Opinion
A147908
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTIN HOHENEGGER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR216104)
Martin Hohenegger appeals following jury verdicts convicting him of two counts of first degree murder and finding him legally sane at the time of the murders. He raises numerous challenges to the guilt proceedings: the trial court inadequately responded to jury questions, the court committed instructional errors, evidence of an uncharged offense was improperly admitted, and the prosecutor committed misconduct during closing arguments. We reject these challenges. We agree with appellant's claims regarding an error in the abstract of judgment and a remand of firearm enhancements pursuant to recent legislation, and otherwise affirm.
BACKGROUND
Information and Plea
Appellant was charged by information with the murders of Douglas Kahley and Michael Scally (Pen. Code, § 187, subd. (a)). The information also alleged, with respect to both counts, that appellant personally and intentionally discharged a firearm proximately causing great bodily injury and death to the victims (§ 12022.53, subd. (d)). Appellant entered a dual plea of not guilty and not guilty by reason of insanity.
All undesignated section references are to the Penal Code.
Prosecution Case (Guilt Phase)
Appellant and Scally lived across the street from each other and had been friends for many years. Kahley was Scally's best friend and was also friends with appellant. The three frequently discussed politics—appellant was conservative, while Scally and Kahley were liberal. Appellant was a disabled Vietnam War veteran and former U.S. Marine, and Scally and Kahley would "haze" appellant about his military service. In turn, appellant would try to provoke Scally and Kahley. The discussions were mostly good-natured but would get heated at times.
About four to five months before the homicides, appellant and Scally were socializing at a neighbor's house. Appellant suddenly lunged towards Scally and grabbed him firmly by the crotch. Scally told appellant to stop, saying it hurt, and appellant smiled, said it should hurt, squeezed a little bit harder, and then let go. During another incident, a month or so before the homicides, appellant and Scally were engaged in a heated political discussion. Scally called appellant fat, and appellant said something like, "I should go get my gun and shoot you in the head." At another time, appellant threatened Kahley. About six months before the homicides, appellant said he was going to go to the Department of Veterans Affairs (VA) and "shoot the fucking idiots."
In the early evening of October 3, 2012, Scally, Kahley, appellant, and another neighbor were drinking and socializing in Scally's garage, which was furnished with chairs, a television, and a refrigerator. The conversation turned to politics and Kahley and appellant began to argue. Kahley said that appellant was a "fucking leach [sic] on the system" who "sits around on his ass and draws VA benefits and doesn't do shit." Appellant retaliated with comments about Kahley's business and personal life. Kahley called appellant "a fucking baby killer." The other neighbor testified that, after this comment, appellant just stared at Kahley without responding. At this point, around 6 p.m., the neighbor left.
Shortly after 6 p.m., other neighbors heard loud voices and either Scally or Kahley say, "Oh, Martin [appellant], you misunderstood what we were talking about." They saw appellant walk from his house across the street toward Scally's house with a gun in his hand. Scally said either "Oh, Martin, don't shoot us. You are going to go to jail," or "Go ahead shoot us. You are going to go to jail." Scally and Kahley turned away from appellant to go back to Scally's garage. Appellant fired his gun, and Scally and Kahley fell to the ground. Appellant walked towards them as they lay motionless on the ground and fired additional shots. Appellant then walked calmly back to his house.
Police arrived at the scene and surrounded appellant's house. A police officer telephoned appellant and, during several phone calls, tried to persuade appellant to come out of the house unarmed. During these phone calls, appellant admitted he shot Scally and Kahley after a political argument and made the following statements: "It was assault . . . he tried, you know - he tried to jump and be aggressive and, you know, fuck him"; "Put the case on PTSD . . . . I broke"; the victims "have pushed me the last four years because of my Vietnam issues"; "It's got outta hand and I'm tired"; "those two approached me and tripped and one tried to be aggressive and I didn't - guess I didn't take it." Also during this time, appellant told a neighbor who telephoned him that he had "put [Kahley] out of his fucking misery." Appellant called a friend and told him he had shot his neighbors, saying, "I screwed up. I really fucked up."
Recordings of portions of these phone calls were played to the jury, and the jury was provided with transcripts.
After about 45 minutes, appellant emerged from his house and was taken into custody. While being transported to the police station, appellant said he understood he was under arrest for what he had done and he knew "what he did was very bad." Appellant said he was suffering from post-traumatic stress disorder (PTSD). When police told appellant no shell casings were found at the scene, appellant said none would be found and " 'Marines don't leave evidence behind.' "
Both victims died from multiple gunshot wounds. A gun found in the front entryway of appellant's house fired the bullets that were recovered from the victims' bodies. No firearms were found in Scally's garage.
Defense Case (Guilt Phase)
A veteran who served with appellant in Vietnam testified that appellant was hospitalized after his vehicle was blown up. This witness testified he had never heard appellant threaten anyone or act violently. Another witness, who had known appellant since junior high school, also testified appellant was not a violent person and the witness never heard appellant threaten anyone.
Robert Dolon, a psychotherapist at the VA, met appellant in 2008 when Dolon began facilitating appellant's counseling group. Dolon never heard appellant threaten anyone. Dolon testified that appellant exhibited "significant symptoms" of PTSD, had longstanding anger issues, and became angry when he felt disrespected. He also became "more moody" around the anniversary of his wife's death in early October.
Dr. Douglas Tucker testified as an expert in psychiatry. Dr. Tucker opined that appellant was suffering from PTSD at the time of the homicides. Appellant had been receiving treatment for PTSD for years but the treatment was only partially effective. Appellant was also diagnosed with depression and had mild to moderate impairment in cognitive functioning. Dr. Tucker testified that PTSD impacts the ability to accurately perceive threats and think through the appropriate response. He testified appellant said the victims threatened to shoot him and his dog and opined that this threat, combined with the fact that October was the anniversary of his wife's death, "flipped a switch" for appellant. Appellant told Dr. Tucker that he "blacked out" during the argument with the victims and does not remember shooting them, and Dr. Tucker testified this is consistent with a dissociative episode associated with PTSD. Verdict, Sanity Phase, and Sentence
The jury convicted appellant of first degree murder on both counts and found true the allegations that appellant personally used a firearm. Following a sanity trial, the jury found appellant was sane during his commission of the crimes. Appellant was sentenced to 100 years to life in prison.
Because appellant raises no claim of error regarding the sanity proceedings, we omit the evidence presented during this phase.
DISCUSSION
I. Jury Notes
Appellant first challenges the trial court's response to certain jury questions submitted during deliberations. We reject the challenge.
A. Background
The trial court instructed the jury on first and second degree murder with malice aforethought (CALCRIM No. 520), first degree murder (CALCRIM No. 521), voluntary manslaughter (CALCRIM No. 570), and provocation (CALCRIM No. 522). The court also gave CALCRIM No. 3428, instructing the jury it may consider evidence of appellant's mental disease, defect, or disorder in determining whether appellant "acted with the intent or mental state required" for the charged crimes.
The record on appeal reveals several jury notes, all but one of which contain written responses from the trial court. According to a settled statement prepared by the trial court in connection with this appeal, when the trial court received jury notes, it met with counsel to discuss the response in an unreported hearing and, "[u]pon [counsel's] concurrence, [the trial court] would write the agreed-upon response onto the bottom of the question form . . . ."
Shortly after beginning deliberations, the jury submitted the following note to the trial court: "During this stage, should we be considering his mental state? Will there be an insanity phase following this deliberation when/if guilt phase is over?" The trial court wrote back: "Can you clarify your first question? [¶] I have a definitive answer to your second question, after you clarify your first question." The jury then sent a second note repeating only the second question from the previous note: "Will there be an insanity phase following this deliberation when/if guilt phase is over?" The court replied: "There will be a sanity phase if Mr. Hohenegger is convicted of anything."
On the second day of deliberations, after a third note requesting a review of certain testimony, the jury submitted a fourth note: "Can PTSD place enough reasonable doubt in prosecution's burden of proof to change a determination of guilty of murder 1 to murder 2." The trial court responded, "Are you able to clarify your question?" The record on appeal contains a fifth jury note asking, "Can the defendant's mental disease, defect, or disorder (PTSD in this case) influence the intent of the defendant in determining the burden of proof of the prosecution to prove malice aforethought." In the settled statement, the trial court concluded the fifth note was never submitted to the court. The jury did not submit any additional notes before issuing its verdicts the same day.
In reaching this conclusion, the court relied upon the following: neither the court nor the trial attorneys recalled seeing the fifth note, the prosecutor had notes about the first four questions but no notes about a fifth question, the fifth note had a large "X" over it (as did the first four notes with responses), and the court's bailiff at the time of appellant's trial testified it was his usual practice to gather all "official-looking documents" from the jury room after deliberations and submit them to the clerk to be put in the court file.
B. Analysis
Appellant argues the trial court erred in its responses to the jury notes. Specifically, appellant argues the court's response to the second note "misled the jury into believing that it did not have to consider [appellant's] mental state in the guilt phase because that issue would be considered and decided in the sanity phase," and the court "should have made sure the jury clearly understood its duty to consider and decide the issue of [appellant's] mental state during the guilt phase of the trial." Appellant contends the court's response "likely removed from the jury's consideration the mens rea element . . . ." While appellant initially argued the trial court erred in failing to respond to the jury's fifth note, after the settled statement was prepared appellant does not contest the conclusion that the fifth note was never submitted to the court. Instead, appellant argues the unsent note "demonstrates the jury continued to be confused about [appellant's] mental state and the evidence of his PTSD up until the time it reached its guilty verdicts . . . ."
As an initial matter, appellant has forfeited the challenge. The settled statement provides (and appellant does not dispute) that the trial court's practice was to respond to jury questions only after all counsel agreed upon the response. "[D]efense counsel's approval of the court's . . . response to the jury's inquiry should bar defendant from contending on appeal that a [different] response should have been made." (People v. Medina (1990) 51 Cal.3d 870, 902.) However, as appellant argues, "[w]e may review defendant's claim of instructional error, even absent objection, to the extent his substantial rights were affected." (People v. Townsel (2016) 63 Cal.4th 25, 59-60 (Townsel).) We thus consider the claim to determine whether appellant's substantial rights were affected.
"[S]ection 1138 . . . provides that when the jury 'desire to be informed on any point of law arising in the case, . . . the information required must be given . . . .' The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] . . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Appellant concedes the court "initially gave correct jury instruction[s]" on the issue. The trial court thus had discretion to determine whether additional explanations were necessary. Appellant does not contend the court abused its discretion by seeking additional clarification of the first question on the first jury note. When the jury's second note merely repeated the second question from the first note—"Will there be an insanity phase following this deliberation when/if guilt phase is over?"—the trial court may have understood the jury's decision not to clarify or resubmit the first question as an indication that the jury reviewed the original instructions or otherwise answered its own question. Appellant cites no authority that a trial court abuses its discretion by not responding to a question the jury has apparently decided no longer needs to be answered, and we decline to so find. (Cf. People v. McCleod (1997) 55 Cal.App.4th 1205, 1220 [no error where trial court has not yet responded to jury question at the time jury delivers its verdict].)
Appellant raises other challenges to the jury instructions, which we discuss below.
We also reject appellant's argument that the fifth jury note, which was not submitted to the trial court, demonstrates the jury was still confused at the time of its verdict. Appellant cites no authority that we may consider this note in determining whether the trial court abused its discretion in its responses to the previous notes. "Generally, ' "when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered." [Citation.]' [Citations.] It is a fundamental principle of appellate law that our review of the trial court's decision must be based on the evidence before the court at the time it rendered its decision." (California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770, 803.) We also note that while appellant's contention is one inference that could be drawn from the jury note, the fact that the jury never sent the note renders it more likely that the jury found the answer in the original instructions or determined that, regardless of the answer, it would convict him of first degree murder in either event.
II. Jury Instructions
A. Instructions Regarding Mental Disease, Defect, or Disorder
The jury was instructed with a modified version of CALCRIM No. 3428, as follows: "You have heard evidence that the defendant may have suffered from a mental disease, defect, or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of Murder."
The second paragraph of CALCRIM No. 3428 provides: "The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state, specifically: <insert specific intent or mental state required, e.g., 'malice aforethought,' 'the intent to permanently deprive the owner of his or her property,' or 'knowledge that ...'>. If the People have not met this burden, you must find the defendant not guilty of <insert name of alleged offense>."
Appellant raises two challenges to this instruction. First, he contends the instruction erred by identifying malice, but not premeditation and deliberation, in the second paragraph. Second, he argues the instruction failed to inform the jury they could also consider the evidence with respect to appellant's false statements.
As an initial matter, appellant forfeited both challenges by failing to object to the instruction below. "[I]nstructions relating mental state evidence to charged offenses are no longer required to be given sua sponte." (Townsel, supra, 63 Cal.4th at p. 58.) However, as appellant contends, "[w]e may review defendant's claim of instructional error, even absent objection, to the extent his substantial rights were affected." (Id. at pp. 59-60.) We thus proceed to consider, and reject, the challenges.
Although appellant objected to the instruction on false statements, he did not request CALCRIM No. 3428 be modified to apply to false statements.
1. Premeditation and Deliberation
The first paragraph of the challenged instruction properly informed the jury it could consider evidence of appellant's mental disease, defect, or disorder "only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime." Appellant's challenge focuses on the second paragraph: "The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of Murder." (Italics added.) Appellant argues this instruction "limited [the jury's] consideration of the mental problems evidence to the sole element of malice aforethought, and thus precluded them from considering it on the question whether he premeditated and deliberated the murders."
" 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Solomon (2010) 49 Cal.4th 792, 822.)
It would have been preferable for the trial court to also identify premeditation and deliberation as relevant mental states. However, in light of other instructions, we find it not reasonably likely the jury misunderstood. The jury was instructed that, in order to convict on first degree murder, the prosecution had to prove that appellant acted with premeditation and deliberation. (See CALCRIM No. 521.) " 'Premeditation and deliberation are clearly mental states; no reasonable juror would assume otherwise.' " (People v. Rogers (2006) 39 Cal.4th 826, 881 (Rogers).) Thus, our Supreme Court has noted that in previous cases, "in light of full instructions defining first degree murder including an explanation of premeditation and deliberation, we concluded 'a reasonable jury would have understood that the requisite mental states (as set forth in the definitions of the crimes) were the same "mental states" that could be considered in connection with the evidence of defendant's mental disease, defect, or disorder.' " (Ibid.)
Although in those Supreme Court cases, no mental state was identified in the mental disorder instruction, the same reasoning applies here. The challenged portion of the instruction specifically relates to the mental state required for murder and describes the prosecution's burden of proof. It does not preclude the jury from considering appellant's mental disease, defect, or disorder with respect to other mental states. (Cf. Townsel, supra, 63 Cal.4th at pp. 59, 64 [instruction that jury may consider mental defect or disorder evidence " 'solely for the purpose of determining whether or not [the defendant] actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder' " "effectively instructed the jury not to consider that evidence on the [dissuading a witness from testifying] charge and [witness-killing special circumstance] allegation"].)
"The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.) The prosecutor immediately followed her discussion of premeditation and deliberation by arguing that appellant's PTSD should not excuse his conduct. Appellant argues that the prosecutor's arguments did not reinforce the principle that premeditation and deliberation are mental states and defense counsel did not discuss mental state. Nonetheless, "nothing in those arguments expressly or impliedly directed jurors not to consider the intellectual disability [or mental disorder] evidence on the question whether defendant premeditated and deliberated the killings as required for a conviction of first degree murder." (Townsel, supra, 63 Cal.4th at p. 63.)
2. False Statements and Consciousness of Guilt
The jury was instructed with CALCRIM No. 362, as follows: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
In People v. McGehee (2016) 246 Cal.App.4th 1190 (McGehee), the Court of Appeal reasoned: "CALCRIM No. 3428 prohibited the jury from considering evidence of defendant's mental illness or impairment for any purpose other than deciding whether he possessed the required mental state for murder. . . . If, however, defendant's mental illness or impairment prevented him from knowing [certain] statements were false, the statements would not have been probative of his consciousness of guilt. The jury should have been allowed to consider the evidence of defendant's mental illness or impairment for purposes of assessing consciousness of guilt." (Id. at pp. 1204-1205.) McGehee concluded the error was harmless, finding it not reasonably probable the jury would have found the defendant's mental illness prevented him from knowing the statements were false. (Id. at p. 1206.)
Under McGehee, it was error not to modify CALCRIM No. 3428 to reflect that the jury could consider whether appellant's PTSD prevented him from knowing any false statements were false. Like McGehee, we find the error harmless. As an initial matter, we note the prosecutor did not rely on any false statements in her closing argument. More significantly, the assertedly false statement was that appellant had no memory of shooting the victims. While the PTSD evidence could impact whether the jury believed this statement, if the jury concluded the statement was false and appellant did remember the incident, there is no evidence that PTSD would have prevented him from knowing the falsity of the statement. We conclude it was not reasonably likely the jury would have returned a more favorable verdict absent the error. (McGehee, supra, 246 Cal.App.4th at p. 1206.)
B. Imperfect Self Defense
At trial, appellant requested the jury be instructed on imperfect self-defense voluntary manslaughter, relying on appellant's statements to police and psychiatrists about the victims' conduct before the shooting. The trial court refused the instruction, reasoning that "[b]elief in future harm is not sufficient" and therefore once appellant went home to retrieve his gun, he could no longer have believed harm was imminent. Appellant argues this was error because the evidence about the timing of any aggressive conduct by the victims—whether it took place before or after he retrieved his gun from his house—was inconclusive. We disagree.
" ' "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." [Citation.] . . . . [T]he trial court must instruct on this doctrine, whether or not instructions are requested by counsel, whenever there is evidence substantial enough to merit consideration by the jury that under this doctrine the defendant is guilty of voluntary manslaughter.' " (People v. Manriquez (2005) 37 Cal.4th 547, 581.) " 'Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. " '[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.' " ' " (Ibid.)
Appellant highlights statements he made about the victims' aggressive conduct, and argues they do not indicate whether the conduct took place before or after appellant retrieved his gun. He told the police: "It was assault . . . . he tried, you know - he tried to jump and be aggressive and, you know, fuck him"; the victims "have pushed me the last four years because of my Vietnam issues"; and "those two approached me and tripped and one tried to be aggressive and I didn't - guess I didn't take it." He also points to statements he made to Dr. Tucker, who testified appellant said Scally "threatened to go and get his shotgun and shoot [appellant] and his dog."
These statements do not constitute substantial evidence warranting the instruction. First, appellant made no statements that he shot the victims because he actually believed he was in imminent danger. To the contrary, he made statements that he "didn't take it," and "fuck him." Moreover, appellant does not dispute that any threatening conduct by the victims must have immediately preceded the shooting in order to justify an imperfect self-defense instruction. Two witnesses testified that, once appellant returned with his gun, the victims did not threaten him and were in fact walking or running away from appellant when he shot them. This testimony is uncontradicted—appellant's statements do not affirmatively state the victims' aggressive conduct took place right before the shooting, and no other witness so testified. Thus, because the evidence "at most revealed that defendant may have harbored some fear of future harm but provided no indication that defendant 'actually, but unreasonably, believed he was in imminent danger of death or great bodily injury' [citation], the evidence clearly was insufficient to require the giving of defendant's requested instruction regarding imperfect self-defense." (Manriquez, supra, 37 Cal.4th at p. 582; see also People v. Wilson (2005) 36 Cal.4th 309, 331 [" 'Substantial evidence is "evidence sufficient 'to deserve consideration by the jury,' not 'whenever any evidence is presented, no matter how weak.' " ' "].)
One witness testified to the following series of events: one of the victims told appellant he misunderstood what they were talking about; appellant walked from his house toward Scally's house and, when he reached the middle of the street, raised his gun; Scally told appellant not to shoot; appellant continued to come closer; the victims turned away from appellant; and appellant fired shots. The other witness testified that he heard loud voices arguing; Scally said appellant misunderstood; "a little bit after that" Scally told appellant, "Go ahead and fucking shoot me. You'll go to jail."; appellant moved from the middle of the street toward Scally's house; Kahley ran to his car; and appellant fired shots.
C. Flight
Over appellant's objection, the trial court instructed the jury on flight, as follows: "If the defendant fled, or tried to flee, immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." Appellant challenges this instruction on appeal. We find any error harmless.
" 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." ' " (People v. Cage (2015) 62 Cal.4th 256, 285.) Appellant argues after the shootings he calmly returned to his home across the street from the scene of the crime. The People counter that appellant's refusal to exit his home for 45 minutes after the police surrounded it supports issuance of the instruction. Assuming "the instruction should not have been given, any error would have been harmless. The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it." (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183; accord, People v. Visciotti (1992) 2 Cal.4th 1, 61.)
D. Involuntary Manslaughter
Appellant contends the trial court erred by failing to instruct the jury on involuntary manslaughter. We find any error harmless.
"Involuntary manslaughter is 'the unlawful killing of a human being without malice aforethought and without an intent to kill.' [Citation.] . . . [¶] Assuming the trial court erred in failing to instruct on involuntary manslaughter, any error was harmless. In addition to being fully instructed on first degree premeditated murder, the jury also was instructed on the lesser included offenses of implied malice second degree murder and heat-of-passion voluntary manslaughter, both of which require higher degrees of culpability than does the offense of involuntary manslaughter. The jury rejected the lesser options and found defendant guilty of first degree premeditated murder. Under the circumstances, there is no reasonable probability that, had the jury been instructed on involuntary manslaughter, it would have chosen that option." (Rogers, supra, 39 Cal.4th at p. 884.) As in Rogers, the jury rejected voluntary manslaughter and convicted appellant of first degree murder, thus necessarily rejecting his contention that he did not have malice. Any error in failing to issue the involuntary manslaughter instruction was harmless. (See also People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 ["the fact that the jury rejected [voluntary] manslaughter and found defendant guilty of the first degree murder of [the victim] precludes any possible error in the refusal to instruct on involuntary manslaughter"].)
III. Appellant's Threat Towards the VA
Appellant raises two challenges involving the evidence that, around six months before the homicides, he threatened to shoot VA employees. First, he argues the evidence was improperly admitted. Second, he contends statements made about this evidence during the People's closing argument constituted prosecutorial misconduct. We reject both challenges.
A. Admissibility
Over appellant's objection, the trial court permitted the People to introduce evidence of appellant's threat to VA employees in their rebuttal case. The evidence was that, about six months before the homicides, appellant said he was going to go to the VA and "shoot the fucking idiots." Appellant now argues this admission was error under Evidence Code section 1101, subdivision (b), because it was insufficiently similar to the charged crimes to constitute evidence of his intent. He also argues admission was error under Evidence Code section 352.
Although appellant did not challenge the admission on Evidence Code section 1101 grounds below, he argues any challenge would have been futile, we should excuse the forfeiture, and trial counsel was ineffective for failing to make the challenge. We need not resolve the issue because we reject the challenge in any event.
We assume, without deciding, that the admission of the evidence was erroneous. " 'Erroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that, absent the error, a result more favorable to the defendant would have been reached.' " (People v. Williams (2017) 7 Cal.App.5th 644, 678; see also People v. Marks (2003) 31 Cal.4th 197, 227 ["the application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of [People v.] Watson [(1956)] 46 Cal.2d [818,] 836."].)
We reject appellant's argument that admission of the evidence was so "highly prejudicial and inflammatory" as to violate his federal constitutional right to a fair trial.
At trial, the People presented evidence of other threats issued by appellant, which appellant does not challenge on appeal. According to one witness, about a month before the shooting, appellant told Scally something to the effect of, " 'I should go get my gun and shoot you in the head.' " Another neighbor told police he had witnessed appellant threaten Kahley. Yet another neighbor relayed the following scene, taking place about four to five months before the homicides: "[Appellant] grabbed [Scally] by the crotch fairly firmly and [Scally] bent over some and said, 'What are you doing? Stop that. It hurts', and [appellant] smiled and said, 'It should'; squeezed a little bit harder, and then let go and walked away." Because these incidents were both closer in time to the shootings and, more significantly, were directed at the victims, the jury would likely have considered them much more significant than appellant's threat directed at VA employees. In light of the other, unchallenged evidence of appellant's threats, we find any error in the admission of appellant's threat to VA employees harmless. This conclusion is not altered by the brief mention of the VA threat in the People's closing argument, discussed below.
Appellant notes the trial court did not sua sponte issue CALCRIM No. 375 limiting the use of prior bad acts evidence, but he does not separately challenge this omission as error.
B. Prosecutorial Misconduct
Appellant argues the prosecutor committed misconduct in referring to the VA threat during her closing argument.
" 'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury . . . , ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 (Gonzales and Soliz).)
The prosecutor did not mention the VA threat during her initial closing argument. Defense counsel argued: "Your common sense and your experience in living your life tells you that someone who has led an honorable, decent, crime-free life, someone who has spent his life caring and protecting others, doesn't get up one morning and decide, 'I'm tired of being a good guy. I want to be a bad guy. I'm tired of suffering in pain, and now other people must suffer'. [¶] Common sense tells you that people act in conformity with their character . . . ." Counsel recited the jury instruction about evidence of appellant's character for nonviolence (CALCRIM No. 350) and discussed the testimony on this point.
In rebuttal, the prosecutor disputed the evidence of appellant's nonviolent character, and argued as follows: "And you also know that he's made threats before; threats of violence, and that's important because, you know, most people go through their whole lives without making threats of violence to people, right? And, you know, he's made -- he made threats to Mr. Kahley. He made threats to Mr. Scally, and you also know that there was this poker game where he made a threat that he was going to go shoot up the VA. [¶] . . . [¶] . . . [¶] So this is a defendant who, I would submit to you, has a very long-standing anger history and a history of acting out violently with his throwing things, and with making threats, and with his attack on Mr. Scally, and finally, acting out in the murder of his two friends. [¶] So this is not an act. This is not out of the character for the defendant to do what he did. He had been thinking about committing a murder, and so finally, committing a murder certainly is not something that is so out of the ordinary for him."
Appellant argues this constituted an "improper propensity argument." Appellant did not object to the argument below. "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." (Gonzales and Soliz, supra, 52 Cal.4th at p. 305.) He contends objection would have been futile because an admonition would not have cured the asserted misconduct. We disagree. The prosecutor made only one brief mention of the VA threat, during an argument that was also supported by evidence of appellant's prior threats to the victims, which he does not challenge. Cases cited by appellant finding an admonition would have been ineffective are inapposite. (See People v. Alvarado (2006) 141 Cal.App.4th 1577, 1586 [prosecutor improperly vouched for the witness on whose credibility "the prosecution's case turned"]; People v. Kirkes (1952) 39 Cal.2d 719, 726 ["[The prosecutor's improper remarks] were interspersed throughout the closing argument in such manner that their cumulative effect was devastating. Repeated objections might well have served to impress upon the jury the damaging force of the challenged assertions. A series of admonitions to the jury could not have cured the harmful effect of such misconduct."].)
Appellant alternatively argues trial counsel rendered ineffective assistance of counsel by failing to object to the prosecutor's argument. To establish such a claim, "[a] defendant must demonstrate that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Stanley (2006) 39 Cal.4th 913, 954.) Any deficient performance was harmless. The VA threats were only one example of appellant's threatening conduct. The prosecutor also cited his threats to the victims and his attack on Scally, as well as evidence that appellant had been to anger management classes and told the VA he had homicidal ideations. Appellant does not challenge the prosecutor's argument with respect to this evidence. It is not reasonably probable that the jury, had the trial court admonished them to disregard the reference to the VA threat, would have rendered a more favorable verdict.
IV. Additional Issues
Appellant contends the cumulative effect of errors denied him a fair trial. We have either rejected appellant's claims of error or found that any errors, assumed or not, were not prejudicial. "Viewed as a whole, such errors do not warrant reversal of the judgment." (People v. Stitely (2005) 35 Cal.4th 514, 560.)
Appellant notes (and the People agree) an error in the abstract of judgment regarding the source of certain presentence credits: although the trial court awarded appellant 1,253 days of actual custody credit, the abstract allocates some of those days to conduct credit. We will direct the trial court to correct the abstract of judgment.
Appellant argues (and the People again agree) that he is entitled to a remand of his firearm enhancements pursuant to new legislation which grants trial courts the discretion to strike or dismiss a firearm enhancement. (§ 12022.53, subd. (h), as amended by Stats 2017, ch. 682, § 2, eff. Jan. 1, 2018; People v. Robbins (2018) 19 Cal.App.5th 564, petn. for review pending, petn. filed Feb. 21, 2018, S247047 [§ 12022.53, subd. (h) applies retroactively in cases that are not yet final on appeal on its effective date].) We will reverse and remand the enhancements to permit the trial court to exercise its discretion.
The People concede that if we resolve appellant's appeal after the new statute's effective date of January 1, 2018, the claim will be ripe. --------
DISPOSITION
The section 12022.53 enhancements are reversed and remanded to permit the trial court to exercise its discretion under section 12022.53, subdivision (h). The trial court is directed to correct the abstract of judgement to indicate that all presentence credits are actual custody credits. In all other respects, the judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.