Opinion
C091570
11-23-2021
THE PEOPLE, Plaintiff and Respondent, v. DAYSHAWN JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Order Filed Date 12/17/21
(Super. Ct. No. 18FE007348)
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING
THE COURT:
Appellant filed a petition for rehearing with this court on December 7, 2021. It is hereby ordered that the petition for rehearing is denied.
It is also ordered that the opinion filed herein on November 23, 2021, be modified as follows:
1. On page 16, following the final paragraph ending in "we do not address defendant's claim of prejudice," footnote 4 is to be inserted that reads:
4. Defendant petitioned for rehearing, claiming in part that we failed to address his contentions that the prosecutor's closing argument and the trial court's refusal to instruct as discussed ante violated certain of his federal constitutional rights. We observe at the outset that "[a]n appellate court is not required to address all of the parties' respective arguments, discuss every case or fact relied upon by the parties, distinguish an opinion just because a party claims it is apposite, or express every ground for rejecting every contention advanced by every party." (People v. Garcia (2002) 97 Cal.App.4th 847, 853.) Indeed, "[t]he California Supreme Court has not been reluctant to give short shrift to deserving issues." (Ibid.) However, because defendant has petitioned for rehearing and requested that we specifically acknowledge these claims, we acknowledge and reject them for the reasons already set forth in parts I and II of our Discussion, ante.
2. On page 20, following the paragraph ending in "the trial court's decision was neither irrational nor arbitrary and was not an abuse of discretion" (immediately before heading V), footnote 6 is to be inserted that reads:
6. Defendant petitioned for rehearing, claiming in part that we failed to recognize his contention that the denial of his Romero motion violated his federal right to due process. We acknowledge and reject that claim for the reasons stated in part IV of our Discussion, ante. He also claimed that we failed to address his argument that denial of his Romero motion would make him ineligible for the benefits of youth offender parole statutes and regulations. We specifically noted in part IV, ante, that the trial court considered defendant's youth in denying his Romero motion; we recognized that defendant raised several arguments challenging the trial court's ruling but concluded that he failed to demonstrate an abuse of discretion. Nothing more was required. (See People v. Garcia, supra, 97 Cal.App.4th at p. 853.)
3. On page 22, following the paragraph ending in "The trial court did not err when it failed to stay sentence on count three" (immediately before heading VI), footnote 7 is to be inserted that reads:
7. Defendant petitioned for rehearing, claiming in part that we failed to recognize his contention that the trial court's refusal to stay this sentence violated his federal right to due process. We acknowledge and reject that contention for the reasons stated in part V of our Discussion, ante.
4. On page 27, following the paragraph ending in "People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034 [accord]" (immediately before heading Disposition), footnote 9 is to be inserted that reads:
9. Defendant petitioned for rehearing, claiming that we failed to address his contention of cumulative prejudice as to parts I-III of our Discussion. Because we rejected each of the arguments he asserted were cumulatively prejudicial, we also reject his argument for cumulative prejudice. (See People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068 ["There can be no cumulative error if the challenged rulings were not erroneous"].)
The footnotes in the opinion must be renumbered to accommodate the footnotes inserted by this modification.
This modification does not change the judgment.
DUARTE, J.
A jury found defendant Dayshawn Jackson guilty of second degree murder, discharging a firearm from a vehicle, and unlawfully possessing a firearm after he shot a gun from a moving car into a crowd of people at a party. Defendant raises multiple claims on appeal. He contends the prosecutor committed prejudicial misconduct by misstating the burden of proof, the trial court erred by refusing to instruct the jury on voluntary manslaughter, the court abused its discretion when it refused to strike his prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court erred by failing to stay his conviction for possession of a firearm under Penal Code section 654, the award of victim restitution must be reversed for insufficient evidence, and the court improperly imposed fines and fees in the absence of his ability to pay.Defendant also requests that we review the transcript of the in camera hearing on his Pitchess motion to ensure the trial court properly followed appropriate procedures. The Attorney General agrees that this request for review is appropriate.
Further undesignated statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We agree with defendant that the trial court awarded victim restitution without sufficient proof as required by statute. Therefore, we reverse the restitution order and remand for a new restitution hearing. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
Factual Background
As defendant does not claim insufficient evidence supported his murder conviction, we limit our recitation of the evidence at trial to those facts relevant to his claims on appeal.
On the evening of August 26, 2017, defendant attended a party hosted by Larry Ragsdale, Sr., at his house; defendant did not know Ragsdale. Other members of defendant's family attended the party as well, including his niece, Nakaila Maricas, his sister, and his cousin, but defendant did not travel to the party with his relatives. Maricas had just turned 18 years old.
Defendant saw Maricas at the party with a beer in her hand. He was upset that she was there; he took the beer from her and told her to leave. She tried to walk away, but defendant followed her. Defendant's sister told him that she did not have a problem with Maricas being at the party and that Maricas was there with her.
Ragsdale witnessed defendant using foul language and telling Maricas to leave the party. Ragsdale's son, Romayne Ragsdale, also witnessed the argument. Ragsdale told defendant and Maricas they had to leave, and he then asked Romayne to tell them to leave, which he did. Defendant said he did not want Maricas at the party, and Romayne said that was fine, they could both leave. Romayne walked with defendant away from the party. Defendant and Romayne shook hands, and then defendant left on foot. There were approximately 15 to 20 people in the front yard.
Because Larry Ragsdale, Sr., and Romayne Ragsdale share a last name, we refer to Romayne by his first name.
About five to 10 minutes after defendant left the party and about 20 minutes after the argument, at approximately 12:01 a.m. on August 27, defendant drove down the street where the party was taking place, passed by the house, turned around, and then drove past the house again. Surveillance camera evidence from the neighborhood detailed the route taken by a car closely resembling the distinctive white Chevy Impala that defendant had been driving--his girlfriend's car.
Defendant parked and turned the car's headlights off, and then pulled away. At approximately 12:11 a.m., he drove toward the house with the car's headlights still off, slowed down, fired two or three shots, and drove off. Maricas was still at the party when the shooting occurred, but was not injured. Larry Ragsdale, Jr.--Ragsdale's son--was shot in the chest and later died; he had not interacted with defendant during the party.
A search of the area where the white car had been parked revealed a piece of broken beer bottle with defendant's palm print. A subsequent search of defendant's girlfriend's car revealed gunshot residue on the car's driver seat and center console, which was consistent with a gun having been fired from inside the car through the open front passenger window. Cell phone records showed multiple calls in the area between defendant's phone and his sister and girlfriend on the date of the murder. The records also showed that on August 26 at 11:19 p.m., defendant's phone accessed a cell phone tower closest to the address of the shooting.
Defendant drove to Arizona in his own car the day after the murder; in Arizona he was pulled over for speeding and arrested for possession of marijuana. He later told his former employer that he had gone to Arizona because something happened in Sacramento, he was nervous about the police and needed to get out of town, his cousin had supposedly gone to a party and shot someone while possessing his license--which is why the police thought he might have committed the crime--and he was not in California at the time the shooting occurred.
Verdict and Sentence
The jury found defendant guilty of second degree murder (§ 187, subd. (a); count one), discharging a firearm from a motor vehicle (§ 26100, subd. (c); count two), and unlawfully possessing a firearm (§ 29800, subd. (a)(1); count three). The jury also found true the allegations as to counts one and two that defendant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and as to count one that defendant personally used a firearm (§ 12022.5, subd. (a); 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). In bifurcated proceedings, the trial court found true that defendant had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(f).)
The trial court sentenced defendant to an aggregate sentence of 55 years to life in prison. The court sentenced defendant as follows: on count one to 15 years to life, doubled to 30 years to life due to his prior strike, plus 25 years to life for the personal use and discharge of a firearm enhancement (§ 12022.53, subd. (d)); on count two to the upper term of seven years, doubled to 14 years, plus 25 years to life pursuant to section 12022.53, subdivision (d), stayed pursuant to section 654; and on count three to three years, doubled to six years, to run concurrent to the sentence for count one. The court stayed the remaining section 12022.53, subdivisions (b) and (c) enhancements, as well as the section 12022.5, subdivision (a) enhancement, pursuant to section 654.
Defendant timely appealed. After multiple extensions to the briefing schedule, mostly by the respondent, the case was fully briefed on July 21, 2021, and assigned to the current panel shortly thereafter. The parties waived oral argument and the case was submitted on September 24, 2021.
DISCUSSION
I
Prosecutorial Misconduct
Defendant first contends the prosecutor committed prejudicial misconduct by misstating the burden of proof in closing argument. Because his trial counsel failed to object to the prosecutor's argument, defendant alternatively contends that counsel rendered constitutionally ineffective assistance. We conclude that the prosecutor did not misstate the law, and therefore counsel's failure to object was not constitutionally deficient.
A. Procedural History
The jury was instructed with CALCRIM No. 224, which states: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." The jury was also instructed with CALCRIM Nos. 103 and 220, which each stated that defendant was presumed innocent and outlined the prosecution's burden of proof.
The prosecutor recognized in closing argument that defendant was entitled to a not guilty verdict unless his guilt was proved beyond a reasonable doubt. She explained that proof beyond a reasonable doubt "leaves us with an abiding conviction that the charge is true, abiding conviction meaning a conviction that lasts."
Defense counsel focused his closing argument on his theme that the victim's family and the investigating law enforcement officers all jumped to the conclusion that defendant committed the crime in the absence of direct evidence of his guilt. Counsel discussed CALCRIM No. 224, noting that, if there are two or more reasonable conclusions that may be drawn from circumstantial evidence, and one of those reasonable conclusions points to innocence, the jury must accept the conclusion pointing to innocence. He explained to the jury that he read CALCRIM No. 224 and the reasonable doubt instruction in tandem because every piece of circumstantial evidence must be proven beyond a reasonable doubt. Counsel argued that the circumstantial evidence here was subject to two reasonable interpretations, one of which pointed to innocence.
In her rebuttal argument, the prosecutor reiterated: "Now, let me be clear. The burden is always, always on the People to prove the case beyond a reasonable doubt. That never changes, not from day one, not to the end of trial." Later, she discussed CALCRIM No. 224, telling the jury that: "[E]ssentially what it tells you is that when it comes to circumstantial evidence, you need to confirm that you you [sic] believe and accept all those pieces and that they do in fact point to guilt using a reasonable standard, and if there is a reasonable explanation of the evidence that points to innocence, you have to accept that one. [¶] But the law is clear that is based on evidence. It always comes back to the evidence and a reasonable interpretation of that evidence as a whole, not broken up piece by piece, explained away piece by piece, but as a whole . . . ."
After addressing various pieces of evidence, the prosecutor addressed defense counsel's argument that everyone involved in investigating the case jumped to the conclusion that defendant was the shooter: "[L]et's walk through it under the lens of the jumping to conclusions and . . . take it piece by piece and see if it really is reasonable, because the conclusion, the reasonable conclusion for all of these things that I've just laid out to you, the reasonable conclusion of all that evidence taken together is that he is the shooter."
The prosecutor then "work[ed] it back the other way" and offered a version of the facts assuming that defendant was not the shooter to show that the murder and defendant's subsequent conduct only made sense if defendant was the shooter; in other words, the defendant's version of the events was not reasonable. The prosecutor concluded with another mention of CALCRIM No. 224: "The instruction that [defense counsel] talked to you about, the reasonable -- circumstantial evidence instruction . . . . [¶] [W]hen it comes to circumstantial evidence, if there are two reasonable interpretations of the evidence -- right, evidence -- not just reasonable interpretations of what is possible or what is imaginary. [¶] But if there are two reasonable interpretations of the evidence when taken altogether, then you must -- and one of those. Back up -- and one of those reasonable interpretations of the evidence points to guilt and one of those reasonable interpretations of the evidence points to innocence, you must, you must accept the interpretation, reasonable interpretation of the evidence that points to innocence because that's how our system works. [¶] In a case of a reasonable doubt based on the evidence, tie goes to the defendant every time. That's how it works. [¶] But that instruction goes on to say that if instead you believe that one interpretation of the evidence is reasonable and the other interpretation of the evidence is unreasonable, then you must, you must reject the unreasonable and accept the reasonable because that's how our system works, too. That's how it works, too. [¶] The only reasonable interpretation for all of the evidence taken together is that he is guilty. He is guilty, Ladies and Gentlemen, and that is the verdict I'm asking you to return to each count."
Defense counsel did not object to any of these statements or request that the jury be admonished to disregard them. Thus, the trial court did not comment on them.
B. Legal Background
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' [Citations.] To establish such error, bad faith on the prosecutor's part is not required. [Citation.] '[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. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Centeno, supra, 60 Cal.4th at p. 667.)
In Centeno, the prosecutor told the jury that in reaching its decision it must reject impossible and unreasonable inferences, and only consider reasonable possibilities. She compared the prosecution evidence and defense evidence directly, arguing that the defense theory was unreasonable, and the prosecution theory was reasonable. (Centeno, supra, 60 Cal.4th at p. 666.) The prosecutor asked whether it was reasonable that the child sex abuse victim had invented her story or that the defendant had abused the victim, and she asserted," '[t]hat is what is reasonable, that he abused her.'" (Ibid.) Then the prosecutor argued that it was not reasonable to believe that the victim was lying, it was not reasonable that there was an innocent explanation for the defendant's conduct, and it was not reasonable to believe that the defendant was being set-up. (Ibid.) The prosecutor asked whether it was reasonable that" 'he['s] good for it, '" concluding," '[t]hat is what is reasonable. He's good for it.'" (Ibid.)
The Centeno court recognized that a prosecutor is permitted to "argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory," "urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts," and "urge that the jury consider all the evidence before it." (Centeno, supra, 60 Cal.4th at p. 672.) The court noted that after the jury sets aside the incredible and unreasonable, it must evaluate the remaining evidence and decide what the evidence establishes and how much confidence it has in that determination. (Ibid.) It continued: "The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation.] The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor's reasoning is manifest." (Ibid.)
The court in Centeno observed that a prosecutor's argument that the jury must accept the reasonable and reject the unreasonable does not lessen the prosecution's burden of proof. (Centeno, supra, 60 Cal.4th at p. 672, citing People v. Romero (2008) 44 Cal.4th 386 (Romero).) But the prosecutor may not suggest that a" 'reasonable'" account of the evidence satisfies that burden. (Centeno, at p. 672, citing State v. Sappington (Kan. 2007) 169 P.3d 1107, 1113 [addressing prosecutor's argument, "Remember our test is beyond a reasonable doubt. And is it reasonable given that evidence that we have that [the defendant] is the one that did this? And I suggest to you the answer is, yes, it is"] & p. 1115.) The court concluded that the prosecutor's argument did more than simply urge the jury to"' "accept the reasonable and reject the unreasonable"' in evaluating the evidence before it, . . . she confounded the concept of rejecting unreasonable inferences, with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Centeno, at p. 673.)
In People v. Ellison (2011) 196 Cal.App.4th 1342, the prosecutor made several arguments to the effect that "you have to look at whether or not it's reasonable or unreasonable for the defendant to be innocent" and "you've got to look at what's reasonable and what's unreasonable, when you look at all the evidence," and to vote not guilty where there is a reasonable interpretation of the evidence that points to innocence because "that means it's reasonable that the defendant is innocent. . . ." (Id. at p. 1351.) The appellate court concluded that "the prosecutor improperly attempted to lessen the People's burden of proof by arguing to the jury that the beyond-reasonable-doubt standard required the jury to determine whether defendant's innocence was reasonable." (Id. at p. 1353.) However, the court determined that reversal was not required because the jury was properly instructed on the principles of law related to the presumption of innocence and the requirement of proof beyond a reasonable doubt, the prosecutor reminded the jury that" '[t]he law comes from the Judge, '" the court gave curative instructions following the defendant's objections to the prosecutor's arguments, and the jury acquitted defendant of the most serious charges. (Ibid.)
C. Forfeiture and Ineffective Assistance of Counsel
Generally, "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and . . . requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton (2007) 41 Cal.4th 391, 454.) "A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue . . . that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (People v. Lopez (2008) 42 Cal.4th 960, 966.)
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.)
D. Analysis
We conclude the prosecutor's argument in this case did not suffer from the defect the court recognized in Centeno. At the outset, the trial court properly instructed the jury: "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." The prosecutor correctly recognized in closing that defendant was entitled to a not guilty verdict unless the prosecution proved his guilt beyond a reasonable doubt, which she defined as leaving the jury "with an abiding conviction that the charge is true, an abiding conviction meaning a conviction that lasts." The prosecutor began her final closing argument by reiterating that "[t]he burden is always, always on the People to prove the case beyond a reasonable doubt. That never changes, not from day one, not to the end of trial."
Turning to CALCRIM No. 224, which defense counsel had discussed in his closing argument, the prosecutor correctly explained that, in the event there were a reasonable explanation of the circumstantial evidence pointing to innocence, the jury would be required to accept that explanation. The prosecutor then offered a version of the facts assuming that defendant was not the shooter to demonstrate to the jury that defendant's version of the facts was not reasonable. She then concluded by arguing that there was only one reasonable interpretation of all of the circumstantial evidence taken together--that defendant was guilty. In other words, the prosecutor argued that this case did not involve two reasonable explanations of the circumstantial evidence, one of which pointed to innocence. Rather, she argued that there was only one reasonable interpretation of that evidence, and it pointed to guilt. At no point did the prosecutor state that any reasonable account of the evidence satisfied the People's burden of proof beyond a reasonable doubt. The prosecutor did not misstate the law; the argument was permissible. Accordingly, defense counsel was not constitutionally ineffective for failing to object thereto.
II
Alleged Instructional Error
Defendant contends the trial court prejudicially erred by refusing to instruct the jury on heat of passion voluntary manslaughter; he argues a rational juror could have found that defendant was acting in a heat of passion arising from his argument with his niece. We disagree.
A. Procedural Background
In the conference on jury instructions, defendant requested that the court instruct the jury on heat of passion voluntary manslaughter as a lesser included crime of second degree murder. Defendant recognized that there was no self-defense argument to be made, and he acknowledged his case was "an all-or-nothing case"--referring to his theory that he was not the shooter--but he requested the instruction "as kind of a prophylactic argument."
The trial court refused defendant's request. First, it observed that the victim must be the person to incite the passion, which did not happen in this case. Second, it noted that instructing on heat of passion voluntary manslaughter required evidence that defendant acted rashly and under the influence of that heat of passion, and there was no evidence as to defendant's state of mind at the time of the shooting.
B. Legal Background
"[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury." (People v. Booker (2011) 51 Cal.4th 141, 181.) However," '[a]n instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense, but not the greater, charged offense.'" (People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).) "Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed." (People v. Simon (2016) 1 Cal.5th 98, 132; see People v. Benavides (2005) 35 Cal.4th 69, 102 [evidence is substantial if a reasonable jury could find it persuasive].) "The 'substantial evidence requirement is not satisfied by" 'any evidence . . . no matter how weak'" '" (Nelson, at p. 538), and "[s]peculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (Simon, at p. 132). We independently review whether the trial court improperly failed to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.) We review the evidentiary support for a lesser included offense instruction in the light most favorable to the defendant. (People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "Manslaughter is the unlawful killing of a human being without malice." (§ 192, subd. (a).) "Manslaughter is a lesser included offense of murder, and a defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (Nelson, supra, 1 Cal.5th at p. 538.)
Our Supreme Court has explained: "A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶]' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.'" '" (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).)" 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.'" (Id. at pp. 549-550.) "[T]he 'proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.'" (Nelson, supra, 1 Cal.5th at p. 539 [" 'provocation is sufficient not because it affects the quality of one's thought processes, but because it eclipses reflection' "].)"' "[N]o specific type of provocation [is] required," '" and "the passion aroused need not be anger or rage, but can be any '" '[v]iolent, intense, high-wrought or enthusiastic emotion'"' [citations] other than revenge." (People v. Breverman (1998) 19 Cal.4th 142, 163.)" 'The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 826.)
As for the subjective element of voluntary manslaughter based on provocation, our Supreme Court has explained that the defendant "must be shown to have killed while under 'the actual influence of a strong passion' induced by [adequate] provocation." (Moye, supra, 47 Cal.4th at p. 550.) Our high court has emphasized that "it is not sufficient that a person 'is provoked and [then] later kills.'" (Nelson, supra, 1 Cal.5th at p. 539.) Rather, the killing must occur" 'suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.'" (People v. Daniels (1991) 52 Cal.3d 815, 868.)
C. Analysis
Based on the evidence that defendant became upset upon realizing his niece was at the party, as we have described in detail ante, defendant contends that a rational juror could have determined that he acted rashly in a heat of passion arising from this argument over Maricas. He contends that whether he had cooled off by the time of the shooting or whether the argument were objectively provocative were factual issues for the jury. We disagree. A reasonable, average, sober person would not have been so inflamed by seeing his young adult niece at a party that he would act rashly or without due deliberation. Maricas was drinking alcohol at a party, but there was no evidence that she was engaged in any behavior that would inflame a reasonable person to action some 30 minutes after the confrontation. There was no evidence that Maricas' safety was at risk. Simply put, there was no evidence of the requisite provocation.
Nor was there evidence that defendant and Romayne were in a heated argument, that Romayne threatened or taunted defendant, or that Romayne challenged him to a fight. In other words, there is no evidence that would permit a reasonable jury to find that Romayne's conduct was sufficient to cause a person of average disposition to become so inflamed as to lose reason and judgment. (See People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling the defendant "a 'mother fucker'" and taunting him by "repeatedly asserting that if defendant had a weapon, he should take it out and use it" "plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment"].) If anything, the record suggests that defendant acted out of a desire to force Maricas to leave the party rather than rashly due to legally adequate provocation, which "cannot satisfy the objective requirement for provocation." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301.)
Moreover, the evidence does not show that the shooting was the result of unconsidered reaction to provocation. To the contrary, as we have described in detail ante, the evidence shows that defendant left the party, got into a car, left the scene, drove past the party twice, parked and turned off his headlights, approached the party again, fired shots into the crowd in the yard, and then fled with his headlights turned off. We agree with the Attorney General that defendant "acted methodically, not rashly."
Even were we to assume the objective element of the offense was satisfied, the evidence was insufficient to satisfy the subjective element. Defendant contends that his state of mind may be inferred from the circumstances (People v. Sánchez (2016) 63 Cal.4th 411, 457 [intent may be inferred from the circumstances]), and the evidence provided circumstantial evidence that defendant acted in a heat of passion. But the fact that defendant committed a nonsensical crime is not sufficient evidence that he was under" 'the actual influence of a strong passion' induced by [adequate] provocation." (Moye, supra, 47 Cal.4th at p. 550.) Defendant's state of mind was never at issue or argued by the defense; the defense theory was that defendant was not the shooter. The subjective requirement clearly was not satisfied.
Because we find no instructional error, we do not address defendant's claim of prejudice.
III
Pitchess Motion
Defendant asks us to conduct an independent review of the records of the trial court's hearing on his Pitchess motion to obtain discovery of the relevant officer's personnel records. (See People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226.) We will not disturb a trial court's ruling on a Pitchess motion absent an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Having independently reviewed the transcript of the Pitchess proceeding, we conclude the court followed proper Pitchess procedures and did not erroneously withhold any information. (See People v. Fuiava (2012) 53 Cal.4th 622, 646-648.)
We note that the record as provided to the court is not sealed.
IV
Romero Motion
Defendant contends the trial court abused its discretion by denying his motion to strike his prior strike conviction for sentencing purposes. We disagree.
A. Legal Background
The three strikes law" 'establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." '" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
A trial court properly exercises its discretion to strike a prior strike only if it finds that "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
When a trial court declines to strike a prior strike, we review that decision for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at pp. 374-375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Reversal is justified where the court was unaware of its discretion to strike a prior strike, or refused to do so at least in part for impermissible reasons. (Id. at p. 378.) But where the court, aware of its discretion," 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the . . . ruling, even if we might have ruled differently in the first instance.'" (Ibid.)
B. Procedural Background
Defendant was 23 years old at the time of the crime and 25 at the time of sentencing. Defendant's strike was a conviction for first degree residential burglary for taking some video game equipment and personal electronics from a residence in 2012, when he was 18 years old.
The trial court recognized that, in deciding whether to strike a strike in the interests of justice, it must consider whether defendant may be deemed outside the spirit of the three strikes law, in whole or in part, based on the nature and circumstances of the present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. The court then denied defendant's motion. The court recognized that while defendant did not have an extensive criminal record, his record did include a juvenile adjudication, two misdemeanor convictions (one of which was for possession of marijuana in Arizona the day after the instant offenses), and two felony convictions (including the prior strike, which occurred five years before the instant offenses, and a conviction for being a felon in possession of a firearm, which occurred after his burglary conviction and for which he served a term in state prison). The court also considered the violent nature of the instant offenses and the fact that defendant fled from officers after committing the burglary leading to his prior strike conviction. Additionally, the court observed that defendant's prior strike conviction was not unduly remote in time, nor was there any close factual or legal relationship between the prior conviction to indicate a single course of conduct.
The trial court recognized that defendant had a difficult upbringing, has had speech and development issues, was respectful during the entire court process, including trial, was youthful, had two young children, and was employed at the time of the crime. However, the court also noted that defendant had documented rule violations while in jail awaiting trial for failing to lockdown and for insubordination.
The trial court noted that the three strikes law was established as an alternative sentencing scheme to punish recidivist felons with prior violent or serious felony convictions, and it reiterated that defendant had been convicted of several criminal offenses. The court specifically stated that it considered the nature and seriousness of the instant offenses, defendant's criminal history and his background, and it concluded that he was not outside the spirit of the three strikes law.
C. Analysis
Defendant offers no basis for us to conclude that the trial court's denial of his Romero motion was so irrational or arbitrary that no reasonable person could agree with it. As we have explained, the court correctly identified the scope of its discretion on the record, considered the nature and seriousness of defendant's crimes and the proximity of defendant's previous crimes to the instant offenses, and weighed those factors against defendant's youth, employment status, difficult upbringing, good behavior during trial, and the extent of his criminal record. Weighing those factors, the court concluded that defendant was within the spirit three strikes law, which was intended in part to punish repeat offenders who commit serious or violent crimes. The court further concluded that defendant's sentence was not unjust.
Disagreeing with the trial court's analysis, defendant makes several arguments; those arguments simply echo the arguments the trial court considered and rejected in denying the Romero motion and ask that we disagree with the trial court's conclusions. Although reasonable minds may disagree over whether the Romero motion was meritorious, the trial court's decision was neither irrational nor arbitrary and was not an abuse of discretion.
Defendant contends that the trial court erred by imposing a concurrent sentence for unlawfully possessing a firearm (§ 29800, subd. (a)(1); count three) where that crime arose from the same course of conduct as the conduct charged in counts one and two. We disagree.
A. Legal Background
Section 654, subdivision (a) provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
" 'Since its origin in 1872, the Penal Code has prohibited multiple punishment for a single "act or omission." (§ 654.) Although our interpretation of that provision has varied somewhat over the years, we have consistently held that it bars imposing [multiple] sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. [Citation.] Since 1962 we have interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions. [Citations.] . . . [E]xecution of the sentence for one of the offenses must be stayed.'" (People v. Mesa (2012) 54 Cal.4th 191, 195.)
Whether multiple convictions are based upon a single act is determined by examining the facts of the case. (People v. Mesa, supra, 54 Cal.4th at p. 196.) We review the trial court's findings "in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 387.)
In People v. Jones (2002) 103 Cal.App.4th 1139, at pages 1147 to 1148 (Jones), the appellate court considered whether the defendant could be sentenced to both possession of a firearm and the primary offense of shooting at an inhabited dwelling. The court observed that "[i]t strains reason to assume that [the defendant] did not have possession for some period of time before firing shots at the . . . home. Any other interpretation would be patently absurd. [The defendant] committed two separate acts: arming himself with a firearm, and shooting at an inhabited dwelling. [The defendant] necessarily had the firearm in his possession before he shot at [the house], when he and his companion came to the house 15 minutes before the shooting, or, at the very least, when they began driving toward the house the second time. It was therefore a reasonable inference that [the defendant's] possession of the firearm was antecedent to the primary crime." (Id. at p. 1147.) The court recognized that the defendant "must have had either actual or constructive possession of the gun while riding in the car, as evidenced by his control over and use of the gun during the shooting." (Ibid.)
The court in Jones continued: "The evidence likewise supported an inference that [the defendant] harbored separate intents in the two crimes. [The defendant] necessarily intended to possess the firearm when he first obtained it, which, as we have discussed, necessarily occurred antecedent to the shooting. That he used the gun to shoot at [the] house required a second intent in addition to his original goal of possessing the weapon. [The defendant's] use of the weapon after completion of his first crime of possession of the firearm thus comprised a 'separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.' [Citation.] That [the defendant] did not possess the weapon for a lengthy period before commission of the primary crime is not determinative." (Jones, supra, 103 Cal.App.4th at pp. 1147-1148 .)
B. Analysis
The facts here are indistinguishable from those in Jones, supra, 103 Cal.App.4th at pages 1147 to 1148. Defendant contends that the prosecution presented no evidence to show how or when he acquired the gun, or to show that he possessed the gun at some other time before or after the charged shooting. However, finding that defendant possessed the gun while driving in the car toward the house where the party was taking place was not"' "based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work." '" (People v. Davis (2013) 57 Cal.4th 353, 360.) Rather, the evidence showed defendant left the party, drove back and forth past the house, and eventually shot into the crowd. Based on the facts, the court could reasonably infer that defendant possessed the gun at some time before forming the separate intent to shoot at the crowd. Indeed, defendant's assertion that he may have fortuitously come into possession of the gun--perhaps by finding it in the street or by a passerby handing it to him the instant he shot into the crowd--is entirely fanciful. The trial court did not err when it failed to stay sentence on count three.
VI
Victim Restitution
Defendant contends that the trial court's imposition of victim restitution in the amount of $6,038.35, which the California Victim Compensation Board's (Board) Restitution Fund paid in funeral expenses, was not supported by substantial evidence. We agree.
A. Procedural Background
Defendant's probation report indicated that the Board reported a claim of $6,038.35 for funeral expenses. There were additional approved but unpaid claims. The report recommended restitution to the Board of $6,038.35, with an additional amount to be determined later. The court ordered defendant to pay $6,038.35 in restitution to the Board (§ 1202.4), with an additional amount to be determined later, and victim restitution to two individuals, to be determined later. Nothing in the record indicates that copies of the bills submitted to the Board reflecting the amount paid or the reasons therefor were submitted to the trial court in support of the restitution award.
B. Legal Background
Victim restitution is constitutionally and statutorily mandated in California. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045; Cal. Const., art. I, § 28, subd. (b).) Subdivision (f) of section 1202.4 implements the constitutional directive to require full restitution for crime victims. "If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim . . ., the amount of assistance provided shall be presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of the restitution ordered." (§ 1202.4, subd. (4)(A).)
Generally, restitution hearings are informal, and the moving party is not required to present any particular kind of proof. (People v. Lockwood (2013) 214 Cal.App.4th 91, 96.) However, when restitution is sought for expenses paid by the Board, a specific type of proof is statutorily required: "The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the [Board] reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the [B]oard and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement." (§ 1202.4, subd. (f)(4)(B).)
C. No Forfeiture
The Attorney General contends that defendant forfeited this claim by failing to raise the issue at trial. "An objection to the amount of restitution may be forfeited if not raised in the trial court . . . . The appropriate amount of restitution is precisely the sort of factual determination that can and should be brought to the trial court's attention if the defendant believes the award is excessive." (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.) But our Supreme Court has distinguished between restitution awards that were merely unwarranted by the evidence and claims that the award was unauthorized by statute, which may be reviewed on appeal regardless of whether the objection was raised at the trial court. (See People v. Smith (2001) 24 Cal.4th 849, 852 [unauthorized sentences are reviewable regardless of whether objection was raised at the trial court]; People v. Brasure (2008) 42 Cal.4th 1037, 1075 [distinguishing between failure to object to order merely unwarranted by the evidence and an unauthorized sentence].) Typically, an unauthorized sentence is one that" 'could not lawfully be imposed under any circumstance in the particular case.'" (People v. Anderson (2010) 50 Cal.4th 19, 26.) "An obvious legal error at sentencing that is 'correctable without referring to factual findings in the record or remanding for further findings' is not subject to forfeiture." (In re Sheena K. (2007) 40 Cal.4th 875, 887.) As we will explain, that is the case here, and therefore we consider defendant's argument.
D. Analysis
The probation report stated that a representative of the Board reported a claim in the amount of $6,038.35 for funeral expenses, but there is no evidence that copies of the bills or sworn statements to support the claim were provided to the court as required by section 1202.4, subdivision (f)(4)(B). The Attorney General argues that the award should be upheld because the trial court had broad discretion in choosing a method for calculating restitution, and the court need only "use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary of capricious." (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) But the court expressly ordered that defendant make restitution to the Board in the exact amount the Board had claimed it paid in funeral expenses. Were that award for something other than the funeral expenses, there would be no factual or rational basis for the amount of restitution ordered. (See People v. Millard (2009) 175 Cal.App.4th 7, 26 [there must be" '" 'a factual and rational basis for the amount of restitution ordered by the trial court'"' "].) Where the Board has provided assistance, the amount of assistance provided by the Board through the Restitution Fund "shall be established by copies of bills submitted to the [Board] reflecting the amount paid by the board" and indicating the type of services funded. (§ 1202.4, subd. (f)(4)(B), italics added.) That statutory requirement was not met here. We reject the Attorney General's conclusory assertion that the statute is of no legal effect due to the trial court's discretion in awarding restitution. (See In re Jerry R. (1994) 29 Cal.App.4th 1432 ["Whenever possible, we must give effect to every word in a statute and avoid a construction making a statutory term surplusage or meaningless"].) Accordingly, we reverse the $6,038.35 restitution award against defendant and remand for a new restitution hearing. (See People v. Harvest (2000) 84 Cal.App.4th 641, 650 [victim restitution does not constitute punishment for double jeopardy purposes].)
VII
Fines and Fees
The trial court imposed various fines and fees at sentencing, including a $1,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $1,000 parole revocation fine, suspended unless parole was revoked (id., § 1202.45), a $40 court operations assessment on each count (id., § 1465.8, subdivision (a)(1)), and a $30 court facilities assessment on each count (Gov. Code, § 70373). The court did not impose the main jail booking fee (id., § 29550.2), the jail classification fee (id., § 29550.2), or the cost of the investigation and presentence report. At the conclusion of the sentencing hearing, defense counsel indicated he would "object and submit on the issue of minimum fines and fees," adding that counsel "kn[e]w the Court struck the vast majority of them" and purporting to reference "Duarte." (Underline in original.) Defendant did not request a hearing on his ability to pay the imposed fines and fees and the court did not rule on the objection or make any comment, but merely thanked the parties and concluded the sentencing hearing.
We agree with the parties that defendant intended to refer to People v. Dueñas (2019) 30 Cal.App.5th 1157.
On appeal and relying primarily on People v. Dueñas, supra, 30 Cal.App.5th 1157, defendant argues the imposition of these fees, fines, and assessments without an ability to pay hearing violated his rights to due process and to be free from excessive fines under the Fifth, Eighth, and Fourteenth Amendments to the federal Constitution.
We conclude that defendant has forfeited his claims of error by failing to request a hearing before the trial court regarding his ability to pay the challenged fines and fees. That a defendant must first object and demonstrate his inability to pay amounts imposed at sentencing is a longstanding and well-recognized rule. (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant's claim that the court erroneously failed to consider ability to pay a $10,000 restitution fine is forfeited by the failure to object]; People v. Gamache (2010) 48 Cal.4th 347, 409 [challenge to $10,000 restitution fine forfeited by failure to object to alleged inadequate consideration of defendant's ability to pay].) This is true regardless of whether defendant's ability to pay claims are constitutional in nature. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K., supra, 40 Cal.4th at pp. 880-881 [noting longstanding rule that a constitutional right may be forfeited in criminal proceedings by"' "failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"' "].) Thus, defendant had the burden not only to raise the issue of inability to pay a fine, but also to "present evidence of his . . . inability to pay the amounts." (People v. Castellano (2019) 33 Cal.App.5th 485, 490; accord, § 1202.4, subd. (d) ["A defendant shall bear the burden of demonstrating his or her inability to pay"]; People v. Santos (2019) 38 Cal.App.5th 923, 934.) Thus, although defendant belatedly attempted to refer to Dueñas at the sentencing hearing, he neither claimed he was unable to pay the amount of the restitution fine imposed nor requested an ability-to-pay hearing. Thus, he forfeited his appellate claim that he was entitled to such a hearing.
Defendant's claim is also forfeited because the trial court imposed a $1,000 restitution fine, well above the statutory minimum of $300. (§ 1202.4, subd. (b)(1).) Defendant had an opportunity to object to the $1,000 restitution fine based on an inability to pay because the statute authorizing the fine expressly permitted such a challenge. (See id., § 1202.4, subds. (b)(1), (c) [defendant's inability to pay may be considered in increasing the restitution fine above the $300 statutory minimum]; id., subd. (d) [defendant bears the burden of demonstrating his or her inability to pay a restitution fine in excess of the statutory minimum].) Defendant's failure to preserve his claim as to the restitution fines also forfeited appellate review of assessments imposed under Penal Code sections 1465.8, subdivision (a)(1)) and Government Code section 70373. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [given the defendant's failure to object to $10,000 restitution fine based on inability to pay, the defendant failed to show a basis to vacate substantially smaller assessments]; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034 [accord].)
DISPOSITION
The trial court's restitution order is reversed, and the matter is remanded with directions to conduct a new restitution hearing. In all other respects, the judgment is affirmed.
We concur: Blease, Acting P. J., Robie, J.