Opinion
E070253
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. IAN ALEXANDER HENDERSON, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB 17003263) OPINION APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed with directions. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Ian Alexander Henderson, was charged with the first degree murder of Timothy Lee Clary. (Pen. Code, § 187, subd. (a).) A jury convicted defendant of second degree murder, and found not true allegations that he personally used and personally discharged a firearm in the murder. (§ 12022.53, subds. (b), (c).) The court found defendant had one prior strike and one prior serious felony conviction (§ 667, subds. (a), (b)-(i)), and sentenced defendant to 15 years to life for the murder, doubled to 30 years to life based on his prior strike, plus five years for his prior serious felony conviction. The court imposed a $10,000 restitution fine. (§ 1202.4.)
Undesignated statutory references are to the Penal Code.
Following the prosecution's case-in-chief, the court granted the defense's motion to dismiss, based on insufficient evidence (§ 1118.1), the allegation that defendant personally and intentionally discharged a firearm proximately causing Clary's great bodily injury or death (§ 12022.53, subd. (d)).
Defendant claims: (1) insufficient evidence supports his second degree murder conviction because the evidence that his Toyota and cell phone were at the scene of the murder was too weak to support a reasonable inference that he was at the scene; (2) the prosecutor committed misconduct in his rebuttal argument in arguing that the reasonable doubt standard was met if a reasonable interpretation of the evidence pointed toward defendant's guilt; and (3) for two reasons, the matter must be remanded for resentencing: (a) so the court may exercise its discretion whether to impose a five-year term on defendant's prior serious felony conviction following the enactment, while this appeal was pending, of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2); and (b) for the court to determine whether defendant has the ability to pay his $10,000 restitution fine.
We remand the matter for resentencing on defendant's prior serious felony conviction. We affirm the judgment in all other respects.
II. BACKGROUND
A. The Prosecution's Case
1. The Shooting
On March 12, 2017, B.P. was living in a sober living home. Shortly before 9:00 p.m., B.P. was sleeping on the home's second floor when he woke to the sound of several gunshots. He heard a total of seven or eight shots. After he heard the first few shots, he looked out of his second-floor window and saw the "flash" of three or four more shots being fired from the front passenger side of an older model, gold or bronze, four-door Toyota, with "stock" silver rims and a side bumper. There were two people in the Toyota, its driver and a front seat passenger; both were wearing dark clothing, and the passenger's arm was "hanging" outside the front passenger window.
After all of the shots were fired, the Toyota turned from D Street onto 11th Street, the alleyway next to the home, then it turned left from 11th Street and headed south on Stoddard Street. There were no other cars in the area. As a "safety precaution" following the shooting, B.P. went into the backyard of the home to see whether there was anyone "on foot" near the home. B.P. heard gunshots in the area approximately every other night.
A police detective testified that, when he interviewed B.P. several hours after the shooting, B.P. told the detective that he saw the shooting when he was standing on a tree stump in the backyard of the home. According to the detective, who listened to B.P.'s trial testimony as the prosecution's investigating officer, this "change of vantage point"—between the second floor window and the tree stump—was the only significant difference between B.P.'s trial testimony and his statements to the detective following the shooting. On cross-examination, the detective admitted B.P. did not tell the detective that he saw the shooting. Rather, B.P. told the detective that he heard six to seven shots when he was in the backyard, then he went to the tree stump, looked over the wall, saw the Toyota on 11th Street, then saw the Toyota turn south on Stoddard Street.
B.P. testified he did not recall telling the detective where he was when he heard the gunshots, but B.P. remembered standing on the tree stump after the shooting and looking over a wall toward the area of the shooting. Two defense investigators testified that the area of the shooting was not visible from the tree stump. But, by standing on the tree stump after he interviewed B.P., the detective was able to see the area of the shooting as B.P. had described it, and the place where Clary fell after he was fatally shot.
Two calibers of shell casings were found at the scene—three .40-caliber casings and 2 nine-millimeter casings. Clary was hit twice, in his back and in his left buttocks, and either wound would have been fatal. Only one bullet was still in Clary's body, making it impossible to tell whether the same gun or two guns (and two shooters) caused Clary's two fatal gunshot wounds. Clary was homeless, and there was no evidence of any motive for his murder.
Two police officers were parked on Stoddard Street in separate patrol cars, talking to each other through their driver's side doors, when they heard gunshots coming from the east of them, near D Street. Officer K. heard one shot, followed by a pause, then six to eight more shots. Officer V. heard "several gunshots" and could not give "an exact count." Officer V. drove south on Stoddard Street to check the area, while Officer K. drove north toward Baseline Street, then turned south on D Street.
As Officer V. drove south on Stoddard Street, he saw a tan-colored Toyota Camry turn left from 11th Street, and head south on Stoddard Street. There were no other vehicles in the area. Officer V. followed the Toyota and "ran" its license plate number, but, like B.P., he was unable to see the Toyota's occupants. At that point, Officer K. radioed Officer V., telling him that Officer K. was with a shooting victim on D Street, near 11th Street, and there were several subjects in that area. Due to his concern for Officer K.'s safety, Officer V. went to assist Officer K. before he was able to stop the Toyota and determine whether it was involved in the shooting.
Time-stamped surveillance video from cameras at the sober living home showed the Toyota turn left from 11th Street and head south on Stoddard Street at 8:49 p.m. Officer V. identified the Toyota, as shown on this video, as the Toyota he saw at that time and location on Stoddard Street. Officer V.'s patrol car was also shown in the video, heading south on Stoddard Street. Additional video showed Clary on the ground at 8:49 p.m., in the same spot where Officer K. found him at 8:52 p.m.
2. The Cell Phone Location Data
On March 26, 2017, 14 days after the shooting, defendant was stopped driving the Toyota with the same license plate run by Officer V. At that time, defendant's cell phone was seized and its calls were analyzed to determine its location around the time of the shooting. A cell tower has three antennas; each covers 120 degrees and has a range of one and a half to three miles. Cell tower data show the antenna that a cell phone connects to, which in turn shows the general location where the phone may have been.
The shooting occurred at 8:49 p.m. Eight minutes before the shooting, at 8:41 p.m., defendant's phone received an incoming call, using a cell tower near the crime scene, but the cell tower data could not pinpoint the exact location of defendant's phone. The call was answered and lasted 46 seconds.
Two outgoing calls from defendant's phone were made at 7:00 p.m. and 7:51 p.m., using a cell tower in another area, farther from the shooting. At 9:47 p.m., the phone again used the same cell tower. There was also an incoming text message to defendant's phone at 8:17 p.m., and two outgoing text messages at 8:29 p.m. and 8:30 p.m., but text messages do not save location data. The ranges covered by the two cell towers did not overlap, and defendant lived outside the areas covered by the two cell towers.
The 8:41 p.m. call, the 9:47 p.m. call, and the three text messages were with a phone number associated with Danneill Hollins. Hollins was with defendant when he was stopped driving the Toyota on March 26, 2017. During an April 23, 2017, jail call with defendant, Hollins said, "I don't like this. I don't know why you do that stupid shit," and defendant replied, "[H]ey, it had to be done, like there was no other way around it. . . ." Hollins then said, "[Y]ou could've sen[t] somebody else," and defendant responded, "[N]ah, I ain't have time for that. . . ."
3. Defendant's Police Interview
On May 9, 2017, a police detective interviewed defendant, and the interview was video-recorded and played for the jury. During the interview, defendant said the Toyota was his mother's car, although he "occasionally" drove it. His stepfather also drove the Toyota. He did not know whether his mother or stepfather was driving the Toyota at the time of the shooting, and he could not think of any reason why he would have been in the area of the shooting at the time of the shooting. He "most likely" had his phone with him at the time of the shooting, but he also did not know why his phone was near the shooting. Later during the interview, defendant indicated that the Toyota was his car and that his phone was usually in the Toyota. He answered "[u]h-hum" when the detective said, "like you said, that's your car, that's the one that you drive." And he said, "[T]hat's my car like my phone's usually in my car so . . . ."
Throughout the interview, however, defendant insisted he knew nothing about the shooting or how his Toyota and phone could have been near the shooting. Near the end of the interview, the detective asked defendant which of two scenarios the detective should present to the district attorney: (1) defendant was driving the Toyota and someone else was the shooter, or (2) defendant had "no clue about what happened" or how his Toyota and cell phone "made it over there." In response, defendant said, "I'll go with the second one." B. The Defense Case
The defense questioned the credibility of B.P., Officer V., the detective who investigated the murder, and the prosecution's entire case against defendant. One defense witness testified that she heard the gunshots in quick succession, "[o]ne right after the other," suggesting that B.P. could not have awakened to the sound of several shots, then had time to look out his window and see several more shots fired from the passenger side of the Toyota. As noted, two defense investigators also testified that, contrary to the detective's testimony, the area of the shooting was not visible from the tree stump in the backyard, because a building and a light pole obstructed the view.
III. DISCUSSION
A. Substantial Evidence Supports Defendant's Second Degree Murder Conviction
Defendant claims insufficient evidence supports his conviction for second degree murder. He argues the evidence that his cell phone was in the vicinity of the murder and that the Toyota he "sometimes" drove was involved in the murder was insufficient to show beyond a reasonable doubt that he was guilty of the second degree murder of Clary. We disagree and conclude substantial evidence supports the conviction.
1. Standard of Review
In considering a challenge to the sufficiency of the evidence supporting a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value—from which any jury comprised of reasonable persons, or any reasonable trier of fact, could have found that the prosecution sustained its burden of proving the defendant guilty of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) In determining whether substantial evidence supports the conviction, we presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Edwards (2013) 57 Cal.4th 658, 715.) We apply the same standard of review when the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (In re Michael D. (2002) 100 Cal.App.4th 115, 126.)
But, to be substantial, evidence must reasonably inspire confidence and be of solid value; it cannot be based on speculation or "a mere possibility." (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) "'In any given case, one "may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."'" (People v. Perez (1992) 2 Cal.4th 1117, 1133.) Substantial evidence must be capable of supporting a finding, beyond a reasonable doubt, of every fact required for the conviction. (Ibid.)
In determining whether substantial evidence supports a conviction, we do not substitute our view of the evidence for that of the trier of fact. A conviction will be reversed based on insufficient evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]'" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
2. Applicable Legal Principles
Defendant was charged with murder. (§ 187, subd. (a).) The jury was instructed pursuant to CALCRIM No. 520 on first and second degree murder based on express and implied malice, and that the murder was of the second degree unless the People proved beyond a reasonable doubt that it was murder of the first degree as defined in CALCRIM No 521. CALCRIM No. 521 told the jury that a murder is of the first degree if it is willful, deliberate, and premediated, or if "the defendant murdered by shooting a firearm from a motor vehicle." The jury was also instructed on aiding and abetting pursuant to CALCRM Nos. 400 and 401. The jury found defendant guilty of second degree murder, and found not true the allegations that he personally used or personally and intentionally discharged a firearm in the murder. (§ 12022.53, subds. (b), (c).)
3. Analysis
Defendant claims the evidence placing his Toyota and cell phone near the murder was the only evidence connecting him to the murder, and this evidence was insufficient to prove beyond a reasonable doubt that he was at the scene of the murder. He notes the evidence showed that "multiple people had access to the Toyota," and there was no forensic evidence, such as DNA, fingerprint, or gunshot residue evidence, connecting him to the murder, and no evidence that he had a motive to kill Clary. Thus, he argues, any inference that he was driving the Toyota at the time of the murder, or that he fired a gun from the Toyota, is based on speculation, not substantial evidence.
We agree that the jury must have concluded that the prosecution did not prove beyond a reasonable doubt that defendant either personally used or personally discharged a firearm in the murder, because it found these allegations not true. (§ 12022.53, subds. (b), (c).) But substantial evidence supports defendant's second degree murder conviction Substantial evidence shows, and the jury reasonably could have inferred, that defendant aided and abetted his passenger in shooting and killing Clary by driving the Toyota from which the passenger fired the shots that killed Clary, and by driving himself and his passenger away from the scene of the murder in the Toyota, after the murder.
During his police interview, defendant admitted that he usually drove the Toyota and that his cell phone was usually with him. The cell phone location data placed defendant's phone within three miles of the scene of the murder, only eight minutes before the murder. B.P. saw gunshots being fired from the passenger side of the Toyota, and saw the Toyota proceed down 11th Street and turn south on Stoddard Street immediately after the shooting. Officer V. saw the same Toyota turn from 11th Street to Stoddard Street, shortly after Officer V. heard several gunshots. Surveillance cameras also recorded the Toyota on 11th Street and turning south on Stoddard Street, immediately after the shooting. B.P. saw that there were two people in the Toyota, its driver and a front seat passenger. Based on this evidence, it was reasonable and not speculative for the jury to infer that defendant was driving the Toyota at the time of the murder, and aided and abetted his passenger in committing the murder.
The jury was correctly instructed that "[s]omeone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (CALCRIM No. 401.) Defendant relies on In re Michael T. (1978) 84 Cal.App.3d 907, where the court similarly observed that, "[i]n order for one to be charged as a principal for aiding and abetting it must be shown that he counseled, encouraged or assisted in the commission of a crime with knowledge that a crime was being committed." (Id. at p. 910.) Defendant also points out that a person's mere presence at the scene of a crime, when that presence does not in itself assist in the commission of the crime, does not constitute aiding and abetting. (Id. at p. 911.)
But the evidence showed more than defendant's mere presence at the scene of the murder. It showed he aided and assisted his passenger in committing the murder, by driving the Toyota at the time of the murder, and by driving away from the scene of the murder with his passenger after the murder. Based on this evidence, the jury reasonably could have inferred that defendant aided and assisted his passenger in committing the murder, knowing the murder was being committed.
Defendant additionally claims the only evidence of how the shooting occurred came from B.P., and B.P.'s testimony was "highly suspect," given that B.P. told the detective, several hours after the shooting, that he had "witnessed" the shooting from the tree stump in the backyard, rather than from his second floor window, as he testified at trial. Defendant also notes that B.P. equivocated in his trial testimony about whether he saw the shooting at all. We agree that B.P. equivocated in his trial testimony. He initially testified that he did not recall "seeing the shooting" at all. But then he testified that, from his second floor window, he saw several shots being fired from the passenger side of the Toyota, and saw the passenger's arm "hanging" outside the front passenger window. But B.P. was a reluctant witness. At the outset of B.P.'s testimony, the prosecutor established that B.P. was testifying only because he had been subpoenaed, and he did not want to testify. Thus, the jury reasonably could have inferred that B.P. was hesitant in testifying about having seen any shots fired from the Toyota because he did not want to be testifying at all. It was for the trier of fact to determine whether it believed all, part, or none of this witness's testimony.
B.P.'s trial testimony constitutes substantial evidence, because it was of solid value and it was not inherently improbable or impossible to believe, despite any prior inconsistent statements B.P. may have made to the detective about where B.P. was when he heard the gunshots. (People v. Jackson (1992) 10 Cal.App.4th 13, 21 [in employing substantial evidence test, appellate court may reject witness testimony that the trier apparently believed, if the testimony is inherently improbable or impossible to believe].) The detective testified that B.P. said he heard the gunshots when he was standing on the tree stump in the backyard, but B.P. testified he did not recall telling the detective where he was when he heard the gunshots, but he did remember standing on the tree stump after the shooting and looking over a wall toward the area of the shooting. Thus, the jury reasonably could have credited B.P.'s trial testimony, and concluded that B.P. did not tell the detective where he was at the time of the shooting. The jury also reasonably could have inferred that the detective either misunderstood or mistakenly recalled B.P.'s interview statements, and mistakenly believed that B.P. said he heard the gunshots from the tree stump. B. The Prosecutor Did Not Commit Misconduct During His Rebuttal Argument
B.P.'s interview statements were recorded, but neither the prosecutor nor the defense played the interview for the jury.
Defendant claims the prosecutor committed misconduct during his rebuttal argument by "improperly argu[ing] [that] the beyond a reasonable doubt standard was met if a 'reasonable' interpretation of the evidence pointed toward guilt." (Bolding omitted.) We disagree with defendant's interpretation of the prosecutor's argument, and find no prosecutorial error or misconduct.
"[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) To establish prosecutorial error, the defendant is not required to show that the prosecutor acted intentionally or in bad faith. (Id. at pp. 822-823 & fn. 1.)
1. Relevant Background
In his closing argument, defense counsel argued that two law enforcement witnesses, namely, Officer V. and the detective who investigated the shooting, had been untruthful in their testimony. Defense counsel argued "they" came up with the "new story" that B.P. saw the shooting from his second floor window, rather than from the tree stump, because B.P.'s initial statement to the detective that he heard but did not see the shooting from the tree stump was insufficient to convict defendant.
In rebuttal, the prosecutor said: "So I've been accused of many things, being subtle has never been one of them. So let me be very unsubtle when I start. And that is . . . there is a reasonable explanation in this case. That is the defendant is guilty. If you have that, every single fact of this case falls into place. If he is guilty, does it make sense that [B.P.] saw gunshots coming out of this car? Yes, it does. If he is guilty, does it make sense there are two kinds of casings on the scene? Yes, it does. Does it make sense that his car is found there which he stated in the interview he is the primary driver? Yes, it does.
"Does it match when he is given a chance to explain? He has no innocent explanation, right? The detective started talking about maybe you are in the wrong place at the wrong time when the gunshots go off and you get scared and you drive away. He denies that." At this point, defense counsel objected, without stating a basis, and the court responded, "Not at this point." The prosecutor continued: "But his cellphone puts him there. All right. Everything lined up.
The People claim defendant forfeited this claim of prosecutorial misconduct by failing to object to the prosecutor's argument on the same ground he now raises in this appeal. (People v. Huggins (2006) 38 Cal.4th 175, 251-252 ["'"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct . . . ."'"].) After the prosecutor concluded his rebuttal argument, defense counsel told the court he had objected because the prosecutor's "comments about what [defendant] failed to explain" violated defendant's Fifth Amendment right not to testify. The court overruled the objection on the ground the prosecutor had properly commented on what defendant failed to explain during his interview, and did not imply that defendant should have testified. Defendant now claims the prosecutor erred by misstating the reasonable doubt standard in later portions of his rebuttal argument. But even if defendant has forfeited his claim of prosecutorial misconduct, we exercise our discretion to review the claim because it affects defendant's substantial right to due process of law. (§ 1259; People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525 [appellate court has discretion to review forfeited claim if it affects a substantial right of the defendant]; cf. People v. Woods (2006) 146 Cal.App.4th 106, 113-114 [prosecutor's comments indicating the defendant had burden of proof or production violated the defendant's federal due process rights] with People v. Ramos (1982) 30 Cal.3d 553, 575 & fn. 8 [prosecutor's comments as a whole did not indicate the defendant had the burden of raising reasonable doubt of his guilt].)
"The second part of that same statement is that there is no other reasonable explanation. Right? And if I were to give you an exhibit, what that would look like would be the defendant's closing [argument]. [¶] What did he ask you to believe? There is this vast conspiracy dictated by [the detective] who apparently perjured himself, convinced Officer [V.] to perjure himself, apparently convinced [B.P.] to perjure himself, and there is a vast [police department] conspiracy theory to explain this. That is what he wants you to believe is a reasonable alternative."
The prosecutor then argued that defense counsel's conspiracy theory was unreasonable because it did not "make sense." The prosecutor argued that, if there had been such a conspiracy, then the prosecution would not have gone to all of the trouble of relying on defendant's cell phone records to place him near the shooting and would not have relied on the testimony of B.P., who was a convicted felon. Instead, Officer V. would have testified he saw defendant driving the Toyota shortly after the shooting, but Officer V. did not do that because it was not true.
The prosecution continued: "Again, if you are warning a jury not to use their commonsense, it's not going right. Right? Use your commonsense. What is reasonable, right, because it comes down to circumstantial evidence. [¶] Two reasonable conclusions, reasonable. Reasonable doubt. What is reasonable doubt? All of them talk about reasonableness. Highly determine what is reasonable or not, a commonsense standard. Does that make sense? From what I've seen, does that make sense this could happen? All these officers who create this huge conspiracy to frame that guy and do it in such a weird way, does that make sense? Right? Of course not. It is unreasonable because that is what your commonsense tells you it is unreasonable."
2. Applicable Law and Analysis
"'Although counsel have "broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]"' [Citation.] In particular, it is misconduct for counsel to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]" (People v Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) In claiming that a prosecutor's remarks to the jury constituted error or misconduct, the defendant must show that, in the context of the prosecution's entire argument and the instructions, there was a reasonable likelihood the jury understood or applied the remarks in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) An appellate court will not "'"lightly infer"'" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (Ibid.)
On the one hand, "[i]t is permissible [for the prosecution] to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. (See, e.g., CALCRIM Nos. 224, 226.) It is [also] permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially accurate accounts. (See, e.g., CALCRIM Nos. 226, 300.) It is certainly proper to urge that the jury consider all the evidence before it. (§ 1096; CALCRIM No. 220.)" (Centeno, supra, 60 Cal.4th at p. 672.) But "[i]t is error for the prosecutor to suggest that a 'reasonable account' of the evidence satisfies the prosecutor's burden of proof." (Ibid.) "It is likewise error to state that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.' [Citation.]" (Id. at p. 673.)
In Centeno, the prosecutor's argument "strongly implied" that the prosecution had proved beyond a reasonable doubt that the defendant was guilty of sexually molesting a seven-year-old child, because the prosecution's theory of the defendant's guilt was "'reasonable' in light of the facts supporting it." (Centeno, supra, 60 Cal.4th at p. 671.) Thus, it was reasonably likely that the prosecutor's argument misled the jury to believe that the prosecution had met its burden of proving the defendant's guilt beyond a reasonable doubt, merely because it was reasonable to believe the defendant was guilty based on the prosecution's evidence. (Id. at p. 674.)
The prosecutor in Centeno told the jury its decision had to "'be based on reason. It has to be a reasonable account.'" (Centeno, supra, 60 Cal.4th at p. 671.) The prosecutor then asked the jury: "'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' . . . 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.'" (Id. at pp. 671-672.)
Defendant claims that here, as in Centeno, the prosecutor's argument suggested to the jury that a reasonable account of the evidence satisfied the prosecutor's burden of proving the defendant's guilt beyond a reasonable doubt. He argues that, "[h]ere, as in Centeno, the prosecutor set up a false dichotomy between [his] interpretation of the evidence and defense counsel's: [I]f defense counsel's was unreasonable and the prosecutor's was [reasonable], then the reasonable doubt standard was met." We disagree with this interpretation of the prosecutor's argument.
To be sure, the prosecutor began his rebuttal remarks by arguing that, if defendant was guilty, then it "made sense" that there were gunshots coming out of defendant's car, that there were two kinds of shell casings at the scene, that defendant's Toyota was used in the shooting, and that defendant had no explanation, during his interview, for why his car was used in the shooting or why his cell phone was in the vicinity of the shooting. The prosecutor also told the jury: "What is reasonable, right, because it comes down to circumstantial evidence."
But the prosecutor did not argue or suggest to the jury that the prosecution had met its burden of proving defendant's guilt beyond a reasonable doubt merely because the prosecution's theory of defendant's guilt was reasonable in light of the evidence supporting it. (Centeno, supra, 60 Cal.4th at p. 671.) Rather, the focus of the prosecutor's rebuttal argument was that defense counsel's conspiracy theory was unreasonable, and that the jury should reject it because it was unreasonable.
This was permissible. As noted, "[i]t is permissible [for the prosecution] to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. (See, e.g., CALCRIM Nos. 224, 226.)[] It is [also] permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially accurate accounts. (See, e.g., CALCRIM Nos. 226, 300.) It is certainly proper to urge that the jury consider all the evidence before it. (§ 1096; CALCRIM No. 220.)" (Centeno, supra, 60 Cal.4th at p. 672.) This is what the prosecutor was essentially arguing in his rebuttal remarks.
CALCRIM Nos. 224 (Circumstantial Evidence: Sufficiency of Evidence) and 226 (Witnesses) were given.
Additionally, the jury was properly instructed on reasonable doubt. And, in his initial argument, the prosecutor told the jury: "When you are trying to make your final determination, proof beyond a reasonable doubt, look at the whole trial . . . every piece of evidence in making that determination." He further referenced CALCRIM No. 220 and told the jurors that "proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true." In light of the prosecutor's entire argument and the instructions, it is not reasonably likely that the jury construed the prosecutor's rebuttal remarks as allowing the jury to find defendant was guilty beyond a reasonable doubt because the prosecution's theory of defendant's guilt was reasonable in light of the evidence supporting it. (Centeno, supra, 60 Cal.4th at p. 671.) C. Remand for Resentencing on Defendant's Prior Serious Felony Conviction
CALCRIM No. 220 instructed the jury that: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find [him] not guilty."
Defendant claims, the People concede, and we agree, that the matter must be remanded for resentencing on defendant's prior serious felony conviction. At the time defendant was sentenced on March 16, 2018, the trial court was required to impose a five-year term on defendant's prior serious felony conviction, and the court had no discretion to strike the conviction for sentencing purposes. (Former §§ 667, subd. (a), 1385, subd. (b); People v. Garcia (2018) 28 Cal.App.5th 961, 971.) But, effective January 1, 2019, sections 667, subdivision (a) and 1385, subdivision (b) were amended to vest trial courts with discretion to strike a prior serious felony conviction for sentencing purposes, and to impose or not impose a five-year term on the conviction. (People v. Garcia, supra, at p. 971; Stats. 2018, ch. 1013, §§ 1-2 (Senate Bill No. 1393).) The statutory amendments are retroactive; that is, they apply to all judgments of conviction which, like defendant's, were not final on January 1, 2019. (People v. Garcia, supra, at pp. 971-972.) Thus, the matter must be remanded so the court may exercise its discretion not to impose the five-year term the court originally imposed on the prior serious felony conviction, or to retain the five-year term. (See id. at p. 973.) D. Defendant Has Forfeited His Claim That the Court Should Have Determined He Was Able to Pay His $10,000 Restitution Fine Before the Court Imposed the Fine
Defendant's appeal has been pending since he filed his notice of appeal on April 2, 2018. Thus, his judgment of conviction was not final on January 1, 2019.
Lastly, defendant claims that the matter must be remanded with directions to the court to stay defendant's $10,000 restitution fine (§ 1202.4, subd. (b)), unless and until the People prove he has the present ability to pay the fine.
On January 8, 2019, while this appeal was pending, another district of this Court of Appeal decided People v. Dueñas (2019) 30 Cal.App.5th 1157, holding, in pertinent part, that the imposition of a restitution fine, without a determination that the defendant has the present ability to pay the fine, violates the defendant's due process rights under the state and federal Constitutions. (Id. at pp. 1172.)
Defendant did not object when the court imposed the $10,000 restitution fine. (§ 1202.4.) The court expressly recognized that it had discretion to impose a $300 to $10,000 restitution fine and imposed the maximum $10,000 fine without explaining its reasons for doing so. Unrelated to the fine, the court found that defendant was "unable to reimburse [the state] for [his] appointed counsel or [defense] investigation costs," given that he was likely to be incarcerated for the rest of his life. Because defendant did not ask the court to determine whether he had the ability to pay the $10,000 fine before the court imposed the fine, the People claim defendant has forfeited his claim of Dueñas error. We agree.
Given that Dueñas constitutes a dramatic and unforeseen change in the law, which was not foreseeable before it was issued on January 8, 2019, several courts, including this one, have held that a defendant does not forfeit a claim of Dueñas error if the defendant did not object to the imposition of the fine or assessment on inability-to-pay grounds. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; People v. Jones (2019) 36 Cal.App.5th 1028, 1033.) These decisions are based on the principle that "'[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.'" (People v. Brooks (2017) 3 Cal.5th 1, 92.)
But, at the time defendant was sentenced on March 16, 2018, trial courts were statutorily authorized to consider a defendant's inability to pay a restitution fine "'in increasing the amount of the restitution fine in excess of the minimum fine [of $300].'" (§ 1202.4, subd. (c); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) Thus here, it would not have been futile or unsupported by the substantive law then in existence for defendant to have objected to the maximum $10,000 fine on the ground he did not have the means or ability to pay it, at the time it was imposed. Defendant has therefore forfeited his claim of Dueñas error, together with his broader claim that the court erroneously failed to consider his ability to pay the $10,000 fine before the court imposed the fine. (People v. Frandsen, supra, at pp. 1153-1154; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Avila (2009) 46 Cal.4th 680, 729.)
Defendant argues he has not forfeited his claim of Dueñas error because the claim presents a pure question of law not subject to the forfeiture rule. We disagree. Defendant's ability to pay the $10,000 restitution fine was a factual determination (People v. Frandsen, supra, 33 Cal.App.5th at p. 1153) to be made based, among other things, on defendant's ability to earn wages during his incarceration (see People v. Jones, supra, 36 Cal.App.5th at p. 1035 [Dueñas error harmless beyond reasonable doubt where record showed defendant could earn prison wages sufficient to pay his $300 restitution fine and $70 assessment]).
Although the court found that defendant was unable to reimburse the state for the costs of his appointed counsel and the defense's investigation, this does not mean defendant was unable to earn sufficient prison wages to pay the $10,000 restitution fine over the period of his incarceration. (See ibid.) When defendant was sentenced in March 2018, he was only 28 years old, his health was "[g]ood," and he had a "[w]arehouse" job before his arrest on the murder charge. Thus, defendant cannot show he will be unable to pay the $10,000 restitution fine over the period of his incarceration, and any Dueñas error was harmless beyond a reasonable doubt. (People v. Jones, supra, 36 Cal.App.5th at p. 1035.)
IV. DISPOSITION
The matter is remanded to the court with directions to exercise its discretion whether to strike defendant's prior serious felony conviction for sentencing purposes, or reimpose the five-year term the court originally imposed on the conviction. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.