Opinion
F070236
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. GERALD BRENT HARRIS, Defendant and Appellant.
Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF148870A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Gerald Brent Harris appeals from his conviction after a jury trial on September 4, 2014, for the second degree murder of Dante Breeding (Pen. Code, §§ 187, subd. (a), 189). The jury found true an allegation defendant personally discharged his firearm causing the death of Breeding (§ 12022.53, subd. (d)). The trial court sentenced defendant to an indeterminate term of 15 years to life for second degree murder and a consecutive term of 25 years to life for the personal gun use enhancement.
Unless otherwise designated, all statutory references are to the Penal Code.
On appeal, defendant contends the standard pattern instruction used to instruct the jury on heat of passion, CALCRIM No 570, precluded the jury from considering the third party conduct of defendant's neighbors. Defendant argues the trial court erred in failing to instruct the jury on self-defense and imperfect self-defense. Defendant further contends the trial court erred in denying his motion to exclude a racial epithet he directed toward the victim. Additionally, the parties filed supplemental briefing on whether the case should be remanded for the trial court to exercise its discretion whether to strike or impose the gun use enhancement after the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.).
FACTS
Prosecution
Isaac Foreman grew up knowing Dante Breeding and was close enough to him to refer to Breeding as his cousin. Foreman's girlfriend, Jasmine Wilemon, lived next door to defendant, introduced Foreman to defendant's wife (Kim), and subsequently introduced Foreman to defendant. Foreman was living with Jasmine Wilemon and would see defendant once or twice a day.
About two or three months before the shooting, Foreman was in the front yard of defendant's home when Breeding showed up. Foreman had not known Breeding knew Kim, but Breeding told Foreman that Kim was a friend. Foreman frequently saw Breeding at defendant's residence. Foreman explained Breeding would "hang out" with both Kim and defendant. According to Foreman, Breeding was at defendant's house on a regular basis, three times a day—morning, afternoon, and at night. Other neighbors, including Jasmine Wilemon, also observed Breeding's regular visits to defendant's house. Breeding was frequently at defendant's house late in the afternoon or late at night.
Defendant worked the graveyard shift as a United States Postal Service employee. During the two-month period leading up to the shooting, Foreman believed Breeding was at defendant's house every night while defendant was at work. Breeding was not living at defendant's house; he lived with his wife. Foreman believed his cousin and Kim were having a sexual relationship. A month after Breeding first started frequenting defendant's house, Foreman observed Breeding and Kim smoking cigarettes in the garage. He saw Kim approach Breeding, who was sitting on the washing machine, and kiss him on the lips.
Three weeks before the shooting, defendant came home from his job at 3:00 a.m. to get some medication. Defendant found Breeding and Kim in the computer room with the lights off. Defendant told Breeding he no longer wanted him to come to the house. The following day, as Foreman was mowing defendant's lawn, defendant told Foreman, "[I]f I see your cousin over here, I'm going to shoot him." Foreman explained that about two-months before the shooting, defendant stated "if he caught anyone [effing] with his girl, he will shoot him."
Foreman said Kim had shown him a shotgun. But in a statement made to a law enforcement officer, Foreman had said it was defendant who showed him the shotgun while telling Foreman he would kill anyone having sex with his wife. Adrian Wilemon, Jasmine Wilemon's brother, also lived next door to defendant's home. Adrian explained defendant had shown him his shotgun. A couple of weeks before the shooting, Adrian heard defendant say if he found someone with his wife he would kill the person, and he shoots to kill. About a month before the shooting, defendant told Adrian he had come home from work one evening and found Breeding and Kim together in the computer room. Defendant did not make further negative comments to Adrian about Breeding. Adrian did not recall defendant saying of Breeding that he "never liked that nigger." But Adrian told an investigator defendant had made a remark of that nature.
Either the night before the shooting, or possibly two nights before, Jasmine Wilemon and Foreman played a prank on defendant by taking condoms out of their wrappers and placing them on the doorknob of his house and inside defendant's car. Foreman denied personally participating in this prank, but said he watched Jasmine place condoms on the steering wheel and antenna of defendant's car. Although a deputy investigating the scene did not find condoms or condom wrappers in the car or at the front door, a condom wrapper was found on the concrete walkway north of the driveway. Foreman identified the wrapper as one from the prank.
A day after the prank, Jasmine Wilemon worried defendant would believe Breeding had placed the condoms at the house, because she knew Breeding and Kim were "messing around" and thought defendant would think Breeding did this as a joke on defendant. After the shooting, Jasmine was concerned the prank could have fueled defendant's worry over his wife's relationship with Breeding.
Jasmine Wilemon spoke to defendant on the phone about a condom wrapper a deputy had found in the garage. Defendant told her not to worry because she had nothing to do with anything. In a recorded call from the jail, defendant told Kim he thought Breeding had opened up the garage door to shed light on the condoms that were on his car. During this call, Kim told defendant, "I thought you were upset about the fucking rubbers everywhere." Defendant replied: "I was cause I thought whoever did it was [Breeding] and I said I wanted to be alone with you that night. That same time I tell you—tell him that I wanted to be alone with you, he goes and does all this stuff."
The evening before the shooting, a neighbor heard a male and female arguing at defendant's house. Then, the morning of June 5, Foreman overheard an argument between defendant and Breeding. Kim had allowed Breeding to shower at the Harris house. Defendant told Breeding he did not want him in the house. According to Foreman, defendant "was upset that my cousin kept coming around after he told him not to." Foreman had initially told a law enforcement officer he thought the argument was about Kim's sexual relationship with Breeding.
Foreman testified Kim was driving him and Jasmine Wilemon to the store in defendant's vehicle in late afternoon of June 5 when they saw Breeding. Kim pulled over to talk with him, and she told him to come to her house. They drove back to the Harris house. Breeding and Kim walked inside the house, and Foreman and Jasmine went to Jasmine's house. Foreman and Jasmine heard a gunshot about 10 minutes later. Foreman testified that "during or around" the time of the shotgun blast, he heard defendant yelling and "going crazy."
Jasmine Wilemon's testimony differed from Foreman's testimony concerning the events immediately before the shooting. She did not remember going to the store with Kim and Foreman. Jasmine explained she had arrived home from an appointment when she, Foreman, and her brother saw Breeding drive up to the Harris house. Jasmine added, "We seen that [Breeding] was kind of upset about something. We didn't know what, though, and then me and [Foreman] seen him walking up [defendant]'s driveway to the garage, and shortly after that, that's when they said they heard the gunshot."
Deputy Benjamin Pallares questioned Kim shortly after the shooting. Kim stated her husband shot defendant over a cell phone. She told Pallares her husband was upset with Breeding "because the cell phone wasn't on the night stand, and the day before [Breeding] had left and [defendant] was calling [Breeding] a thief." Kim said Breeding had just returned the cell phone earlier that day. Kim said Breeding left but later returned and she was speaking to him in the garage. While she was speaking with Breeding, Kim heard a gunshot come from behind her and saw Breeding fall to the ground, bleeding from his head. She turned around and saw her husband with a gun. According to Kim's account, her husband fell to his knees, stating, "I didn't know, I didn't know."
After firing the gun, defendant went into the house. Investigators found a shotgun in the living room with one spent round in the chamber. When defendant came out of the house, he was unarmed, his hands were shaking, and he appeared scared.
In a recorded conversation between defendant and a friend visiting him at the jail, defendant told the friend in a stutter that he was scared, and when the friend stated defendant was "[s]cared for your life," defendant replied, "I never been so scared. It was—it was, I can't even explain it." The friend commented that Breeding should not have been there. Defendant said he had told Breeding "to stay away I don't [know] how many times." Defendant elaborated, saying, "So, either it was to see—to feed her ... addiction or there was going to be something inevitably going on between them but, I—I—that's not what I think. I think he was doing it to finally say you owe me, you're going to give me this or I'm taking it from you." Later defendant told his friend that after the shot, he vomited multiple times, drank some liquor, and smoked cigarettes.
DISCUSSION
I. Provocation Instruction
Introduction
Defendant contends the heat of passion instruction was inadequate because it allowed the jury to reject that defense if it found a third party other than defendant himself was the source of provocation. Defendant more specifically argues that although the standard instruction uses the terms "provoked" and "provocation," the instruction fails to meaningfully define these terms. According to defendant, the instructions further failed to indicate the victim need not have provoked defendant because the provocation could have come from third parties—neighbors Isaac Foreman and Jasmine Wilemon, who conducted the condom prank.
The People reply this issue is waived because defendant seeks a pinpoint instruction and trial counsel did not seek any elaboration on CALCRIM No. 570. The People further argue on the merits the terms provoke and provocation do not require further elaboration, and nothing in the instruction prevented the jury from applying provocation to the third party neighbors. CALCRIM No. 570
CALCRIM No. 570 was read to the jury as follows:
"A killing that would otherwise would [sic] be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone, because of a sudden quarrel or in the heat of passion if ... One, the defendant was provoked. Two, as a result of the provocation, the defendant acted rationally [sic] under the influence of intense emotion and that obscured his reasoning or judgement. And, three, the provocation would have caused a person of average disposition to act rationally [sic] and without due deliberation, and that is from passion, rather than from judgment.
"Heat of passion does not require anger, range [sic], or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection in order for heat of passion [sic]. To reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. When no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked.
"The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts, whatever [sic] he acted from passion rather than from judgment. If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning or judgment, then, the killing is not reduced to voluntary manslaughter on this basis. The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." (See CALCRIM No. 570.)
Forfeiture
A trial court has no sua sponte duty to revise or improve an accurate statement of law without a request from counsel. Failure to request clarification of an otherwise correct instruction forfeits the claim of error on an appeal. (People v. Lee (2011) 51 Cal.4th 620, 638; People v. Jones (2014) 223 Cal.App.4th 995, 1001.) Some legal terms have technical meanings requiring further explanation. The terms provocation and heat of passion as used in standard jury instructions, however, bear their common meaning and require no further explanation in the absence of a specific request. (People v. Cole (2004) 33 Cal.4th 1158, 1217-1218; People v. Cox (2003) 30 Cal.4th 916, 967, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334.) Because defendant is not arguing the instruction as given was incorrect, it was incumbent on his trial counsel to seek any appropriate elaboration on the instruction, and counsel's failure to do so means this issued is forfeited on appeal.
Merits of Defendant's Contention
Although we find this issue forfeited, we alternatively conclude defendant's argument lacks merit. As noted above, the terms provoke and provocation bear common meanings requiring no further explanation by the trial court. (People v. Cole, supra, 33 Cal.4th at pp. 1217-1218.) The standard language of CALCRIM No. 570 has been found to be legally correct and to properly convey the test necessary for the jury to determine whether a defendant has been sufficiently provoked. (People v. Jones, supra, 223 Cal.App.4th at p. 1001; People v. Hernandez, supra, 183 Cal.App.4th at p. 1334.) The trial court has no sua sponte duty to give a pinpoint instruction relating particular facts to an element of the charged crime, thereby explaining or highlighting a defense theory. (People v. Mayfield (1997) 14 Cal.4th 668, 778, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 390.)
Further, provocation was not used in the instruction in a technical sense peculiar to the law. We presume the jurors were aware of the common meaning of the term. Provocation means something that provokes, arouses, or stimulates. (People v. Hernandez, supra, 183 Cal.App.4th p. 1334.) Provoke means to arouse to a feeling or action, or to incite anger. (Ibid., citing Webster's Collegiate Dict. (10th ed. 2002) p. 938 and People v. Ward (2005) 36 Cal.4th 186, 215.) There is, therefore, no special technical legal definition of the terms provocation and provoke requiring further explanation or elaboration by the trial court.
Defendant also argues CALCRIM No. 570 failed to direct the jury to the neighbors' condom prank as a source of provocation. As the People explain, the instruction did not preclude the jury from considering third party conduct defendant could reasonably have believed to have been done by Breeding. During a recording of defendant's jail conversation with his wife, defendant told her he thought the condom prank had been done by Breeding. During defendant's conversation with Jasmine Wilemon after the shooting regarding the condoms, defendant told her not to worry because she had nothing to do with anything. From the record presented at trial, it does not appear defendant blamed anyone except Breeding for the condom prank. CALCRIM No. 570 correctly instructed the jury on how to weigh evidence of provocation, including the condom incident defendant thought was carried out by Breeding. Defendant has failed to demonstrate the absence of further clarification of the meaning of provocation or reference of participation by third parties in any way diminished defendant's defense.
The People point out that before the shooting, defendant had warned Breeding not to come back to his house but Breeding did so anyway. The People argue this would have been far more provocative to defendant than the condom incident, which occurred a day or two prior to the shooting. We agree with this analysis of the facts adduced at trial. There was no instructional error and the instructions given adequately advised the jury how to evaluate evidence of provocation, including the condom incident.
II. Defense Counsel's Closing Argument
During closing argument to the jury, defense counsel referred to the condom prank carried out by Foreman and Jasmine Wilemon, but argued Foreman's account of not directly participating was inconsistent with Jasmine's account and showed Foreman's testimony lacked general credibility. Defense counsel did not otherwise make other argument concerning the incident and did not argue it, too, could have provoked defendant.
Defendant contends his trial counsel was ineffective for failing to argue a third party provocation theory to the jury based on the neighbors' condom prank. Defendant argues his counsel was ineffective for failing to argue the prank was sufficient provocation to constitute heat of passion. We disagree.
A defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1019.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 419; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
As the People have argued and we have explained above, this argument is not persuasive given the context of defendant's actions. Defendant's wife was apparently having an affair with Breeding for some time prior to the shooting. Defendant had seen the two alone in a room together late at night when defendant unexpectedly returned home from the graveyard shift to get medication. During her closing argument, defense counsel focused the jury's attention on Breeding's conduct, including the fact Breeding came back to defendant's home after being told to stay away. Defense counsel argued this conduct was provocative enough to justify a conviction for manslaughter rather than first or second degree murder.
Defense counsel was more effective in trying to turn the jury's scrutiny to Breeding's most recent conduct because this conduct left defendant with less time to cool down than the condom incident occurring earlier. Defendant's ire at Breeding was more likely fueled by what appeared to be an affair with his wife than the condom prank—whether or not the jury found defendant thought Breeding carried out the prank or it was done by his neighbors. Defense counsel's argument centered on heat of passion caused by his wife's alleged affair with Breeding, which would supersede the condom prank in its emotional intensity.
Defendant has failed to show defense counsel's representation fell below professional norms in how she argued provocation in her closing argument. Defendant has further failed to demonstrate defense counsel's failure to add the condom prank to her closing argument was prejudicial to defendant's defense.
III. Instructions on Self-defense
The trial court denied defendant's request for instructions for self-defense (CALCRIM No. 505), defense of one's home or property (CALCRIM No. 506), and imperfect self-defense (CALCRIM No. 571). Defendant argues the trial court erred in refusing these instructions on self-defense and imperfect self-defense because during a conversation with his friend in jail, defendant said he was afraid during the incident. We reject this argument.
Even in the absence of a request from the defendant, the trial court in criminal cases must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Najera (2008) 43 Cal.4th 1132, 1136.) California law places a sua sponte duty on the trial court to instruct fully on all lesser necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Here, defendant requested the instructions not given by the trial court.
The doctrine of self-defense embraces both perfect and imperfect self-defense. Perfect self-defense requires the defendant have an honest and reasonable belief in the need to defend himself or herself. Imperfect self-defense is the killing of another under the actual but unreasonable belief the killer was in imminent danger of death or great bodily injury. The doctrine requires without exception that the defendant had an actual belief in the need for self-defense; fear of future harm, no matter how great the fear and no matter how great the likelihood of harm, does not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. In imperfect self-defense, the killing is without malice and therefore does not constitute murder but manslaughter. It is a form of voluntary manslaughter. (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168.)
There was no evidence defendant or his wife were in any danger of harm or that defendant believed he and his wife were in such danger. Defendant concedes in his argument that he had warned Breeding on several occasions to stay away from his home and his wife. Defendant argues he expressed fear of the situation to his friend during a conversation in jail. In a stutter, defendant told his friend he had been afraid. Defendant's friend suggested defendant was afraid of Breeding. Defendant said he had never been so scared but could not explain it. The friend stated Breeding should not have been there. To this comment, defendant replied he had told Breeding to stay away many times. Elaborating on this statement, defendant added, "So, either it was to see—to feed her ... addiction or there was going to be something inevitably going on between them but, I—I—that's not what I think. I think he was doing it to finally say you owe me, you're going to give me this or I'm taking it from you."
Read in context, defendant was not expressing fear of imminent harm to himself or his wife. Defendant never directly expressed fear for his life or for his wife's life. It is defendant's friend, not defendant himself, who suggested defendant was in fear of his life. In response to this statement from his friend, defendant vaguely referred to never being so scared. As defendant elaborated, however, he was afraid about the relationship his wife had with Breeding as well as what he apparently believed to be his wife's drug addiction.
Defendant may also have been expressing fear about the consequences of his actions. Later during the same conversation defendant told his friend that after the shot, he vomited multiple times, drank some liquor, and smoked several cigarettes.
Assuming arguendo defendant's jailhouse statement to his friend constituted substantial evidence he feared Breeding, we would find the trial court's failure to give self-defense instructions to be harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. There was no evidence presented at trial showing Breeding was armed, he had ever verbally or physically threatened defendant or his wife, or he had a past history of making threats to defendant or to his wife. The opposite is true; there was evidence presented from multiple witnesses that defendant had threatened Breeding in the past in addition to telling him to stay away from the Harris home. Defendant showed his shotgun to others and boasted he would kill anyone sleeping with his wife. Some of these threats occurred weeks before the shooting. Isaac Foreman testified he heard defendant yelling and "going crazy" at the time of the shotgun blast. No witness described Breeding as yelling, uttering provocative statements, or threatening defendant or Kim.
Defendant argues Breeding "continued to invade" the Harris home. The jury was instructed on trespass and involuntary manslaughter. Defense of habitation alone, however, can never justify homicide without self-defense or defense of others. The defendant must show he or she reasonably believed the intruder intended to kill or inflict serious injury on someone in the home. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.)
The court instructed the jury with the general involuntary manslaughter instruction (CALCRIM No. 580) and the right to eject a trespasser from real property (CALCRIM No. 3475).
There was no evidence showing Breeding was a threat to defendant or to his wife. Indeed, Breeding was invited onto the property by Kim, so he could not be an invader. Where a trespass is forcible, an owner may resist it, but is not justified in killing the trespasser unless it is necessary to defend himself or herself against the loss of life or great bodily harm. (See People v. Hecker (1895) 109 Cal. 451, 461-462.) "Self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing." (Id. at p. 462.) In sum, the trial court did not err in denying defendant's request for self-defense instructions, and if there was error, it was harmless beyond a reasonable doubt.
IV. Defendant's Derogatory Reference to Victim
Defendant argues the trial court abused its discretion in admitting evidence of defendant's remark: "I never liked that nigger." Defendant contends use of the racial epithet was inflammatory and violated Evidence Code section 352. Defendant further argues his federal due process rights were also violated. We disagree.
Evidentiary Ruling
Defense counsel objected to the introduction of evidence of Adrian Wilemon hearing defendant refer to Breeding by using a racial epithet. The trial court conducted an Evidence Code section 402 hearing outside the presence of the jury on the admissibility of this evidence. Adrian Wilemon explained he heard defendant threaten to kill Breeding if defendant caught him "messing with his wife." Adrian denied, however, he ever heard defendant say he "never liked that nigger." Adrian could not remember talking to an investigator from the district attorney's office and telling him defendant had made this statement.
The prosecutor explained to the court she sought to impeach Adrian Wilemon with the testimony of the investigator who heard and recorded Adrian's statement to the contrary. Defense counsel vigorously objected to the statement as being too inflammatory to be admissible. The trial court agreed the statement was highly inflammatory, but found it was probative as to defendant's state of mind, and the statement also went to defendant's motive. The court acknowledged the statement was prejudicial but ruled the prejudicial effect of the statement did not outweigh its probative value. The court noted there were no African-Americans on the jury. The court ruled the prosecutor could present this evidence.
In his testimony before the jury, Adrian Wilemon said he did not remember defendant using the racial epithet to describe Breeding. The prosecutor called Investigator Daniel Stevenson, who testified he spoke with Adrian, who told him defendant did not like Breeding. Adrian further told Stevenson defendant had made general threats to kill anyone he thought was having sex with his wife, and Adrian heard defendant call Breeding "the N word or nigger."
Analysis
Only relevant evidence is admissible. All relevant evidence is admissible unless it is excluded under the United States or California Constitution or by statute. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) Evidence Code section 210 defines relevant evidence as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the proffered evidence tends to logically, naturally, or by reasonable inference establish material facts such as identity, intent, or motive. (People v. Scheid, supra, at p. 13.)
Under Evidence Code section 352, the trial court may exclude evidence if its probative value is substantially outweighed by the probability its admission will create substantial danger of undue prejudice. The admission of photographs of a victim lies within the broad discretion of the trial court when a defendant asserts the pictures are unduly gruesome or inflammatory. The trial court's exercise of discretion will not be disturbed on appeal unless the probative value of the racial epithet is clearly outweighed by its prejudicial effect. (People v. Montes (2014) 58 Cal.4th 809, 862; People v. Ramirez (2006) 39 Cal.4th 398, 453-454.) Prejudicial evidence is evidence uniquely tending to evoke an emotional bias against a party as an individual with only slight probative value. (People v. Virgil (2011) 51 Cal.4th 1210, 1248; People v. Carey (2007) 41 Cal.4th 109, 128.) A trial court's exercise of discretion under Evidence Code section 352 is upheld on appeal unless the court abused its discretion by exercising it in an arbitrary, capricious, or patently absurd manner. (People v. Suff (2014) 58 Cal.4th 1013, 1066.)
Expressions of racial animus by a defendant towards a victim and the victim's race, like other expressions of enmity by an accused murderer towards the victim, is relevant evidence under Evidence Code section 210. It constitutes evidence of the defendant's prior attitude toward the victim, a relevant factor in deciding whether the murder was deliberate and premeditated because it goes to the defendant's motive. Generally, racial epithets are not so inflammatory that their probative value is substantially outweighed by their potential for undue prejudice under Evidence Code section 352. (People v. Quartermain (1997) 16 Cal.4th 600, 628.)
As explained by our Supreme Court in Quartermain:
"The unfortunate reality is that odious, racist language continues to be used by some persons at all levels of our society. While offensive, the use of such language by a defendant is regrettably not so unusual as to inevitably bias the jury against the defendant. Here, the racial epithets were only a small portion of the evidence concerning defendant's interviews with the police, and the prosecutor did not ask any follow-up questions or otherwise focus attention on them." (People v. Quartermain, supra, 16 Cal.4th at p. 628.)
The trial court considered the potential for undue prejudice to defendant if expression of his racial epithet directed at Breeding came into evidence. The court found the evidence relevant and its probative value outweighed its prejudicial effect on the jury. Here, the evidence demonstrated defendant harbored a long simmering anger toward Breeding that included not only the alleged affair with defendant's wife, but Breeding's race. As noted by the trial court, this evidence was probative of defendant's state of mind as well as his motive to kill Breeding. The trial court did not abuse its discretion in allowing defendant's prior statement into evidence pursuant to Evidence Code sections 210 and 352.
Defendant further argues his constitutional right to due process was implicated by the trial court's ruling. The admission of relevant evidence found not to be unduly prejudicial also did not violate defendant's right to due process because it did not render defendant's trial fundamentally unfair. (People v. Hamilton (2009) 45 Cal.4th 863, 930; People v. Partida (2005) 37 Cal.4th 428, 439.) We reject defendant's constitutional challenge to the admissibility of this evidence.
V. Senate Bill No. 620
The parties filed supplemental briefing addressing the effect of Senate Bill No. 620 (2017-2018 Reg. Sess.) on defendant's sentence. On October 11, 2017, the Governor approved Senate Bill No. 620, effective January 1, 2018, which amended sections 12022.5 and 12022.53 to give the trial court discretion to strike or dismiss firearm enhancements. Previously, the trial court had no discretion to strike or dismiss such enhancements and they had to be imposed by law. Both parties agree this statutory amendment is retroactive to all cases not yet final because its effect mitigates punishment for a particular criminal offense. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Francis (1969) 71 Cal.2d 66, 75-76.) The People argue, however, remand is inappropriate because the trial court would not exercise the discretion it now has to strike defendant's firearm enhancement. Because the trial court failed to make a definitive statement concerning the enhancement, we disagree with the People's argument and remand for a new sentencing hearing on whether to strike or impose the firearm enhancement.
In sentencing defendant, the trial court referred to a letter filed on behalf of defendant that spoke well of him. The court noted defendant was statutorily ineligible for probation, in part, because of the true finding on the gun use enhancement pursuant to section 12022.53, subdivision (d). The court explained it would not grant defendant probation even if it had the statutory discretion to do so. The court, however, was silent on how it would have exercised its discretion, if it had such discretion, on striking the firearm enhancement.
Although there is no assurance the trial court would exercise its discretion to strike the firearm enhancement, given the trial court's silence and the change in the law, we believe defendant is entitled to argue this point to the trial court. While we do not discount the seriousness of what happened or of defendant's convictions, we cannot say from this record the trial court would not exercise its discretion to strike the firearm enhancement. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1021.) This case is also distinguishable from People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, where the trial court clearly stated it did not find any good cause to strike a prior conviction allegation and had many reasons not to, concluding the defendant was the kind of person the law intended to keep off the street as long as possible. We therefore reject the People's arguments that it would be legal error for the trial court to strike any firearm enhancement and a remand for resentencing would serve no purpose.
DISPOSITION
The trial court's sentence is vacated and the case remanded for the trial court to exercise its discretion whether to impose or to strike the gun use enhancement pursuant to section 12022.53 as amended. The judgment is otherwise affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.