Opinion
B322287
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. MANUEL G. FRAGAMADAN, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA486958, Henry J. Hall, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
WEINGART, J.
In 2022, a jury convicted defendant and appellant Manuel G. FragaMadan of one count of first degree murder (Pen. Code, § 187, subd. (a)) for his role in the 1984 killing of Johnny Williams and rape of Patricia H., who was Williams's girlfriend. FragaMadan and an accomplice planned to rob Williams in his motel room, but he was not there when they entered. They found Patricia in the room and took turns raping her. When Williams returned and refused to give them money or drugs, they shot him in the head. The crime was unsolved for decades until the Los Angeles County Sheriff's Department (LASD) tested DNA recovered from the crime scene and found that it matched FragaMadan's.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Patricia, the sole percipient witness to the murder, died several years before FragaMadan became a suspect and, at trial, the prosecution relied on statements she made to police on the night of the murder. The prosecution also presented a recorded conditional examination in lieu of live testimony from a retired detective who investigated the killing in 1984. FragaMadan contends that the admission of these out-of-court statements violated his Sixth Amendment right to confront adverse witnesses, as well as the Evidence Code. He also argues the trial court erred by admitting his own statements to investigators regarding his involvement in other uncharged crimes, by failing to conduct a competency hearing in response to his trial attorney's concerns regarding his ability to understand the proceedings, and by instructing the jury incorrectly as to the intent required for a finding of a felony-murder special circumstance (§ 190.2, subd. (a)(17)). Finally, FragaMadan contends the trial court erred in calculating his presentence conduct credits and in imposing certain fines. We agree with FragaMadan as to the presentence credits and the fines, but we otherwise affirm for reasons we explain below.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Investigation by Deputy Richard Garcia
At around 2:00 a.m. on July 12, 1984, Richard Garcia, who was working as a LASD patrol deputy, received a report of shots fired at a motel on Vermont Avenue in an unincorporated area of southern Los Angeles County. Garcia and his partner were the first officers to arrive on the scene, where they encountered Patricia and her son, who was approximately two years old.
Garcia became a homicide detective and a sergeant later in his LASD career.
Patricia was "hysterical, crying," and told Garcia that her boyfriend was in a room of the motel and had been shot. According to Garcia, Patricia said "that she and her boyfriend had been in the room with another female and that the other female and her boyfriend had left and left her and the child alone. While she was in the room there was a knock at the door. She looked out the window and she saw it was a female out there, . . . who asked her . . . for drugs. She went to open the door. And at that point the door was forced open and two males entered the room."
Patricia described the men as Black male Cubans carrying "dark-colored large caliber handguns." They entered the room, directed Patricia to the bed, and took turns raping her. The men then directed Patricia to go into the bathroom, where she waited until she heard Williams returning. Patricia heard voices arguing, and Williams said he had no drugs or money. She pushed open the bathroom door and saw Williams on his knees holding his hands up. She heard a gunshot and slammed the door. Soon afterward, Patricia heard a second gunshot. She came out a little while later and saw Williams's body.
After speaking with Patricia, Garcia went up to the room where Patricia said the shooting occurred. He found Williams's body on the floor surrounded by blood. Williams had suffered two gunshot wounds, one to the leg and another to the back of the head. Garcia also saw a .45-caliber casing on the floor. Paramedics arrived on the scene and confirmed Williams was dead.
B. 1984 Investigation by Detective Birl Adams
LASD detective Birl Adams arrived on the scene with his partner at about 3:35 a.m. and took control of the investigation. Garcia directed the detectives to the bedding and towels in the room, and the detectives secured two towels, two bedsheets, and one pillowcase, along with the shell casing, as potential evidence. The detectives also found various drug paraphernalia in the room, as well as pieces of a $10 bill and a $20 bill torn in half. Coroners examining Williams's body later found an additional $71, also torn in half, in his pocket. Adams testified that the torn currency suggested it was associated with criminal use, allowing for "half [payment] up front and the other half after the deal was completed."
At 6:25 a.m., Adams and his partner interviewed Patricia again, this time at the police station. Patricia gave largely the same account of the events that night as she had given to Garcia, with some exceptions including how many people were in the motel room before everyone left and when she went into the bathroom. She told the detectives that Williams had been living at the motel for about two months. Patricia arrived at around 10:45 p.m. with her young son and a friend to find Williams with two other women. Williams left the room at 11:00 p.m. with one of the women to pick up some cocaine, and Patricia's friend and the other woman went out later, leaving Patricia and her son alone. About 15 minutes later, there was a knock at the door, and Patricia saw a White woman outside. She opened the door, and two Black Cuban men rushed in with guns pointing at her. They demanded money and dope, and when Patricia said she was only visiting and did not have any, they searched her and made her take off her clothes. One of the men told her to get on the bed and had sex with her while the other man ransacked the room. The other man said he could not find anything, and the men decided to wait. The second man forced Patricia to perform oral sex on him until he climaxed. Patricia's two-year-old son was asleep on the other bed while these events occurred, and Patricia stated that she complied with the men's demands because they threatened to kill her son if she did not.
Patricia heard a knock at the door and grabbed her clothes. Williams opened the door with his key, and one of the men pulled him inside, pointed his gun at him, and asked where the money and dope was. Williams held his hands up and said he had no money or dope, and Patricia went to hide in the bathroom. Patricia heard a gunshot but could not see who fired it. Patricia could hear Williams talking after the gunshot, saying things like, "don't be doing that." Approximately two minutes later, Patricia heard a second shot, the light in the room went out, and the door closed. She waited a few minutes, then ran to the manager's office for help.
Patricia told the detectives that she had seen the two men once before at a house a few blocks away, where they had been dealing drugs. She also said one of the men had something wrong with his eye, but she could not describe it.
C. 2018 DNA Test and Subsequent Investigation
The crime remained unsolved until 2018, when the LASD Forensic Biology Section tested the linens recovered from the scene and found a match with FragaMadan's DNA. Subsequent analysis of the towels and bedsheets showed that they contained semen matching FragaMadan's DNA, and blood matching Patricia's and Williams's.
In 2020, a Los Angeles County deputy district attorney, together with a sergeant and a detective from the Hialeah, Florida police department, interviewed FragaMadan at his home near Miami, with the detective acting as translator.
In the interview, FragaMadan stated that he immigrated to the United States from Cuba in 1980, moved to San Francisco shortly thereafter, and then to Los Angeles around 1984.
Initially, FragaMadan stated that he never sold drugs in Los Angeles, never owned a gun, and claimed not to remember having been arrested while in possession of a .45-caliber pistol in August 1984, less than a month after the murder of Williams. When pressed on these issues, however, he admitted to having sold marijuana in Los Angeles and to having been arrested while in possession of a gun in Miami. FragaMadan also acknowledged that he had been armed during a robbery in 1984 in Chula Vista, and that he and an accomplice-another Cuban man-stole money from drug dealers.
FragaMadan initially claimed not to recognize the motel where the murder occurred, but then stated, "I may . . . have been to that . . . hotel," and later, "I have been to that hotel." FragaMadan also admitted that he was "familiar with Vermont and Century," an intersection one block away from the motel, and that he "could have lived close [to] it."
Near the end of the interview, FragaMadan admitted, "I've been a bandit. I've sold drugs," but he continued to deny any involvement in murdering Williams or raping Patricia.
D. Trial Court Proceedings
An information charged FragaMadan with one count of special-circumstance murder (§§ 187, subd. (a), 190.2, subd. (a)), on the ground that FragaMadan committed the murder while engaged in other felonies, namely robbery, rape, and burglary. (See § 190.2, subd. (a)(17).) The information also alleged that FragaMadan personally used a firearm in the commission of the offense.
The jury found FragaMadan guilty as charged. The trial court sentenced him to life imprisonment without the possibility of parole, plus two additional years for using a firearm (§ 12022.5), and imposed various fines and fees.
DISCUSSION
A. Any Error in the Admission of Adams's Conditional Examination Was Harmless
In lieu of live testimony from Adams, the prosecution introduced a recording of a conditional examination of him conducted via videoconference two years before the trial. Adams was 88 years old at the time, lived in Montana, and was not vaccinated against the virus that causes COVID-19. The trial court concluded Adams was therefore unavailable to testify at trial and admitted his conditional examination on that basis. FragaMadan argues that, in doing so, the trial court violated both the Evidence Code and his constitutional right "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) We need not decide this question because any error was harmless. Adams's testimony was relevant primarily to establish the chain of custody of the bedsheets and towels from which FragaMadan's DNA was recovered. That evidence was not contested, and FragaMadan's attorney stipulated to the chain of custody.
1. Relevant Proceedings
In July 2020, before FragaMadan's preliminary hearing, the People filed a motion for the conditional examination of Adams, to be conducted remotely via videoconference. Under section 1336, subdivision (a), "When a material witness for the defendant, or for the people, . . . is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, or is a person 65 years of age or older, . . . the defendant or the people may apply for an order that the witness be examined conditionally." A second statute provides that, "If the court determines that the witness to be examined is so sick or infirm as to be unable to participate in the examination in person, the court may allow the examination to be conducted by a contemporaneous, two-way video conference system, in which the parties and the witness can see and hear each other via electronic communication." (§ 1340, subd. (b).)
FragaMadan's attorney objected on the ground that she did not have enough time to prepare to cross-examine Adams before the conditional examination, which would need to take place within one week because Adams was scheduled to undergo hip surgery.
The trial court granted the motion and allowed the conditional examination to proceed via the court's WebEx remote videoconference software. The court stated, "[I]f there's something else that develops that [defense counsel] wants to reexamine on cross-examination, I'll consider a motion to reopen cross at a later date."
During the conditional examination, Adams testified that he had no independent memory of his investigation of Williams's murder and based his testimony on reports he had prepared in 1984.
More than one year later, in November 2021, the People moved to introduce a recording of the conditional examination into evidence at trial on the ground that Adams was unavailable to testify in person. (See § 1345; Evid. Code, § 240.) The prosecutor informed the court that he had spoken to Adams by speakerphone the preceding day in the presence of defense counsel. During the conversation, Adams said he could not walk, or could walk only with difficulty using a cane. The prosecutor offered to obtain assistance for Adams to travel to California, and to delay the testimony until January, but Adams refused to travel.
After hearing arguments from both sides, the trial court found Adams "unavailable under Evidence Code section 240. I do believe the people have barely, . . . I mean really it's close, . . . but have laid out by a preponderance of the evidence that he is unavailable."
The court issued its ruling just before its noon recess. During the recess, the prosecutor and an investigator spoke with Adams by phone, and when the hearing resumed that afternoon, the People called the investigator to testify about the conversation. According to the investigator, Adams stated that because of his current health condition, he would not voluntarily travel to California, and that if he were subpoenaed to testify, he would attempt to fight the subpoena. Adams had a great deal of difficulty walking even with the help of a cane, and had chosen not to be vaccinated against the virus that causes COVID-19, which Adams believed made it impossible for him to travel at that time by airplane. Adams acknowledged that he sometimes traveled by car between Montana and Las Vegas but believed it would be a "different story" to drive to Los Angeles. Finally, Adams stated that he was the primary caregiver for his wife, who was suffering from cancer, and he believed he could not leave her alone.
Following this testimony, the trial court confirmed its prior ruling, stating that Adams "is unavailable because of the great danger that is posed to him were he to engage in airline travel." The court also noted that there would be relatively little benefit in obtaining additional testimony from Adams because defense counsel had done "such a thorough cross-examination during the two days of the conditional examination," and because Adams professed that he had no memory of the 1984 investigation.
Defense counsel requested an opportunity either to subpoena Adams, or to arrange for him to testify via live videoconference at the trial. The court agreed to allow FragaMadan's attorney an opportunity to file a motion to that effect, but the record does not indicate that any subsequent motion was filed.
2. Legal Analysis
FragaMadan argues the admission of the conditional examination violated both the Sixth Amendment and state law. The central issue as to each claim is the same: whether Adams was unavailable to testify. "[T]he [c]onfrontation [c]lause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." (Coy v. Iowa (1988) 487 U.S. 1012, 1016 [108 S.Ct. 2798, 101 L.Ed.2d 857].) Nevertheless, the admission of out-of-court testimonial statements does not violate the Sixth Amendment if two requirements are met: "unavailability and a prior opportunity for cross-examination." (Crawford v. Washington (2004) 541 U.S. 36, 68 [124 S.Ct. 1354, 158 L.Ed.2d 177].) In this case, all parties agree the latter requirement is satisfied-FragaMadan's attorney cross-examined Adams during the conditional examination. Thus, the only question is whether Adams was in fact unavailable. Likewise, under state law, a video recording of a conditional examination "may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of [s]ection 240 of the Evidence Code." (§ 1345.)
The People contend FragaMadan forfeited his challenge under the confrontation clause by failing to raise it below, but we disagree. The admission of the conditional examination was litigated extensively before the trial court, and FragaMadan's attorney stated on several occasions that, in seeking to compel live testimony from Adams, she meant to protect her client's "right to confront and cross[-]examine witnesses." In addition, the trial court justified its decision to admit the video recording on the ground that it would allow "the jury [to] see [Adams's] facial expressions, his tone, all of the things that go to . . . the Sixth Amendment right to confront and cross[-]examine." The confrontation clause was on the minds of all parties during the hearing, and it would elevate form over substance to hold that FragaMadan forfeited his Sixth Amendment claim because his attorney failed to make an objection in precisely the right terms.
Evidence Code section 240 lists numerous grounds for finding a witness unavailable, only one of which is relevant here: that the witness is "unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity."(Id., subd. (a)(3).) The prosecution bears the burden of proof by a preponderance of the evidence that the witness whose testimony it seeks to admit is unavailable. (People v. Christensen (2014) 229 Cal.App.4th 781, 790.)" '[T]he determination whether a witness is unavailable to testify at trial due to mental illness or infirmity that would cause substantial trauma, is a mixed question of law and fact, with factual findings subject to a deferential standard of substantial evidence, and findings of law subject to independent review. [Citation.] Where the trial court's decision of a mixed question of fact and law implicates the constitutional right to confront a witness at trial, we apply de novo review. [Citation].' [Citation.]" (Id. at pp. 790-791.)
An illness or infirmity can also serve as grounds for finding a defendant unavailable for purposes of the confrontation clause. (See, e.g., United States v. Mallory (6th Cir. 2018) 902 F.3d 584, 590; United States v. McGowan (7th Cir. 2009) 590 F.3d 446, 453.) Courts have held in other contexts that "[a] finding of witness unavailability under Evidence Code section 240 satisfies the unavailability requirement of Crawford" (People v. Byron (2009) 170 Cal.App.4th 657, 671), and we see no reason to doubt that conclusion when the unavailability is due to an illness or medical condition.
For a witness to be unavailable under Evidence Code section 240, his "illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness's attendance, or his testifying, relatively impossible and not merely inconvenient." (People v. Gomez (1972) 26 Cal.App.3d 225, 230.) FragaMadan argues the prosecution did not produce sufficient evidence to meet this standard, as it relied on the witness's own statements regarding his condition, with no independent verification or documentation. The People disagree, noting that expert testimony is not required to establish unavailability due to illness or infirmity. (People v. Alcala (1992) 4 Cal.4th 742, 780.)
We need not decide this question because any error in the admission of Adams's testimony was harmless even under the strict standard applicable to violations of a defendant's rights under the confrontation clause, under which the prosecution must" 'prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (People v. Foy (2016) 245 Cal.App.4th 328, 350, quoting Chapman v. California (1967) 386 U.S. 18, 24, [87 S.Ct. 824, 17 L.Ed.2d 705].) In determining prejudice in this context, "courts consider 'the importance of the witness'[s] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.' [Citation.]" (Foy, supra, at p. 351.)
Because any error was harmless even under this strict standard, it was also harmless under the more lenient standard applicable to violations of the Evidence Code. (See People v. Quintanilla (2020) 45 Cal.App.5th 1039, 1059, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Adams's testimony during the conditional examination centered on two subjects-his investigation of the crime scene, and his interview of Patricia at the police station. But neither of these topics added anything meaningful to the prosecution's case. Patricia gave largely the same account of the crime to Adams that she had given to Garcia earlier that night. Adams's description of his investigation might have been useful to establishing the chain of custody of the bedsheets and towels on which FragaMadan's DNA was later discovered, but this was unnecessary, as FragaMadan stipulated during the trial that the towels and sheet on which his DNA was found were "recovered from the Vermont Motel on July 12, 1984." Furthermore, Adams stated during the conditional examination that he had no memory of the 1984 investigation, and relied entirely on his previously prepared written report as the basis of his testimony. He was not the kind of witness for whom an in-person assessment of credibility was critical. Finally, although we do not minimize the importance under the confrontation clause of guaranteeing the defendant an opportunity to" 'see[ ] the witness face to face'" (Crawford v. Washington, supra, 541 U.S. at p. 57, quoting Mattox v. United States (1895) 156 U.S. 237, 244 [15 S.Ct. 337, 39 L.Ed. 409]), the conditional examination allowed FragaMadan to cross-examine Adams in a setting where the two could "see and hear each other via electronic communication." (§ 1340, subd. (b).)
To the extent her account was inconsistent, as explained further below FragaMadan did not object to admission of Patricia's statements to Adams in order to use those inconsistencies to attack Patricia's veracity.
At oral argument, FragaMadan argued that we may not rely on the stipulation as a basis for finding the error harmless because he would not have stipulated to the chain of custody if not for the trial court's prior decision to admit the conditional examination of Adams. We disagree. "[W]hen a party enters into a voluntary stipulation, he generally is precluded from taking an appeal claiming defects in the stipulation." (People v. Gurule (2002) 28 Cal.4th 557, 623.) This principle may not apply when the party enters into a stipulation as a way of minimizing the harm from an adverse ruling. For example, in Gurule, when the trial court ruled that the victim's mother could testify to facts regarding the victim's character, the defendant stipulated to those facts in order to avoid potentially inflammatory live testimony, and the Supreme Court allowed for the possibility that the stipulation did not waive a challenge to the trial court's ruling. (Id. at pp. 622-624.) But in this case, we are aware of no tactical purpose for the stipulation, and FragaMadan does not suggest one. The admission of the conditional examination did not conclusively establish the chain of custody; defense counsel cross-examined Adams to impeach his testimony on that topic, and FragaMadan remained free to contest that issue despite the admission of the conditional examination. Further, if FragaMadan had attempted to challenge the chain of custody, the prosecution might have presented additional evidence on the subject. Instead, FragaMadan entered into the stipulation and took the issue off the table.
B. The Trial Court Did Not Err by Admitting Patricia's Statements to Garcia
FragaMadan contends the trial court erred by admitting Garcia's testimony about what Patricia told him when he spoke with her upon arriving at the motel. The trial court ruled that Patricia's hearsay statements were admissible as spontaneous declarations (Evid. Code, § 1240), but FragaMadan argues that they do not fall within that hearsay exception because Patricia did not speak spontaneously, but rather upon reflection in response to Garcia's questioning. FragaMadan also contends Garcia's statements were testimonial in nature, and that their admission therefore violated the confrontation clause.
We disagree. Our Supreme Court dealt with a very similar situation in People v. Blacksher (2011) 52 Cal.4th 769 (Blacksher) and rejected claims of violations of Evidence Code section 1240 and the confrontation clause. FragaMadan offers no basis for distinguishing Blacksher, and we are bound by the Supreme Court's decision.
1. Relevant Proceedings
Patricia made three separate statements to law enforcement after the shooting. First, she spoke with Garcia when he arrived at the motel approximately 15 minutes after the shooting. Next, a deputy transported her to a hospital, where she again spoke about what had occurred that night. Finally, early the following morning, approximately four-and-one-half hours after the shooting, Patricia spoke to Adams and his partner at the police station. Patricia died in 2013, five years before the DNA test that linked FragaMadan to the murder and nine years before trial.
Evidence regarding this second statement was not introduced at trial.
In June 2020, the People filed a motion to admit all three statements into evidence, arguing that they were admissible under the hearsay exception for spontaneous statements (Evid. Code, § 1240), and that their admission would not violate the confrontation clause because they were not testimonial. The trial court tentatively ruled that all three statements were spontaneous declarations, but that the last two statements were testimonial and therefore inadmissible under the confrontation clause. In December 2021, the trial court affirmed the previous tentative ruling. FragaMadan's attorney withdrew her objection to the admission of Patricia's later statement to Adams for tactical reasons, intending to use inconsistencies between the statements to call into question Patricia's veracity.
2. Blacksher Compels Affirming the Trial Court's Ruling
In Blacksher, the defendant shot and killed two relatives at his family's home. A police officer named Nicholas Nielsen responded to a 911 call and encountered the defendant's mother, Eva, at the scene. "Nielsen described Eva as teary eyed, distraught, and very agitated. She appeared anxious to talk with him. As he approached her, Eva spoke first, telling him her daughter and grandson had been shot and were probably dead. Because Eva's statement suggested an armed murderer was at large, Officer Nielsen asked questions to obtain more information before the officers risked going inside the home to aid the victims. Eva explained that [the] defendant had come into the house earlier and had spoken with her briefly. He then argued with his sister and shot the victims. Eva said she did not see [the] defendant carrying a gun, but assumed he had concealed it. Nielsen asked if [the] defendant was still inside the home. Eva said she did not know, and described the clothing [the] defendant had been wearing. According to Nielsen's report, [a neighbor] pointed out that [the] defendant was probably gone because his car was no longer in the driveway. Nielsen spoke with Eva and [the neighbor] for 10 to 15 minutes. Eva remained upset throughout the conversation." (Blacksher, supra, 52 Cal.4th at p. 809, fn. omitted.)
At least an hour later, Eva made additional statements to two other family members, James and Frances Blacksher, while Eva was seated in a patrol car. The Blackshers "went to the patrol car to comfort Eva, who remained upset and was screaming. James and Frances separately asked Eva what had happened. She told each of them that [the] defendant had shot the victims and that [one of the victims] had fallen into her arms after she had been shot." (Blacksher, supra, 52 Cal.4th at p. 817.)
The prosecution sought to introduce Eva's statements at trial, and the defendant objected on the grounds of hearsay and the confrontation clause. (Blacksher, supra, 52 Cal.4th at p. 803.) The Supreme Court affirmed the trial court's holding that the statements were admissible under the hearsay exception for spontaneous statements, under which "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to . . . describe . . . an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (Evid. Code, § 1240.) As to the statements to Nielsen, the court held that, "Under these circumstances the [trial] court properly concluded that the statements were made when Eva was under the domination of nervous excitement caused by the event, so that her utterances were spontaneous and unreflecting." (Blacksher, supra, at p. 810.) The court reached the same conclusion regarding the statements to James and Frances: "Although they were made well over an hour after the murders, this lapse of time did not purge Eva's statements of their spontaneity.' "The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance-how long it was made after the startling incident and whether the speaker blurted it out, for example-may be important, but solely as an indicator of the mental state of the declarant.... [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter."' [Citations.]" (Blacksher, supra, at p. 817.)
This case is virtually indistinguishable from Blacksher. In both cases, the witness made statements to law enforcement only minutes after bearing witness to the murder of someone close to her, and was in extreme emotional distress as a result. Garcia described Patricia as "hysterical, crying." "She was concerned for her safety," "asked to be taken away," and was "worried about her son." FragaMadan argues that the statements were not spontaneous because they were made in response to Garcia's questions, but in Blacksher, all but one of Eva's statements were made in response to questions, and her conversation with Nielsen lasted "10 to 15 minutes." (Blacksher, supra, 52 Cal.4th at p. 809.) With no basis for distinguishing Blacksher, a case issued by a court of superior jurisdiction, we are bound to follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The defendant in Blacksher argued that the admission of Eva's statements to Nielsen also violated the confrontation clause. That clause, however, "applies only to testimonial hearsay" (Davis v. Washington (2006) 547 U.S. 813, 823 [126 S.Ct. 2266, 165 L.Ed.2d 224]), and the court in Blacksher concluded that Eva's statements were not testimonial. (Blacksher, supra, 52 Cal.4th at pp. 816-817.) A statement is testimonial if its" 'primary purpose [is] creating an out-of-court substitute for trial testimony.'" (Id. at p. 813, quoting Michigan v. Bryant (2011) 562 U.S. 344, 358 [131 S.Ct. 1143, 179 L.Ed.2d 93].) There is no simple test for determining the primary purpose of a statement, but one relevant factor is "whether an' "ongoing emergency"' exists, or appears to exist, when the statement was made." (Blacksher, supra, at p. 814, quoting Bryant, supra, at p. 361.)
The court concluded in Blacksher that Eva's statements to Nielsen were not testimonial. "Officer Nielsen arrived within four minutes of [the] 911 call. The bodies were still inside. Eva did not know if [the] defendant was still present. During a 10 to 15[-]minute conversation Officer Nielsen asked Eva questions about the shooting, what [the] defendant was wearing and whether he was armed. Nielsen took notes so he could relay information to the dispatcher and other officers. During this period it was ascertained that [the] defendant was neither in Eva's house nor the cottage behind it. Thus, the shooter had fled the scene and was presumed to be armed with the firearm that was the murder weapon. His motive and whereabouts were unknown. The audio recording of police radio traffic confirms that during the initial 15 minutes following the 911 call officers were trying to assess the emergency and determine whether the shooter was dead or still in the neighborhood. It was objectively reasonable to believe that an armed shooter remained at large and presented an emergency situation." (Blacksher, supra, 52 Cal.4th at p. 816.)
FragaMadan argues that there was no ongoing emergency when Garcia spoke with Patricia because they were "in a safe area near the front of the building by the motel office," and "the perpetrators of the sexual assault and murder already had fled." This analysis errs by failing to consider "the perspective of the parties to the interrogation at the time, not with the benefit of hindsight." (Michigan v. Bryant, supra, 562 U.S. at p. 361, fn. 8.) Patricia knew that the assailants had left the motel room after shooting Williams, but neither she nor Garcia knew where they had gone nor whether they continued to pose any danger. Patricia did not believe she was safe in the motel office, but instead was "hysterical" and "asked to be taken away." This was not at all a situation like that in People v. Kerley (2018) 23 Cal.App.5th 513, where statements made by a victim of domestic violence from the safety of a police station were "clearly testimonial." (Id. at p. 551.)
The court's analysis in Blacksher is equally applicable here: "Objectively, the primary purpose of both [the witness] and [the police officer] was to deal with [the ongoing] emergency, not to create an out-of-court substitute for trial testimony. Instead, the primary purpose for both of them was to determine [the] defendant's whereabouts and evaluate the nature and extent of the threat he posed." (Blacksher, supra, 52 Cal.4th at p. 816.) Just as in Blacksher, Patricia's statements to Garcia were not testimonial, and were properly admitted at trial.
C. There Was No Reversible Error in the Admission of FragaMadan's Statements about Prior Uncharged Acts
FragaMadan contends the trial court abused its discretion by admitting portions of his interview with the deputy district attorney and Hialeah, Florida police officers regarding his involvement in drug dealing, robbery, and the illegal possession and use of firearms. He argues this evidence was inadmissible under Evidence Code section 1101, subdivision (a), which bars "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion." To the extent the evidence had any probative value, he argues it was inadmissible under Evidence Code section 352 because "its probative value [was] substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice."
We disagree as to FragaMadan's statements regarding his involvement in a 1984 robbery in Chula Vista. The statements were admissible because the Chula Vista robbery was sufficiently similar to the attempted robbery of Williams as to constitute a common plan or design. We need not decide whether the trial court erred by admitting FragaMadan's other statements because any error would have been harmless.
1. Relevant Trial Proceedings
The People sought to introduce FragaMadan's 2020 interrogation by a deputy district attorney and Hialeah, Florida police officers. Because the interrogation was conducted primarily in Spanish, the People called Magela Montalvo, the officer who acted as translator during the interrogation, and asked her to read an English translation of a transcript of the interrogation.
FragaMadan objected to the inclusion of several portions of the interrogation during which the deputy district attorney and police officers asked him about actions unconnected to the murder of Williams. In particular, FragaMadan objected to the portions of the transcript in which he was questioned about whether he had sold drugs, possessed handguns, and committed a robbery. We summarize these portions of the interrogation below.
The prosecutor asked FragaMadan if he had ever sold drugs in Bakersfield or Los Angeles. FragaMadan first denied the accusation, but then almost immediately admitted that he had sold marijuana in Los Angeles, and that he had sold cocaine many years later. When asked if he stayed in a drug house or sold drugs from a house near 101st Street and Vermont Avenue, where Patricia told police she had seen her attackers, FragaMadan responded, "I don't recall that address."
The prosecutor then asked FragaMadan if he had ever used or owned guns, and FragaMadan replied, "No. Never." The prosecutor asked, "If you've never owned a gun how did you get arrested having a gun with you?" FragaMadan responded, "Because maybe it was a black market gun on the street. Yes. That may have happened, but whether I personally had been an owner, no." The prosecutor asked FragaMadan whether he had been arrested on August 5, 1984, approximately one month after the murder of Williams, and convicted for possession of a concealed gun. FragaMadan said he did not remember, and later that he specifically did not remember whether he was arrested with a .45-caliber pistol, the type used in the murder.
The prosecutor also asked FragaMadan about his involvement in a 1984 robbery in Chula Vista. FragaMadan acknowledged the offense, and that he served 18 months in prison for it. FragaMadan admitted further that the Chula Vista robbery targeted drug dealers, but he claimed he used a revolver rather than a .45-caliber semiautomatic handgun of the type used to kill Williams. FragaMadan said he had a partner who was also a male Cuban. The plan was to steal money and drugs, but they ended up taking only money, as there were no drugs there. FragaMadan denied using force in the robbery and said he never committed another robbery.
The trial court overruled FragaMadan's objections to the questioning regarding selling drugs on the ground that it was "an independent proof of [the] motive" "the People have attributed to him," namely that FragaMadan murdered Williams as part of an attempt to rob or intimidate a rival. The court also overruled the objections regarding FragaMadan's possession of weapons on the ground that his shifting answers to the questions was evidence of consciousness of guilt. Finally, the court overruled the objection to FragaMadan's statements regarding the Chula Vista robbery, finding that his shifting answers to the questions came "close to an inconsistent statement. And I think that's something for the jury to sort out."
2. Legal Analysis
"' "Character evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence that a person committed a crime, civil wrong, or other act may be admitted, however, not to prove a person's predisposition to commit such an act, but rather to prove some other material fact, such as that person's intent[,] identity[, or motive]. (Id., § 1101, subd. (b).)"' [Citation.]" (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 770.) Even"' "[i]f evidence of prior conduct is sufficiently similar to the charged crimes to be relevant to prove the defendant's intent, common plan, or identity" '" (id. at p. 771), however, it may still be inadmissible under Evidence Code section 352, which gives the trial court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." We review the trial court's decision whether to admit uncharged misconduct evidence for abuse of discretion. (People v. Holmes, McClain and Newborn, supra, at p. 771.)
We begin by considering FragaMadan's statements regarding the 1984 robbery in Chula Vista. These statements were admissible as evidence of a common design or plan. In People v. Ewoldt (1994) 7 Cal.4th 380, our Supreme Court described the requirements for admissibility under this doctrine: "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]" (Id. at p. 403.)
The Chula Vista robbery was sufficiently similar to the attempted robbery of Williams to meet these requirements. As FragaMadan described it, the target of that robbery was a known drug dealer. In addition, FragaMadan was armed with a handgun, he brought with him one accomplice, a Cuban man, and the purpose was to steal money and drugs. All of those statements are equally true of the attempted robbery of Williams. FragaMadan notes that there were differences between the two cases as well, but these differences are not sufficient to disprove the inference of a common plan or design. For example, the Chula Vista robbery apparently took place in a house rather than a motel, but, of course, the relevant part of the plan was that it targeted drug dealers, not people in motel rooms. FragaMadan notes that there is no indication of violence or sexual assault in the Chula Vista robbery, but the evidence in this case suggests the plan was merely to "steal money and drugs," just as in Chula Vista. The rape and murder appear to have occurred only because Williams happened to be absent when FragaMadan and his partner first entered, and then refused to give them drugs or money when he returned. FragaMadan argues there is no indication of when the Chula Vista robbery took place, but when asked the last time he spoke with his accomplice in that robbery, he replied, "[t]hat was in [19]84," and he never saw the accomplice again; 1984 was, of course, the same year as the events at issue in this case.
The Supreme Court in Ewoldt also provided factors for weighing the probative value of common plan evidence against the potential prejudice involved. The probative value is greater where the commonality between the two events is strong. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) As we have seen, the similarities between the Chula Vista robbery and the attempted robbery of Williams are indeed strong. In addition, "The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense. For example, if a witness to the uncharged offense provided a detailed report of that incident without being aware of the circumstances of the charged offense, the risk that the witness's account may have been influenced by knowledge of the charged offense would be eliminated and the probative value of the evidence would be enhanced. The probative value of such evidence would increase further if independent evidence of additional instances of similar misconduct, committed pursuant to the same design or plan, were produced." (Id. at pp. 404-405.) In this case, the evidence of the Chula Vista robbery came from FragaMadan himself, completely independent from the prosecution's evidence of the attempted robbery and murder of Williams.
The court in Ewoldt cautioned that the risk of prejudice is greater if the "defendant's uncharged acts did not result in criminal convictions. This circumstance increase[s] the danger that the jury [may be] inclined to punish [the] defendant for the uncharged offenses, regardless of whether it considered him guilty of the charged offenses, and increase[s] the likelihood of 'confusing the issues' (Evid. Code, § 352), because the jury ha[s] to determine whether the uncharged offenses had occurred." (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) That danger is not present in this case, where FragaMadan stated that he served 18 months in prison for the Chula Vista robbery. The potential for prejudice is also greater where "[t]he testimony describing [the] defendant's uncharged acts . . . [is] . . . stronger and . . . more inflammatory than the testimony concerning the charged offenses." (Ibid.) But in this case, FragaMadan described only the bare outlines of the Chula Vista robbery, with no inflammatory details.
Considering all these factors together, we conclude the trial court did not abuse its discretion by admitting FragaMadan's statements regarding the Chula Vista robbery.
FragaMadan's statements regarding his history of drug dealing and possession of weapons are less clearly relevant to the murder of Williams. FragaMadan admitted selling marijuana in 1984 near the corner of Sixth Street and Alvarado Street, but that was nearly 10 miles away from the scene of the murder. He also admitted selling cocaine in Miami many years later. FragaMadan claimed he used a revolver in the Chula Vista robbery, and did not admit to owning a .45-caliber handgun like the one used to kill Williams. The People argue that FragaMadan's admission of his involvement in drug dealing and gun possession is relevant as evidence of consciousness of guilt, because in many cases he made those admissions after first denying any involvement. We are skeptical of this argument, as a defendant's consciousness of guilt regarding a crime he committed does not necessarily indicate consciousness of guilt regarding another unrelated crime that he maintains he did not commit. The People's theory might also open the door too widely to sneak improper character and propensity evidence into a case by questioning a defendant in the hope that he will make inconsistent statements about uncharged prior offenses.
We need not decide whether the trial court abused its discretion by admitting FragaMadan's statements on these subjects, however, because any error in doing so was harmless. The circumstances of this case share much in common with other cases where courts found the admission of this type of evidence harmless. The evidence of FragaMadan's drug dealing and weapons possession was not presented in an inflammatory manner. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) The prosecution cautioned the jury during closing arguments that it should not use the evidence of FragaMadan's prior bad acts as indicative of his propensity to commit the crimes with which he was charged, and the trial court instructed the jury accordingly. (See People v. Phillips (2022) 75 Cal.App.5th 643, 677.) FragaMadan's statements about his past drug dealing and weapons possession also "had 'relatively minor significance in the prosecution's case.'" (People v. Washington (2021) 61 Cal.App.5th 776, 789, quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1, 119.) Thus, "[i]n light of the powerful evidence of [the] defendant's culpability of the crimes . . . alleged against him . . . and the marginal nature of this proof in connection with the guilt determination . . ., it is not reasonably probable that a different result would have obtained at that phase of trial had this evidence not been offered as proof." (People v. Pineda (2022) 13 Cal.5th 186, 225, citing People v. Watson, supra, 46 Cal.2d at p. 836.)
D. The Trial Court Did Not Err in Failing to Order a Competency Hearing or to Grant a Continuance
FragaMadan contends the trial court erred by failing to conduct a competency hearing, or at least to grant a continuance to allow for a mental health examination, after his attorney expressed concern over whether FragaMadan understood the proceedings. We disagree, as we explain below.
1. Relevant Proceedings
On May 24, 2022, one week before trial was scheduled to begin, FragaMadan's attorney informed the court that she was attempting to have her client examined by a mental health expert, but that the expert needed two additional weeks to complete a report. The court expressed reluctance to delay the trial and upset the court's schedule when "I have yet to see anything from [FragaMadan] that is suggesting to me that he's not competent." Defense counsel responded, "[B]ased on our conversations previously over the last several weeks, I had some concerns regarding his understanding of the current proceedings and what was going on. That was due to the repetitive nature from which I was repeating his charges and how the proceedings were going and what he was being faced with. There [were] continual questions about what that was and that there was an assertion that he didn't understand the proceedings multiple times. Because of that, I was unable to communicate with him regarding our actual defense and what we were going to do and how we were going to proceed because there was a continual denial of knowledge of what the charges were." The attorney continued: "He had an injury while in custody.... I am concerned that based on his age and his injury that he might be suffering from some conditions that may be affecting his memory as well as his cognitive abilities." She clarified, "I do believe that based on our extensive communications that he does have an understanding of the proceedings; however, I'm not an expert. Because of the significance of this case and the significance of the charges, I felt [it] best to have an expert . . . evaluate his . . . competency." The expert had been expected to complete his evaluation by the date of the hearing, but due to a busy schedule and the difficulty securing an interpreter, he had been unable to do so.
The trial court declined to continue the case, explaining, "If there was something out there to suggest that he's not competent other than the fact that he had a lot of [repetitive] questions . . . about the nature of the proceedings, I wouldn't hesitate, but I am hesitating because we had a lengthy colloquy last time we were here as part of the Marsden motion, and he seemed perfectly rational to me and certainly understanding what the issues were when things were explained to him."
People v. Marsden (1970) 2 Cal.3d 118 guarantees a hearing for criminal defendants with court-appointed counsel who request a change of attorneys to explain why they believe they have been inadequately represented. (Id. at pp. 123-126.) In this case, a Marsden hearing took place on May 5, 2022, less than three weeks before FragaMadan's attorney requested a continuance for a competency evaluation.
2. Legal Analysis
Our Supreme Court has explained the law regarding mental incompetence as follows:"' "Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-[or lacks] . . . a rational as well as a factual understanding of the proceedings against him."' [Citations.]" [Citation.]' [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 464.)
Section 1368, consistent with the due process clause, sets out the conditions under which a trial court must suspend trial proceedings and conduct a competency hearing. In short,"' "a trial judge [must] suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] . . . Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]" [Citation.]'" (People v. Sattiewhite, supra, 59 Cal.4th at p. 464.) "Counsel's assertion of a belief in a client's incompetence is entitled to some weight. But unless the court itself has declared a doubt as to the defendant's competence, and has asked for counsel's opinion on the subject, counsel's assertion that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing." (People v. Mai (2013) 57 Cal.4th 986, 1033.) Furthermore, "absent a showing of 'incompetence' that is 'substantial' as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial." (Ibid.)
In this case, there was no substantial evidence of FragaMadan's incompetence. His attorney expressed "some concerns" on the subject, but then clarified, "I do believe that he is likely competent." Furthermore, the trial court had observed FragaMadan in court in several proceedings, including a recent Marsden hearing in which FragaMadan actively participated and showed an understanding of his and his attorney's role in the case. We see no basis for second guessing the trial court's judgment in declining to order a competency hearing.
FragaMadan also argues the trial court abused its discretion by refusing his attorney's request for a continuance to allow a mental health expert to examine him and reach an opinion regarding his competence. We disagree.
"Continuances shall be granted only upon a showing of good cause...." (§ 1050, subd. (e).) "Whether good cause exists is a question for the trial court's discretion. [Citation.] The court must consider '" 'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.'" '" (People v. Doolin (2009) 45 Cal.4th 390, 450.) We review the trial court's denial of a continuance for abuse of discretion; thus, we must determine whether the decision "was so arbitrary as to deny due process." (Ibid.)
In this case, the burden on the court in delaying the trial for two weeks would have been substantial. As the trial court explained when it denied FragaMadan's request, there were several other cases on the calendar, and pushing back FragaMadan's trial would have played havoc with scheduling those other cases. The court determined it was not necessary to waste resources merely because FragaMadan had been asking his attorney repetitive questions, causing her to have some concern that FragaMadan was having difficulty understanding the proceedings. Under these circumstances, the court did not abuse its discretion in denying the continuance.
E. The Error in the Instructions on the Felony-Murder Special Circumstance Was Harmless
FragaMadan contends the trial court erred by failing to instruct the jury correctly as to the mental state required for a special circumstance based on felony murder. (§ 190.2, subd. (a)(17).) We agree, but conclude the error was harmless because there was no evidence to support a conviction on the basis of the erroneous instruction.
The mens rea required for the special circumstance allegation at issue in this case has changed numerous times over the years. At the time of the murder of Williams in 1984, the controlling interpretation of the statute was that of our Supreme Court in Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 which "held the felony-murder special circumstance (§ 190.2, subd. (a)(17)) required an intent to kill." (People v. Banks (2015) 61 Cal.4th 788, 798.) Subsequently, in People v. Anderson (1987) 43 Cal.3d 1104, 1147, the court "overrule[d] Carlos only insofar as it had required an intent to kill for actual killers, leaving in place the intent requirement for aiders and abettors." (Banks, supra, at p. 798.) Due process and ex post facto principles require defendants to be tried under the version of the law that applied at the time they were alleged to have committed an offense. (People v. Johnson (1993) 6 Cal.4th 1, 45.)
In 1990, the electorate passed Proposition 115, which expanded the application of the felony-murder special circumstance further. (See People v. Banks, supra, 61 Cal.4th at p. 798.) Under current law, "the felony-murder special circumstance applies to defendants who actually killed ([§ 190.2], subd. (b)) or who abetted a murder with the intent to kill (id., subd. (c))" or who were" 'major participant[s]' in the underlying felony who acted 'with reckless indifference to human life.' (Id., subd. (d).)" (People v. Strong (2022) 13 Cal.5th 698, 704.)
The parties were aware of these changing requirements. In a pretrial discussion on jury instructions, the prosecutor told the trial court, "This is one of those weird cases that's in the window between Carlos and Anderson." The court responded, "I litigated the Carlos-Anderson window when I was a public defender." The prosecutor continued, "So basically . . . we're going to have to show that the defendant had the intent to kill to meet the special circumstance." The court replied, "I hadn't focused on that issue, but I'll revise the jury instructions to make sure that's there."
The court instructed the jury on the special circumstance based on a pattern instruction, CALCRIM No. 701, to which neither party objected. The instruction read as follows: "If you agree that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of murder committed during the commission or attempted commission of the crime of robbery, murder committed during the commission or attempted commission of the crime of burglary, and murder committed during the commission or attempted commission of the crime of rape, you must also decide whether the defendant acted with the intent to kill.
"In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill.
"The People do not have to prove that the actual killer acted with the intent to kill in order for these special circumstances to be true. If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find these special circumstances true, you must find that the defendant acted with the intent to kill.
"If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with the intent to kill for the special circumstances of murder committed during the commission or attempted commission of the crime of robbery, murder committed during the commission or attempted commission of the crime of burglary, and murder committed during the commission or attempted commission of the crime of rape to be true. If the People have not met this burden, you must find each of these special circumstances ha[ve] not been proved." (CALCRIM No. 701, italics added.)
FragaMadan argues, and we agree, that the italicized portion of the instruction quoted above does not accurately reflect the law at the time of the murder. Under the then-controlling doctrine of Carlos, an actual killer was guilty of specialcircumstance felony murder only if he intended to kill. (Carlos v. Superior Court, supra, 35 Cal.3d at p. 142.) The instruction stated the opposite.
We review error in the instructions on an element of a special circumstance under the Chapman standard (People v. Johnson, supra, 6 Cal.4th at p. 45), which requires reversal unless the prosecution can "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California, supra, 386 U.S. at p. 24.) In this case, the instructional error was indeed harmless even under this strict standard. The People presented no evidence to establish whether FragaMadan or his partner was the actual killer. The prosecutor conceded as much during closing argument, stating, "the evidence [does] not show which one fired the fatal shot," and "[w]e can't say that the defendant was the one that did the shot in the back of the head or the shot in the leg." When addressing the felony-murder special circumstance specifically, the prosecutor said, "for the special allegation you also have to have the intent to kill."
The instructions correctly told the jury that, "If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find these special circumstances true, you must find that the defendant acted with the intent to kill." Under defendant's hypothesis, because the instruction did not include a finding of intent if a juror found FragaMadan was the killer, the jury could have convicted him without finding intent to kill. The evidence does not support such a hypothesis. No rational juror would have found if it believed FragaMadan was the shooter, that, after holding Williams at gunpoint and shooting him in the head, FragaMadan would not have acted with the intent to kill.
F. Conduct Credits
FragaMadan contends the trial court erred in calculating his credit for time served and in the amount of the restitution fine it imposed. In addition, he asks us to amend the abstract of judgment to remove a parole revocation fine, which the trial court did not impose and is unauthorized in FragaMadan's case. The People agree on these sentencing issues except as to the restitution fine.
At sentencing, the trial court awarded 970 days of credit for time served, equal to the number of days FragaMadan had been in custody, with no days of additional credit for good behavior or performance of labor, to which defendants are normally entitled under section 4019. Section 2933.1 reduces the rate at which additional credits accrue for defendants convicted of violent felonies, and section 2933.2 eliminates the additional credits entirely for defendants convicted of murder. But these latter two statutes were enacted in 1994 and 1998 respectively, and they do not apply to defendants who committed an offense before they became effective. (See People v. Chism (2014) 58 Cal.4th 1266, 1336 [§ 2933.2]; People v. Palacios (1997) 56 Cal.App.4th 252, 256 [§ 2933.1].) As the appellate record lacks information necessary to determine any additional credit(s), we must remand the case to the trial court to recalculate FragaMadan's presentence credits.
The abstract of judgment includes a $300 parole revocation fine for which FragaMadan would be responsible only if he were released on parole and then had parole revoked. (See § 1202.45.) The transcript of the sentencing hearing does not show that the trial court imposed such a fine, and in any case, a parole revocation fine is unauthorized in cases where the defendant is not eligible for parole. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183-1184.)" 'Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.' [Citations.]" (People v. Vega (2015) 236 Cal.App.4th 484, 506.) We will therefore order the abstract of judgment corrected to remove the parole revocation fine.
Finally, FragaMadan argues the $300 restitution fine was excessive and violates ex post facto principles. Unless there are "compelling and extraordinary reasons for not doing so" the court must impose a restitution fine "[i]n every case where a person is convicted of a crime" (§ 1202.4, subd. (b)) in an amount "commensurate with the seriousness of the offense." (Id., subd. (b)(1).) Under current law, the amount of the fine ranges from $300 to $10,000, but in 1984, the minimum was $100. (See former § 1202.4; Gov. Code, § 13967.) FragaMadan argues the trial court's selection of a $300 fine indicates the trial court intended to impose the minimum fine but was mistaken about the minimum amount allowable. In FragaMadan's view, this is in effect a retroactive increase in punishment in violation of the ex post facto clause. The People disagree, noting that the $300 fine was within the range allowed in 1984. The People also argue that FragaMadan forfeited his claim by failing to raise it at his sentencing hearing. If he had pointed out the change in the minimum amount of the fine, there would be no question as to what fine the trial court intended to impose.
We agree with the People that FragaMadan failed to raise this issue below. But" 'application of the forfeiture rule is not automatic'" (People v. Washington (2021) 72 Cal.App.5th 453, 473), and we have discretion to excuse forfeiture in appropriate circumstances. Here, circumstances suggest the court may well have intended to impose the minimum fine and not one above the minimum, and we are remanding in any event for the trial court to recalculate FragaMadan's presentence credits. Accordingly, on remand FragaMadan may argue for a reduction in the amount of the restitution fine based on the law applicable at the time of his offense.
DISPOSITION
The judgment of the trial court is affirmed. On remand, the trial court shall recalculate the number of credits for time served. At that time, FragaMadan may argue for a reduction in the amount of his restitution fine. The court shall amend the abstract of judgment to remove the parole revocation fine and make any adjustment to the restitution fine and credit for time served. Once amended, the court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: ROTHSCHILD, P. J., BENDIX, J.