Opinion
H042876
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. HAN QUOC HOANG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1370251)
Defendant Han Quoc Hoang was convicted by jury trial of second degree murder (Pen. Code, § 187), by personally discharging a firearm causing death (§ 12022.53, subd. (d)). On appeal, he contends that the court prejudicially erred by instructing the jury, in accordance with CALCRIM No. 505, that to justify his killing of the victim on a theory of self-defense, defendant had to have acted "only because of" the reasonable belief that he was in imminent danger of death or great bodily injury. We find no instructional error and therefore must uphold his conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
This court issued an opinion in this matter on March 21, 2018. Defendant filed a timely petition for rehearing, asking that we remand for the trial court to exercise its discretion under a sentencing amendment to section 12022.53, subdivision (h), which took effect January 1, 2018. Defendant contends that remand is necessary to enable the trial court to consider whether to strike a firearm enhancement imposed at sentencing. We granted rehearing, and having considered the new argument, we agree that the amendment may be retroactively applied and that the trial court should be given the opportunity to exercise its discretion on the issue. We will therefore remand for a new sentencing hearing consistent with that provision.
Background
In the evening of November 14, 2013, the victim, Hoa or Hua Nguyen, went to a taqueria parking lot to buy cocaine from Thien Do. As Nguyen sat in his car, defendant paced back and forth, smoking a cigarette, and then approached Nguyen. He passed his hand in and out of the driver's side and then pulled out a gun, moved away from the car, and fatally shot Nguyen in the chest. The entire incident, which was captured on a neighbor's video camera, lasted about one minute. Defendant ran away, leaving his DNA on a cigarette found nearby. He picked up money from the ground, dropping $100 bills as he fled. The prosecution's theory was that defendant had intended to rob Nguyen and shot him when he resisted.
Defendant was accused by information of murder (§ 187) and second degree robbery (§§ 211-212.5, subd. (c)). Attached to both counts was the additional allegation that he personally discharged a firearm, causing Nguyen's death. (§ 12022.53, subds. (b), (c), (d).)
Defendant testified at trial that he shot Nguyen in self defense. He told the jury that he had gone to the taqueria parking lot to buy drugs from Do, taking a gun with him for protection. Defendant said he had been smoking methamphetamine that afternoon, which made him feel "paranoid, jittery, jumpy, stuff like that." He handed Nguyen $3,000, but Nguyen said he did not have the drugs "yet." Nguyen leaned over and reached for something with a brown handle, which scared defendant; he pulled out his gun and told Nguyen to stop. Nguyen did not stop reaching for the object, however, and defendant was "scared," so he pulled the trigger. He had never fired a gun before.
The jury found defendant guilty of second degree murder. On the robbery charge, the jury could not reach a verdict, and the court declared a mistrial on that count. Defendant received a prison sentence of 40 years to life, consisting of 15 years to life for the murder and 25 years to life for the section 12022.53, subdivision (d) enhancement. This timely appeal followed.
The jury, however, rejected the prosecution's theory of felony murder.
Discussion
1. Instruction on Self-Defense
The central issue on appeal is whether the trial court erred by instructing the jury on the elements of self-defense with CALCRIM No. 505. The instruction stated: "A defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] and 3, the defendant used no more force than was reasonably necessary to defend against the danger. [¶] Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person, in a similar situation, with similar knowledge, would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. The defendant's belief that he was threatened may be reasonable, even if he relied on information that was not true. However, a defendant must actually and reasonably have believed that the information was true." (Italics added.)
Defendant contends that the italicized portion of this instruction is inconsistent with common law by precluding a self-defense finding "whenever a non-defensive motivation, however slight, coexists with the substantial motivation of self-defense." In defendant's view, the instruction infringed his right to a fair trial "[by] withdrawing from the jury the determination of whether the apprehension of imminent danger was a substantial (even if non-exclusive) cause of appellant's act." It also lowered the prosecution's burden of proof "by authorizing the jury to conclude that the burden was met if they found even a minuscule additional motivation in addition to the motivation to defend, and thereby infringed . . . appellant's right to due process of law."
Defendant acknowledges that CALCRIM No. 505 reflects the language of section 198, which states, "A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197 [situations suggesting justifiable homicide], to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." Defendant seeks an interpretation of the language of this statute "as providing that a homicide based on mixed motives is justifiable so long as reasonable fear was a substantial cause of the decision to kill." He suggests that a person should not be foreclosed from claiming the justification where other motives exist: "To require a person, in the face of such imminent danger, to pause to examine his conscience and determine whether his motivation to act includes any strain, however faint, of resentment or anger, and to stay his hand if such strain is discovered, 'is to require the very thing that may prevent him from defending himself at all.'. . . Indeed, it may be simply impossible."
Defendant's interpretation of section 198 is not persuasive, however. The statutory admonition that the defendant must have acted under the influence of reasonable fears alone does not imply that a homicide is justifiable in self-defense if the defendant's fear for his life is only a substantial factor in the killing, rather than the sole basis for the killing. Defendant maintains, however, that the statute itself is misleading in its reference to "such fears alone"; thus, CALCRIM No. 505 is an incorrect statement of the law "despite its fidelity" to section 198.
The parties debate the significance of People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino) and People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen) in determining the viability of CALCRIM No. 505. In Trevino, the defendant challenged an instruction with CALJIC No. 5.12, which stated in part: "A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone." The Trevino court concluded that CALJIC No. 5.12 was a correct statement of the law of self-defense: it "properly instructs the jury that the party killing must have acted under the influence of reasonable fears alone. It does not eliminate a feeling of anger or any other emotion so long as that emotion was not part of the cause of the use of deadly force." (Trevino, supra, at p. 879-880.)
In reaching this conclusion the Trevino court acknowledged that there are situations in which "it would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable. Such a requirement is not a part of the law, nor is it a part of CALJIC No. 5.12. Instead, the law requires that the party killing act out of fear alone. Thus, once the initial aggressor attempts in good faith to decline further struggle and communicates this to his opponent, or once the initial victim overreacts and responds with deadly force, the party killing may justifiably use deadly force in self-defense as long as the use of such force is motivated only by a reasonable fear and the belief that it is necessary to prevent his death or great bodily injury. The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense. But if the only causation of the killing was the reasonable fear that there was imminent danger of death or great bodily injury, then the use of deadly force in self-defense is proper, regardless of what other emotions the party who kills may have been feeling, but not acting upon." (Trevino, supra, 200 Cal.App.3d at p. 879.)
In Nguyen, the Supreme court cited Trevino with approval, holding that the jury could have reasonably rejected defendant's claim of self-defense because in shooting the victim "he did not act on the basis of fear alone but also on a desire to kill." (Nguyen, supra, 61 Cal.4th at p. 1044.) Defendant notes that the Court declined to address the question whether a jury should be instructed that "acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of [the defendant's] decision to kill," or "whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases." (Id. at p. 1046.) As noted, the Court did find "sufficient evidence to support a finding by the jury that defendant did not act out of fear alone" when he killed the victim. (Id. at p. 1045.) Nguyen thus does not support defendant's view that a homicide based on mixed motives is justifiable as long as reasonable fear was a substantial cause of the decision to kill.
We further disagree with defendant's claim that the instruction is inconsistent with common law. In its analysis the Supreme Court in Nguyen recognized a long history of case law, dating back to 1895, allowing self-defense where the defendant acted solely under a reasonable fear of imminent danger to himself. (See, e.g., People v. Hecker (1895) 109 Cal. 451, 461, 462 [self-defense available if defendant responded to reasonable fear of imminent danger and "acted under these fears alone"]; People v. Vernon (1925) 71 Cal.App. 628, 629 [instruction that defendant claiming self-defense must have " 'acted under the influence of such fear alone' " was correct statement of the law under sections 197 and 198]; People v. Shade (1986) 185 Cal.App.3d 711, 716 [rejecting defendant's theory that CALJIC No. 5.12 is an incorrect statement of the law].)
We thus conclude that CALCRIM No. 505 was correctly applied in this case by requiring defendant to have reasonably "believed there was imminent danger" of being killed or suffering great bodily injury and that he "acted only because of that belief." And, like CALJIC No. 5.12, CALCRIM No. 505 did not preclude a finding that defendant killed Nguyen in self-defense if he harbored an emotion besides fear for his life. It required only that the killing itself be based solely on a reasonable and honest belief in the need to defend himself against Nguyen's threat of imminent harm. (Trevino, supra, 200 Cal.App.3d at p. 880.) We further see no deprivation of due process, nor any lowering of the prosecution's burden of proof, by including this instruction in the charge to the jury. 2. Sentencing Discretion under Section 12022 .53
It is therefore unnecessary to address the People's assertion that defendant forfeited his claim of error, or their argument that defendant suffered no prejudice from the court's use of the CALCRIM No. 505 instruction. --------
At the time of sentencing on September 18, 2015, imposition of an enhancement under section 12022.53 was mandatory; it could not be struck in the interest of justice pursuant to section 1385 or any other provision of law. (See, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.) On October 11, 2017, the Governor signed Senate Bill 620, effective January 1, 2018. (Stats. 2017, ch. 682 § 2, p. 5106.) As relevant to this case, Senate Bill 620 amended section 12022.53, subdivision (h), to confer discretion on the trial court to strike a firearm enhancement in the interest of justice. Subdivision (h) now states: "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. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Upon defendant's timely petition for rehearing, we agreed to address his contention that the matter must be remanded for the court to consider whether to strike the section 12022.53 firearm enhancement, based on this new legislation. Both defendant and the People agree that the amendment to section 12022.53, subdivision (h), applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746-747; People v. Francis (1969) 71 Cal.2d 66, 75-76.)
The People oppose remand, however, arguing that "no remand is necessary as there is nothing to indicate that the trial court would exercise its discretion under section 1385." The People cite cases in which courts had misunderstood the scope of their discretion or through their comments expressed the intent to sentence the defendant to the maximum prison term possible. (See, e.g., People v. Coelho (2001) 89 Cal.App.4th 861, 889 [remand would be an idle and pointless act where court had twice imposed 10 consecutive sentences and indicated that it would impose them even if some were not mandatory]; People v. Chavez (2018) 21 Cal.App.5th 971, 1016 [through comments at sentencing, record "clearly shows" that the court would not have exercised its discretion under the new amendment].)
We find no comparable circumstances here. At the September 2015 sentencing hearing the trial court did not have discretion to strike the section 12022.53 enhancement, and it made no discretionary sentencing findings that would eliminate the need for a remand in this case. "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) It is not for this court to declare the manner in which the trial court would exercise its discretion once it heard defendant's arguments in favor of striking the firearm enhancement. Because the trial court did not address or consider whether imposition of the enhancement under the facts and circumstances of this case would be in furtherance of justice pursuant to section 1385, it should be given that opportunity now.
Disposition
The judgment is reversed. The matter is remanded for the sole purpose of allowing the trial court to exercise its discretion under section 12022.53, subdivision (h), by deciding whether to strike defendant's section 12022.53 firearm enhancement.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.