Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA065766, Richard R. Romero, Judge.
Cannon & Harris and Gregory L. Cannon, 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, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Travyon Charles Harbor, appeals from the judgment entered following his conviction, by jury trial, for second degree murder and premeditated attempted murder, with firearm and prior serious felony conviction enhancements (Pen. Code, §§ 187, 664/187, 12022.53, 667, subd. (a)-(i)). Sentenced to state prison for 200 years to life, Harbor claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment of conviction is affirmed; the case is remanded to the trial court for resentencing.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
Dwayne Saulsberry testified that, on July 26, 2002, at about 6:00 p.m., he drove Kieanii K. and her brother home to 1414 East Cruces Street in Wilmington. Saulsberry and Kieanii’s uncle, Timothy Fox, got into an argument. Kieanii told Saulsberry to leave. As he was returning to his car, Saulsberry heard Fox whistle. Then, just as Saulsberry started to drive away, a vehicle “came charging at” him. To avoid a head-on collision, Saulsberry swerved. The oncoming vehicle sideswiped Saulsberry’s car. Saulsberry heard gunfire, six or seven rounds fired in rapid succession, as he kept driving away. He reached the end of the block and turned onto Watson Avenue. Saulsberry did not see who was shooting at him.
When the police subsequently searched Saulsberry’s car, they found 11 rounds of .32-caliber ammunition. Saulsberry claimed the ammunition was old and that he did not know it was in his car. He denied having had a gun with him on the day of the shooting.
Kieanii told police that during the argument between Fox and Saulsberry, Fox “was basically belittling him because of his handicap.” (Saulsberry was missing his right leg and he had suffered some kind of permanent injury to his left arm.) Saulsberry pulled a gun from his pocket, showed it to Fox and said, “I’m not a punk. I can take care of myself.” Kieanii told Saulsberry, “Look, you better get out of here. They are gonna shoot you.” According to Kieanii, Saulsberry “went back to his car, threw the gun on the floorboard, got into his car, and . . . started to take off. And then she saw [defendant Harbor] come from a parked car, shoot at [Saulsberry, who] collided into a car that was coming up the street, and then . . . [Harbor] began to shoot as [Saulsberry] kept going west until he got to Watson.” Kieanii did not see anyone except Harbor fire a gun during this incident.
At trial, Kieanii denied having been in Saulsberry’s car that day. She testified Saulsberry arrived at her house unexpectedly. After speaking to him briefly, she closed the front door and did not witness what happened outside. At the same time, however, Kieanii acknowledged she had told the police Harbor shot at Saulsberry.
Watson Avenue was the first cross-street west of the block of East Cruces on which both Kieanii and Harbor lived.
Regina Smith testified she lived with her boyfriend, Willie Harbor, who was defendant Harbor’s uncle, at 1335 East Cruces, across the street and west of Kieanii’s house. At the time of the shooting, Smith was sitting in her Volkswagen Rabbit in front of the Harbor house smoking PCP. Smith told police she saw Saulsberry run to his car and start to drive away. A blue Cadillac appeared and collided with Saulsberry, who kept driving down East Cruces. Then Harbor, who was standing in the driveway of the Harbor house, started shooting at Saulsberry: “[T]hen the car went towards Watson on Cruces and [Harbor kept] shooting at the car . . . .” When Saulsberry reached Watson Avenue, he turned left and Smith heard more gunshots. Later, after the ambulance came, Smith went into the house and saw Harbor trying to climb through the back window. When she asked what he was doing Harbor said, “I got to get out of here.” Smith did not see anyone besides Harbor shooting a gun during the incident.
Walfred Marroquin and his wife, Rosa Garcia, lived at 1202 East Cruces Street, across Watson Avenue from, and west of, both Kieanii’s house and the Harbor house. When the shooting occurred, Marroquin and Garcia were just returning home. Garcia got out of the car and went to open the driveway gate. Then she fell to the ground. Marroquin ran over and saw she was bleeding from the head. Garcia never regained consciousness and she died two days later. It turned out she was six weeks’ pregnant. Detective Goodman attended the autopsy and saw a bullet entry wound in the side of Garcia’s head.
Leticia Huerta lived at 1402 East Cruces Street, a couple of houses west of Kieanii’s house. Huerta heard the gunshots and, when the shooting was over, she looked out her bedroom window. She saw Fox shaking hands with Harbor on the sidewalk across the street. Huerta told police she heard a single shot, a pause, and then rapid gunfire.
Huerta’s husband, Rigoberto Martinez, looked out the living room window when the shooting stopped. He saw Harbor by the sidewalk across the street, crouched behind a white Cherokee which was parked in front of 1405 East Cruces Street, behind Smith’s car. Harbor appeared to be putting a gun into his waistband. Martinez then saw Fox and Harbor shaking hands in a congratulatory way.
Five .40-caliber bullet casings were found spread out in front of 1405 East Cruces Street. One casing was found on the sidewalk close to a gate belonging to 1405 East Cruces Street, and four casings were found in the driveway area. Detective Goodman testified this physical evidence was consistent with Martinez’s statement about where he had seen Harbor when the shooting stopped.
Detective Goodman testified it appeared gunfire had hit the front of a Buick Regal, which was parked very close to where Garcia had been standing when she was shot.
2. Defense evidence.
Harbor’s uncle, Willie, testified he was inside the house when he heard shooting. He went outside when it stopped and saw Smith sitting in her car, smoking cocaine. Smith said to him, “It’s another drive-by shooting.” Willie did not see Harbor or anyone with a gun.
Harbor’s cousin, Tim Fox, testified he had been at Kieanii’s house that afternoon. He denied having seen Saulsberry there. Fox testified he was in the yard when he heard shooting and he got on the ground to avoid being hit. When he got up, he saw Smith in her parked car and went over to check on her. Fox did not see Harbor; nor did he see anyone with a gun. He denied having told police a car drove up, that the driver spoke to Fox and a man named Shane, but Fox ignored the driver because he didn’t know him.
3. Rebuttal evidence.
Detective Goodman testified he interviewed Fox, who said he was in front of Kieanii’s house, talking to someone named Shane, when a man drove up and said, “ ‘What’s up, homey?’ or, ‘Hey, what’s up?’ ” Fox did not know the man, so he ignored him. The man drove away and a few seconds later Fox heard five or six gunshots.
CONTENTIONS
1. The trial court erred by denying a new trial motion.
2. The trial court gave erroneous instructions to the jury.
3. The trial court incorrectly calculated Harbor’s sentence.
DISCUSSION
1. New trial motion was properly denied.
Harbor contends the trial court erred by denying a new trial motion based on newly discovered evidence. This claim is meritless.
a. Legal principles.
A defendant is entitled to a new trial on grounds of newly discovered evidence only if the evidence is: newly discovered; not merely cumulative; such as to render a different result probable on retrial; and, not reasonably available at trial. (People v. Martinez (1984) 36 Cal.3d 816, 821.) “A motion for a new trial on newly discovered evidence is looked upon with disfavor, and unless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.” (People v. McDaniel (1976) 16 Cal.3d 156, 179.)
The trial court may consider the credibility as well as the materiality of the proffered new evidence in its determination of whether it would render a different result reasonably probable. (People v. Delgado (1993) 5 Cal.4th 312, 329.) A new trial motion should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant at trial. (Ibid.)
b. Hearing on the new trial motion.
The defense presented two witnesses at the hearing on the new trial motion. Defendant Harbor testified that on the day of the shooting he was inside his family’s house at 1335 East Cruces, when he heard someone saying, “Hey, hey, hey.” He went outside to see what was going on and saw Natealie Sherman, whom he described as a friend of the family. Sherman said, “He has a gun on Tim,” referring to Harbor’s cousin Tim Fox. Harbor looked across the street and saw Saulsberry holding a gun on Fox. As Harbor walked toward them, Saulsberry turned and fired a single shot at him; Harbor could feel the bullet fly past him. In response, Harbor pulled a .40-caliber semiautomatic out of his waistband and fired back at Saulsberry about four times in rapid succession. Harbor testified he shot at Saulsberry because he believed his life was in danger.
Natealie Sherman testified she stopped her van in the middle of the street near Kieanii’s house and began chatting with her. While they were talking, Sherman noticed Saulsberry sitting in his car. Hearing someone say, “Nat,” Sherman turned around and saw that Fox “has this real scared look on his face as I see Saulsberry proceed to go up under his seat and pull out a weapon. So I move my car out the way.” Sherman testified she drove across the street, pulled up in front of the Harbor house and called out for help: “I’m like, ‘hey, hey, somebody is trying to shoot Tim,’ to let them know.” Harbor came outside. Then Sherman heard Saulsberry shoot toward her van. She saw Harbor pull a gun from his waistband and shoot back at Saulsberry. Turning, she saw Saulsberry collide with another car. The driver of the other car “jumped out and proceeded to fire towards” Saulsberry. The driver kept shooting at Saulsberry until Saulsberry reached Watson Avenue.
Sherman acknowledged she did not talk to the police about what she had witnessed until after Harbor was convicted.
Defense counsel argued to the trial court: “[B]ased on [Sherman’s] testimony . . . Saulsberry pulled a gun on my client, my client was in fear of his life, and he shot back. . . . [A]ssuming all that took place, . . . you have that bullet obviously not hitting Mr. Saulsberry. [Harbor’s] bullet . . . probably was the bullet that went and killed that lady a block down the street, but that would have been a self-defense. He was acting in self-defense.”
The prosecutor argued Sherman was not a credible witness. Sherman described Saulsberry as using a semiautomatic handgun, but other evidence showed Saulsberry’s gun had been a revolver. The prosecutor also argued, “As to the defendant’s testimony . . ., that is not consistent with the physical evidence that we have here. He places himself in the path of Mr. Saulsberry’s vehicle when he fires his weapon at Mr. Saulsberry. Those shots would not have been fired towards [1202 East Cruces Street] where the victim was killed [i.e., toward the west], but, actually, towards the residence where Kieanii was and Tim Fox was [i.e., toward the east] . . . .” The prosecutor argued neither witness had been credible and, therefore, the new trial motion should be denied.
Although Sherman did not use the word “semiautomatic,” she apparently demonstrated how Saulsberry held the gun in one hand and then brought up his other hand to work the slide. On appeal, Harbor does not dispute that what Sherman described was a semiautomatic handgun.
The trial court ruled, “I agree with the district attorney that the testimony presented was not credible because of the inconsistencies and the physical evidence of where the rounds would have been shot to. So the motion is denied.”
c. Discussion.
Harbor argues the trial court’s ruling does not deserve any deference because it was based on the prosecutor’s misrepresentation of the facts. Harbor argues the prosecutor erroneously told the trial court Detective Goodman had testified the type of ammunition discovered in Saulsberry’s car was for use in a revolver. That might be true, but Harbor is ignoring the fact the prosecutor also asserted Sherman’s testimony “is contradicted by the defendant’s own testimony as to what type of weapon was used.” This assertion was true: Harbor testified quite positively that Saulsberry had a revolver.
The following colloquy occurred:
Harbor also asserts, “The other ‘inconsistency’ argued by the prosecutor and adopted by the trial court . . . was based on the fact that appellant testified that he fired his weapon in an easterly direction toward Saulsberry, rather than in a westerly direction toward Rosa Garcia. . . . [¶] . . . The ‘physical evidence’ showed that Rosa Garcia was killed by a bullet of unknown caliber that was fired in a westerly direction. The fact that appellant claimed he fired in an easterly direction at Saulsberry is not inconsistent, in any way, with Sherman’s testimony that a third individual fired shots toward Saulsberry, shots that necessarily would have traveled in a westerly direction toward Rosa Garcia.” (Italics added.)
Although Sherman’s testimony provided an evidentiary basis for claiming Garcia had been killed by the Cadillac driver, that is not the argument defense counsel made at the new trial motion hearing. Rather, defense counsel argued Garcia must have been killed by one of the shots Harbor fired while he was defending himself from Saulsberry’s attack. Given the incredible nature of Sherman’s testimony, we cannot say this was an unreasonable defense tactic. Sherman lacked credibility for any number of reasons. Despite being a family friend, she did not come forward with her exculpatory story until after Harbor was convicted. She testified Saulsberry had a semiautomatic, whereas Harbor was quite sure it had been a revolver. More troubling, only Sherman’s testimony had the Cadillac driver shooting at Saulsberry. Neither Kieanii nor Smith said the Cadillac driver pulled out a gun and started shooting at Saulsberry. Moreover, it appears nobody else even saw Sherman’s van at the scene although, according to her testimony, she was right in the middle of all the shooting. Neither the two eyewitnesses to the shooting, Kieanii and Smith, nor the two witnesses who looked out at the street after the shooting stopped, Huerta and Martinez, said they saw a van at the scene.
The trial court reasonably concluded Sherman’s testimony lacked credibility. Without her testimony, the only evidence that Saulsberry shot at Harbor came from Harbor’s own self-serving testimony at the new trial motion hearing. And Harbor’s testimony, that the bullets he fired at Saulsberry traveled from west to east, was inconsistent with the physical evidence because Rosa Garcia had been standing well to the west of Harbor.
Thus, we cannot say the trial court abused its discretion when it denied Harbor’s motion for a new trial. (See People v. McDaniel, supra, 16 Cal.3d at p. 179 [“unless a clear abuse of discretion is shown, a denial of the [new trial] motion will not be interfered with on appeal”].)
2. Jury was adequately instructed on relevant self-defense principles.
The jury was instructed on various aspects of the self-defense doctrine. Harbor contends the instructions were flawed because they were limited to the murder charge and to a situation in which the homicide victim had been the source of imminent danger. These claims are meritless.
a. Legal principles.
“If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.] ‘ “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” [Citations.]’ ” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) An appellate court will examine the jury instructions as a whole, along with the attorneys’ closing arguments to the jury, to determine if the instructions sufficiently conveyed the correct legal principles. (See People v. Kelly (1992) 1 Cal.4th 495, 524-527 [although trial court erroneously instructed jury it was legally possible to rape a dead body, it was not reasonably likely jury misunderstood correct law regarding felony murder and rape special circumstances given remaining instructions and attorneys’ jury argument]; see also People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [improper intent instructions were harmless error where closing arguments made jury aware specific intent to kill was element of attempted murder]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1130 [closing argument can be relevant consideration in determining prejudice from conflicting instructions].)
b. Discussion.
Harbor asserts the jury would have believed two of the self-defense instructions did not apply to the murder charge. The basic self-defense instruction stated: “The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [¶] 1. That there is imminent danger that the other person will either kill him or cause him great bodily injury . . . .” (Italics added.) The instruction regarding defense of others stated: “Homicide is justifiable and not unlawful when committed by any person in the defense of himself or another if he actually and reasonably believed that the individual intended to commit a forcible and atrocious crime and that there was imminent danger of that crime being accomplished.” (Italics added.)
Harbor argues a reasonable juror could have understood these instructions “as meaning that self-defense, imperfect self-defense and defense of others were applicable only if the threat of death or great bodily harm came from Rosa Garcia, the person who was killed, and not from Saulsberry.” We disagree. Defense counsel urged the jury to find the shootings had been in self-defense because Kieanii testified Saulsberry pulled out a gun. The prosecutor responded by arguing a self-defense finding was unwarranted, not because Garcia posed no threat to Harbor, but because if jurors believed Kieanii’s statement that Saulsberry had a gun, they should also believe her statement that Saulsberry threw the gun on the floorboard of his car before Harbor shot at him. The prosecutor told the jury: “There can be no self-defense at that point. We know he’s gotten rid of his gun . . . before he even gets into his vehicle. So there can be no self-defense, none. It’s not applicable here.” No reasonable juror would have believed the threat of imminent peril had to have come from Garcia.
Harbor also asserts the jury would have believed that one of the burden of proof instructions did not apply to the attempted murder charge. This instruction stated: “Upon a trial of a charge of murder, a killing is lawful if it was justifiable or excusable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable or excusable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty.” (Italics added.) Harbor argues a reasonable juror could have believed this instruction only applied to the count in which he had been charged with killing Garcia, and not to the count charging the attempted murder of Saulsberry.
Although the instruction was framed in terms of a successful killing, other instructions linked the murder and attempted murder charges. For instance, after the prosecutor urged the jury to reject Harbor’s self-defense theory, because Kieanii testified Saulsberry threw his gun down before Harbor shot at him, the trial court gave a duration-of-peril instruction that was not restricted to the murder charge: “The right of self-defense exists only as long as the real or apparent threatened danger continues to exist. When the danger ceases to appear to exist, the right to use force in self-defense ends.” Similarly, the instructions explaining that “[a] person threatened with an attack that justifies the exercise of the right of self-defense need not retreat,” and that “[a]ctual danger is not necessary to justify self-defense” were not restricted to the murder charge. And the transferred intent instruction advised the jury the crime Harbor committed against Garcia was “the same as though the person originally intended to be killed had been killed.” (Italics added.)
The jury was instructed: “When one attempts to kill a certain person but by mistake or inadvertence kills a different person, the crime, if any, so committed is the same as though the person originally intended to be killed had been killed.”
Moreover, the trial court expressly instructed the jury that self-defense did apply to an attempted killing: “An attempt to kill is lawful if done in lawful self-defense or defense of others.” (Italics added.) Reading this language in the context of the general reasonable doubt instruction and all the other self-defense related instructions, we conclude there is no reasonable likelihood the jury did not understand it was the prosecution’s burden to show, beyond a reasonable doubt, that neither the killing of Garcia nor the attempted killing of Saulsberry had been justifiable or excusable.
3. Remand for resentencing.
Harbor contends the trial court erroneously calculated his Three Strikes sentence, and the People properly concur, sentencing errors were made. Because the trial court also struck several enhancements, we will remand the case for resentencing.
“For a third strike defendant, the minimum term of the indeterminate life sentence is the greatest of three time periods. The first period (option one) is ‘[t]hree times the term otherwise provided as punishment’ for the felony offense, not including enhancements. (§§ 667, subd. (e)(2)(A)(i), 1170.12, subd. (c)(2)(A)(i).) The second period (option two) is 25 years. (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) The third period (option three) is ‘[t]he term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.’ (§§ 667, subd. (e)(2)(A)(iii), 1170.12, subd. (c)(2)(A)(iii).) . . . [¶] In addition to its use in calculating the minimum term of the indeterminate life sentence under option three, a prior serious felony conviction [§ 667(a)] requires a five-year enhancement term. [Citation.] Under the Three Strikes law, this determinate term must be consecutive to the minimum term of the indeterminate life sentence, and it is imposed whether or not the minimum term was established under option three. [Citations.] Thus, the Three Strikes law provides that the indeterminate life sentence ‘shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law’ (§§ 667, subd. (e)(2)(B), 1170.12, subd. (c)(2)(B)) and shall be ‘in addition to any other enhancement or punishment provisions which may apply’ (§§ 667, subd. (e), 1170.12, subd. (c)).” (People v. Williams (2004) 34 Cal.4th 397, 403-404.)
As the parties note, the trial court appears to have made two errors in calculating Harbor’s Three Strikes sentence. The trial court failed to calculate the minimum indeterminate life term for count 2 (the premeditated attempted murder conviction), and the trial court also tripled the section 12022.53, subdivision (d), firearm use enhancements on both count 1 and count 2. Under the Three Strikes law, enhancements are not tripled because “enhancements are included in calculating the minimum term under option 3 but not under option 1 . . . .” (People v. Acosta (2002) 29 Cal.4th 105, 116-117.) The Three Strikes law also requires the calculation of a minimum indeterminate life term for each present qualifying conviction. For premeditated attempted murder, which carries a straight life term, the minimum indeterminate life term is seven years, as provided by section 3046.
Given these sentencing errors, and the fact the trial court struck two prior prison term enhancement findings (§ 667.5), we deem it appropriate to remand this case so the trial court may consider restructuring Harbor’s sentence. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 [“the trial judge’s original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased[]”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where original sentence contained unauthorized enhancement]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458 [remand for resentencing proper where original sentence violated ‘double the base term’ rule]; People v. Savala (1983) 147 Cal.App.3d 63, 68-69, disapproved on other grounds by People v. Foley (1985) 170 Cal.App.3d 1039, 1044 [remand for resentencing proper where original sentence contained improper enhancement].)
Because we are remanding, we leave it to the trial court to address the parties’ assertion the abstract of judgment contains a clerical error regarding the imposition of a “probation fine.”
DISPOSITION
The judgment of conviction is affirmed, and the case is remanded to the trial court for resentencing.
We concur: CROSKEY, J., KITCHING, J.
“Q . . . And you had a semiautomatic? [¶]
A Yes. [¶]
Q Was [Saulsberry’s] a semiautomatic? [¶]
A No. He had a revolver. [¶]
Q He had a revolver? [¶]
A Yeah.”