Opinion
E071556
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. CLEMENT TREVOR HENRY, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1701853) OPINION APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed with directions. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Clement Trevor Henry guilty of attempted murder, domestic violence, and making a criminal threat, but did not find that the attempted murder was willful, deliberate, and premeditated, as the prosecution had alleged. The charges all arose from a single violent incident with his girlfriend (Jane Doe). The trial court sentenced Henry to a prison term of 37 years to life, a sentence that derived not only from the current offenses but also recidivism-based enhancements.
In this appeal, Henry argues that the trial court erred by failing to instruct the jury on attempted voluntary manslaughter, contending that there is an "abundance of evidence that [he] strangled Jane Doe in the heat of passion." He further argues that the matter should be remanded for resentencing pursuant to the newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).
We find no instructional error, but agree that the matter should be remanded for the trial court to exercise its new sentencing discretion under Senate Bill 1393.
Also pending is Henry's petition for writ of habeas corpus (case No. E074464), which we ordered to be considered with this appeal. We address Henry's petition by means of a separate order.
I. BACKGROUND
Henry and Doe began a romantic relationship in spring 2016, and at some point Henry moved into Doe's apartment. The relationship, however, was tumultuous. By November 2016, Doe had decided to break up with Henry; she began staying temporarily with a friend and wanted Henry to move out of the apartment.
In November 2016, in the day or so leading up to the incident at issue—there was conflicting evidence at trial as to its exact date—Doe sent Henry numerous angry text messages, which among other things demanded that he leave the apartment, accused him of infidelity, and questioned his sexual orientation. She also sent Henry a picture of another man's genitals (the picture was of Doe's ex-boyfriend, though Henry did not know that). Doe testified that her intent was to induce Henry to leave the apartment: she was "saying all kind of things . . . just to get him out" and "chase him away."
Doe testified at trial that, shortly after this series of text messages, she had to return to the apartment to get something before going to work. When she entered the apartment, Henry was there. She had never seen him so angry; he had an infuriated expression on his face and was balling his fists. Henry referred, with profane emphasis, to the series of messages from Doe, and then stated "You have me in here wanting to kill myself. And I want to kill you too . . . ." Doe did not respond because she "knew . . . it was going to be bad." Instead, she turned and ran out the door toward her car. Henry caught her, tackled her, and dragged her back inside.
Back inside the apartment, Henry began hitting Doe, and then wrapped his hands around her neck. He squeezed her neck, seemingly "as tight as he could," telling her as he did so (again with profane emphasis) that he was going to kill her. Doe believed that Henry intended to kill her, and that she was going to die. Henry eventually—Doe estimated that it was minute and a half or two minutes—stopped strangling her and apologized, but not before she heard ringing noises and began to lose consciousness. After Henry let go, Doe felt like she could not swallow and her neck was burning. She testified that she was in pain for weeks, and that she had bruises on her neck that matched the outline of Henry's "full handprint."
Henry testified in his own defense at trial and described the incident differently. He denied ever choking or strangling Doe, or threatening to kill her.
More specifically, according to Henry, Doe arrived at the apartment about 10 or 15 minutes after texting him the picture of another man's genitals, after she had been sending him "different hateful stuff . . . throughout the day." She came in the door with "a smirk on her face. She was smiling." Henry confronted her, asking "what . . . is up with those text messages?" Henry testified that he "took one step forward," and she turned and ran away, back to her car. Henry stayed in the apartment, looked out a window, and saw that Doe was looking back at the house, still "smirking." Doe returned to the apartment, but again when Henry moved towards her, she turned around and ran outside. This time, he chased her. He caught up to her and made "very light physical contact" with her, barely "tapp[ing] her" with his hands. As soon as he touched her, she "sagged to the ground." As she did so, her phone fell to the ground and cracked, causing her to start "throwing a tantrum." Henry apologized, and urged Doe to come back inside the apartment to avoid causing a scene. He helped her get back up, and they walked back to the apartment. Henry denied dragging Doe, stating that she walked on her own, though he had his arms gently around her, "just kind of holding her."
Henry further testified that "the second" he and Doe entered the apartment, she turned and tried to punch him. He caught her fist, then grabbed her other wrist, they struggled and then she "sagged to the ground" again. He "let her down to the ground, gently," still holding her hands, and pressed on her chest with his forearm, telling her "'Settle down. Stop struggling. Just kick back.'" He admitted that his "forearm made contact with her neck" as he was restraining her, but he "immediately let go" when he "saw . . . [he] was at a soft area." Doe got up and started complaining that Henry had choked her, saying "Why did you choke me out? Are you trying to kill me?" He replied, "No." After talking for a few moments, Doe proposed smoking marijuana together, which they did. Doe then left; Henry walked her to her car, apologized again "for everything that just happened," and told her he loved her.
Doe did not immediately report the incident to the police. At trial she explained: "I wanted to continue with my life. I wanted to keep going to work. I wanted to keep going to school." Also, she was "just embarrassed as a woman." When she did contact police, on December 2, 2016, the officer who interviewed her observed that she had bruises on both sides of her neck, a bruise by her right eye, and bruises on her upper right arm and upper thigh. On December 8, 2016, Doe sought medical treatment for the first time, complaining of ongoing pain in her neck, and concerned about the possibility of internal injuries. She told the doctor she had been beaten and strangled by her ex-boyfriend on November 28, 2016. The doctor observed "nondistinct" bruises on both sides of her neck, right arm, and right leg.
Henry was charged with three felony counts: (1) attempted premeditated murder (Pen. Code, §§ 187(a), 664), (2) willful infliction of corporal injury resulting in injury to a spouse or cohabitant (§ 273.5, subd. (a)), and (3) criminal threat (§ 422). The information further alleged that Henry had four prior strike offenses (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), four prior serious felony offenses (§ 667, subd. (a)), and four prison priors (§ 667.5, subd. (b)).
Further undesignated statutory references are to the Penal Code.
The jury convicted Henry on all three counts, but found not true the allegation that the attempted murder was willful, deliberate, and premeditated. The trial court found the enhancement allegations to be true, though it later, without objection from the prosecution, struck two of the serious felony prior enhancements as invalid. After denying Henry's motion to strike some or all of his strikes pursuant to People v. Superior Court (1996) 13 Cal.4th 497 (Romero), the trial court imposed a prison term of 37 years to life, consisting of 27 years to life on count 1 (the upper term of 9 years, tripled because of the strikes), plus a consecutive 10 years on the two remaining serious felony prior enhancements.
II. DISCUSSION
A. Instructional Error
Henry contends that the trial court prejudicially erred by failing to instruct the jury on attempted voluntary manslaughter, as a lesser-included offense of attempted murder. He contends that Doe's texts to him on the morning of the strangling constituted "substantial evidence of provocation." We disagree, and find no instructional error.
"An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' (§ 192, [subd.] a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."'" (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman); see also People v. Beltran (2013) 56 Cal.4th 935, 949 ["To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection . . . . [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene"].)
"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." (People v. St. Martin (1970) 1 Cal.3d 524, 531.) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (People v. Blair (2005) 36 Cal.4th 686, 745, disapproved on another ground in People v. Rices (2017) 4 Cal.5th 49, 76.) "To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (People v. Blair, supra, at p. 745.) "[T]he court is not obliged to instruct on theories that have no such evidentiary support." (Breverman, supra, 19 Cal.4th at p. 162; see People v. Williams (2015) 61 Cal.4th 1244, 1246 ["[s]peculation is insufficient to require the giving of an instruction on a lesser included offense"].) "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
Doe's texts to Henry do not constitute substantial evidence of a provocation sufficient to justify instructing the jury on attempted voluntary manslaughter for at least two reasons. First, it is well-established that "a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words . . . ." (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) This line of case law, developed primarily in the context of facts involving verbal arguments, is all the more applicable where the exchange is not face to face, but rather through the electronic exchange of communications. As a matter of law, Doe's series of texts, no matter how angry, rude, or even abusive they might have been, do not constitute a provocation such that "an average, sober person would be so inflamed that he or she would lose reason and judgment." (People v. Lee (1999) 20 Cal.4th 47, 60.)
The circumstance that a picture of another man's genitals was included among Doe's missives to Henry does not change the analysis. An ordinary person of average disposition would not have their passions so inflamed by such a picture as to lose reason and judgment. --------
Second, if sufficient time since the alleged provocation has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter. (People v. Rangel (2016) 62 Cal.4th 1192, 1225.) Here, Henry testified that Doe arrived at the apartment 10 or 15 minutes after she sent the text message picture of another man's genitals, and after sending him "hateful" messages all day. It is entirely plausible that he would remain angry or upset after such an interval, but he nevertheless had some time for "'"passion to subside and reason to return."'" (People v. Moye (2009) 47 Cal.4th 537, 550.) We do not find that the receipt of such a photo, or Doe's various other text messages, under circumstances similar to those described by Henry, would cause an ordinary, reasonable person to experience an emotion so strong as to cause a reaction that bypassed his or her reason. Even assuming it would, however, there was adequate time for Henry's judgment to return and '"intervene."' (People v. Rangel, supra, 62 Cal.4th at p. 1225.)
Furthermore, Henry's own version of events was not that he was overcome by his emotions when he strangled Doe; instead, he denied strangling her at all. Henry testified that his forearm accidentally came into contact with Doe's neck for a few seconds, as he sought to restrain her during a "tantrum." He repeatedly denied being angry at Doe, let alone having his reason overcome by strong emotion. The defense's theory of the case was that Doe had embellished her claim of having been strangled, and defense counsel repeatedly requested that no instruction on attempted voluntary manslaughter be given. Even if, under some set of facts, a series of text messages alone might constitute sufficient provocation to warrant instructing the jury on voluntary manslaughter, this is not such a case. (See People v. Gutierrez, supra, 45 Cal.4th at pp. 826-827 [no instruction on voluntary manslaughter warranted where defendant denied becoming enraged as result of verbal "exchange" and minor physical "tussle," testifying instead that he "simply walked away"].)
We conclude the trial court did not err by refusing to give a voluntary manslaughter instruction because that instruction was not supported by the evidence. B. Senate Bill 1393
Henry argues that he is entitled to a remand so that he can be resentenced in light of Senate Bill 1393. The People argue that such a remand would be futile. On the record before us, we find remand for resentencing appropriate.
Effective January 1, 2019, Senate Bill 1393 amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court in its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Henry was sentenced in October 2018, shortly before the amendments went into effect. Under the versions of these statutes in effect when the trial court sentenced Henry, the court was required to impose a five-year consecutive term for "any person convicted of a serious felony" (former § 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (former § 1385, subd. (b)).
The changes to the law enacted by Senate Bill 1393 apply to judgments, like Henry's, which were not final when Senate Bill 1393 went into effect. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973.) The People argue, however, that the trial court's comments at sentencing, as well as its sentencing choices, indicate that remand for the trial court to exercise its new discretion would be futile, because "the record indicates the court would not have dismissed [Henry's] prior serious felony enhancements, even if given the opportunity." (See, e.g., People v. Jones (2019) 32 Cal.App.5th 267, 274 [remand unnecessary where record clearly indicates trial court would not exercise discretion to strike enhancement].)
We reject the People's argument that the record demonstrates that remand would be an exercise in futility. Certainly, there are some facts tending to indicate that the trial court may not exercise its new discretion in Henry's favor. When sentencing Henry, the trial court chose to impose upper terms, and denied his Romero motion. The trial court also denied Henry's request to continue sentencing for a few months, until after Senate Bill 1393 went into effect.
The trial court never clearly indicated, however, that it would not strike any of Henry's prior serious felony enhancements if it had discretion to do so. To the contrary, the trial court expressly contemplated that Henry would have the opportunity to raise the issue after the law went into effect. The trial court declined to delay sentencing because sentencing had already been delayed several times for other reasons. The court indicated that "when the law changes, you know, he can go ahead and petition or whatever he needs to do." The record is not clear, therefore, that the trial court would not exercise its discretion in Henry's favor.
We conclude that justice will best be assured if the trial court has an opportunity to decide whether to exercise its discretion to strike Henry's prior serious felony conviction enhancements in light of Senate Bill 1393's amendments to sections 667 and 1385. We will remand for that purpose. We express no view as to how the trial court should exercise its new discretion.
III. DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the court to consider whether to dismiss or strike the five-year prior serious felony enhancements in the furtherance of justice, pursuant to its new discretion to do so under sections 667, subdivision (a), and 1385, subdivision (b), as amended by Senate Bill 1393.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: CODRINGTON
Acting P. J. FIELDS
J.