Opinion
A129664
12-12-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LOPEZ JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR538745)
INTRODUCTION
A jury convicted Joseph Lopez, Jr. of second degree murder, unlawful possession of a semi-automatic firearm, and participation in a criminal street gang. The jury found the firearm enhancements true in connection the with the second degree murder count. The trial court sentenced Lopez to a total term of 43 years, eight months to life in prison. On appeal, Lopez claimed reversal was required due to numerous evidentiary errors, prosecutorial misconduct, and instructional error. He also argued there was insufficient evidence to sustain the criminal street gang charge.
On August 1, 2017, we affirmed Lopez's conviction in an unpublished opinion. On November 15, 2017, the California Supreme Court granted and held Lopez's petition for review, pending the decision in a case involving similar evidentiary and instructional issues. While Lopez's matter was pending, the Legislature amended parts of the Penal Code to provide trial courts with discretion to strike the firearm enhancements imposed here. Lopez sought and was granted an order expanding the order granting review. The California Supreme Court remanded the case with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 620 (Stats. 2017, ch. 682). The Attorney General concedes that S.B. 620 applies retroactively and that the matter should be remanded for the trial court to consider whether to strike or dismiss the firearm enhancements. Accordingly, we remand the matter to the trial court to exercise its discretion under amended Penal Code section 12022.53, subdivision (h), but affirm the judgment in all other respects. The Supreme Court's order does not affect the issues we previously considered.
In People v. Soto (2018) 4 Cal.5th 968 (Soto), the California Supreme Court held that evidence of voluntary intoxication was not admissible to establish a defendant believed it necessary to act in self-defense. (Id. at p. 970.) The court also determined that CALCRIM No. 625 correctly permits the jury to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense. (Ibid.)
FACTUAL AND PROCEDURAL BACKGROUND
I. Overview of the Offense
On December 2, 2006, Lopez and his father, Lopez, Sr., had a barbeque at their house. The barbeque was attended by Lopez's cousins, Raul Lopez-Granados and Jessie Gonzalez, and his friends, Nicholas Mejia and Paul Whiterock. Lopez woke up around noon and had two shots of tequila before taking a shower. He continued to drink tequila throughout the day. He drank a "bottle of 1800 [tequila] by [himself]" as well as shots from an additional bottle.
Around midnight, the barbeque broke up. Gonzales, Mejia, Whiterock, Lopez-Granados, Lopez, and Lopez, Sr. drove to Club 7 in downtown Santa Rosa and parked in the Seventh Street parking garage. Whiterock drove Gonzales and Lopez, Sr., while the other men rode in Mejia's pickup truck. Whiterock parked on the first level of the garage.
Meanwhile, around 11:00 p.m. or 11:30 p.m. that night, Kelly Griffin, Matthew Toste, Kim Barragan, and Chris Barragan left a company Christmas party at the Hyatt Hotel in downtown Santa Rosa and drove to the Seventh Street garage to go dancing at Club 7. All four rode in the Barragans' Honda Accord. They entered the garage at the Seventh Street entrance and parked toward the back of the garage on the first level. Chris Barragan stayed behind at the car to change his clothes, while Toste, Griffin, and Kim Barragan (Barragan) walked ahead toward the club.
Toste walked somewhat ahead of Griffin and Barragan as they headed toward the club. As they walked, they encountered Lopez, Lopez, Sr., Gonzales, Mejia, and Lopez-Granados. Whiterock stood somewhat apart from the other men. The men (not including Whiterock) began making "cat calls" and sexually inappropriate remarks to the two women. After Toste passed by the men, they came towards Griffin and Barragan and "forcefully" surrounded them. Griffin and Barragan were walking arm in arm, and the men pushed them to unlock their arms and forced them to walk single file. Lopez, Sr. came toward Barragan and said, "Oh, baby, you're fine. Come with me." He grabbed her hair and her buttocks. Griffin identified Lopez in court as one of the men who was "in [her] face" pushing her and Barragan apart and making vulgar comments.
As the men surrounded Griffin and Barragan, Toste turned and walked back toward the women, telling the men to leave the women alone. The men shifted their attention to Toste, throwing their arms in the air and challenging him. They made comments such as, "You want a piece of me, white boy?" and called him "gringo." All five of the men were making challenging comments and gestures toward Toste. Barragan then attempted to get in between the men and Toste.
Lopez, Sr. then threw Barragan to the ground to get to Toste. Lopez, Sr. ran about 10 feet toward Toste and swung his fist at Toste's face. Toste dodged the blow and punched Lopez, Sr., who fell to the ground. After Griffin helped Barragan to her feet, Lopez ran behind her and came very close to his father. Lopez then fired his gun at Toste several times. Toste was hit twice, and Gonzalez and Mejia were also both shot in the leg. Lopez and Whiterock fled the scene. Toste died of his wounds.
II. Procedural Background
On January 6, 2010, an amended indictment was filed charging Lopez, Lopez, Sr., Whiterock, Mejia, and Lopez-Granados with the murder of Matthew Toste (Pen. Code, § 187, subd. (a)) (count 1) and with participation in a criminal street gang (§ 186.22, subd. (a)) (count 2). Lopez was separately charged with the unlawful possession of a semi-automatic firearm (§ 12021, subd. (e)) (count 3). Finally, Lopez, Sr., Whiterock, Mejia, and Lopez-Granados were charged with being accessories after the fact to the murder (§ 32) (count 4). The indictment alleged, in connection with count 1, that Lopez and his codefendants personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c), (d) & (e)(1)) and in connection with counts 1, 3, and 4 that Lopez and his codefendants committed the offenses to benefit a criminal gang (§ 186.22, subds. (b)(1), (b)(5)). Lopez, Sr., Mejia, and Lopez-Granados pleaded no contest to counts 2 and 4 and the remaining counts were dismissed as to those co-defendants. Lopez and Whiterock went to trial.
All subsequent statutory references are to the Penal Code.
III. Trial Testimony
At trial, Lopez did not dispute that he shot Toste. The prosecution's theory of the case was Lopez and his companions were associates or members of the Norteño gang, and Lopez intentionally killed Toste for the gang's benefit. Kim Barragan, Griffin, and Gonzalez, among others, testified on behalf of the prosecution. Santa Rosa police detective Josh Ludtke and retired police officer George Collord testified as the prosecution's gang experts. The defense focused on Lopez's intoxication and his alleged perception that Toste had just shot his father to argue that he was only guilty of voluntary or involuntary manslaughter. Lopez testified on his own behalf. Dr. Stephen Pittel testified for the defense as an expert on alcohol intoxication, and Dr. Rahn Minagawa testified for the defense as an expert on gang culture.
Gonzalez testified pursuant to a grant of immunity.
The jury was instructed on voluntary and involuntary manslaughter as lesser included offenses with respect to count 1.
A. Officer Collord's Testimony
Retired police officer George Collord testified as a gang expert for the prosecution. Collord was asked a series of hypothetical questions based on the facts of the shooting. He opined that a gang member's possession and display a firearm in public benefits the gang because it conveys strength and willingness to engage in violence, which can cause fear and intimidation. Collord was asked a hypothetical question involving a group of gang members that begins to harass another group of strangers in a public place, is asked to stop by a member of that group, and then kills that group member. Collord opined that the killing and the harassment could benefit the gang by demonstrating their "power and dominance in a particular area," and by showing they are "capable of a supreme act of violence in the face of opposition to the gang" and "capable of standing up to anyone . . . who would challenge or be a threat to the dominance of the gang." Collord testified that one gang member coming to another's aid when attacked would benefit the gang, and to fail to do so would cause the gang member to "lose credibility, face, stature, standing within the gang."
B. Lopez's Testimony
Lopez testified on his own behalf as follows. Lopez was 18 years old on December 2, 2006. On that day, he woke up between 12:00 p.m. and 1:00 p.m. and had two shots of tequila before taking a shower. He continued to drink tequila throughout the day, ultimately drinking a bottle of tequila by himself and drinking shots from an additional bottle. By the time the barbeque ended around midnight, Lopez was "really drunk" and "blacking out," and did not remember leaving the house.
Lopez testified, "I remember being in the back of a car. And the next thing I remember was I was standing in the parking garage." The first thing Lopez recalled was hearing "noises off to [his] right." Lopez did not remember harassing Griffin and Barragan with his companions, Toste telling them to stop, or his father grabbing or throwing Barragan to the ground. He could hear music from the club and people yelling. Lopez saw his father about 30 to 40 feet away and "some girls off to the left of him." He then heard a loud "crack" or "popping noise" which he thought was a gunshot, and saw his father fall to the ground.
Lopez thought his father had been shot, and he started "running pretty fast" in his father's direction with his gun in his hand. Lopez saw Toste "standing in front of [his] dad, leaning forward, but he had his hand out . . . like he was pointing a gun at [his] dad." Lopez testified his intention as he ran was to "do what [he] could do to protect [his] dad." Lopez shot Toste from a couple feet away. Lopez fired the gun because "[he] didn't want this guy to hurt [his] dad." After the shooting, Lopez "took off running." Lopez did not remember how he got home.
C. Dr. Pittel's Testimony
Dr. Stephen Pittel, a psychologist specializing in the effects of drugs and alcohol, testified as an expert for the defense. In forming his opinion, Dr. Pittel reviewed police reports, grand jury testimony, witness statements, autopsy reports, and reports prepared by the defense investigator. Dr. Pittel also interviewed Lopez and heard his testimony at trial.
Dr. Pittel testified that as a person drinks, certain predictable effects occur and increase as more alcohol is consumed. The first effect is the inability to divide one's attention, meaning the individual can become preoccupied or fixated on something. Intoxication also affects the ability to make reasonable judgments, form conclusions, anticipate the consequences of behavior, or plan and premeditate activity. It causes "disinhibition," meaning a reduction in the brain's ability to inhibit emotional responses. Finally, alcohol consumption affects memory and can result in "blackouts" in which the individual experiences a period of memory loss, with some of the memories returning over time in a "fragmented form." Dr. Pittel was then asked the following hypothetical:
"Assume an 18-year-old male, who was drinking heavily, has been drinking heavily for five or six years, more recently within the last five or six months drinking hard liquor on a regular basis. Assume that this 18-year-old has a history of blackouts; and on the day in question of an incident I'm going to describe, that he was perceived by others to be intoxicated as early as noon that same day; he had been drinking throughout the afternoon and the evening until he left . . . his house; that he was drinking a full bottle of tequila 1800 and shared another bottle of tequila 1800. Assume further that he was driven to a location by another person and he was in the backseat. Assume further that he has few or no memories of the trip; that he remembers being—getting out of the car, hearing loud music, hearing yelling, and heard what he believed to be a gunshot and saw his father lying on the ground in a parking garage. Assume further that he runs to his father's aid, and he sees a person standing over his father with what he thought to be a gun; that he passes a relative of his and does not recognize him; and that he shoots the person who is standing over his father; that he runs out of the garage parking structure. Assume further that he returns home later and has no memory of how he got home; that he falls asleep at home and awakens—and is awakened by the police. [¶] Now, assuming all these facts, do you have an opinion of whether this person was under the influence of alcohol when he fired the weapon."
Dr. Pittel opined the person would be under the influence of alcohol at the time of the shooting. Dr. Pittel explained the drinking as described would have "impaired his ability to perceive accurately what was going on." He also noted it was likely an intoxicated person, seeing his father lying on the ground and another man standing over him, would act impulsively. According to Dr. Pittel, the hypothetical had "all of the major elements of intoxication," including "inability to divide attention, which accounts for his fixation," "we may or may not have a misperception of the harm that had been done to his father or whether a gunshot caused that harm," and the "impulsivity or unreasoned activity of shooting somebody, which is indicative of the lack of judgment, the inability to anticipate consequences, [and] the inability to weigh the risks and benefits of your behaviors." Dr. Pittel concluded, together with the blackout, "it's a classical scenario of alcoholic intoxication."
D. The Verdict
On April 2, 2010, the jury acquitted Lopez of first degree murder but found him guilty of second degree murder (count 1). The jury also convicted Lopez of active participation in a criminal street gang (count 2) and unlawful possession of a semi- automatic firearm (count 3). Whiterock was found not guilty of being an accessory after the fact to the murder (count 4). The jury found the firearm-discharge enhancement allegation true in connection with count 1, but it found the gang enhancement allegations not true with respect to counts 1 and 3. The trial court sentenced Lopez to 15 years to life in prison on count 1 and a consecutive term of 25 years to life for the firearm-discharge enhancement. The court also imposed a consecutive three-year upper term on count 2, and an eight-month term on count 3. The court stayed imposition of sentence on the remaining enhancements. Lopez appeals.
DISCUSSION
On appeal, Lopez argues: (1) that the trial court erred in limiting Dr. Pittel's testimony regarding Lopez's blood-alcohol content and references to his out-of-court interview with Lopez; (2) that the trial court erred in limiting how defense counsel could refer to Dr. Pittel's testimony in his opening statement; (3) that the prosecutor committed misconduct by commenting in his closing argument that there was no evidence of Lopez's blood-alcohol level; (4) that the trial court should have given or defense counsel should have requested an instruction relating the intoxication evidence to the heat of passion and imperfect self-defense theories of voluntary manslaughter; (5) that the trial court's instruction on motive improperly favored the prosecution's theory of the case and therefore violated due process; (6) that there was insufficient evidence to sustain the jury's guilty verdict on the criminal street gang charge (count 2); and (7) that cumulative effect of the above errors requires reversal. We consider each argument in turn. I. The Trial Court Did Not Err in Limiting Dr. Pittel's Testimony
Lopez's first argument is that the trial court erred in ruling that Dr. Pittel could not refer to any out-of-court statements by Lopez during his testimony and could not testify as to Lopez's actual blood-alcohol content at the time of the shooting. The prosecution moved in limine to exclude "[a]ny references by Mr. Pittel to self-serving hearsay statements made to him by defendant" and "[a]ny reference to defendant Lopez Jr.'s actual blood-alcohol level based on a lack of proper foundation." After Lopez testified regarding his drinking on the day of the incident, the trial court granted the prosecution's motion "as written." Dr. Pittel ultimately testified regarding the general effects of alcohol intoxication, and answered a lengthy hypothetical question based on Lopez's testimony at trial by opining that Lopez would have been under the influence of alcohol at the time of the incident, but he did not refer to any statements made during his interview with Lopez and did not offer any opinion as to Lopez's specific blood-alcohol level.
A. Reference by Dr. Pittel to Statements Made by Lopez
On appeal, Lopez argues that an expert should be allowed to testify as to " 'all the facts' " upon which he or she bases his or her opinion, even if those facts are otherwise inadmissible hearsay. Lopez relies on several California Supreme Court cases holding that the trial court has discretion to allow experts to testify as to the factual bases for their opinions, even where such information is otherwise inadmissible hearsay. (See People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley); People v. Montiel (1993) 5 Cal.4th 877, 918-919 (Montiel); People v. Ainsworth (1988) 45 Cal.3d 984, 1012 (Ainsworth).)
After this appeal was fully briefed, our Supreme Court addressed the issue of expert opinion based on inadmissible hearsay in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In Sanchez, the defendant was charged with a gang-related enhancement, and the prosecution called a gang expert to testify at trial. (Id. at p. 671.) The expert compiled a "gang background" on the defendant that included records of the defendant's statements to police and his contacts with the police while in the company of gang members. (Id. at p. 672.) The expert was then asked a lengthy hypothetical question in which he was asked to assume various facts about the defendant's history and the circumstances of his arrest, and on the basis of those assumed facts, the expert opined that the defendant's conduct benefitted the gang. (Id. at p. 673.) On appeal, the defendant argued the expert's description of the defendant's past contacts with the police was testimonial hearsay, and its admission violated the confrontation clause. (Id. at p. 674.)
The Supreme Court held that facts an expert relates as the basis for his opinion are properly considered to be admitted for their truth so as to bring them within the definition of hearsay. (Sanchez, supra, 63 Cal.4th at pp. 679-684.) The court noted the hearsay rule has traditionally not barred an expert's "testimony regarding his general knowledge in his field of expertise," and held that an expert may "rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so," but may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at pp. 676, 686, original italics.) In so doing, the court disapproved its holdings to the contrary in Gardeley, Ainsworth, and Monitel. (Sanchez, at p. 686, fn. 13.) The court noted, "An examiner may ask an expert to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw from those assumed facts." (Id. at pp. 676-677.) In the next part of its analysis, the court concluded that the hearsay statements at issue were testimonial within the meaning of the confrontation clause, it and reversed the gang enhancements. (Id. at pp. 687-699).
The trial court's ruling in this case comports with the holding of Sanchez. The trial court granted the prosecution's motion as to "references by Mr. Pittel to self-serving hearsay statements made to him by defendant," but permitted him to testify as to any facts that were independently proven by Lopez's testimony at trial: "The hypothetical can be—you can use in the hypothetical all the testimony by [defendant] that was stated on the stand that was subject to confrontation; yes." (See Sanchez, supra, 63 Cal.4th at pp. 676-677.) The trial court also permitted Dr. Pittel to testify to the fact that he interviewed the defendant in forming his opinion. (See id. at p. 685 [an expert may "rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].) The facts in Lopez's interview regarding his drinking on the date of the incident were clearly case-specific, and the trial court did not permit Dr. Pittel to reference those statements, as Sanchez forbids. (Id. at p. 686.) To the extent that the authorities relied on by Lopez suggest that Dr. Pittel should have been permitted to reference hearsay statements made by Lopez because they formed part of the basis of his opinion, those authorities have been disapproved by Sanchez. (Id. at p. 686, fn. 13.) We conclude there was no error.
B. Dr. Pittel's Opinion Regarding Lopez's Specific Blood-alcohol Content
Separately from its hearsay objection, the prosecution objected to Dr. Pittel's proffered testimony regarding Lopez's "actual blood-alcohol level" based on a lack of proper foundation. In particular, Dr. Pittel was prepared to opine that Lopez had a blood-alcohol level of at least 0.30 at the time of the shooting. Before Lopez testified, the trial court tentatively excluded this evidence because it was based on Lopez's hearsay statements to Dr. Pittel regarding his alcohol consumption on the day of the incident. After Lopez testified, and after Dr. Pittel testified at the section 402 hearing, the trial court again sustained the prosecution's objection to this evidence based on a lack of foundation. (See Evid. Code, § 402.) On appeal, Lopez argues that there was a sufficient foundation for Dr. Pittel's opinion that it would have been "impossible even given his weight to have a blood-alcohol level of under [0.30]" based on testimony that Lopez was "observed to be intoxicated as early as noon" and Lopez's own testimony that he drank a "bottle" of tequila and some shots from an additional bottle over the course of the afternoon and evening.
We do not agree that the trial court abused its discretion in excluding this opinion. " 'As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]' " (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) At the section 402 hearing, Dr. Pittel conceded that it was "impossible to estimate Mr. Lopez's blood-alcohol concentration, BAC, without detailed knowledge of how much liquor he consumed and other factors, (e.g., intervals between drinks, previous drinking history)." Dr. Pittel admitted that he did not have this information, and thus that he "had to base [his opinion] on the observations of others and on observations of Mr. Lopez's behavior." The trial court may properly have concluded that Lopez's testimony was too vague and self-serving to form the basis for Dr. Pittel's opinion. (See People v. McWhorter (2009) 47 Cal.4th 318, 362 ["It is settled that a trial court has wide discretion to exclude expert testimony, including hearsay testimony, that is unreliable"].)
In any event, even if the trial court erred in excluding this portion of Dr. Pittel's opinion, there was no prejudice. The jury heard Lopez's testimony regarding the amount of tequila he drank, the testimony of witnesses that he was drinking at the barbeque and appeared intoxicated, testimony from Dr. Pittel regarding the effects of alcohol intoxication in general, and Dr. Pittel's opinion that Lopez would have been intoxicated at the time of the shooting in response to a lengthy hypothetical question reflecting Lopez's testimony. Dr. Pittel's further opinion that Lopez had a blood-alcohol level of at least 0.30 would have been cumulative to this evidence, and its admission would not have made it "reasonably probable that a result more favorable to the appealing party would have been reached." (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The Trial Court Did Not Limit Defense Counsel's Opening Statement
Lopez next argues that the trial court limited how his counsel could discuss Dr. Pittel's anticipated testimony in opening statement, thereby violating his due process rights and rendering his counsel ineffective. According to Lopez, the prosecution moved to preclude defense counsel from mentioning Dr. Pittel in opening statement, and the trial court then ruled that Dr. Pittel could "not be referenced in opening statement in specificity." In response, the People argue that the trial court never limited what defense counsel could say in opening statement but made the statements in question to notify defense counsel of its anticipated evidentiary rulings so counsel could shape his opening statement accordingly. We agree with the People.
After the trial court made this statement, trial counsel stated, "I am fine with the court's ruling." Because Lopez also claims ineffective assistance of counsel based on the alleged limiting of his trial counsel's opening statement, we will consider the merits of his argument.
Lopez's reply brief does not respond to this argument.
At a pretrial hearing on February 8, 2010, the trial court outlined its anticipated rulings on certain motions in limine filed by the prosecution regarding the testimony of the defense's experts. The trial court explained it would not allow the experts to reference hearsay statements made to them by Lopez and would be inclined to limit other aspects of the experts' testimony. The trial court stated it was giving guidance on these anticipated rulings for two reasons: (1) because counsel cannot refer to evidence in opening statement unless it is "going to be in good faith presumed to be admitted," and (2) so that defense counsel would not refer to evidence in his opening statement that would ultimately not be admitted and thereby damage his credibility with the jury. (See Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 121 ["It is unprofessional conduct to allude to any evidence [during opening statement] unless there is a good faith and reasonable basis for believing such evidence will be tendered and admitted in evidence"].)
During the hearing, the trial court on more than one occasion stated that it was not limiting what defense counsel could say in opening statement regarding the testimony of the defense's experts. For example,
"So I'm putting you on notice and truthfully just to have an even field so that you know that's where I am right now and—and now it's your call. I'm not going to block you from doing it. Doing it I mean I'm not going to block you from telling the jurors you are going to bring in a gang expert that disagrees with their expert . . . . [¶] . . . [¶] What I just said is I'm . . . not excluding you from making reference to . . . Dr. Patel [sic] . . . if he's going to tell us about the effects of intoxication and presuming the foundation is laid, that's fine. He can do that. I don't know what else I could do at this stage. I'm not going to block [defense counsel] from referring to these people. However, my rulings I intend it to be obvious and if there's any questions, now is the time to ask me, that you could stand in harms [sic] way of not getting those experts in front of the jury and thereby suffering the consequences defined as not keeping your word with the jury what you're going to put in. That's between you and you."
In his opening brief, Lopez asserts that the court ruled that Dr. Pittel could be mentioned in opening statement but could " '[n]ot be referenced in opening statement in specificity.' " This statement was made with respect to Dr. Minagawa's proposed testimony, regarding Lopez's out-of-court statements about his "exposure to past acts of violence" and "broken and dysfunctional family," which the court indicated it would find not relevant and therefore should "not . . . be referenced in opening statement in specificity."
In short, our review of the record shows that the trial court did not limit what defense counsel could say in opening statement but rather gave guidance on what its evidentiary rulings would be regarding expert testimony, so defense counsel could plan his opening statement accordingly. We reject Lopez's claim of error.
III. The Prosecutor Did Not Commit Misconduct in His Closing Statement
Lopez argues that the prosecutor engaged in prejudicial misconduct through comments during his closing statement regarding the evidence of Lopez's intoxication, which " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Specifically, the prosecution made the following comments on the intoxication evidence:
"Matthew Toste had a blood-alcohol level. We don't know what Lopez, Jr.'s blood-alcohol level was or defendant Whiterock's blood-alcohol level because they fled. What do you do with Matthew's blood-alcohol level? It makes no difference. Can a man be murdered after he had something to drink? Of course. What if he had a lot to drink? Does that make him somehow responsible for his own murder? As I said yesterday, Matthew Toste did nothing wrong . . . . [H]e was defending his cousin and he was defending his date and he was murdered for it. So what's the point of his blood-alcohol level? It doesn't matter. (Italics added.)
"What about intoxication? How does that apply to the facts of this case? There was a barbeque. People at the barbeque were drinking. We don't really know how much. We know what the defendant said. But it's impossible to believe what he said. Very, very selective memory. Remembers things that help him, ostensibly would help him. Forgets everything else, conveniently. Remembers, apparently, exactly how much he had to drink in terms of tequila. (Italics added.)
"Counsel for Mr. Lopez, defendant Lopez said well, everyone's intoxicated in this case. Everyone? Kim wasn't intoxicated. There's no evidence of that. There's speculation that you've heard in closing argument because she testified that she sipped a few beers at the party. Well, there's no evidence that she guzzled the beers at the party or that she was drunk. KC, not intoxicated. Damon Gault, not intoxicated at all. Remember the heart transplant. Chris Barragan drove over there, not intoxicated. Jason Barragan drove over there, not intoxicated. And Mickey Neely, (PH) the bouncer across the street, remember he said it was all pretty quiet except for the music from the club, he wasn't intoxicated. So not everybody was intoxicated. Frankly the evidence as to intoxication as to Lopez, Jr. and Whiterock is pretty weak. You couldn't convict him of a DUI based on this evidence." (Italics added.)
Lopez argues that because the trial court prevented Dr. Pittel from testifying that Lopez had a blood-alcohol level of at least 0.30 at the time of the shooting on the prosecution's motion, due process precluded the prosecutor from then asking the jury to convict based on a lack of evidence that Lopez was intoxicated. Lopez's trial counsel did not object to the alleged misconduct, thereby forfeiting his claim of error, but because he also argues that his trial counsel was ineffective in failing to make such an objection, we will consider the merits of his argument. (See People v. Clark (2011) 52 Cal.4th 856, 960.)
We think these comments by the prosecutor were well within his "wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence." (People v. Dykes (2009) 46 Cal.4th 731, 768.) In context, the prosecutor was not calling attention to the fact that Lopez did not introduce evidence of his blood-alcohol level at the time of the shooting but simply observing in passing Lopez did not have his blood-alcohol level measured as Toste did because he fled the scene before the police arrived. The other two challenged comments noted the evidence of Lopez's intoxication depended heavily on his own account of how much he had had to drink on the day of the shooting and argued that evidence deserved little weight because Lopez lacked credibility. Together, these comments were entirely within the prosecutor's "wide latitude" to comment on the evidence and the credibility of the defendant. (Ibid.; see People v. Martinez (2010) 47 Cal.4th 911, 958 ["A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them"].) Because we conclude there was no misconduct, Lopez's trial counsel was not ineffective in failing to object. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1092.)
IV. The Trial Court Did Not Err in Failing to Give an Instruction Relating the Intoxication Evidence to Heat of Passion and Imperfect Self-Defense Theories of Voluntary Manslaughter
Lopez argues the trial court erred when it gave the standard instruction on the use of voluntary intoxication evidence, because that instruction precluded the jury from considering intoxication evidence as relevant to his imperfect self-defense and heat of passion theories of voluntary manslaughter. The court instructed pursuant to CALCRIM No. 625 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 acted with the intent to assist, further, or promote criminal conduct by gang members, or defendant, Whiterock intended that Joseph Kenneth Lopez, Jr., avoided or escaped arrest, trial, conviction, or punishment. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
Lopez contends that this instruction was erroneous because evidence of his voluntary intoxication was relevant to additional issues beyond whether he "acted with an intent to kill," namely, the subjective elements of the heat of passion and imperfect self-defense theories of voluntary manslaughter. We briefly review some background principles on murder, voluntary manslaughter, and intoxication evidence.
A. Background Legal Principles
First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation. (Ibid.) Malice may be express (intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). (Ibid.) To reduce the offense to second degree murder, premeditation and deliberation may be negated by intoxication or by heat of passion from provocation. (People v. Carasi (2008) 44 Cal.4th 1263, 1306; see People v. Hughes (2002) 27 Cal.4th 287, 342.)
Even when a defendant has the intent to kill or conscious disregard for life, a homicide may be further reduced to voluntary manslaughter in limited, explicitly defined circumstances that are viewed as negating malice. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye); People v. Lasko (2000) 23 Cal.4th 101, 107-109.) For voluntary manslaughter, malice is deemed to be negated by the defendant's (1) heat of passion arising from provocation that would cause a reasonable person to react with deadly passion, or (2) unreasonable but good faith belief in the need to act in self-defense (imperfect self-defense). (Lasko, at pp. 107-109.) Under these two limited circumstances, voluntary manslaughter negates malice even though the lethal act was committed with the intent to kill or conscious disregard for life that otherwise establishes malice. (See People v. Bryant (2013) 56 Cal.4th 959, 968-970; People v. Rios (2000) 23 Cal.4th 450, 460-461, 467.)
Heat of passion for voluntary manslaughter has both a subjective and objective component: (1) the defendant must have killed while actually in the heat of passion induced by the provocation, and (2) the provocative conduct must be such that a reasonable person would have reacted rashly or without due deliberation and reflection. (Moye, supra, 47 Cal.4th at pp. 549-550.)
In the context of a murder charge, evidence of voluntary intoxication "is admissible solely on the issue of . . . whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b); see, e.g., People v. Martin (2000) 78 Cal.App.4th 1107, 1113-1114.) Voluntary intoxication is inadmissible to negate implied malice. (People v. Martin, at p. 1114.) Intoxication is also irrelevant to the objective component of heat of passion; i.e., voluntary manslaughter heat of passion arises when " 'an average, sober person would be so inflamed that he or she would lose reason and judgment.' " (People v. Manriquez (2005) 37 Cal.4th 547, 586, italics added; see People v. Steele (2002) 27 Cal.4th 1230, 1253; People v. Oropeza (2007) 151 Cal.App.4th 73, 83.)
B. Intoxication Evidence Instructions
Lopez argues that the trial court erred in instructing the jury that intoxication evidence could be considered in determining whether he "acted with the intent to kill" and not "for any other purpose," because the jury should also have been permitted to consider intoxication on the issues of (1) whether he was subjectively provoked for heat of passion voluntary manslaughter, and (2) whether he actually believed his father was in imminent danger and that he needed to use deadly force for imperfect self-defense voluntary manslaughter.
Recently, in Soto, the California Supreme Court rejected a similar instructional error argument. (Soto, supra, 4 Cal.5th 968 at pp. 970, 975.) The court in Soto held that "CALCRIM No. 625 correctly permits the jury to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense." (Id. at p. 970.) In reaching its decision, the Supreme Court in Soto examined both the language of section 29.4 and its legislative history. The court ultimately concluded "it is clear what the Legislature intended to achieve when it amended former section 22: to prohibit voluntary intoxication from being an excuse for poor judgment when someone kills." (Id. at p. 978.)
Although Soto addressed a case involving unreasonable self-defense (or imperfect self-defense as it is interchangeably called), we find the court's reasoning equally applicable to this case which also involves a claim of heat of passion. Based on Soto, evidence of voluntary intoxication can be used to negate a mental state, such as the intent to kill, which requires an " ' "intent to do some further act or achieve some additional consequence." ' " (Soto, supra, 4 Cal.5th at p. 977.) Such evidence cannot be used, however, to show a defendant's judgment was impaired such that he erroneously believed he needed to act in self-defense. " 'If you voluntarily choose to become intoxicated and then kill someone, you may not claim that you were so intoxicated you were unaware your victim posed no threat to you when you killed, although you may claim you were too intoxicated to intend to kill or premeditate or have the specific intent to commit some other felony.' " (Id. at pp. 978-979.)
This rationale applies equally to both factors which can operate to negate malice—i.e., unreasonable self-defense and heat of passion. Just as with a defendant's unreasonable belief it was necessary to kill in self-defense, a defendant's impulse to kill in the heat of passion reflects a failure of judgment. A person's rational faculties, which would otherwise inhibit the impulse to kill, are overcome by passion. Because Soto clearly prohibits evidence of voluntary intoxication to be used as "an excuse for poor judgment when someone kills" under section 29.4 (Soto, supra, 4 Cal.5th at p. 978), Lopez is not allowed to introduce evidence of voluntary intoxication to prove he acted in the heat of passion or in imperfect self-defense.
In sum, the trial court did not err by instructing the jury with CALCRIM No. 625 that it was prohibited from considering voluntary intoxication in connection with heat of passion and imperfect self-defense. Accordingly, the trial court had no sua sponte duty to instruct the jury that it could rely on voluntary intoxication evidence to evaluate Lopez's theories of heat of passion and imperfect self-defense.
V. The Trial Court's Instruction on Motive Did Not Violate Due Process
Lopez argues that the trial court erred in giving the following instruction on motive (CALCRIM No. 370):
"The People are not required to prove that a defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
At trial, Lopez admitted he shot Toste but argued his motive was to protect his father, while the prosecution argued Lopez was motivated by anger and a desire to maintain standing in the Norteño gang by responding to a challenge from Toste. Under these circumstances, Lopez argues instructing the jury that "[h]aving a motive may be a factor to show that the defendant is guilty" amounted to an instruction on the prosecution's theory of motive, but not defendant's theory, and therefore violated due process.
Trial counsel did not object to the instruction, and in fact stated, "I don't have any strong feelings one way or the other to that instruction." Nevertheless, we conclude there was no error.
We do not agree there is anything misleading about this instruction. The instruction refers to a motive "to commit any of the crimes charged," not a motive to commit first or second degree murder in particular. Thus, even if the jury found Lopez was motivated by heat of passion or by an unreasonable belief that his actions were necessary to protect his father as the defense argued, they may have nonetheless concluded under the motive instruction that either of those motives "may be a factor tending to show that the defendant is guilty" of voluntary manslaughter instead of murder. In addition, CALCRIM No. 370 is a correct statement of the law, and there is no dispute the jury was properly instructed on the elements of voluntary manslaughter based on heat of passion and imperfect defense of another. (See People v. Anderson (2007) 152 Cal.App.4th 919, 942.) During closing argument, defense counsel explained how Lopez's intent related to the crimes of first and second degree murder and voluntary manslaughter based on heat of passion or imperfect defense of others. Considering the instruction as well as the record a whole, we reject Lopez's argument that the motive instruction improperly favored the prosecution's theory of the case.
VI. Lopez's Street Gang Conviction Is Supported by Sufficient Evidence
Lopez next argues there is insufficient evidence to sustain his conviction under section 186.22, subdivision (a) (count 2) for participation in a criminal street gang. Section 186.22, subdivision (a) requires proof that "1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, [he] knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [and] [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang . . . ." (CALCRIM No. 1400.) In this case, the jury was instructed that "felonious criminal conduct" "means committing or attempting to commit the following crime: murder, assault by means of force likely to produce great bodily injury, accessory to murder, or illegal possession of a firearm." Lopez concedes the jury could have found the first two elements of the offense satisfied, but he argues that there was insufficient evidence that he "willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang."
We are not persuaded. The jury was instructed on the elements of assault and was further instructed that "felonious criminal conduct" for the purposes of section 186.22, subdivision (a) included assault by means of force likely to produce great bodily injury. There was evidence at trial that Lopez, Lopez, Sr., and Lopez-Granados were members of the Norteño gang. There was also testimony that these men and Lopez himself surrounded Griffin and Barragan, made inappropriate sexual comments, pushed the women, and grabbed their hair and buttocks. As the confrontation escalated, Lopez, Sr. threw Barragan to the ground and attempted to punch Toste. In addition, the jury could properly have relied on Officer Collord's testimony in concluding Lopez "willfully assisted, furthered, or promoted" the assault. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 930 ["It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation"].) In short, there was sufficient evidence from which the jury could conclude that Norteño gang members were committing an assault with force likely to produce great bodily injury, and Lopez shot Toste in order to "assist, further, or promote" that assault.
VII. No Cumulative Error
Finally, Lopez argues the cumulative effect of the alleged errors at his trial requires reversal of his conviction, even if none alone were individually prejudicial. As we have found no substantial error in any respect, this argument must be rejected. (See People v. Butler (2009) 46 Cal.4th 847, 885.)
VII. Remand for Resentencing is Necessary
Lopez's sentence includes three firearm enhancements under section 12022.53; a 25-year enhancement under subdivision (d); a 20-year enhancement under subdivision (c), stayed pursuant to subdivision (f); and a 10-year enhancement under subdivision (b), also stayed pursuant to subdivision (f). At the time it sentenced Lopez, the trial court had no discretion to strike firearm enhancements under sections 12022.53.
Thereafter, in October 2017, the Legislature passed Senate Bill No. 620, which took effect on January 1, 2018. Pursuant to this legislation, amended section 12022.53 now provides that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h); People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).) The authority provided by both amended statutes "applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) Recently, our colleagues in Division One of this District concluded that newly amended subdivision (h) of section 12022.53 applies retroactively to nonfinal judgments, such as the one at issue in this appeal. (See McDaniels, at pp. 424-425.) And, as mentioned above, the Attorney General concedes remand for possible resentencing is appropriate in this case.
We agree. Under these circumstances, "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, supra, 22 Cal.App.5th at p. 425.) Thus, remand is appropriate here because the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements at issue. "While we express no opinion on how the court should exercise its discretion on remand, that discretion is for it to exercise in the first instance." (McDaniels, p. 428.)
DISPOSITION
Lopez's convictions are affirmed, but the case is remanded for the trial court to consider whether to strike some or all of the firearm enhancements imposed under section 12022.53.
/s/_________
STREETER, Acting P.J. We concur: /s/_________
REARDON, J. /s/_________
TUCHER, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------