Opinion
A150896
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DEMARA HATCH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C176825)
Defendant Demara Hatch was charged with first degree murder in the shooting death of Jay Hansen during an altercation among friends. A jury convicted defendant of voluntary manslaughter with personal use of a firearm and possession of a firearm by a felon. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a), 29800, subd (a)(1).) The court sentenced him to 22 years in prison.
All further section references are to the Penal Code.
Defendant contends the trial court erred in instructing the jury on involuntary manslaughter and in responding to a jury request for clarification on the element of malice. Defendant also seeks correction of the court's award of presentence custody and conduct credits (§§ 2900.5, subd. (a), 2933.1) and requests remand to allow the trial court to exercise discretion conferred by a recent statutory amendment to strike the firearm enhancement (§ 12022.5). We shall affirm the judgment with a modification of custody and conduct credits and remand for resentencing.
Statement of Facts
The events leading up to the deadly confrontation, though largely uncontroverted, require an extended recitation of the evidence in order to evaluate the issues presented.
On Saturday, May 24, 2014, Renee Thomas and Shala Hudson, longstanding friends, met in Oakland and travelled together to San Francisco to attend a festival in the Mission District. They arrived in San Francisco around 6:00 p.m., after the festival ended, and decided to "hang out" in their old neighborhood, the Tenderloin District.
The women were standing on Market Street drinking alcohol when their friend Deandre Shackleford-Cooper came along. About 10 minutes later defendant, a good friend of Thomas, joined the group. The foursome stood together for about an hour talking, drinking and, except for Hudson, smoking marijuana. When it started "to get dark and cold" the group decided to continue the party in Oakland.
Defendant, Thomas, and Hudson first went to Hudson's apartment where their friend Irisha Terrell Smith-Lawson joined them for drinking and socializing. Defendant and the three women then drove to the apartment that Shackleford-Cooper shared with the victim Hansen. Hudson was dating Hansen, who was away from the apartment when the group first arrived.
Defendant, Shackleford-Cooper, and the three women drank and socialized. Shackleford-Copper noticed that defendant was carrying a gun tucked inside his pants and asked defendant about it. Defendant showed him the gun: a .357 Magnum revolver. Defendant testified that he had borrowed the gun earlier that day from a friend and carried it for protection. Defendant said he had been living in Las Vegas and did not feel safe when visiting the Bay Area because "something had happened" to him there previously. Shackleford-Cooper, despite being a convicted felon, also had a gun. After defendant showed the group his gun, Shackleford-Cooper brought his 9 millimeter firearm from his bedroom to show the group.
Defendant testified that Shackleford-Cooper had two guns in the house but Hudson and Shackleford-Cooper testified there was only one.
Hansen arrived at the apartment about an hour after the group arrived and after the men had put away their guns. Soon after he arrived, defendant felt sick from drinking and went out to Hudson's car where he "passed out" in the front passenger seat. The rest of the group decided to go to downtown Oakland dance clubs. Hansen drove Hudson's car with defendant asleep next to him. Shackleford-Cooper, Thomas, and Smith-Lawson sat in the back with Hudson laying across their laps.
When they arrived in downtown Oakland everyone except defendant exited the car. After Hudson failed to rouse defendant, he was left in the car with the doors locked while the rest of the group went to several clubs in the area. However, the group was denied admission because Thomas and Smith-Lawson, both lesbians and dressed in a "masculine" style, were wearing athletic shoes and one was wearing basketball shorts, which did not meet the dress code for women. Hudson testified Hansen was "irritated" because the two women "weren't dressed properly." Thomas testified that Hansen became angry, yelled and started "tripping."
The group returned to the car. Hansen said he wanted to go to San Francisco, but Hudson said she was hungry and the group then went to a food truck. Defendant remained sleeping in the car while the others got out and all but Hansen ate something. The group returned to the car and drove away in the same seats as before.
Hansen asked Hudson, who owned the car, if they could go to San Francisco. Before Hudson could respond, Smith-Lawson said she did not want to go to the city and Thomas joined in, saying "no, we're not going to the city." Hansen "got upset" with Thomas, saying "I'm not talking to you." Thomas replied "I don't care, my nigga. We [are] not going to the city." Hudson told Thomas to shut up and tried to explain to Hansen that they could not go to the city "because they have DUI check points out and [she was] not in a seat belt."
Hansen and Thomas continued arguing. Hudson testified that Hansen was "outraged" to have Thomas talk to him "like she was a man instead of a female." Shackleford-Cooper testified that Hansen was "offended" that Thomas and Smith-Lawson, who are "both girls and identify as how they identify sexually," would argue with Hansen. Hudson testified that Hansen told Thomas "You're talking to me like you're a nigga. I'm a grown-ass man, you're a bitch." According to Thomas, Hansen told her, "bitch, you wanna be a nigga, stay in a bitch place." Thomas replied angrily "I ain't no bitch, nigga." The two argued loudly with each other, trading insults, as Hansen drove. Thomas testified that Hansen called her a bitch and a dyke. Defendant remained sleeping.
Hudson tried to stop Hansen and Thomas from arguing but failed to calm either of them. When stopped at a red light, Hanson called out to a prostitute on the street, which increased Thomas's anger. Thomas testified she told Hansen "Don't yell out the window trying to get some hoes. We don't get down like that" and he replied "Stay in the bitch place. You think you the shit, bitch. I beat your ass. I got something for you." Thomas said Hansen repeatedly threatened that he had "something" for her when they got to his apartment and she believed he was talking about a gun. Hudson did not hear Hansen threaten Thomas. Hansen and Thomas continued to argue for the rest of the drive home.
The witnesses' accounts diverge at the point at which Hansen parked in the driveway of his home. According to Hudson and Thomas, everyone exited the car except defendant, who remained sleeping. Hansen walked toward the front door of his ground-floor apartment and yelled at everyone "Get the fuck away from my house." Thomas was still angry at being "disrespected" and walked toward Hansen to continue the argument, saying "you not going to do shit." The two yelled at each other and, according to Hudson, came within three feet of each other. Thomas testified that Hansen said, "I'mma gonna go get my thang and I'm gonna show you." Thomas believed Hansen was referring to a gun. Hudson did not hear Hansen say he was going to get a gun.
Hansen and Thomas were arguing in the driveway when Hudson saw defendant standing outside the car holding a gun in his hand with his arm down and the gun pointed at the sidewalk. According to Hudson, she grabbed defendant's arm and said "Put the gun away, let's just go." Defendant looked "half asleep." Defendant told Hansen, in a calm voice, "be cool." Hansen kept yelling and defendant pointed the gun at him. Hansen said to defendant "Man, you're going to point a gun at me?" and ran up to defendant and began "wrestling over the gun." Thomas testified that she told defendant "it wasn't that serious, put the gun down" and she and Shackleford-Cooper, along with Hansen, grabbed defendant's arm and wrestled over the gun. Hudson grabbed Thomas, put her in the car and started to drive away. As they were leaving the driveway, they heard a single gunshot. They saw Smith-Lawson walking on the street and stopped to pick her up. As the car was stopped, defendant jumped into the car with the gun in his hand. Hudson asked defendant if he shot Hansen and defendant replied either "No" or "I don't know, I hope not." Defendant told the women "you all better not say shit." Hudson drove to her house where the group picked up Smith-Lawson's car. The women drove defendant to San Francisco, at his request, then returned to Oakland.
Shackleford-Cooper provided a different account of the confrontation. He testified that as soon as Hansen parked, everyone including defendant got out of the car. Defendant had a gun in his hand, held down at his side. Hudson and Thomas stood between Hansen and defendant and tried to calm defendant. Hansen shouted at defendant "You gonna pull a gun out on me?" Shackleford-Cooper's testimony at this point is inconsistent. Initially, he testified that Hansen, defendant and "the girls" started "tussling" over the gun but later said Hansen never rushed defendant or tussled over the gun. He was unsure whether Thomas and Hudson grabbed defendant's arm and tried to restrain him during the "commotion." Shackleford-Cooper testified that defendant pointed the gun at Hansen and he (Shackleford-Cooper) touched defendant's arm and said in a "pleading" tone, "please." Defendant gave Shackleford-Copper "a menacing look" and pulled his arm away. Hudson and Thomas got in the car and drove away. Hansen was unlocking the front door and stepping inside the apartment when defendant shot him.
Defendant provided yet a third account of the shooting. He testified he was "passed out" in the car when he heard a man shouting "Bitch, you keep talking like a man. I am going to air your ass out. You better get the fuck up out of here. I am going to beat your ass." "Air you out" means shoot you, defendant said. Defendant was half asleep and "disoriented." He got out of the car and, as he did so, his gun fell out of his pants. He grabbed the gun and held it at his side. He saw Hansen and Thomas yelling and pushing each other near the apartment door. He approached Hansen, telling him "Bro, calm down. I am going to get them out of here." He denied ever pointing the gun at Hansen. He testified that Thomas kept yelling at Hansen and Hansen moved toward her. Defendant put up his hand to hold Hansen back and Hansen slapped the hand, "rushed" him and "grabbed onto the gun." The two men struggled for possession of the gun. Shackleford-Cooper then grabbed him from behind and tried to yank him backwards. Defendant was trying to pull his arm away from Shackleford-Cooper's grasp when the gun went off accidentally. Hansen ran through the open door of his apartment. He did not think Hansen had been shot. He ran down the driveway, saw Hudson's car, and jumped in.
Hansen died on the floor of his apartment. It appeared that he collapsed while unlocking the door because the police found him wearing a retractable keychain attached to his belt with a broken chain. A key was inside the lock on the front door handle with a small section of the chain hanging from the key. The police discovered a nine-millimeter firearm in Shackleford-Cooper's bedroom.
Hansen died from a single gunshot. A pathologist testified the bullet entered Hansen's back "very close to the midline" or vertebral column, passed through his body and exited his upper right arm several inches below the shoulder. There were no powder burns to suggest a close-range shot but the pathologist conceded that Hansen was wearing a t-shirt and "clothing can block out the products of combustion." The pathologist could not say how Hansen was positioned when shot and admitted the possibility that Hansen could have been shot during "a physical altercation or tussle."
Criminalist Peter Barnett testified for the defense as an expert in muzzle discharge residue testing. Based on the presence of gunpowder particles on Hansen's clothing, he estimated that Hansen was shot at a distance of between six inches and eight feet.
Discussion
Defendant raises several claims on appeal: (1) the trial court erred in instructing the jury that a killing may be involuntary manslaughter if committed during the commission of a misdemeanor dangerous to human life without specifying a particular misdemeanor; (2) the court gave an inadequate response to the deliberating jury's request for clarification on the element of malice; (3) the court awarded insufficient presentence custody and conduct credit; and (4) the case should be remanded to allow the trial court to exercise discretion to strike the firearm enhancement. The Attorney General raises a separate sentencing issue, contending the trial court erroneously stayed punishment for the felon in possession of a firearm conviction. (§ 654.) We address these claims in turn.
1. Any inadequacy in the jury instruction on involuntary manslaughter was harmless.
The jury was given instructions on excusable homicide (accident), justifiable homicide (self-defense or defense of another), first degree murder, second degree murder, voluntary manslaughter (sudden quarrel or imperfect self-defense or defense of another), and involuntary manslaughter. (CALJIC Nos. 4.21.1, 4.22, 4.45, 5.12-5.17, 5.32, 5.50-5.56, 8.00, 8.10, 8.11, 8.20, 8.30, 8.37, 8.40, 8.42-8.46, 8.50, 8.70-8.74.) The jury convicted defendant of voluntary manslaughter. Defendant contends there is a reasonable likelihood the jury would have convicted him of the less serious crime of involuntary manslaughter had a fuller instruction on that offense been provided.
"California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice." (People v. Rios (2000) 23 Cal.4th 450, 460.) An unlawful killing without malice but with an intent to kill or a conscious disregard for human life is voluntary manslaughter. (People v. Bryant (2013) 56 Cal.4th 959, 968.) "Generally, an intent to unlawfully kill reflects malice. [Citations.] . . . Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation], or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense [or defense of another]. [Citations.] Only these circumstances negate malice when a defendant intends to kill." (People v. Lee (1999) 20 Cal.4th 47, 59.)
Involuntary manslaughter is an unlawful killing committed without an intent to kill or conscious disregard for life where one's conduct objectively endangered life. Thus, a killing may be involuntary manslaughter if committed during the commission of an unlawful act not amounting to a felony that is dangerous to human life (misdemeanor manslaughter) or during the commission of an act, ordinarily lawful, that involves a high degree of risk of death or great bodily harm without due caution and circumspection (criminal negligence). (§ 192. subd. (b).)
When instructing on misdemeanor manslaughter, a trial court has a sua sponte duty to identify the misdemeanor alleged to have been committed and to define its elements. (People v. Williams (1975) 13 Cal.3d 559, 562.) The parties agree that the relevant misdemeanor in this case was brandishing a firearm, which is committed by "Every person who, except in self-defense, in the presence of any other person draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel." (§ 417, subd. (a)(2).)
The trial court instructed the jury on the elements of involuntary manslaughter based either on criminal negligence or on the commission of an "unlawful act not amounting to a felony which is dangerous to human life" but failed to specify, as it was required to do, that brandishing a firearm is an unlawful act not amounting to a felony (a misdemeanor) and to define the elements of the misdemeanor. (CALJIC No. 8.45.) The court's instruction was taken from CALJIC No. 8.45 but failed to include the bracketed text in the form instruction: "A violation of ___ Code Section[s] ___ is an 'unlawful act' [not amounting to a felony]." The first use note to this instruction explicitly provides, "This instruction must be supplemented by defining the misdemeanor or misdemeanors identified" in the instruction. With no objection from defense counsel, the court omitted the proposed text as "inappropriate," perhaps because defendant testified he never pointed the gun at Hansen and defense counsel argued that any gun pointing was done lawfully in defense of another and, thus, was not a misdemeanor.
The court instructed on involuntary manslaughter as follows: "Every person who unlawfully kills a human being, without malice aforethought and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b). [¶] There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. [¶] A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life. [¶] A killing is unlawful within the meaning of this instruction if it occurred: [¶] 1. During the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission; or [¶] 2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. [¶] The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; and [¶] 2. The killing was unlawful. (CALJIC No. 8.45.)
Similarly, the bench note to the involuntary manslaughter instruction in CALCRIM states: "The court has a sua sponte duty to specify the predicate misdemeanor, infraction or noninherently dangerous felony alleged and to instruct on the elements of the predicate offense(s)." (CALCRIM No. 580.)
In requesting an instruction on involuntary manslaughter, defense counsel argued that defendant pointed the gun at Hansen to defend Thomas and shot Hansen during a struggle for possession of the gun, either accidentally (justifiable homicide) or negligently (involuntary manslaughter). It was not until closing argument to the jury that defense counsel asserted that "[w]e are not supposed to be brandishing" a weapon and used the term "misdemeanor brandishing," although counsel still insisted "the gun went off accidentally."
Although the court erred in failing to identify and define brandishing as a misdemeanor, the error was harmless. An "error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively" under the state standard of prejudicial error. (People v. Breverman (1998) 19 Cal.4th 142, 178.) Under that standard, reversal is not warranted unless it is "reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818. 836.)
The court's instructions provided a sufficient basis for the jury to find the lesser crime of involuntary manslaughter had it viewed the evidence in defendant's favor. The jury was fully instructed on the distinction between voluntary and involuntary manslaughter, which turns on the defendant's mental state. "Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter." (CALJIC No. 8.40.) "Every person who unlawfully kills a human being without malice aforethought and without an intent to kill and without conscious disregard for human life is guilty of involuntary manslaughter." (CALJIC No. 8.45.) The latter instruction also informed the jury that "[a] killing is unlawful" if it occurred "[d]uring the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission." While the predicate "unlawful act" was not defined, the only possible conduct to which the instruction could reasonably be understood to apply was defendant's act of pointing a firearm at Hansen. The reason for requiring the unlawful act to be defined in a misdemeanor manslaughter instruction is because "[f]ailure to do so may allow the trier of fact to engage in unguided speculation as to what conduct is sufficient to constitute a misdemeanor . . . dangerous to human life." (People v. McManis (1972) 26 Cal.App.3d 608, 614.) There was no such danger of speculation here.
The jury's verdict shows that it reached factual determinations unfavorable to defendant and wholly inconsistent with a verdict of involuntary manslaughter. The jury convicted defendant of voluntary manslaughter. In so doing, the jury necessarily found that defendant acted with an intent to kill or a conscious disregard for human life - findings that preclude a verdict of involuntary manslaughter. "By its verdict of voluntary manslaughter, the jury could only have concluded [defendant] intended to kill [the victim]. The finding of voluntary manslaughter can be interpreted no other way. Since a verdict of involuntary manslaughter based on proper instructions could have been based only on a finding that [defendant] did not intend to kill [the victim] [citations], it is clear a proper involuntary manslaughter instruction could not have affected the jury's deliberations. Once the jury determined the crucial question of intent, an instruction defining misdemeanor would have been immaterial. And conversely, an instruction on the definition of misdemeanor could not have affected the decision on the question of intent." (People v. McManis, supra, 26 Cal.App.3d at p. 616.) An erroneous failure to instruct on a misdemeanor brandishing theory of involuntary manslaughter is harmless if the "jury had the opportunity to convict defendant of involuntary manslaughter if it found simply an unlawful, unintentional killing, without malice" but "nonetheless rejected the option of an involuntary manslaughter verdict, found intent to kill, and convicted defendant of voluntary manslaughter." (People v. Lee, supra, 20 Cal.4th at p. 62.)
If a factual question posed by an omitted instruction was necessarily resolved adversely to defendant under other, properly given instructions, instructional error is harmless. (People v. Beames (2007) 40 Cal.4th 907, 928.) By finding defendant guilty of voluntary manslaughter, the jury necessarily found that he acted with intent to kill or conscious disregard of life. Therefore the error in failing to provide a fuller instruction on involuntary manslaughter was harmless.
2. The trial court properly responded to the jury's question on the element of malice.
Defendant contends the trial court failed to provide an adequate response to a question from the jury while deliberating, concerning the element of malice. As noted earlier, the jury received extensive instruction on all categories of homicide and various defenses. The court defined murder as an unlawful killing with malice aforethought and instructed that malice may be either express or implied. (CALJIC Nos. 8.10-8.11.) "Malice is express when there is manifested an intention to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] . . . [¶] The word 'aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act." (CALJIC No. 8.11.)
During deliberations, the jury sent a note with the following request: "Better clarification of express v. implied malice. [¶] Malice (in general) definition - 'aforethought' [¶] . . . How does an act go from malice (initially) to non-malice? Is this possible? [¶] i.e., initial act of pointing a gun to a struggle for the gun? Not sure if this is clear?"
After consultation with the prosecutor and defense counsel, the court responded by referring the jury to CALJIC Nos. 810 and 8.11 for the definition of express versus implied malice and the meaning of the word "aforethought." The court also stated: "Whether the actions or words of the defendant, as described in the testimony of various witnesses (including the defendant himself) constitutes either express or implied malice is exclusively for you to determine. Specifically, with respect to express malice, whether the actions or words of the defendant, as described in the testimony of the witnesses, including the defendant, manifests an intention unlawfully to kill a human being, is exclusively for you to determine. And, with respect to implied malice, whether the testimony demonstrates that (1) the killing resulted from an intentional act; (2) the natural and probable consequences of the act are dangerous to human life[;] and (3) the act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life are also exclusively for you to determine. [¶] I believe that it would not be appropriate for me to comment further, as to do so would invade the exclusive province of the jury as trier of fact."
Defense counsel's request for additional instruction was denied. Counsel argued that the jury appeared to be struggling with the prosecutor's claim during closing argument that pointing the gun evidenced malice. Counsel argued that the jury could find that the brandishing occurred without malice and that the court needed to address the requirement that the necessary mental state accompany the criminal act. Counsel proposed that the jury be instructed with the following language: "The crimes and allegations charged in this case require[] proof of the union or joint operation of act and wrongful intent. You must determine the defendant's mental state at the moment at which the act which produced the homicide occurred."
The proffered instruction was cumulative of the original instructions, so that the court did not err in refusing to repeat it. On murder and manslaughter, the jury had already been instructed "there must exist a union or joint operation of act or conduct and a certain specific intent or mental state in the mind of the perpetrator." (CALJIC No. 3.31.) "A trial court is not required to give pinpoint instructions that merely duplicate other instructions." (People v. Panah (2005) 35 Cal.4th 395, 486.) In responding to the jury's question, it might have been useful for the court to refer the jury to this instruction on the necessary union of act and intent, as it did with instructions defining malice, but the failure to do so was neither error nor prejudicial.
Defendant argues that the court's response to the jury's questions was prejudicially inadequate, especially when coupled with the court's earlier failure to define the offense of brandishing a firearm. Defendant argues that, without a firearm brandishing instruction, "the jury did not have an adequate legal basis to understand that pointing a gun does not necessarily establish malice, and that when [defendant] pointed the gun at Hansen, he may simply have committed a misdemeanor from which it could conclude a subsequent shooting without malice during the continued activity was involuntary manslaughter. Because the jury was not so instructed, it was more likely to view the initial pointing of the gun as evidence of malice, that had to be negated by something specific, and the only instructions that provided a means to that conclusion were those for voluntary manslaughter. This would tend to lead the jury away from considering involuntary manslaughter despite strong evidence that the shooting was a direct result of [defendant] brandishing the gun."
However, there was not strong evidence that the shooting was the direct result of brandishing. Defendant denied brandishing the firearm. He testified that he picked up the gun when it fell from his pants, never pointed the gun at Hansen, and accidentally pulled the trigger when Shackleford-Cooper grabbed him from behind. Thomas and Hudson did testify to facts that would constitute brandishing but they left the scene before the gun discharged so could not say whether the shooting was the result of brandishing or, as Shackleford-Cooper testified, the result of an intent to shoot Hansen in the back as he tried to enter his apartment.
In any event, the instructions and trial court response to the jury's inquiry provided proper guidance. Contrary to defendant's argument, the jury did have an adequate legal basis to understand that pointing a gun does not necessarily establish malice. The jury was instructed that malice is established only where an act is done with an intent to kill or the act was dangerous to human life and "was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (CALJIC No. 8.11.) The instructions guided the jury to find involuntary manslaughter had the jury determined defendant had no intent to kill or conscious disregard for life. That determination was made adverse to defendant, as the verdict of voluntary manslaughter reveals.
3. The award of presentence custody and conduct credit must be corrected.
The total number of days a defendant spends in presentence custody are credited against the defendant's term of imprisonment. (§ 2900.5.) A defendant convicted of a violent felony such as voluntary manslaughter may be entitled to presentence conduct credit of 15 percent of the actual time in custody. (§§ 667.5, subd. (c)(1), 2933.1.)
Defendant was arrested in Las Vegas, Nevada on August 27, 2014, and sentenced 934 days later on March 17, 2017. The court awarded presentence custody credit of only 912 days, based on the probation officer's report that misstated the date of arrest. The court awarded conduct credit of 137 days, representing 15 percent of 912 days.
The Attorney General concedes that presentence custody and conduct credit must be corrected to award 934 days of custody credit and 140 days of conduct credit. We shall modify the judgment accordingly.
4. The case must be remanded to permit exercise of the court's discretion on the firearm sentence enhancement.
Defendant received a 10-year sentence enhancement for personal use of a firearm in the commission of a felony, voluntary manslaughter. (§ 12022.5, subd. (a).) At the time of sentencing in March 2017, a consecutive sentence enhancement was mandatory. Effective January 1, 2018, section 12022.5 was amended to provide: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.5, subd. (c).)
As the Attorney General correctly concedes, the amendment to section 12022.5 applies retroactively to cases, such as this one, that were not final when the amendment became operative. Under In re Estrada (1965) 63 Cal.2d 740, we presume that, absent contrary evidence, an amendment reducing punishment for a crime applies retroactively to all non-final judgments. (Id. at p. 745; People v. Brown (2012) 54 Cal.4th 314, 323; People v. Vieira (2005) 35 Cal.4th 264, 305-306 [judgment is not final, for purposes of retroactivity analysis, until time for petitioning United States Supreme Court has expired].) The Estrada rule has been applied to penalty enhancements, as well as to amendments giving the court discretion to impose a lesser penalty. (People v. Nasalga (1996) 12 Cal.4th 784, 792; People v. Francis (1969) 71 Cal.2d 66, 75-76.)
While acknowledging the amendment to be retroactive, the Attorney General argues that remand for resentencing would be an idle act in this case because the record makes clear that the court will not lessen defendant's sentence by striking the firearm enhancement. The Attorney General notes that the trial court had discretion at the original sentencing hearing to impose mitigated terms and chose not to do so, instead selecting the upper term of 11 years for the voluntary manslaughter conviction and the upper term of 10 years for the firearm enhancement.
We decline to presume how the trial court will exercise newly granted discretion to strike the firearm enhancement. The amendment reflects a legislative determination that additional punishment for firearm use may not always be fair and gives trial courts discretion to make that assessment on a case-by-case basis. The trial court is generally given the opportunity to exercise its discretion at a new sentencing hearing when it has imposed sentence unaware of its discretionary authority. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.' " (Ibid.)
We express no opinion as to how the trial court should exercise its newly granted discretion under section 12022.5, subdivision (c). We conclude only that it is the trial court's function to exercise this discretion in the first instance.
5. The trial court shall clarify its section 654 determination on remand.
As a final matter, the Attorney General claims the trial court imposed an unauthorized sentence by staying punishment on one conviction. The court imposed a sentence of eight months (one-third the middle term) on defendant's conviction for possession of a firearm by a felon. (§ 29800, subd. (a)(1).) Noting that it sentenced defendant to 10 years for personal use of a firearm in the commission of a felony, the court "suspended" sentence on the firearm possession conviction "pursuant to section 654 of the Penal Code." The court said, "I could impose a consecutive sentence, but I choose not to do so."
Section 654 " ' "precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" [Citation.]' [Citations.] However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Section 654 provides, in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." --------
Whether possession of a firearm by a felon " ' "constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense." ' " (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) A trial court's application of section 654 is upheld if there is substantial evidence to support it. (Ibid.)
The Attorney General claims the trial court made an implicit finding that defendant had a single objective in possessing the firearm and using it to shoot Hansen and argues there is insufficient evidence to support such a finding. Defendant argues the evidence is sufficient to show he possessed the gun for protection and used it for that same purpose in trying to protect Thomas from Hansen. The record is not altogether clear that the trial court did make the factual finding now debated by the parties. The court made no express factual determination. The court simply said it "suspended" sentence on the firearm possession conviction "pursuant to section 654 of the Penal Code." Yet, the court also said "I could impose a consecutive sentence, but I choose not to do so." The statement suggests the court may not have understood its authority to impose a concurrent term and believed it had to impose a consecutive term unless sentence was stayed.
The matter should be clarified on remand, which in all events is necessary for the trial court to exercise its discretion to determine whether to strike the firearm use enhancement. If stricken, there will be no need to determine if possession of the firearm and its use were divisible; firearm possession alone will remain for sentencing. If not stricken, the court shall clarify whether the evidence warrants staying the firearm possession conviction under section 654 and, if not, whether the term imposed for firearm possession shall run consecutively or concurrently.
Disposition
The judgment is modified to award presentence custody credit of 934 days and conduct credit of 140 days for a total of 1,074 days of credit. The matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.