Opinion
D071434
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD RAY LEWIS, Defendant and Appellant.
Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE353803) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed in part; remanded with directions. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Donald Ray Lewis of first degree murder (Pen. Code, §187, subd. (a)). It also found true that, during the commission of the offense, Lewis discharged a firearm within the meaning of section 12022.53, subdivision (d).
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Lewis to prison for 50 years to life.
Lewis appeals, contending the court improperly instructed the jury under CALCRIM No. 625 because that instruction did not allow the jury to consider evidence of Lewis's voluntary intoxication to support his defense of imperfect self-defense. We reject this contention. Whether CALCRIM No. 625 improperly precludes a jury from considering voluntary intoxication with respect to imperfect self-defense is currently before the California Supreme Court in People v. Soto (2016) 248 Cal.App.4th 884, review granted October 12, 2016, S236164 (Soto). Assuming without deciding that CALCRIM No. 625 is incorrect as Lewis asserts, on this record, any such error is harmless. Thus, we affirm Lewis's conviction.
However, while this case was pending, we granted Lewis's motion to file a supplemental brief to explain the impact, if any, of amended section 12022.53, subdivision (h) on his sentence. That subdivision allows the superior court, in the interest of justice, to strike certain enhancements under section 12022.53. (See § 12022.53, subd. (h).) The People concede that section 12022.53, subdivision (h) applies to Lewis. As such, we must remand this matter for resentencing to allow the superior court to consider whether his enhancement under section 12022.53, subdivision (d) should be stricken.
The amended section 12022.53, subdivision (h) became effective on January 1, 2018. (Stats. 2017, ch. 682, § 2, pp. 5106-5108.)
FACTUAL BACKGROUND
Prosecution
On August 19, 2015, Lewis was at an apartment complex in El Cajon where his then-girlfriend, Erica Howard, lived. Around 7:00 p.m., Lewis, Howard, James Crawford (Lewis's friend), and at least two other men were arguing and yelling outside. Lewis was hollering. He pulled out a gun and waived it around "kind of wildly." The men told Lewis to calm down and stated they were just trying to "get wet," a reference to smoking PCP. Howard pled for Lewis to not shoot and asked him to leave. She pulled his arm, but Lewis ignored her. Lewis, while yelling, pointed his gun at Crawford's chest. No one was threatening Lewis, and Crawford did not act aggressively toward him.
Everyone except for Crawford fled from the area. Lewis lowered his gun and stared at it. Crawford walked away, toward an adjacent street, and Lewis followed him. They stopped in the complex's parking lot. Crawford backed away as Lewis pointed his gun at Crawford's chest. Crawford was unarmed and begged for his life. Lewis fired one bullet into Crawford, paused for a few seconds, and then shot him again. Neighbors who heard the shots called 911.
After shooting Crawford, Lewis fled to an apartment in a nearby complex, where his friend Angelica Villegas resided with her parents. Villegas was not home at the time and did not give permission for Lewis to enter her parents' home. Villegas's stepfather, Ramon Lozano, discovered Lewis half-naked in the shower. When he asked Lewis what he was doing inside of his house, Lewis told him to be quiet. Lozano tried to call 911 and Lewis attempted to grab his phone. Lozano pushed Lewis out of his house. Lewis appeared "not totally normal, like a person that is drugged." Lozano found Lewis's wet underwear and white tank top in his trashcan, which he turned over to police.
Later that evening, Lewis called Villegas and told her there was "something" in her parents' refrigerator. Villegas went to her parents' apartment and found a gun inside of the refrigerator. She later found Lewis's sweater and a bag of bullets in the living room. The gun and ammunition were subsequently turned over to the police.
Two weeks after the murder, Lewis turned himself in to the police. Crawford died at the hospital from his gunshot wounds. Crawford suffered two bullet wounds to his torso. One of the bullets went through his lung and his aortic artery. The other bullet, which was fired when the muzzle of the gun was pressed against Crawford's skin, was lodged in his spine. Crawford's toxicology report showed that his blood alcohol content was .14 and he had 27 nanograms per milliliter of PCP in his system.
Defense
Howard testified that she was in a romantic relationship with Lewis at the time of the shooting. She and Lewis had a child together.
On the day of the shooting, Lewis showed up at her apartment. It had been a day or two since Howard had seen Lewis. Howard believed Lewis was intoxicated on "something else" besides alcohol because his behavior was "a little different." However, Lewis could find Howard's apartment, knew who she was, and was able to sustain a conversation with her.
Later that day, Howard saw Lewis sitting on a cinderblock retaining wall outside her apartment complex. Lewis was with Crawford and three or four other young men. Howard talked to Lewis while he was on the cinderblock retaining wall, but she left to buy beer at a store. When Howard returned from the store, Lewis still was sitting on the retaining wall. She gave Lewis a beer and went to her apartment. At that point, it appeared that the men were socializing.
Howard later saw Lewis hanging out with a group of his friends in the apartment parking lot. They were drinking beer and passing around a few cigarettes. Howard could smell PCP and became angry with Lewis.
Howard approached Lewis, and they had a heated conversation. Lewis did not appear to be in his "right mind." He was slurring his words, which were "mushing together." Howard believed Lewis was under the influence of PCP.
Howard walked back to the apartment, and Lewis followed. Some of the men called out Lewis's nickname (Maceo) in anger. Lewis walked up the stairs slowly; he appeared sluggish.
After they were inside the apartment, Crawford knocked very loudly on the front door. As Howard opened the door, Crawford said, "Where the F is Maceo?" Crawford's demeanor was aggressive, nasty, and very rude. However, there was no physical altercation, and Crawford did not threaten Howard. Howard told Crawford to leave, and he did.
Lewis stayed in the apartment for less than 20 minutes before leaving again. Before he left, Howard and Lewis got into an argument about Lewis's friends, like Crawford, coming to Howard's apartment. There was "a lot of language" and Howard yelled at Lewis. They were aggressive toward each other. Lewis appeared to be upset with Crawford, saying, "I don't like the fact that he [Crawford] keeps knocking on my fucking door[.]" After making this comment, Lewis left Howard's apartment. He was "still sort of stumbling" but "clearly able to move and function." Howard followed about five minutes later. She dropped her baby off with a neighbor downstairs and headed to where Lewis was standing.
Three men, including Crawford, were standing with Lewis. Lewis was holding a gun and yelling at the men to "get up out of here." Howard tried to pull his arm and stop him, but Lewis pushed her away. At some point, Lewis fired a warning shot up into the air. The other two men ran, but Crawford stayed. Crawford walked up to Lewis aggressively, and they got into a "struggle" while Howard yelled for them to stop. Crawford and Lewis were throwing punches. During the struggle, Lewis fired a second shot, which appeared to hit Crawford in his stomach.
Howard ran to her apartment. She heard, but did not see, the final gunshot. After the incident, Howard feared for her life, from Lewis and others who might want to retaliate.
In an interview with the police, Howard did not mention a physical altercation between Lewis and Crawford. She shook her head when police asked her if Crawford was "chipping back and forth" at Lewis.
The defense called two experts witnesses at trial. The first, a neuropsychologist, concluded that Lewis had low cognitive functioning because of a brain injury suffered as a young child. The second, a medical doctor who specializes in pain and addiction, testified that (1) PCP is a dissociative anesthetic that creates a separation of awareness between one's body and surroundings; and (2) symptoms of confusion and agitation can be magnified if the person has a brain injury or simultaneously abuses other substances.
DISCUSSION
I
JURY INSTRUCTIONS
Lewis makes one claim of instructional error involving the jury instruction on voluntary intoxication (CALCRIM No. 625).
A. Background
During a conference regarding jury instructions, the court indicated that it would be providing instructions on first and second degree murder as well as voluntary and involuntary manslaughter as lesser included offenses. The court also stated it would instruct the jury on complete self-defense and imperfect self-defense. Lewis's trial counsel requested the court provide instructions regarding voluntary intoxication (CALCRIM Nos. 625 & 626). The prosecutor added that she had modified versions of CALCRIM Nos. 625 and 626 and would provide them to defense counsel and the court. The court indicated that it would give the modified instructions if both counsel agreed to it.
Among other instructions, the trial court instructed the jury regarding first and second degree murder, which explained the difference between express malice and implied malice. (See CALCRIM No. 520.) It also instructed the jury regarding voluntary manslaughter-heat of passion (CALCRIM No. 570), self-defense (CALCRIM No. 505), and imperfect self-defense (CALCRIM No. 571). In instructing pursuant to CALCRIM No. 571, the court instructed the jurors that they could conclude Lewis acted in imperfect self-defense to reduce murder to voluntary manslaughter if they found Lewis "actually believed he was in imminent danger of being killed or suffering great bodily injury, and . . . [Lewis] actually believed the immediate use of deadly force was necessary to defend against the danger" but "[a]t least one of those beliefs was unreasonable."
After instructing the jury regarding imperfect self-defense, the court immediately instructed the jury about the consideration of evidence of voluntary intoxication under CALCRIM No. 625. The court instructed the jury as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted. [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using an intoxicating drug, drink, or other substances, knowing it can produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
Following the instruction on voluntary intoxication, the court then instructed the jury under CALCRIM No. 626: "Voluntary intoxication may cause a person to be unconscious of his or her actions. A very intoxicated person may still be capable of physical movement, but not be aware of his or her actions or the nature of those actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using an intoxicating drug, drink, or other substance, knowing that it can produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] When a person voluntarily causes his or her own intoxication to the point of unconsciousness, that person assumes the risk that while unconscious he or she will commit an act inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter."
B. Analysis
Although the court instructed the jury under CALCRIM No. 625 as requested by Lewis's attorney, on appeal, Lewis now claims such an instruction was improper because it prevented the jury from considering his voluntary intoxication regarding his defense of imperfect self-defense. In other words, Lewis contends the instruction misstated the law. In support of his position, Lewis urges us to follow Soto, supra, 248 Cal.App.4th 884. Our high court granted review in Soto (review granted Oct. 12, 2016, S236164) and that case was recently argued. The Supreme Court will provide guidance on this issue within a few months; therefore, we see little value in adding our voice to this dispute. Instead, for purposes of the issue before us, we assume that CALCRIM No. 625 was legally incorrect, but find any error associated with the giving of that instruction harmless under the unique facts of this case.
The People argue that Lewis forfeited this claim by failing to object to CALCRIM No. 625. However, Lewis asserts no objection was needed because he contends CALCRIM No. 625 as given was legally incorrect. We agree with Lewis. "Where . . . defendant asserts that an instruction is incorrect in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11.) Thus, there was no forfeiture.
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a); People v. Chun (2009) 45 Cal.4th 1172, 1181.) Malice may be express (specific intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). (Ibid.) Murder is divided into first and second degree. (§ 189.) " 'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation).' " (Chun, supra, at p. 1181.)
"Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense." (People v. Elmore (2014) 59 Cal.4th 121, 133.) "Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury, is a complete justification, and such a killing is not a crime. [Citations.] A killing committed when that belief is unreasonable is not justifiable. Nevertheless, 'one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.' " (Id. at pp. 133-134; italics omitted.)
As a matter of public policy, the Legislature has limited a criminal defendant's ability to use voluntary intoxication evidence as a defense. Section 29.4, subdivision (b), provides, "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." Voluntary intoxication is inadmissible to negate implied malice. (People v. Martin (2000) 78 Cal.App.4th 1107, 1114.)
In Soto, the appellate court reasoned that section 29.4, subdivision (b) explicitly allows evidence of voluntary intoxication to be used to negate express malice, an element of murder. According to the court in Soto, CALCRIM No. 625 is not a correct statement of the law "because the state of mind required for imperfect self-defense negates express malice, and Section 29.4 by its express terms makes voluntary intoxication admissible on the issue of express malice." (Soto, supra, 248 Cal.App.4th at p. 898, review granted Oct. 12, 2016, S236164.) The court concluded that the trial court providing CALCRIM No. 625 to the jury constituted instructional error because "when a defendant honestly believes in the need of self-defense"—as the defendant claimed he did because of his voluntary intoxication—"the intent to kill is not 'unlawful' under Penal Code section 188 and, therefore, express malice is negated." (Soto, supra, at p. 899.) The court explained, "[b]ecause imperfect self-defense negates express malice, and because evidence of voluntary intoxication is admissible as to a finding of express malice, the trial court's instruction erroneously precluded the jury from considering voluntary intoxication in determining whether defendant acted in imperfect self-defense." (Id. at p. 898.) The court, nonetheless affirmed the judgment, finding the instructional error was harmless. (Id. at p. 907.)
Assuming without deciding that CALCRIM No. 625 is erroneous for the reason Lewis asserts, on this record any such error is harmless. Our high court has held that an instructional error that limits the jury's consideration of voluntary intoxication evidence "is thus subject to the usual standard for state law error [under which] 'the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135 (Mendoza.)
Despite the clear holding in Mendoza, supra, 18 Cal.4th 1114, Lewis contends that the standard for assessing the prejudice resulting from federal constitutional error should apply here. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) To this end, Lewis implies that the improper instruction prevented him from presenting a complete defense and relieved the prosecutor of its burden to prove all the elements of the offense. We reject these contentions.
Lewis maintains that we should evaluate whether the error was prejudicial under the standard for federal constitutional error set forth in Chapman, supra, 386 U.S. 18, because his federal constitutional right to present a defense was infringed when the trial court gave the jury the erroneous voluntary intoxication instruction. We disagree. As our Supreme Court explained, voluntary intoxication is not a defense. (People v. Boyer (2006) 38 Cal.4th 412, 469; People v. Saille (1991) 54 Cal.3d 1103, 1118-1119.) Instead, when appropriate, evidence of voluntary intoxication may be "proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt." (Id. at p. 1120.) Accordingly, there is no merit to Lewis's argument that by giving an instruction that precluded the jury from considering evidence of voluntary intoxication on the issue of express malice, the trial court violated Lewis's federal constitutional rights by preventing him from presenting a defense. (People v. Pearson (2012) 53 Cal.4th 306, 325, fn. 9 (Pearson) ["The failure to give a fully inclusive pinpoint instruction on voluntary intoxication did not, contrary to defendant's contention, deprive him of his federal fair trial right . . . ."].)
Similarly, there is no merit to Lewis's contention that the erroneous voluntary intoxication instruction constituted a misinstruction on the elements of an offense amounting to federal constitutional error. (People v. Flood (1998) 18 Cal.4th 470, 502-503 ["an instructional error that improperly describes or omits an element of an offense" is subject to harmless error review under Chapman, supra, 386 U.S. 18].) This argument fails because our Supreme Court has made clear that an instructional error that precludes the jury from considering voluntary intoxication when determining whether a defendant possessed a specific mental state does not erroneously describe or omit an element of the offense, but instead simply has "the effect of excluding defense evidence." (Mendoza, supra, 18 Cal.4th at p. 1134; see Pearson, supra, 53 Cal.4th at p. 325, fn. 9 [erroneous pinpoint instruction on voluntary intoxication did not "unconstitutionally lessen the prosecution's burden of proof" on an element of the crime].)
Additionally, Lewis contends Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff) supports his position that the Chapman standard applies. This is a similar argument made and rejected by the court in Soto, supra, 248 Cal.App.4th 894 (review granted Oct. 12, 2016, S236164). In that case, in determining that the Watson standard (People v. Watson (1965) 46 Cal.2d 818) applied in assessing the prejudicial nature of the instructional error, the court cited and followed Mendoza for the proposition that "instructional error restricting a jury's consideration of voluntary intoxication amounts to state law error only." (Soto, supra, at p. 901, citing Mendoza, supra, 18 Cal.4th at pp. 1134-1135.) However, in the course of its analysis, the court addressed and rejected an argument advanced by the defendant for the application of the Chapman standard, which the defendant based on United States Supreme Court precedent.
"Defendant's position that the Chapman standard applies finds some support in the opinions of several United States Supreme Court justices in [Egelhoff, supra, 518 U.S. 37]. There, the court considered the effect of a Montana law restricting juries from considering voluntary intoxication in determining the state of mind required for any criminal offense. Based on historical common law principles, a four-justice plurality held the law did not violate federal due process standards. (Id. at p. 51 (plur. opn. of Scalia, J.).) Justice Ginsburg concurred on the ground that a state is not constitutionally prohibited from defining mens rea so as to eliminate the exculpatory nature of voluntary intoxication. (Id. at pp. 58-59 (conc. opn. of Ginsburg, J.).) But Justice Ginsburg distinguished the Montana statute from evidentiary rules that are unconstitutional because they prevent the defendant from introducing relevant, exculpatory evidence that could negate an essential element of the offense. Four justices dissented and would have held the Montana law violated due process by preventing the jury from considering evidence relevant to the defendant's mens rea. (Id. at p. 63 (dis. opn. of O'Connor, J.).) [¶] The instruction at issue here arguably prevented the jury from considering evidence which California law makes relevant to an element of the offense, such that Justice Ginsburg and the four dissenting justices in Egelhoff might have held it unconstitutional. However, absent a clearer statement of the law from the United States Supreme Court, we are bound by the precedent set forth by this state's high court in Mendoza. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)" (Soto, supra, 248 Cal.App.4th at pp. 901-902, review granted Oct. 12, 2016, S236164.)
As we discuss above, our high court granted review of Soto, specifying the issues presented as "(1) whether the trial court erred in instructing the jury . . . and (2) if so whether the error was prejudicial." (People v. Soto (2016) 208 Cal.Rptr.3d 285.) Based on our review of the parties' briefing in the Supreme Court, one of the issues in contention and subsumed under the prejudice analysis is whether our Supreme Court should revisit its decision in Mendoza, supra, 18 Cal.4th 1114 that the Watson standard applies in assessing the prejudicial nature of an instructional error that precludes the jury from considering the defendant's voluntary intoxication when determining whether the defendant acted with a specific mental state. However, unless and until our Supreme Court decides to revisit and reassess its holding in Mendoza, we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Accordingly, we apply the Watson standard in determining whether the instructional error at issue here was prejudicial.
Under the Watson standard, to establish prejudice, Lewis must show that " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Mower (2002) 28 Cal.4th 457, 484.) "There is a reasonable probability of a more favorable result . . . when there exists 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.' " (Ibid.) Under this standard, "review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman); italics omitted.)
Lewis has not established a reasonable probability that he would have obtained a more favorable result had the jury been instructed that it could consider voluntary intoxication in deciding whether Lewis harbored express malice. We acknowledge that although the evidence was not conclusive regarding whether Lewis was voluntarily intoxicated during the shooting, the jury reasonably could have reached that conclusion based on Howard's testimony that she believed Lewis was intoxicated because his behavior was "a little different." In addition, Lewis was seen with other men, drinking beer and smoking cigarettes. Howard also testified that she could smell PCP and believed Lewis was under the influence of PCP. Further, during his case-in-chief, Lewis offered the opinion of a medical doctor who testified that PCP is a dissociative anesthetic that creates a separation between one's body and surroundings. That doctor, nevertheless, did not testify that Lewis had ingested PCP before the shooting and admitted that he was not given any of Lewis's blood testing to review.
Lacking in this testimony, however, is any evidence regarding how many beers Lewis drank or the amount of PCP he ingested if any. Moreover, there is no testimony regarding what Lewis "actually believed" during his altercation with Crawford. Indeed, during Lewis's case-in-chief, he presented only one witness, Howard, his girlfriend, who testified about a physical altercation between Crawford and Lewis. She testified that, after Lewis fired a warning short into the air, Crawford aggressively walked toward Lewis, and they got into a struggle, throwing punches at each other. According to Howard, during this struggle, Lewis shot Crawford in the stomach.
To the contrary, Crawford's toxicology report showed that his blood alcohol content was .14 and he had 27 nanograms per milliliter of PCP in his system.
Howard's trial testimony was different than what she previously told the police after the incident. For example, she did not mention any physical altercation between Lewis and Crawford during any of her police interviews.
In contrast, the prosecutor presented multiple witnesses who testified that they did not see any physical altercation. For example, neighbors witnessed Crawford retreat toward an adjacent street and Lewis follow him. Multiple witnesses testified that they saw Crawford either standing still or backing away from Lewis in the moments before Lewis shot him. They also did not see Crawford with a weapon or act aggressively toward Lewis. In fact, there was evidence that Crawford was begging for his life. Thus, the prosecution offered voluminous evidence that there was no threat of imminent danger that would make Lewis sincerely believe the use of deadly force was necessary to defend himself.
Further, in the moments following the shooting, Lewis attempted to destroy any evidence on him that linked him to the murder. He fled to his friend's residence nearby, where he showered, discarded his clothing, hid his gun, and stashed his bag of ammunition. Lewis also told Lozano to be quiet when he was yelling at him, and he tried to grab Lozano's phone when he attempted to call 911. This evidence reasonably shed doubt on the impact of any intoxication as well as any belief that he was in imminent danger or that the use of deadly force was necessary to defend against that danger.
In short, we conclude that "the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177; italics omitted.) Moreover, our conclusion is buttressed by the fact that the jury convicted Lewis of first degree murder, and in doing so, found beyond a reasonable doubt that Lewis premeditated and deliberated. Such a finding is inconsistent with the theory of imperfect self-defense. (People v. Manriquez (2005) 37 Cal.4th 547, 582; see People v. Lewis (2001) 25 Cal.4th 610, 646 ["Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions."].) As such, any error associated with the giving of CALCRIM No. 625 is harmless.
II
THE FIREARM ENHANCEMENT
Section 12022.53, subdivision (a)(17), provides certain penalties for the use of a firearm during enumerated crimes, including any crime punishable by life imprisonment. Lewis was convicted of first degree murder, a crime punishable by imprisonment in state prison for life. (§§ 187, subd. (a), 190, subd. (a).) Any person who "personally and intentionally discharges a firearm and proximately causes great bodily injury, . . . or death, to any person other than an accomplice" in the commission of one of the enumerated crimes, "shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (§ 12022.53, subd. (d).) Here, the court added the 25-years-to-life enhancement under subdivision (d) of section 12022.53 because Lewis used a firearm to kill the victim.
While this matter was pending, we granted Lewis's motion to file a supplemental brief to address the impact of Senate Bill 620 (2017-2018 Reg. Sess.), which became effective January 1, 2018. Under Senate Bill 620, trial courts will have discretion to strike firearm enhancements brought under sections 12022.5 and 12022.53. (See §§ 12022.5, subd. (c), 12022.53, subd. (h).) Lewis points out that these subdivisions were not effective at the time he was sentenced; therefore, the trial court did not have discretion to strike Lewis's firearm enhancement under section 12022.53, subdivision (d). He asserts Senate Bill 620 should be applied retroactively, and as such, we should remand this matter to allow the superior court to consider striking his firearm enhancement.
In their supplemental brief, the People concede People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of amended section 12022.53, subdivision (h) to all nonfinal judgments.
In Francis, supra, 71 Cal.2d 66, the defendant was charged with selling and giving away marijuana. (Id. at pp. 69-70.) The matter was tried to the court and submitted on the preliminary examination transcript. (Id. at p. 70.) The court found defendant guilty of possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant's sentencing in Francis, possession of marijuana was punishable by a term of one to 10 years in prison. The court also had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature amended the Health and Safety Code, authorizing a trial court to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Francis, supra, at p. 75.)
The appellate court held the amendment should be given retroactive effect pursuant to In re Estrada (1965) 63 Cal.2d 740. (Francis, supra, 71 Cal.2d at pp. 75-76.) In arguing against remand, the People noted the trial court rejected the idea of placing the defendant on probation and to impose county jail time as a condition of probation. (Id. at p. 76.) In rejecting that contention, the appellate court stated, "[T]he mere fact that the Legislature changed the offense from a felony to a felony-misdemeanor conceivably might cause a trial court to impose a county jail term or grant probation in a case where before the amendment the court denied probation to a defendant eligible therefor and sentenced the defendant to prison." (Id. at p. 77.)
The People concede, and we agree, the same reasoning applies in the instant case. Because amended section 12022.53, subdivision (h) is a new law that grants a trial court discretion to mitigate punishment and Lewis's punishment is not yet final, we follow Francis, supra, 71 Cal.2d 66, and remand this matter to the superior court to consider whether Lewis's firearm enhancement should be stricken under amended section 12022.53, subdivision (h).
The People contend Francis, supra, 71 Cal.2d 66 might be at odds with People v. Conley (2016) 63 Cal.4th 646. Nevertheless, they concede Francis has not been overturned. Moreover, our high court recently cited Francis with approval. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308-311.) As such, until or unless our high court overrules Francis, we are required to follow that case. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.) --------
DISPOSITION
This matter is remanded to allow the superior court to consider whether Lewis's firearm enhancement should be stricken under amended section 12022.53, subdivision (h).) In all other respects, we affirm the judgment.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. DATO, J.