jefferson was lying in a bed in the same room.
Lard had a history of drug use and abuse. At the time of the shooting, she was selling drugs to support her habit. She admitted to several convictions for possession of drugs and possession of drugs for sale. Her last arrest for possession of drugs for sale was about two years before trial. In 1998, Griffith was convicted of possession of drugs for sale.
At about 10:00 p.m., someone knocked on Jefferson’s door. Combs opened it. According to Lard, Fields “pushed [his] way in[to]” the house, armed with a semiautomatic gun. He immediately began shooting at Combs. A man whom Lard knew as “Country” rushed into the house behind Fields. Country was armed with a revolver. Fields fired multiple rounds at Combs. Lard became hysterical and begged Fields to stop shooting Combs.
Griffith recalled the events somewhat differently than Lard. According to Griffith, Country “rushed” through the door with his gun pointed at Combs. Combs wrestled Country down to the ground. Griffith heard a gunshot. Jefferson hollered that he had been hit. Combs came up with the gun in his hand. It was pointed straight down at the ground. Fields entered the home “right after Country, ” and immediately pointed his gun at Combs and fired “[a] lot” of shots at Combs.
When Fields stopped firing shots at Combs, he and Country ran out the door to a back alley and fled in Fields’s car. All of the women left Jefferson’s house before the police arrived. Jones left during the shooting. Lard and Griffith left after the shooting. Lard went to her brother’s house and he called the police.
Jefferson was taken to the hospital, but he died from the single gunshot wound he had sustained. Combs sustained eight gunshot wounds. He died at the scene. Five bullets were recovered from his body. The police found four spent nine-millimeter Luger casings at the scene that had been ejected from a semiautomatic weapon. Given that Combs had sustained more than four gunshot wounds, this finding caused the investigating detective to believe that there were two shooters, one of whom had used a revolver. Spent casings are not ejected from a revolver.
Following the shooting, Lard and Griffith each met with police and identified Fields as the shooter. The police never identified the man known as Country. The police conducted surveillance, but were unable to locate Fields. Detectives contacted Fields’s brother, Jimal Shepard, and let him know they were looking for Fields.
In or about 1991, Fields called Shepard. Fields told Shepard that he was in Mexico, that he could not return to Los Angeles, and that he was using a different name. Shepard told Fields that the police were looking for him.
The evidence which was booked in connection with this shooting was destroyed in 2000; the reason was not discussed at trial. Fields was apprehended in Mexico in 2006.
II. Defense Case
Fields testified at trial, and presented an alibi for the time of the shooting. He stated that he was either in San Diego or Mexico on September 24, 1990. He denied ever being inside Jefferson’s home.
Fields also testified about why he went to Mexico. In September 1990, before the shooting, a friend invited Fields to a party in San Diego. There, Fields met a man who lived in Mexico. Fields traveled with the man to Mexico for a visit, and then returned to Los Angeles.
Fields stated that, “about the time of this murder, ” he returned to San Diego. He learned that a man he was acquainted with intended to rob his new friend from Mexico. Fields went across the border to warn his friend.
Fields called his sister from Mexico and she told him that the police were looking for him. Fields knew that the acquaintance in San Diego “wanted to get” him because he had alerted his friend about the planned robbery. Fields got a job in Mexico, met a woman whom he married, had children and settled down in Mexico.
Fields stated that he knew Lard, Griffith, Jones and Jefferson, but did not know Combs. He admitted that he was having some sort of dating or sexual relationship with Lard, but denied knowledge of her relationship with Combs.
Fields admitted that he had been convicted of selling cocaine.
The jury found Fields guilty of the first degree murders of Combs and Jefferson. With respect to both murder counts, the jury found true the allegation that Fields personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). For each count, the trial court sentenced Fields to 25 years to life plus a consecutive term of 10 years for the firearm enhancement. The total prison term imposed for both counts is 70 years to life.
DISCUSSION
I. Wheeler/Batson Motion
Fields, an African-American man, contends the trial court erred in ruling on his Wheeler/Batson motion because the court would not allow him to discuss the prosecutor’s prior challenges of African-American jurors in attempting to make his prima facie case. We agree.
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article 1, section 16 of the California Constitution. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612.) The Batson three-step inquiry is well established. “‘“First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must decide... whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]”’” (People v. Hawthorne (2009) 46 Cal.4th 67, 78.) Our analysis is limited to the first step of the Batson three-step inquiry. As discussed further below, the trial court found that Fields did not make a prima facie case. The prosecutor declined the court’s invitation to state any reason for the peremptory challenge at issue.
After the parties selected a jury and the jury was sworn, the trial court determined the same day that it needed to excuse four of the jurors based on the court’s belated determination that these jurors did not “have full command over the English language.” The court decided that the parties would select eight alternate jurors, four of whom would replace the jurors the court planned to excuse. During the selection of alternates, the prosecutor used a peremptory challenge to excuse an African-American woman, Juror No. 85. Then Fields made his Wheeler/Batson motion, referencing the prosecutor’s prior use of peremptory challenges on two, male African-American jurors. The following exchange took place at sidebar:
“The Defendant: I noticed the prosecutor, your Honor, he’s excluding a lot of the African-Americans off the jury. We had two black males and these gentlemen being excused, but the prosecution has shown a method where he’s keeping -- excluding all blacks for no apparent reason. The two black gentlemen he excluded, according to People vs. Jenkins, there was no need to excuse him. The People had the same cases as they did [sic]. [¶] One of them was a lawyer and the other guy was a construction worker or an engineer and they didn’t give any adverse answers to any questions where they felt that they should have not about excluded [sic]; so I would like to note for the record that the prosecution, Mr. Cooper, is excluding all the African-American people on this jury and I would like somebody to be black, too. I would like a mixture.
“The Court: Are you making a motion or are you just making -- are you making
“The Defendant: This is more or less like a Wheeler/Batson.
“The Court: Are you making a motion or not?
“The Defendant: Yes.
“The Court: You’re making a motion for the very last juror?
“The Defendant: Yes, your Honor. Be brought back.
“The Court: Well, she’s left. You need to let me know before she left.
“The Defendant: Well, I tried to. That is why I asked could I say something before I spoke. I didn’t want to be rude to the court and speak out of turn.
“The Court: You have not made a Batson/Wheeler motion on anyone else other than Juror No. 85. You have not made a Batson/Wheeler motion on anyone.
“The Defendant: No, I haven’t.
“The Court: This is the first one you are raising?
“The Defendant: Yes, your Honor.
“The Court: As to Juror No. 85, you may state your grounds as to why you believe there is discrimination going on.
“The Defendant: Okay. Juror No. 85 -- I think that it was discrimination because, as we can see before the prosecution has exercised his peremptory challenges for the first panel, we had African-Americans.
“The Court: We don’t go back as to what he did previously. You have to deal with Juror No. 85.
“The Defendant: Juror No. 85 -- she came up to the sidebar with us. She told us she had problems but it would not affect her decisions. So she could be fair not only to the defendant but to the People as well. Since she’s an African-American woman and the prosecution has excluded all African-Americans, I think it is prejudice, your Honor.
“The Court: I would note that Mr. Cooper has not excluded all the African-Americans. There’s at least one African-American left on the jury that Mr. Cooper has accepted. As for Juror No. 85, you have the burden of establishing an inference of discriminatory purpose. I’ve looked over Juror No. 85’s answers to the questions posed. I do not believe at this point that you have established an inference of discriminatory purpose. [¶] Mr. Cooper, if you wish to make a record concerning why you exercised the peremptory challenge as to Juror No. 85, you’re welcome to do so, but it is not required.
A prima facie case of discriminatory exclusion of an African-American juror may be made despite a prosecutor’s acceptance of another African-American juror. (See People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 4 [“a single discriminatory exclusion may violate a defendant’s right to a representative jury”].)
“Mr. Cooper: I’m not required to make a prima facie case?
“The Court: No.
“Mr. Cooper: Then no.
“The Court: Then we’ll move on.
“The Defendant: Thank you.”
During his exchange with the trial court, Fields made clear that he was making his Wheeler/Batson motion as to Juror No. 85 only. He was not objecting to peremptory challenges the prosecutor had made before the jury was sworn. He was referencing those prior challenges in making his prima facie case that the prosecutor challenged Juror No. 85 because of her race. He was attempting to show a pattern of discriminatory challenges. The court refused to allow him to discuss the prior challenges and limited his discussion to Juror No. 85. As the authorities discussed below demonstrate, the court erred in interfering with Fields’s ability to make a proper prima facie case of group bias.
“To make a prima facie showing of group bias, ‘the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent.’” (People v. Davis (2009) 46 Cal.4th 539, 582, quoting People v. Kelly (2007) 42 Cal.4th 763, 779.) In People v. Davis, supra, the California Supreme Court reviewed the types of evidence on which a prima facie case may be based: “‘Though proof of a prima facie case may be made from any information in the record available to the trial court, we have mentioned “certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic–their membership in the group–and that in all other respects they are as heterogeneous as the community as a whole. Next the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.”’ [Citations.]” (Id. at p. 583.)
Fields’s attempt to discuss the prosecutor’s prior peremptory challenges in stating his prima facie case of group bias was proper. In People v. Avila (2006) 38 Cal.4th 491, 552, the California Supreme Court noted that the prior excusal of an African-American prospective juror was “part of the totality of the relevant facts to be considered in determining a prima facie case of group bias” on the defendant’s subsequently made Wheeler objection concerning the excusal of another African-American prospective juror. The trial court erred in limiting discussion to Juror No. 85 and refusing to allow Fields to discuss the “totality of the circumstances.” (People v. Davis, supra, 46 Cal.4th at p. 582.)
In deciding whether further proceedings on Fields’s Wheeler/Batson motion are necessary, we have reviewed the entire record of voir dire to determine whether Fields could have stated a prima facie case had the trial court allowed him to present argument regarding the prosecutor’s prior challenges of African-American prospective jurors. “When a trial court denies a Wheeler motion because the movant failed to establish a prima facie case of group bias, the reviewing court examines the entire record of voir dire for evidence to support the trial court’s ruling. [Citation.] The ruling is affirmed if the record ‘suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1172-1173.)
We begin our discussion with the relevant facts surrounding the excusal of Juror No. 85, the subject of Fields’s Wheeler/Batson motion.
Juror No. 85
In providing her biographical information, Juror No. 85 stated: “I live in Highland Park. I am married, no children. I work in sales, and my husband works in computers[;] and never served [on a jury].” In response to a follow-up question from the court, Juror No. 85 stated that she sold nutritional supplements. She raised her hand in response to the court’s inquiry whether any prospective juror or anyone close to any prospective juror had been a victim of crime. She stated: “Car theft. House broken into and I was assaulted.” The court asked whether she wanted to discuss the assault in open court or at sidebar, and she chose sidebar. The questioning of the group continued. Juror No. 85 raised her hand in response to the court’s inquiry whether any prospective juror or anyone close to any prospective juror had law enforcement background. She stated that her aunt had been a police officer in Los Angeles. In response to the court’s inquiry whether any prospective juror or anyone close to any prospective juror owned a gun, Juror No. 85 raised her hand and stated: “My mom has a rifle, a shotgun, and a handgun [for] protection.”
At sidebar, Juror No. 85 informed the court and the parties that she had been sexually assaulted when she was 18 years old; she was 34 years old at the time of jury selection in this case. She did not report the assault to the police and no one was arrested. The court asked her: “Is there anything about what happened to you in that incident that would cause you to be biased against the prosecution or the defendant here?” She responded, “No.” Then the court asked her: “Is there anything about what happened to you that would make it difficult for you to sit in a case that involves violence?” Again, she responded, “No.” The parties stated that they did not have any questions for Juror No. 85 about the assault.
During subsequent group questioning, the prosecutor stated: “Now, you heard the judge’s instructions. He read the reasonable doubt instruction. How many of you have heard that term before you came here today, beyond a reasonable doubt? [¶] How about you, Juror 85, have you ever heard that?” She responded: “Yes, I have.” Neither party asked Juror No. 85 any further questions.
As soon as the court called Juror No. 85 up as a prospective alternate juror, and the prosecutor was able to use a peremptory challenge on her, the prosecutor asked the court to excuse her.
Based on Juror No. 85’s responses, we can conceive no obvious reason why the prosecutor would have removed her from the jury panel. We are not saying that the prosecutor did not have a race-neutral reason for challenging her. We are saying that a race-neutral reason is not apparent from the record. We are mindful of the fact peremptory challenges “may be made on an ‘apparently trivial’ or ‘highly speculative’ basis, ” and indeed “may be made ‘“without reason or for no reason, arbitrarily and capriciously.”’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 294.)
We disagree with the People’s assessment on appeal that: “A reasonable prosecutor might have concluded that Juror 85’s failure to report the [sexual assault] showed lack of faith in the criminal justice system, or a preference simply to ‘let things be’ rather than pursue criminal charges. A reasonable prosecutor might also have been concerned that Juror 85’s harrowing personal experience with a violent home-invasion crime might affect her judgment in unpredictable ways, given that the charged murders here also involved a home invasion.” The People also assert Juror No. 85’s statement that her personal history with violent crime would not cause her to be biased “could not be confirmed in any way because she had never served on a jury in the past.”
First, the reasons that spring to mind for a woman’s refusal to report a sexual assault are not those offered by the People. It is not obvious to us that a “reasonable prosecutor” would have concluded that Juror No. 85 had a lack of faith in the criminal justice system or a preference that violent crimes not be reported. Second, the People’s assessment is based in part on a misapprehension of relevant facts. The People assert in the respondent’s brief that Juror No. 85 stated that she was sexually assaulted on the same occasion when a perpetrator broke into her home. She never indicated that the crimes were connected. Nor did she indicate that she was present when the person broke into her home. Thus, the People’s characterization of Juror No. 85’s “personal experience with a violent home-invasion crime” like the crimes charged in this case is pure speculation and not supported by the record. Third, a prospective juror’s prior jury service is no measure of bias or lack of bias.
We reiterate that, based on our review, the record does not suggest any ground on which the prosecutor might reasonably have challenged Juror No. 85.
We next discuss peremptory challenges the prosecutor made before the jury was sworn and the process of selecting alternates began.
Juror No. 16
In arguing his Wheeler/Batson motion, Fields referenced the peremptory challenge the prosecutor had used on an African-American man who “was a construction worker or an engineer.” Based on our review of the entire record of voir dire, it is apparent that Fields was referring to Juror No. 16, given this prospective juror’s description of his employment. When the court asked him to provide his biographical information, Juror No. 16 had the following exchange with the court: “Prospective Juror No. 16: Yes. Baldwin Hills, California. I am single. I am a construction cost engineer during the day, and at night I’m a record producer/engineer. And I have served on a jury before for a domestic case.
At the time that Juror No. 16 was excused, he was the only prospective juror who had stated that he worked in construction. There was only one other prospective juror who had identified himself as an engineer (Juror No. 43). Juror No. 43 cannot be the prospective juror whom Fields was referring to in support of his Wheeler/Batson motion because the record does not indicate that the prosecutor used a peremptory challenge on that prospective juror.
“The Court: So domestic violence?
“Prospective Juror No. 16: Uh-huh.
“The Court: How many years ago?
“Prospective Juror No. 16: About seven, eight years ago.
“The Court: Seven or eight. Did the jury reach a verdict?
“Prospective Juror No. 16: Yes we did.
“The Court: Thank you.”
The record does not indicate that Juror No. 16 spoke again or raised his hand in response to any question from court, the prosecutor or Fields. The prosecutor used his eighth peremptory challenge on Juror No. 16. By that point, Jurors 1 through 65 had given their biographical information and had been questioned by the court and the parties.
Each side had 20 peremptory challenges to use before the jury was selected and sworn. The prosecutor used 18 of those challenges. Each side had eight peremptory challenges to use during the selection of alternate jurors. The prosecutor used his second of those challenges on Juror No. 85, the subject of Fields’s Wheeler/Batson motion.
The record suggests no grounds for the prosecutor’s challenge of this juror.
Juror No. 15
In arguing his Wheeler/Batson motion, Fields also referenced the peremptory challenge the prosecutor had used on an African-American man who was “a lawyer.” Based on our review of the entire record of voir dire, it is apparent that Fields was referring to Juror No. 15. In providing his biographical information, Juror No. 15 stated that he was a transactional attorney who practiced in the area of finance law. He was married and had three daughters. His wife used to be a software trainer but did not work anymore. He lived in South Pasadena.
At the time that Juror No. 15 was excused, there was only one other male prospective juror who had identified himself as a lawyer (Juror No. 47). Juror No. 47 cannot be the prospective juror whom Fields was referring to in support of his Wheeler/Batson motion because the record indicates that Fields used a peremptory challenge on that prospective juror.
Juror No. 15 raised his hand and responded to several questions posed to the group by the court, Fields and the prosecutor. In response to the court’s inquiry regarding good or bad experiences with law enforcement, Juror No. 15 raised his hand and stated that he had “been[] racially profiled on several occasions” by the police in New Haven Connecticut, where he grew up. He described one “scary” incident which occurred when he was home on a break from college: “I was approached by police more than I could count, guns drawn. Apparently, I fit a profile. And the experience, I believe, was quite unfair and I think it had nothing to do with anything I had done or was guilty of.” He did not file a complaint with the police department.
When Fields asked about club memberships, Juror No. 15 responded that he was a “member of clubs and multiple bar associations and [his] church.” When Fields asked whether anyone believed “that because a person is addicted to drugs that they are a bad person or could come to court and not tell the truth because of their drug addiction, ” Juror No. 15 responded: “I don’t think that I would automatically discredit someone, but drug addiction is a problem in my family and I think it does affect someone’s credibility depending on what they are testifying about. Like, for example, if they are testifying and said they never did drugs, I would doubt that if there were proof there was drugs. I’m not quite sure I understand the depth of the question.” Juror No. 15 agreed with Fields’s statement that a drug user could be considered credible if his or her testimony “matched up to the evidence.” In response to another question by Fields, Juror No. 15 stated his opinion that if a person were to commit a criminal act and then flee, that “would imply guilt.”
The prosecutor asked Juror No. 15 specifically whether he had had any reaction when he heard that Fields had chosen to represent himself. Juror No. 15 indicated that he wondered why Fields would do that. The prosecutor asked the group whether anyone felt it was “unfair” or had “any other discomfort” with the fact that the crimes occurred in 1990 and Fields was being prosecuted nearly 20 years later. Juror No. 15 responded: “It struck me as odd, but I’m not familiar. That just could be the normal time. I don’t know. When you mentioned that or it was mentioned, I thought it was odd.”
The prosecutor used his eleventh peremptory challenge on Juror No. 15.
The record suggests reasonable grounds for the prosecutor’s challenge of Juror No. 15. He had had bad experiences with law enforcement, he questioned the delay in prosecution of the case and his familial experience with drug addiction had caused him to question the credibility of drug users. Eyewitness Caroline Lard had a history of drug use and abuse.
Juror No. 16’s excusal, discussed above, is all the more suspect in light of Juror No. 15’s exchanges with the court and the parties. Juror No. 15 was quite vocal during voir dire, responding to many questions. Juror No. 16 said nothing other than his brief biographical statement.
Juror No. 9
In arguing his Wheeler/Batson motion, Fields did not reference Juror No. 9. The prosecutor used his second peremptory challenge on this prospective juror. Juror No. 9 identified himself/herself on the record as an African-American. It is not clear from the record whether this prospective juror is male or female. In providing biographical information, Juror No. 9 stated: “Altadena, California. I’m single. No children. I’m unemployed. And no, I have not served on a jury before.” Before the unemployment, Juror No. 9 had worked in the mailroom for an entity called Southwest Administrators.
During group questioning by the court, Juror No. 9 stated that he/she had been arrested for marijuana possession and served four or five days in jail in La Crescenta. Juror No. 9 believed that sheriff’s deputies pulled him/her over immediately prior to the arrest because they saw that he/she was African-American. Juror No. 9 stated that he/she could be fair and objective as a juror on the case despite that experience. Juror No. 9 also revealed that his/her father was a deputy probation officer and his/her brother-in-law had worked for the San Antonio Police Department. Juror No. 9’s father had owned a handgun for his work.
The prosecutor asked Juror No. 9 specifically about any reaction to the fact that Fields had chosen to represent himself. Juror No. 9 responded: “I would say that is bold.”
The record suggests a reasonable ground for the prosecutor’s challenge of Juror No. 9 given his/her arrest for marijuana possession and his/her belief that sheriff’s deputies target people because of their race.
Considering the totality of the circumstances set forth in the record of voir dire, we conclude that Fields established a prima facie case of group bias regarding the challenge of Juror No. 85. She was (at least) the fourth African-American juror the prosecutor had challenged. The record does not suggest a ground on which the prosecutor might reasonably have challenged her. The prosecutor’s previous challenge of Juror No. 16, an African-American man, gives rise to an inference of a discriminatory purpose. The record indicates that, other than providing biographical information, Juror No. 16 did not speak during voir dire. He did not respond to any of the group questions posed by the court, Fields and the prosecutor. Neither party asked him a direct question. On this record, a prima facie showing exists that the prosecutor was challenging African-American jurors based on race. The trial court should have conducted the second and third steps of the Batson inquiry. Our opinion should not be construed to imply a lack of race-neutral grounds for the prosecutor’s challenge of Juror No. 85.
Fields argues the appropriate remedy is to remand the matter for a new trial. In People v. Johnson (2006) 38 Cal.4th 1096, 1103-1104, the California Supreme Court held that the appropriate remedy, where the trial court had erred in its decision regarding the first step of the Batson inquiry, and therefore had not reached the other two steps, was to remand the case to the trial court for further proceedings. Because the voir dire in this case occurred less than two years ago, and there is a complete record of voir dire, we conclude a limited remand is an appropriate remedy. (See People v. Hutchins (2007) 147 Cal.App.4th 992, 998-999.)
On remand the trial court “should attempt to conduct the second and third Batson steps. It should require the prosecutor to explain his challenge[to Juror No. 85]. If the prosecutor offers a race-neutral explanation, the court must try to evaluate that explanation and decide whether defendant has proved purposeful racial discrimination. If the court finds that, due to the passage of time or any other reason, it cannot adequately address the issues at this stage or make a reliable determination, or if it determines that the prosecutor exercised his peremptory challenge[] improperly, it should set the case for a new trial. If it finds the prosecutor exercised his peremptory challenge[] in a permissible fashion, it should reinstate the judgment.” (People v. Johnson, supra, 38 Cal.4th at pp. 1103-1104.)
Because our reversal is conditional, we address the other issues Fields raises on appeal.
II. Jury Instructions
A. Involuntary manslaughter
Fields contends the trial court erred in declining to instruct the jury on involuntary manslaughter. We disagree.
During a conference on jury instructions, Fields asked the court to give the following instruction, which he had prepared: “If you find that the defendant killed another human being but due to a sudden quarrel or an honest but mistaken belief of the necessity to act in self-defense, the killing is manslaughter. You must decide whether it is voluntary or involuntary manslaughter. Unless you are convinced beyond a reasonable doubt that the defendant had the intent to kill or acted with conscious disregard for human life, as defined in these instructions, you must find him guilty of involuntary manslaughter.”
The trial court explained to Fields that there was no need for him to create a new instruction on sudden quarrel or self-defense because standard pattern instructions already existed covering these theories. The court informed Fields that it would not give these instructions, however, because there was no substantial evidence supporting theories of sudden quarrel, heat of passion or self-defense. The court added: “The only evidence I have is that the defendant and Country invaded a home with guns and shot people in that home. That is the evidence that exists.”
Fields never explained below how a theory of involuntary manslaughter applied to his case. He did discuss the issue further with the trial court. He did not present evidence supporting, nor did he argue such a theory. When he testified, he presented an alibi defense. Now, on appeal, Fields argues that substantial evidence supported instructions on involuntary manslaughter because the “jury could have found that the homicide of Jefferson was involuntary manslaughter, caused by Country’s criminally negligent brandishing of the gun at Combs.” For the reasons explained below, we disagree that substantial evidence in the record warranted instructions on involuntary manslaughter under Fields’s new and previously undisclosed theory of the case.
“Manslaughter is the unlawful killing of a human being without malice.” (§ 192.) Manslaughter is “involuntary” where the killing occurs “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Drawing or exhibiting a deadly weapon “in a rude, angry, or threatening manner” is a misdemeanor offense. (§ 417.) A finding of involuntary manslaughter is supported where a defendant unlawfully exhibits a gun in an angry manner during a quarrel and the gun accidentally discharges because, for example, someone bumps into the defendant. (See People v. Southack (1952) 39 Cal.2d 578, 583-584; see also People v. Lee (1999) 20 Cal.4th 47, 60-61.) “Involuntary manslaughter is ordinarily a lesser offense of murder.” (People v. Abilez (2007) 41 Cal.4th 472, 515.)
A trial court errs if it fails to instruct “on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude”’ that the lesser offense but not the greater, was committed.” [Citation.]” (Ibid.)
In People v. Breverman, the California Supreme Court addressed the trial court’s sua sponte duty to instruct on a lesser included offense. (People v. Breverman, supra, 19 Cal.4th at p. 162.) The principles set forth in Breverman also are applicable here where Fields requested an instruction on a lesser included offense and the trial court declined to give it. (See People v. Elize (1999) 71 Cal.App.4th 605, 610.)
Fields argues that a portion of Yolanda Griffith’s testimony supports his new theory that, at the time Jefferson was killed, Fields had not formed the intent to kill Combs, and Country’s only intention was to scare Combs by brandishing a weapon, a misdemeanor offense. (§ 417.) Fields asserts that substantial evidence demonstrates that neither Country nor Fields had formed the intent to kill Combs until after Combs struggled with Country and the gun accidentally discharged, firing the bullet that killed Jefferson. Thus, Fields contends that his later-formed intent to kill Combs cannot be transferred to the prior killing of Jefferson.
Fields’s new theory of involuntary manslaughter is not supported by the evidence. Fields and Country armed themselves with loaded weapons and went to the home of the man who was having a sexual relationship with the same woman as Fields. According to Griffith, Country “rushed” through the door with his gun pointed at Combs. No words were exchanged. Country did not threaten Combs. Combs wrestled Country down to the ground and then the shot rang out that hit Jefferson. Combs came up with the gun, but did not hold it up or point it at anyone; instead, the gun was pointed at the floor. Fields entered the home “right after Country, ” and immediately pointed his gun at Combs and fired “[a] lot” of shots at Combs.
Lard’s version of the evening’s events does not support a theory of involuntary manslaughter. As set forth above, Lard testified that Fields and Country “bust[ed] in the door” with Fields immediately firing his weapon at Combs multiple times.
The record does not contain substantial evidence requiring the trial court to instruct on involuntary manslaughter under the theory-not articulated below-that neither Country nor Fields had formed the intent to kill Combs until after the shot was fired that killed Jefferson. There was no argument inside the home that precipitated the shooting. According to Griffith’s testimony, Country and Fields rushed into the home one right after the other with guns aimed at Combs. Fields shot Combs multiple times. Five bullets were recovered from Combs’s body. Griffith’s testimony does not constitute substantial evidence indicating that Fields formed the intent to kill Combs after hearing the shot that killed Jefferson, entering the home and seeing Combs holding Country’s gun. This is not a reasonable interpretation of Griffith’s testimony. She stated that Combs entered the home right after Country and immediately started firing at Combs. The trial court did not err in declining to instruct on involuntary manslaughter.
Even if the trial court did have a duty to instruct on involuntary manslaughter, any error could not have been prejudicial because the jury’s findings demonstrate that the jury necessarily rejected Fields’s current version of events. (See People v. Lewis (2001) 25 Cal.4th 610, 646.) If the jury had credited the portion of Griffith’s testimony that Fields now relies on, it would not have found true the allegation that Fields personally used a firearm during the commission of Jefferson’s murder. Griffith testified that Fields entered the home immediately after Jefferson was struck with the bullet. Based on her testimony, Fields did not use his firearm until after the killing of Jefferson had occurred. According to the testimony of both eyewitnesses, Fields came into the home and started shooting immediately. The only manner in which Fields “used” his firearm was in shooting it. There is no testimony indicating that he displayed it “in a menacing manner” before he fired it. (CALCRIM No. 3146.) Thus, the jury must have believed Lard’s account on this issue and concluded that Fields was shooting at Combs when Jefferson was killed.
B. Transferred Intent
Fields contends the trial court did not instruct properly on transferred intent. We disagree.
Using CALCRIM 562, the trial court gave the following instruction on transferred intent: “If the defendant intended to kill one person, but by mistake or accident also killed someone else, then the crime, if any, is the same for the unintended killing as it is for the intended killing.” This is a correct statement of the law. (See People v. Shabazz (2006) 38 Cal.4th 55, 62.) The court also instructed on aiding and abetting (CALCRIM Nos. 400 & 401) as well as the requirement of “proof of the union, or joint operation, of act and wrongful intent (CALCRIM No. 251).
Fields argues that the court had a sua sponte duty to instruct the jury further that “transferred intent applies only when the unintended victim [Jefferson] is killed in the course of the attempt to kill the intended victim [Combs], or while defendant harbors the intent to kill the intended victim.” By failing to ask the court to give an instruction clarifying or amplifying CALCRIM 562, Fields forfeited this claim on appeal. (People v. Geier (2007) 41 Cal.4th 555, 579 [where trial court’s instructions are correct on the law, defendant forfeits claim of instructional error by failing to request a clarifying or amplifying instruction].)
In any event we already have rejected Fields’s new theory that “Jefferson may have been shot in the course of Country’s brandishing of his gun at Combs, before Fields formulated the intent to kill Combs, ” which is the basis for this claim of instructional error. The court did not err in failing to give instructions based on an unarticulated theory of the case which was not supported by substantial evidence.
III. Sentence on Firearm Enhancements
On each murder count, the trial court imposed a consecutive 10-year prison term for the firearm enhancement under section 12022.5, subdivision (a). The trial court made clear that it was imposing the upper term for these enhancements, and stated its reasons for doing so. Fields contends the trial court erred in imposing his sentence on the enhancements. The People concede the errors, as set forth below.
In September 1990, when the offenses occurred, the punishment for personal use of a firearm under section 12022.5, subdivision (a), was three, four or five years. (Stats. 1989, ch. 18, § 3, ch. 19, § 2, ch. 1044, § 5 & ch. 1167, § 5 [the 1989 amendment changed the term from two years to “three, four, or five years”].) Section 12022.5, subdivision (a), was amended on November 30, 1994 to include the upper term of 10 years. (Stats. 1993-1994, 1st Ex. Sess., ch. 31, § 3, p. 8650 & ch. 33, § 6, p. 8677 [the 1994 amendment changed the term from three, four or five years to “3, 4, or 10 years”].) The parties are correct that imposition of the 10-year terms violated the ex post facto clauses of the federal and state constitutions. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.)
Moreover, in 1990, California law did not allow the imposition of multiple firearm enhancements on multiple murders that occurred as part of “one occasion, one intent, one objective, one indivisible transaction.” (In re Culbreth (1976) 17 Cal.3d 330, 335.) This changed in 1993 when the California Supreme Court overruled Culbreth and held in People v. King (1993) 5 Cal.4th 59, 79, that “a firearm-use enhancement under section 12022.5 may be imposed for each separate offense for which the enhancement is found true.” The Supreme Court made clear that the “Culbreth rule” applied to crimes predating the Court’s opinion in King. (Id. at p. 80.) The murders of Combs and Jefferson occurred as part of one indivisible course of conduct. Thus, the parties are correct that the trial court should have imposed only one five-year enhancement under section 12022.5, subdivision (a).
Fields does not argue that imposition of the upper term was improper.
We order the trial court to correct these errors on remand, as set forth in the disposition below.
IV. Presentence Credits
Fields contends, and the People agree, that he is entitled to one additional day of credit under section 2900.5 for his actual days in presentence custody. The trial court awarded Fields 1, 318 days of actual credit. The parties agree that Fields is entitled to 1, 319 days. Fields was arrested in Mexico on April 5, 2006, and he was sentenced on November 13, 2009. He is entitled to credit for the actual days he spent in presentence custody, including the day of his arrest and the day of his sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) This also includes presentence time spent in Mexico. (In re Watson (1977) 19 Cal.3d 646, 654 [“a defendant convicted of a felony is entitled to credit pursuant to section 2900.5 against his sentence for the presentence time spent in jail in a foreign jurisdiction resisting extradition to this state on charges of which he has been ultimately convicted”].)
Fields also contends, and the People agree, that he is entitled to conduct credits, which the trial court did not award. The statutory provisions which eliminate presentence conduct credit for murderers, sections 190, subdivision (e), and 2933.2, were not operative at the time the murders were committed in 1990, and may not be applied retroactively. (See People v. Hutchins, supra, 90 Cal.App.4th at pp. 1315-1318.) The parties are correct that Fields is entitled to an award of presentence conduct credits under section 4019. As Fields has noted, section 2933.1, subdivision (a) which provides that a violent felon “shall accrue no more than 15 percent of worktime credit, ” was enacted in 1994, and may not be applied retroactively. (§ 2933.2, subds. (a) & (d); Stats. 1994, ch. 713, § 1.)
We order the trial court to calculate Fields’s conduct credits on remand, as set forth in the disposition below.
DISPOSITION
The judgment is conditionally reversed and the cause remanded for further proceedings on Fields’s challenge to the prosecutor’s use of a peremptory challenge to Juror No. 85. If the trial court determines the challenge was exercised for a race-neutral reason, the trial court shall then (1) recalculate Fields’s presentence custody credits, including actual custody (1, 319 days) and conduct credits (to be calculated), (2) correct the judgment by striking the two, 10-year firearm enhancements imposed under section 12022.5, subdivision (a), and imposing one, five-year firearm enhancement under section 12022.5, subdivision (a), and (3) reinstate the original judgment in all other respects. If, however, the trial court finds that due to the passage of time or for any other reason it cannot adequately address the issues on Fields’s Wheeler/Batson motion or make a reliable determination on that motion, or if it concludes that the prosecutor exercised the
challenge to Juror No. 85 on the basis of that juror’s race, the judgment shall remain reversed and the trial court shall set the case for a new trial.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.