Opinion
F074405
01-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNY NUNEZ LOPEZ, Defendant and Appellant.
Richard M. Oberto for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13911536)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Richard M. Oberto for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
While intoxicated, defendant Johny Nunez Lopez shot two people and assaulted a third person with a semiautomatic weapon. Defendant was thereafter arrested and charged with attempted willful, deliberate and premediated murder of Dylan F. (Pen. Code, §§ 664, 187, subd. (a)) (count 1); attempted murder of Joey C. (§§ 664, 187, subd. (a)) (count 2); assault with a semiautomatic firearm against Joey C. (§ 245, subd. (b)) (count 3); shooting at an inhabited dwelling causing injury to Angel U. (§ 246) (count 4); assault with a semiautomatic firearm against Angel U. (§ 245, subd. (b)) (count 5); and discharging a firearm with gross negligence (§ 246.3, subd. (a)) (count 6). During trial, the court dismissed counts 5 and 6 and the related special enhancement allegations under sections 12022.5, subdivision (a), and 12022.7, subdivision (a). The jury convicted defendant of second degree attempted murder, the lesser offense of willful, deliberate and premeditated attempted murder on count 1, and found defendant guilty on counts 2, 3 and 4. The jury also found true the following special enhancement allegations: defendant personally and intentionally discharged a firearm, which caused great bodily injury (GBI) in the commission of attempted murder and in the commission of shooting at an inhabited dwelling (counts 1 & 4) (§ 12022.53, subd. (d)); defendant personally used a firearm during the commission of an attempted murder (count 2) (§ 12022.53, subd. (b)); and defendant personally used a firearm in the commission of a felony (count 3) (§ 12022.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced defendant to the upper term of nine years for attempted murder (§§ 664, 187, subd. (a), 1170.1, subd. (a)) (count 2), plus an additional 10 years for personally using a firearm in the commission of the offense (§ 12022.53, subd. (b)). The court imposed a consecutive determinate term of two years four months (one-third the middle term of seven years) for second degree attempted murder (count 1) (§§ 664, 187, subd. (a), 1170.1, subd. (a)). The court also imposed a consecutive term of one year eight months (one-third the middle term of five years) for shooting at an inhabited dwelling (§§ 246, 1170.1, subd. (a)) (count 4). On count 3, the court imposed the upper term of nine years for assault with a semiautomatic firearm (§ 245, subd. (b)), and for the related firearm enhancement allegation found true, the court imposed the upper term of 10 years (§ 12022.5, subd. (a)); however, pursuant to section 654, the court stayed the sentence on count 3 and the associated firearm enhancement. Finally, as to the enhancement allegations pursuant to section 12022.53, subdivision (d), found true as to counts 1 and 4, the court imposed two consecutive indeterminate terms of 25 years to life. The total term imposed was 23 years determinate, followed by two consecutive indeterminate terms of 25 years to life.
On appeal, defendant makes multiple claims of error: (1) the conviction for attempted murder under count 2 is not supported by substantial evidence; (2) refusing to instruct the jury on unconsciousness and involuntary intoxication; (3) improperly admitting evidence of gang membership; (4) instructing the jury on voluntary intoxication and consciousness of guilt together, creating an irrational permissible inference that violated defendant's federal constitutional rights; and (5) cumulative error. Finally, defendant argues a new sentencing hearing is required under Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2 (Senate Bill No. 620)) to permit the trial court an opportunity to strike or dismiss the firearm enhancements as to each of the four convicted counts.
The People dispute each assertion of error and contend a new sentencing hearing would be futile because the trial court implicitly indicated its unwillingness to strike or dismiss the firearm enhancements under Senate Bill No. 620.
We agree with defendant that a new sentencing hearing is required pursuant to Senate Bill No. 620 so that the court may elect to exercise its discretion to strike or dismiss the firearm enhancements under sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (d). In all other respects, the judgment is affirmed.
FACTUAL SUMMARY
I. Prosecution's Case
A. Witnesses' and Victims' Accounts of the Underlying Events
On the evening of December 8, 2013, Joey was helping her brother, Dylan, search for his dogs, who had gotten loose in the neighborhood surrounding his house. Joey was driving around looking for the dogs and asking people who were outside whether they had seen the dogs when she saw a man, later identified as defendant, walking on a sidewalk in the neighborhood. He did not seem threatening, nor did his gait indicate intoxication—he was steady on his feet. Joey opened her car door and asked whether he had seen any dogs. Defendant's face twisted into an angry scowl, and he ran to Joey yelling, "What, nigga? What, nigga? What?" Joey saw defendant reach for a gun in his waistband, which he then placed at the back of her head. She heard the gun omit a clicking sound, but no bullet fired. She quickly laid down across the front seat, pushed the gas pedal down, and drove away.
Meanwhile, Dylan was in his front yard calling for his dogs. Hearing Dylan, his neighbor Angel came out of his house along with his pregnant wife to inquire what Dylan was doing. During their conversation, Dylan heard a "pop" sound; Dylan turned around and saw a man he had never seen, later identified as defendant, walking toward him saying, "'I know you, motherf---er. I'm going to kill you.'" Dylan tried to talk to defendant, but defendant pointed a gun at him. Dylan started backing up, trying to reason with defendant, and attempted to maneuver himself so his neighbor's truck was between him and defendant. Defendant fired the gun, hitting Dylan in the chest. Defendant kept advancing on Dylan until there were only six feet between them, with the gun trained on Dylan the entire time. Defendant fired the gun again, striking Dylan in the stomach. Dylan dropped to the ground and crawled under the truck. Defendant leaned down and shot Dylan a third time, striking him in the lower part of his stomach. Dylan crawled out from underneath the truck and ran while defendant followed him, firing the weapon. In total, Dylan heard six to nine shots. When interviewed later by police, Dylan told them he believed defendant was under the influence.
When defendant began advancing on Dylan, Angel and his wife went back into their house for safety. During the altercation with Dylan, one of the shots defendant fired went through a window of Angel's house and struck Angel's finger, which required surgery.
Dylan's neighbor, Donald, also witnessed a portion of the events. He was sitting on his porch when he heard someone down at the left corner of the street "screaming [and] yelling about something." Donald turned off his porch light and saw a man, later identified as defendant, walking down the street yelling and firing a gun in the air. Defendant, who did not appear to be stumbling or having difficulty firing the weapon, walked down the street and around the corner; Donald heard a woman scream followed by the sound of five or more gunshots. Donald grabbed a bat and "took off running." He encountered Dylan talking on a cell phone and crying; Donald sat and waited with Dylan on the side of the road until an ambulance arrived to transport him to a hospital, where he underwent surgery.
Another of Dylan's neighbors, Gina, heard noises that sounded like fireworks; she told her husband Juan, and he went outside to check. She subsequently heard arguing outside the house, and when she looked outside she discovered Juan trying to calm another man, later identified as defendant, who had a gun. Gina then told her father, who was also in the house, about the man with the gun and her father joined Juan outside. Juan and defendant began wrestling for the gun; Juan ultimately ended up with the gun in his hand; the police then arrived and detained both Juan and defendant.
B. Arresting and Investigating Officers
Deputy Gauthier was dispatched to the scene at 10:45 p.m.; upon her arrival, she was assigned to search defendant. She found .45-caliber unexpended bullets in defendant's pocket, a cell phone and a wallet. Defendant made several spontaneous statements while he was detained by Gauthier. He first stated, "I'm not trying to get blamed for something I didn't do," and "it's not me." He then also said, "WFN," "F--- those mutts," "f--- those bullfrogs," and "I don't give a f---." He also then made a statement regarding the mother of his child: "F------ bi---, my [baby mama] keeps pushing me. She's acting like a stupid bitch. Just take me to county. I want to get to my bunk." Gauthier believed defendant was very intoxicated; he exhibited slurred speech and there was a strong odor of alcohol; he was unstable on his feet and his eyes were bloodshot. Subsequently, defendant was transported to the county jail, and a blood-alcohol test was performed at some point while he was in custody.
A firearm was collected at the scene of defendant's arrest, and it was booked into evidence. The gun was identified as a .45-caliber semiautomatic Glock. In testing, the firearm malfunctioned every time it was fired. The slide would not allow the gun to be fired in semiautomatic mode; after pulling the trigger, the slide would lock back and would have to be manually released before another cartridge could be loaded into the chamber and fired. While the gun could still be fired, it required this extra step, and it was not manufactured to function that way.
C. Evidence of Defendant's Gang Membership
The prosecution pursued a theory defendant was a WFN gang member who misunderstood Joey's question about the dogs to be a challenge from a rival gang member for which defendant retaliated by attempting to shoot Joey in the head. To establish this motive, the prosecution introduced evidence that defendant was associated with the West Fresno Norteño (WFN) gang, a subset of the Norteño gang.
1. October 23, 2008
Fresno Police Department Officer Anthony Vallez was dispatched to an apartment complex on October 23, 2008, where he found people outside the building pointing to a vehicle. He initiated a traffic stop of that vehicle, which was driven by defendant. During the stop, defendant told Vallez that he was a Norteño gang member.
2. May 7, 2009
Fresno Police Department Officer David Fenstermaker conducted a search of defendant's bedroom on May 7, 2009. In the bedroom, he observed what he characterized as "gang indicia," including a red baseball cap with the letter "W" on it, a red bandana, and a CD case with the name "Smiley" on it along with the words "West Fresno Norteño." There were also numerous pieces of paper with Norteño graffiti on them.
3. September 1, 2009
Fresno Police Department Officer Manuel Maldonado testified he contacted defendant on September 1, 2009. Defendant told Maldonado he was a Norteño gang member, showed him hand gestures that were gang signs, including making an "N" with his hand; he showed the officer his tattoos: one hand had tattoos of a "14," a web, and four dots; on the other hand, he had a tattoo of one dot. His stomach was tattooed with the letters "WFN." Defendant reported he had been in the gang for four years at that time.
4. October 20, 2009
Fresno Police Department Officer Greg Jouroyan testified he was dispatched to an intersection in Fresno on October 20, 2009, where he encountered two witnesses to a stabbing, one of whom was defendant, who provided him with the direction of a suspect's travel. Defendant told Jouroyan he and his friend were approached by five males, one of whom stabbed his friend. In giving this information to Jouroyan, he admitted he was a Norteño gang member and that, after the stabbing, the suspect raised his shirt and on his chest there was a tattoo of a bulldog.
D. Gang Expert Testimony
California Highway Patrol Officer Ryan Yetter testified as an expert on the Norteño gang in Fresno County, of which the WFN gang is a subset. He currently works with an investigative gang unit in Fresno County and has interviewed more than 500 gang members, including over 75 members of the Norteño gang, and more than five members of the WFN subset of the Norteño gang. His work focuses mostly on the Norteño gang, which is a Hispanic street gang rooted in the Nuestra Familia prison gang that started in the 1960's in the California prison system. The primary criminal activity associated with WFN is firearm possession, and the two primary gang rivals of WFN in Fresno County are Sureños and Bulldogs. Bulldogs are former Norteños who broke off and formed a new street gang.
Yetter testified about gang culture and how status in the gang is garnered or lost. While money is important to cultivating or earning respect, respect is also built by instilling fear in others. Gang members want to be feared by the public and/or their rivals. Respect can be elevated in different ways, but the primary avenue is to commit acts of violence; cultivating a reputation for being violent and carrying a firearm to use for violence all help to garner more respect. A gang member's level of respect can drop when there is a failure. For example, when a gang member has an opportunity to commit violence against a rival gang member or in a manner that would bolster the gang's reputation, shying away from those activities or refusing to participate in them would cause a loss of respect. Respect is very important to the WFN gang.
Law enforcement identifies gang members based on a totality of the circumstances, but there are indicators that strongly suggest gang membership such as self-admitting gang membership, gang tattoos, wearing gang clothing, showing gang hand signs, associating or hanging out with other gang members, committing crimes and being arrested with other gang members. Gang members identify with their gangs in different ways, including the colors they wear, the signs or symbols they use or display, or a specific turf they claim. Gang tattoos and self-admitting weigh extremely heavy to law enforcement in validating a person's gang membership. The WFN gang has approximately 100 members who use several identifying names or symbols, including "WFN," the words "West Fresno Norteño," the letter "N" for Norteño; the number 14 because "n" is the 14th letter in the alphabet, a "1" and a "4" separated to signify "14," one dot and four dots separated to signify "14," and the color red.
Yetter opined defendant was an active WFN gang member. In forming that opinion, he considered defendant's prior contacts with law enforcement where he admitted being a WFN member, wearing gang colors, displaying gang symbols, and the various tattoos on defendant's body: the letters "WFN" tattooed on his stomach in large block lettering, and on his left wrist he has four tattooed dots, which are significant for the number 14 or the letter N.
Yetter also testified that he considered defendant's statements when he was arrested, including that defendant said, "WFN, what's up?", which is a proclamation of pride or gang membership. During his arrest defendant said "It was me. F--- those mutts" and "f---ing bullfrogs"; "mutts" and "bullfrogs" are derogatory terms used for Bulldogs when trying to disrespect them. Based on this information, including the evidence of defendant's prior contact with law enforcement, Yetter opined defendant was an active gang member on December 8, 2013.
Yetter testified hypothetically that if a Bulldog member saw a WFN member out on the streets, the Bulldog might confront the WFN with the disrespectful challenge, "[W]hat's up dog?," which is not a greeting but a method of "hitting somebody up." The challenged WFN member would be expected to confront that person, and if that person did not back down, the WFN member would be obligated to attack. Killing a rival gang member who said "dog" to a WFN member would elevate that WFN gang member's status. Conversely, if the WFN gang member did not respond to such a challenge, that WFN member would likely be disciplined. Additionally, if a WFN member were walking down the street and someone drove by in a car and said the word "dog" to that WFN, it would elevate that WFN gang member's status and garner even more respect if he retaliated by putting a gun to the challenging individual's head and pulling the trigger; nevertheless, it is not common to attack regular citizens simply because of the use of a word like "'dog.'" As for other words denoting a challenge, Yetter explained the term "'nigga'" could be a challenge or a term of endearment, depending on context, but it did not necessarily refer to a person of a specific ethnicity.
II. Defense Case
A. Defendant's Testimony
On the day of the incident, defendant had friends staying at his house; he argued with his child's mother when she stopped by to drop off his daughter; the child's mother ultimately refused to leave their daughter with defendant while he had female friends staying at the house. After she left, defendant starting drinking beer; he and his friends stayed at the house until the afternoon, when additional friends came over to smoke marijuana. Around 4:30 in the afternoon, the group decided to go to a casino, purchasing more beer along the way; defendant had one 24-ounce can of beer. They also bought more marijuana and smoked it in the casino parking lot. Once inside the casino, defendant ate, played blackjack, and then ordered a mixed drink identified as an AMF ("adios motherf---er"), which was a large drink with seven different types of liquor mixed into it. Defendant had three AMF's. He finished the second AMF about 6:00 p.m., but did not remember finishing the third drink. He remembered nothing after texting his girlfriend when the football game was over, before he left the casino; the next thing he remembered was waking up in a booking holding cell and being informed of the charges against him.
Defendant did not recognize either Joey or Dylan; he remembered nothing about firing the gun that night or any other events that occurred after he left the casino. Defendant admitted he was interviewed by Dr. Howard Terrell, but defendant asserted he never told Dr. Terrell that he remembered going home and getting his gun that night because he could not remember leaving the casino or anything after that. Defendant also asserted he never told Dr. Terrell that he recalled peace officers wrestling him down and putting him into a police car.
Defendant admitted he has been a member of the WFN gang since he was 13 years old and that their main rival is the Bulldogs. Defendant acknowledged the term "'bullfrog'" is a term used to disrespect Bulldog gang members and that he has used that term before in arguments he has had. Although he has said "'WFN'" after a fight in the past, he had no idea what he meant when he said "WFN" at the time he was arrested. Defendant testified he did not know any of WFN's rules, but if someone from the Bulldog gang said to him, "'what's up dog?,'" he would be expected by the WFN to confront that person, and it would not be okay to back down and run away.
Defendant maintained he had no idea where he received the gun he was carrying on the night of the incident; he had never seen that gun before. He had no memory of when he loaded the gun, and he did not know the gun was not operating properly in semiautomatic mode.
Despite being a regular drinker, defendant asserted he had never had hard liquor before December 2013 and he has never blacked out from alcohol consumption before; he drinks between 12 to 15 beers four times per week; and he smokes one to three blunts of marijuana nearly every day. He had been drinking at that level since he was about 17 years old. He remembered having five beers and three AMF's on the night of the incident.
Defendant's testimony on his regular alcohol intake vacillated; on cross-examination, he testified he consumed 24 to 48 beers, four days per week.
B. Alan Barbour—Toxicologist
Alan Barbour testified as an expert in toxicology. He tested defendant's blood-alcohol levels on the night of the incident, which showed a blood-alcohol content (BAC) of 0.22 percent. Also present in defendant's blood was THC, which is the primary active ingredient in marijuana. THC in combination with alcohol is likely to be severely intoxicating; however, the amount of THC in defendant's blood was a "very unremarkable" amount—too low to be consistent with heavy daily use of marijuana.
Barbour testified that at a BAC of 0.22 percent, most people would not be able to aim and fire a gun, but if someone could, one would presume a degree of tolerance to alcohol. He indicated, however, that it is unpredictable how people will act under the influence. Some people have learned to compensate for alcohol-induced physical impairments. Someone who could fire a gun and hit a target would appear to have a higher level of tolerance than average for alcohol and marijuana in combination.
C. Dr. Terrell—Psychiatrist
Dr. Howard Terrell testified as an expert in psychiatry and forensic psychiatry. He explained symptoms at various BAC's depended on a person's individual tolerance, but the higher the BAC, more coordination impairment, trouble with gait, slurred speech, and swinging emotions would all be expected. Some people at high levels of BAC can still physically function to drive, but they would show signs of impairment and, statistically, they would show poor reaction time, poor judgment, and poor driving skills.
Dr. Terrell explained that at 0.22 percent BAC, a person who is not exhibiting physical impairment will still experience impairment in judgment, insight, and problem-solving. Such a person may not appear intoxicated, depending on tolerance, but intellectually he or she would experience tremendous impairment: that person may be able to walk and talk, but intellectually the person would be extremely impaired. With even a modest amount of marijuana added to a 0.22 percent BAC, an individual's judgment is even more impaired. While there is very little literature to support a synergistic effect between alcohol and marijuana, marijuana and alcohol together work like "multiplier[s]"—together rendering a person even more intoxicated.
Dr. Terrell testified, hypothetically, that if a person drinks 15 beers daily and smokes six marijuana blunts daily, when this person reaches a 0.22 percent BAC, he or she may not demonstrate poor coordination or other physical symptoms due to a built-up tolerance to alcohol, but such a person would still be very intellectually impaired. A built-up tolerance to the effects of alcohol has a greater impact on physical abilities than mental impairment—perceptually, a greater tolerance level will help control physical impairments more than intellectual impairments caused by alcohol. Dr. Terrell also opined hypothetically as to the impairment level of an intoxicated individual who can still accurately identify to which gang he belongs: "[i]f they still remember what gang, if they belong to a gang, that tells me that they are conscious enough to talk and remember what gang they might be affiliated with."
During an interview with Dr. Terrell, defendant said he remembered on the night of the incident he went home, got a gun, and shot the gun in the air twice, but defendant did not remember shooting anyone; defendant also reported memory gaps from the time he got the gun until he recalled peace officers wrestling him down and putting him in a police car. Dr. Terrell opined these are the types of memory gaps consistent with alcohol blackout where certain memories are lost; he explained that "usually [a person] will remember bits and pieces and then there's gaps" as "memory is impaired because of the high level of alcohol affecting the brain." Dr. Terrell indicated memory impairment is consistent with someone at a 0.22 percent BAC, and one of the effects he would expect to occur. Nevertheless, he explained a person with a 0.22 percent BAC can still engage in goal-directed behavior.
DISCUSSION
I. Substantial Evidence Challenge to Attempted Murder Conviction (Count 2)
A. Background
Defendant argues the evidence was insufficient to establish he formulated a specific intent to kill Joey. According to defendant, the only rational interpretation of his reaction to Joey's question about dogs was that his intoxication had so impaired his thinking and disconnected his thoughts and actions, defendant lacked any specific criminal intent. If defendant had acted on a gang motive in responding to Joey, the motive was so "badly misplaced that it only confirmed the extreme impairment in his insight, judgment, and executive function and his lack of subjective awareness of what he was doing."
The People maintain there was ample evidence to support the attempted murder conviction as to count 2. While there was evidence defendant mistakenly believed Joey was a Bulldog gang member, even without evidence of his motive, defendant pulled out a gun, pressed it to the back of Joey's head, and pulled the trigger; there is no other explanation for his behavior than he intended to kill Joey. Moreover, while there was evidence defendant was intoxicated, there was also evidence defendant had a high tolerance for alcohol along with expert testimony that a person with a 0.22 percent BAC could still engage in goal-directed behavior.
B. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
C. Analysis
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) "Attempted murder requires express malice, i.e., intent to kill." (People v. Stone (2009) 46 Cal.4th 131, 139.) Express malice is shown when the defendant "'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.'" (People v. Houston (2012) 54 Cal.4th 1186, 1217.) "[E]vidence of motive is often probative of intent to kill," but it "is not required to establish intent to kill." (People v. Smith (2005) 37 Cal.4th 733, 741.) There is rarely direct evidence of a defendant's intent to kill; such intent generally must be derived from the circumstances of the attempt, including the defendant's actions. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
Here, despite defendant's intoxication, the jury concluded he acted with a specific intent to kill Joey, which is supported by substantial evidence. A desire to kill Joey in retaliation, even if mistaken, was consistent with defendant's specific gang affiliation. (People v. Avila (2009) 46 Cal.4th 680, 701 ["'mental state required to convict a defendant of attempted murder, may ... be inferred from the defendant's acts and the circumstances of the crime'"].) Defendant admitted he was a WFN gang member whose main rival is the Bulldog gang. Expert testimony established the primary currency in gang culture is respect that is garnered through acts of violence intended to inspire fear in rival gang members and in the community. Gang members must respond to challenges from rivals to maintain respect; specific to WFN and Bulldog gangs, a Bulldog "hitting somebody up" a WFN with a question of "what's up dog?" would be a challenge demanding a response and retaliation, perhaps violent retaliation. Defendant explained consistently with the prosecution's gang expert that a Bulldog calling a WFN a "'dog'" is a sign of disrespect and retaliation to maintain respect would be expected. Given this contextual backdrop, when Joey called out to defendant asking about literal "dogs," there was evidence defendant would have been inclined, even if mistakenly in his inebriated state, to interpret this as a challenge demanding immediate and violent retaliation. Moreover, defendant had witnessed his friend being stabbed by a Bulldog gang member in the past, which was personal motivation to kill Joey once he considered her a Bulldog issuing a challenge.
Defendant's physical actions were also evidence of his specific intent to kill. Defendant ran to Joey's car angrily, put the gun to Joey's head, and, given the clicking sound Joey testified hearing combined with evidence of the gun's malfunctioning, pulled the trigger unsuccessfully. Placing the gun directly against Joey's head and pulling the trigger is an execution-style manner of killing that is strong circumstantial evidence of defendant's intent to kill, not just injure or frighten. (People v. Bolden (2002) 29 Cal.4th 515, 561 [the "defendant could have had no other intent than to kill" when he plunged a knife deeply into a "vital area of the body of an apparently unsuspecting and defenseless victim"].) Defendant's motive to kill along with his physical actions constituted substantial evidence of his intent to kill and support his conviction for the attempted murder of Joey.
II. Claims of Instructional Error
Defendant argues two separate instructional errors were committed by the trial court. The People dispute any error in the instructions and even assuming there was error, it was harmless. We agree with the People.
A. Involuntary Intoxication and Unconsciousness Instructions
1. Background
At trial, defendant requested jury instructions on involuntary intoxication and unconsciousness, which the trial court declined to give. Relying on People v. Chaffey (1994) 25 Cal.App.4th 852 (Chaffey), defendant maintains whether he was voluntarily or involuntarily intoxicated was a question of fact for the jury, and the jury should have been instructed on both types of intoxication. Moreover, there is substantial evidence defendant was unconscious at the time of the charged conduct; because there is evidence his intoxication was involuntary, the jury also should have been instructed on unconsciousness as a complete defense. Defendant contends this instructional error violated both state and federal law, and he is entitled to per se reversal for the trial court's failure to so instruct.
The People maintain there is no substantial evidence of involuntary intoxication or unconsciousness to warrant a jury instruction on either of these issues. Further, even if there were evidence to support those instructions, the failure to give the instructions was harmless under any applicable harmless-error standard.
2. Standard of Review
Whether a trial court is required to give a requested jury instruction stems from the fundamental principle that a "defendant, upon proper request therefor, has a right to an instruction to direct the jury's attention to evidence from which a reasonable doubt of his guilt could be inferred." (People v. Jeffers (1996) 41 Cal.App.4th 917, 924-925.) "The trial court has an obligation to instruct on defenses '"only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case."'" (People v. Barton (1995) 12 Cal.4th 186, 195.) However, the court must give a requested instruction concerning a defense only if there is substantial evidence to support the defense. (Ibid., fn. 4.) A trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence. (Ibid.) The trial court's alleged failure to instruct on a defense theory that is supported by substantial evidence is reviewed de novo. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)
3. Legal Framework
Section 26 exempts from criminal liability "[p]ersons who committed the act charged without being conscious thereof." (§ 26, class four.) This type of "[u]nconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed 'unconscious' if he or she committed the act without being conscious thereof." (People v. Haley (2004) 34 Cal.4th 283, 313.) Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime. (People v. Rogers (2006) 39 Cal.4th 826, 887.)
Voluntary intoxication includes "voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance." (§ 29.4, subd. (c).) Evidence of voluntary intoxication is admissible as to whether a defendant actually formed a required specific intent or mental state for the charged crime (id., subd. (b)), but voluntary intoxication is not a defense to a general intent crime (People v. Velez (1985) 175 Cal.App.3d 785, 791 (Velez)). Thus, "[u]nconsciousness caused by voluntary intoxication is governed by Penal Code section [29.4], rather than section 26, and it is not a defense when a crime requires only a general criminal intent." (People v. Conley (1966) 64 Cal.2d 310, 323-324, fn. omitted.)
Section 29.4 was formerly codified under section 22. Former section 22 was renumbered and amended in 2012. (Stats. 2012, ch. 162, § 119.)
Involuntary intoxication occurs "where the intoxication is induced through the fault of another and without any fault on the part of the accused ...." (Velez, supra, 175 Cal.App.3d at p. 796; see People v. Gallego (1990) 52 Cal.3d 115, 183.) Even voluntary ingestion of a prescription medication or other intoxicating substance can be considered involuntary if the person did not know or have reason to anticipate the drug's intoxicating effects. (Chaffey, supra, 25 Cal.App.4th at pp. 855-857.) Whether intoxication is voluntary or involuntary, therefore, turns on "whether the intoxication is induced through the defendant's fault or the fault of another or whether the defendant knows or has reason to anticipate the intoxicating effects of the substance he or she ingests." (People v. Mathson (2012) 210 Cal.App.4th 1297, 1313 (Mathson).) Involuntary intoxication that results in unconsciousness is a complete defense to a crime. (Velez, supra, at p. 793.)
Three published cases deal specifically with the voluntary ingestion of an intoxicating substance that allegedly resulted in unexpected unconsciousness—the defendants in each case claimed the unconsciousness was therefore involuntarily induced and constituted a complete defense to their respective crimes. (Mathson, supra, 210 Cal.App.4th at pp.1314-1331; Chaffey, supra, 25 Cal.App.4th at pp. 855-858; Velez, supra, 175 Cal.App.3d at pp. 790-797.)
In Chaffey, the defendant drove to the beach, got out of her car, and attempted suicide by ingesting 120 tablets of Xanax her doctor had prescribed for anxiety and sleeplessness, which she had been taking for a year and a half. (Chaffey, supra, 25 Cal.App.4th at p. 854.) The Xanax contained a warning it would cause drowsiness and that one should not operate heavy equipment when taking the medication. (Ibid.) After ingesting the medication, Chaffey was later discovered by police driving in an erratic manner, and she was arrested. (Ibid.) Chaffey had no recollection of anything from the time she took the pills until she awoke in the hospital. (Ibid.) Her psychiatrist opined when Chaffey took the Xanax, she did not intend to drive her car, and while she was driving she was unconscious and unaware of what she was doing. (Ibid.) The trial court, sitting as trier of fact, determined Chaffey's intoxication was voluntary because it was "'predictable that she would go through a period of sleepiness and that something would happen,'" and the court convicted her of driving a vehicle under the influence. (Ibid.)
Over dissent, the trial judge was reversed by an appellate division of the superior court. (Chaffey, supra, 25 Cal.App.4th at p. 854.) That appellate division reasoned Chaffey did not know, and a reasonable person in her condition would not have known, that taking an overdose of Xanax would cause unconsciousness, thus her intoxication was involuntary. (Id. at p. 857.)
Upon subsequent transfer of the case, the Court of Appeal determined there was evidence to reasonably support either conclusion: on the one hand, there were facts indicating Chaffey had reason to anticipate the intoxicating effects of the drug she took—the medication label warned Xanax would cause drowsiness, and it was reasonably foreseeable—as the trial judge had found—something might occur while she was in a state of intoxication; on the other hand, Chaffey did not intend or even expect to be able to stand up let alone drive a car—becoming intoxicated and unconsciously driving a car was not necessarily predictable or foreseeable from Chaffey's past experience with Xanax. (Chaffey, supra, 25 Cal.App.4th at pp. 857-858.) Given that both conclusions were reasonable interpretations of the evidence, the trial court's finding of voluntary intoxication, as a factual determination, was affirmed. (Ibid.)
Mathson involved unconscious sleep-driving resulting from voluntary ingestion of the prescription drug Ambien. (Mathson, supra, 210 Cal.App.4th at p. 1301.) After being reported for erratic driving, Mathson was stopped by a police officer who observed Mathson's eyes were droopy, watery, and glassy; his speech was slurred, and he had a dry mouth; his words were running together, he was swaying and was unsteady on his feet. (Id. at pp. 1302-1303.) Mathson was arrested for driving under the influence, and his blood test revealed he had Ambien in his system, but nothing else. (Id. at p. 1303.) At trial, Mathson testified he knew Ambien caused sedation, drowsiness or dizziness, and that it was associated with "complex behaviors" such as sleep-eating or having conversations with others while the user is asleep—which he had experienced; but he had never experienced sleep-driving. (Id. at p. 1305.) Mathson did not remember any events from the day he was arrested. (Id. at p. 1306.) Expert testimony confirmed the manufacturer of Ambien had warned health care professionals about the sleep-driving side effect, and federal law required Ambien prescriptions be accompanied by a written warning that sleep-driving is a possible side effect. (Id. at pp. 1304-1307.) An expert also opined that when Mathson was arrested, he was in a state of "sedative hypnotic intoxication" known as sleep-driving caused by the Ambien. (Id. at p. 1306.) According to the expert, the condition caused a lack of full awareness and an inability to process information in a conscious and rational manner. (Ibid.) The court submitted to the jury the question of whether Mathson's intoxication was voluntary or involuntary and gave its own modified instructions for unconsciousness, voluntary and involuntary intoxication. (Id. at pp. 1308-1310.) The jury ultimately convicted Mathson of driving under the influence. (Id. at p. 1301.)
On appeal, the defendant argued the modified jury instructions were erroneous. (Mathson, supra, 210 Cal.App.4th. at p. 1314.) As it pertained to involuntary intoxication, Mathson asserted the jury should have been instructed to find him involuntarily intoxicated if it determined he did not know or have reason to know that Ambien would specifically cause him, as opposed to consumers in general, to sleep-drive. (Id. at p. 1326.) In rejecting this subjective standard, the court noted the instruction adequately informed the jury that involuntary intoxication results if Mathson voluntarily ingested a legally prescribed drug that caused him to act unconsciously without knowing, and he could not have reasonably known, of the drug's intoxicating effects. (Id. at pp. 1326-1328.) In concluding any errors in the involuntary intoxication and unconsciousness instructions were harmless, the court explained the "evidence overwhelmingly establishe[d] [Mathson] knew or should have known that the Ambien he took could have caused sleep driving, even though he had not previously personally experienced a sleep-driving episode after using Ambien. Thus, [Mathson] was voluntarily intoxicated, and the unconsciousness instruction [did] not apply." (Id. at pp. 1329-1330.)
In Velez, supra, 175 Cal.App.3d at page 785, the court concluded Velez, who voluntarily ingested marijuana allegedly without knowledge it was laced with PCP, was voluntarily intoxicated as a matter of law when he became angry, broke into the home of an elderly couple, and stabbed the husband repeatedly with a screwdriver. Velez testified that after he smoked the marijuana, the people in the room began to look like devils and he remembered only running and crawling after that; expert witnesses testified Velez's behavior on the night of the incident was consistent with PCP ingestion. (Id. at pp. 788-789.) In rejecting Velez's argument he was entitled to jury instructions on involuntary intoxication and unconsciousness, the court reasoned he should have known the marijuana he voluntarily ingested was potentially laced with PCP, and he had no right to expect that such marijuana would produce any predictable intoxicating effect or that it would produce an intoxicating effect different from the one it did; the court determined Velez's intoxication was voluntary as a matter of law. (Id. at pp. 794-797.)
With this legal framework, we consider whether jury instructions for involuntary intoxication and unconsciousness were warranted based on defendant's theory his voluntary ingestion of alcohol and marijuana resulted in unexpected unconsciousness—i.e., his criminal conduct while intoxicated was performed without conscious awareness.
4. Analysis
a. No Error
Like Chaffey and Mathson and similar to Velez, defendant claims his voluntary ingestion of alcohol and marijuana caused involuntary intoxication because it produced an unexpected intoxicating result: unconsciousness. To entitle defendant to involuntary intoxication and unconsciousness instructions on this defense theory, he must produce evidence that he suffered unconsciousness (here, the purported intoxicating effect) that he did not anticipate, nor should he have anticipated under an objective, reasonable-person standard. (Chaffey, supra, 25 Cal.App.4th at pp. 856-858; Mathson, supra, 210 Cal.App.4th at p. 1313; Velez, supra, 175 Cal.App.3d at pp. 796-797.)
Defendant argues he had never previously experienced an alcohol-induced "blackout"—i.e., unconsciousness—and his actions on December 8, 2013, were performed without any conscious awareness; he maintains the unconsciousness was entirely unexpected and unanticipated, the same as the unconscious effect Chaffey experienced from the overdose of Xanax. Just as defendant had prior experience with alcohol and marijuana, Chaffey had prior experience taking Xanax; but just like Chaffey had never experienced the specific effect of unconscious sleep-driving from Xanax, defendant had never experienced the specific effect of unconsciousness from alcohol and marijuana. The court in Chaffey concluded whether Chaffey's unconsciousness was objectively foreseeable was a question for the factfinder to resolve—in other words, that Chaffey's prior experience with Xanax did not include unconsciousness was substantial evidence of the lack of foreseeability of that effect and, thus, involuntary intoxication. Defendant contends under Chaffey, his testimony that he had not experienced unconsciousness from alcohol intoxication in the past was substantial evidence the resulting unconsciousness was unforeseeable, rendering the intoxication involuntary; as such, the jury should have been instructed on involuntary intoxication and unconsciousness as a complete defense.
Assuming defendant's testimony that he had never previously suffered the specific effect of unconsciousness from alcohol and marijuana consumption is evidence of unforeseeability, to warrant an instruction for involuntary intoxication there must also be evidence of the specific effect that was unexpectedly suffered from the intoxication—here, unconsciousness. In both Chaffey and Mathson there was such evidence. Eyewitness testimony indicated Chaffey did not respond to questions when she was stopped by the police, Chaffey testified she did not remember anything between taking the pills and waking up in the hospital, and the uncontested opinion of her psychiatrist was that she was unconscious when she was driving her car due to the Xanax. (Chaffey, supra, 25 Cal.App.4th at p. 854.) Similarly, in Mathson, the defendant's testimony he did not remember events of the incident was accompanied by expert opinion that the Ambien placed him into a state of hypnotic intoxication that precluded him from being fully aware of events or processing information in a conscious and rational manner, and that Ambien users in such a state are not fully conscious of what they are doing. (Mathson, supra, 210 Cal.App.4th at pp. 1306-1307.) There was also eyewitness testimony from the arresting officer that Mathson had droopy, watery, glassy eyes, had difficulty maintaining balance, his speech was slow and slurred, and he was swaying on his feet. (Id. at p. 1303.) Expert testimony connected these eyewitness observations to Ambien-induced sleep-driving, indicating that Ambien-induced sleep-drivers would have the appearance of a grossly intoxicated person, including slurring words, looking half asleep and swaying while standing. (Id. at p. 1307.)
In Velez, the defendant claimed not to remember the conduct for which he was charged, and experts testified his behavior was consistent with PCP ingestion. (Velez, supra, 175 Cal.App.3d at p. 789.) The Velez court offered no express discussion regarding evidence of the defendant's purported unconsciousness because without evidence of unforeseeability, one of the two essential pieces of substantial evidence necessary to establish involuntary intoxication resulting in unconsciousness was absent, and the intoxication was therefore voluntary as a matter of law.
In contrast to Mathson and Chaffey, the only evidence that defendant here actually experienced unconsciousness is his testimony he has no memory of his criminal conduct. The defense psychiatrist, Dr. Terrell, did not offer an opinion defendant acted in a state of unconsciousness. Dr. Terrell testified the fact that defendant remembered and articulated the name of his gang while he was intoxicated indicated he was conscious enough to remember those details. He further opined a person with a 0.22 percent BAC would be intellectually compromised such that his or her ability to deal with issues and solve problems would be tremendously impaired, but that person could still engage in goal-directed behavior. Dr. Terrell noted memory gaps and memory loss are caused by excessive alcohol levels that affect the brain, and memory loss or "alcohol blackout" is something that would be expected of someone with a 0.22 percent BAC level; Dr. Terrell did not, however, opine this memory loss was indicative of unconsciousness. Other than the basic fact defendant was intoxicated and exhibited some behavior consistent with intoxication, there is simply no evidence defendant was not conscious of his actions. No eyewitnesses testified defendant appeared to lack awareness of his actions, and there was no expert testimony defendant's conduct displayed a lack of conscious awareness.
While defendant argues his lack of memory, standing alone, is substantial evidence of unconsciousness, this legal proposition rests on People v. Wilson (1967) 66 Cal.2d 749, 762 (Wilson) and People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411 (Bridgehouse), neither of which involve unconsciousness resulting from voluntary ingestion of an intoxicating substance. Wilson and Bridgehouse involved allegations of trauma-induced unconsciousness that presented no issue whether the purported unconsciousness was voluntarily induced. Where excessive alcohol consumption is involved, it is unreasonable to infer memory loss by itself is indicative of unconsciousness instead of a byproduct of the intoxication itself—especially here where expert testimony indicated memory loss is an expected aftereffect of intoxication at a 0.22 percent BAC level. Even aside from that distinction, however, our Supreme Court has reiterated that a defendant's testimony he experienced memory loss, on its own, is not substantial evidence of unconsciousness in any context. (People v. Rogers, supra, 39 Cal.4th at pp. 887-888 [distinguishing Wilson & holding the "defendant's own testimony that he could not remember portions of the events, standing alone, was insufficient to warrant an unconsciousness instruction"]; see People v. Froom (1980) 108 Cal.App.3d 820, 829-830 [evidence the defendant was forgetful & told a psychiatrist he "'awakened'" after the crime was committed did not entitle the defendant to unconsciousness instruction]; People v. Heffington (1973) 32 Cal.App.3d 1, 10 [distinguishing Wilson, supra, at p. 749 & Bridgehouse, supra, at p. 406 & holding there is no "ineluctable rule" that a defendant's inability to remember supplies an evidentiary foundation for an unconsciousness instruction; there was no description of unawareness coexistent with the defendant's actions from either psychiatrists or the defendant].)
When unconsciousness unexpectedly results from voluntary intoxication, substantial evidence of unconsciousness and that the unconsciousness was reasonably unforeseeable are required to warrant an instruction on involuntary intoxication. (See Chaffey, supra, 25 Cal.App.4th at pp. 854-858; Mathson, supra, 210 Cal.App.4th at pp. 1305-1307, 1326-1328.) Here, there is simply no evidence defendant lacked conscious awareness of his actions, and defendant was therefore not entitled to an instruction on involuntary intoxication. Moreover, because involuntary intoxication was unsupported, an instruction on unconsciousness was neither legally applicable nor supported by substantial evidence. (Mathson, supra, 210 Cal.App.4th at pp. 1328-1330 [unconsciousness instruction does not apply where evidence supports only voluntary intoxication].)
b. Any Error Was Harmless
Even assuming, however, instructions on involuntary intoxication and unconsciousness should have been given, under any applicable standard we find such error harmless. The jury already considered defendant's intoxication and resulting "blackout" in the context of his ability to formulate the specific intent required for attempted murder. The failure to give an instruction is harmless where "'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant ....'" (People v. Wright (2006) 40 Cal.4th 81, 98; accord, People v. Lujano (2017) 15 Cal.App.5th 187, 195-196 ["Omission of an instruction is harmless beyond a reasonable doubt if '"the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions."'"].)
Structural error, which is reversible per se, applies only to instructional errors that "'categorically "'vitiat[e] all the jury's findings.'"'" (People v. Mil (2012) 53 Cal.4th 400, 412.) The consequences of structural errors are "'"necessarily unquantifiable and indeterminate."'" (People v. Aranda (2012) 55 Cal.4th 342, 364.) Omission of the unconsciousness and involuntary intoxication instructions in this case, even if they had been required, would not rise to the level of structural error; like most instructional errors, it is not the type of error that is "'"necessarily unquantifiable and indeterminate."'" (Ibid.)
The trial court instructed the jury it could "consider evidence, if any, of the defendant's voluntary intoxication ... in deciding whether the defendant acted with an intent to kill, Count 2, or acted with an intent to kill [with] deliberation and premeditation, Count 1." While the jury was not asked to determine whether defendant was unconscious when he shot the victims, it was also not told to presume he was conscious at the time. The jury had an opportunity to consider how defendant's alcohol and marijuana use impacted his ability to form the specific intent necessary to support the attempted murder crimes. Defendant had the opportunity to argue, and did argue, to the jury his level of intoxication rendered him unable to form the requisite intent necessary for the attempted murder crimes; he was also able to, and did, assert his lack of memories from that night to support such an interpretation. Had the jury determined defendant was unconscious or blacked-out during the offenses, it would not have concluded he acted with the requisite intent to kill necessary to support the convictions on the attempted murder charges. The factual question about his mental state at the time of the offenses was clearly and necessarily before the jury. (People v. Wright, supra, 40 Cal.4th at p. 98.)
Moreover, even subject to the more stringent Chapman harmless-error standard, any error in failing to instruct on involuntary intoxication and unconsciousness was not prejudicial. (Chapman v. California (1967) 386 U.S. 18.) We conclude the record establishes beyond a reasonable doubt any error in this regard did not contribute to the jury's guilty verdicts. (Id. at p. 24.) As in Mathson, the evidence here overwhelmingly establishes defendant's actions on December 8, 2013, were performed with conscious awareness. He was able to process Joey's statement to him as a gang-based challenge, even if mistakenly, and react in accord with the culture of his gang—i.e., violent retaliation. This required him to intellectually process outside, unfamiliar stimuli and formulate a response almost immediately consistent with the acceptable standards of his gang. He was able to manipulate a malfunctioning gun, as explained by the criminologist, by releasing the slide each time the gun was fired—a gun he claimed never to have seen before. Having no familiarity with that gun, it would have taken even greater intellectual processing to assess the gun's malfunctioning and determine how to release the slide to chamber another round each time the gun was fired. Yet, defendant managed to do that quite efficiently when he shot Dylan three times and fired the weapon repeatedly in a short period of time.
Dr. Terrell opined a person with a 0.22 percent BAC would remain able to engage in goal-directed behavior, and it was clear defendant retained that ability. Defendant told Dylan he was going to kill him, and defendant engaged in continued steps to achieve that goal, assessing after each shot that although Dylan had been struck by bullets he was still alive; defendant followed Dylan around the truck after shooting him the first time, shot him a second time, and then leaned down to shoot Dylan a third time after Dylan had crawled underneath the truck. (See People v. Halvorsen (2007) 42 Cal.4th 379, 418 [purposive nature of the defendant's conduct in driving from place to place, aiming at his victims, & shooting them in vital areas of the body suggests he was aware of his actions & not unconscious during the course of his offenses].) The ability to formulate a goal, navigate physical obstacles to the goal such as Dylan trying to hide under the truck, and then pursue the goal with near success suggests and supports an inference of conscious awareness and processing.
Defendant also engaged in an argument with Juan, the neighbor who ultimately wrestled the gun away from him; although the precise contents of that conversation were not in evidence, Juan's widow testified she heard back and forth arguing and cussing between defendant and Juan—another indication defendant did not lack functional awareness of what was occurring. When he was arrested, defendant made comments related to his gang and implicitly referred to the argument he had had with his child's mother earlier in the day, suggesting he was aware of his circumstances and remembered events much earlier in the day. He recognized Gauthier as a police officer: he indicated she should just take him to the county jail so he could get a bunk; this suggested he knew he was being arrested, and he was aware of what would happen to him upon arrest. Defendant's claim of total memory loss of the events was also highly questionable when Dr. Terrell testified defendant had told him defendant remembered going home to get his gun and then shooting it. Defendant denied he told Dr. Terrell he remembered taking those actions, but Dr. Terrell confirmed those statements were recorded in his interview notes.
Finally, as to whether any unconsciousness was foreseeable, the overwhelming evidence indicated this effect was something defendant should have reasonably expected, given his past experience with beer and marijuana. He testified he only drank beer and not hard liquor, but defendant also testified he routinely drinks up to 48 beers four days a week, and he smokes "a lot [of marijuana] per day." Not only was defendant familiar with alcohol and marijuana, he had experience with large quantities and the effects of the two substances consumed in tandem. This strongly suggested he had a wealth of experience with intoxication and its side effects, and he would have had reason to know that hard liquor, which is generally known to have a higher alcohol content than beer, would have even greater potential side effects; he knew there were seven types of hard liquor in the mixed drinks he consumed at the casino that night and that those drinks were "actually pretty big." The evidence clearly and overwhelmingly supported only voluntary intoxication: defendant functioned with conscious awareness of his actions, and the effects of the intoxication were not unexpected or unforeseeable. Beyond all reasonable doubt, the failure to instruct on unconsciousness and involuntary intoxication did not affect the jury's verdicts.
For all of these reasons, we conclude the trial court did not err in refusing to instruct on involuntary intoxication and unconsciousness; even to the extent this refusal was error, the error was harmless under any applicable standard.
B. Instructing on Voluntary Intoxication and Consciousness of Guilt
1. Background
Defendant asserts the trial court erred by instructing on both voluntary intoxication and consciousness of guilt.
When defendant was arrested, Deputy Gauthier testified defendant made several statements, including one to the effect that he was "not trying to get blamed for something [he] didn't do," and another statement that "it's not me." Gauthier testified defendant was "extremely intoxicated" at the time he was arrested and placed in the back of her patrol vehicle; his speech was slurred, he smelled strongly of alcohol, he was unstable on his feet, and his eyes were bloodshot. As a result of defendant's denials upon arrest, the jury was instructed on consciousness of guilt (CALCRIM No. 362) as follows:
"If the defendant made a false or misleading statement before the trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude the defendant made the statement it is up to you to decide its meaning and importance. However, evidence the defendant made such a statement cannot prove guilt by itself."
The jury was also instructed on voluntary intoxication (CALCRIM No. 625), in relevant part, 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, Count 2, or acted with an intent to kill and deliberation and premeditation, Count 1. [¶] ... [¶] You may not consider evidence of voluntary intoxication for ... any other purpose."
Relying on People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen), defendant maintains that because the voluntary intoxication instruction prohibited the jury from considering his intoxication for any other purpose than whether he had the requisite specific intent for counts 1 and 2, the jury was prohibited from considering how his statements at the time of arrest may have been impacted by his intoxication: he may have been too intoxicated to know his denials were false and, thus, his denials might not have been probative of a consciousness of guilt. Defendant asserts this was instructional error and was also constitutionally defective because it allowed the jury to draw a permissive inference that was irrational and "'not one ... reason and common sense justify in light of the facts before the jury.'"
The People contend defendant's instructional challenge has been forfeited because he did not object to the CALCRIM No. 362 (consciousness of guilt) instruction, he specifically requested and did not seek any clarifying language to the CALCRIM No. 625 instruction (voluntary intoxication), and he did not raise any of the arguments at trial that he presents here on appeal with respect to these instructions. Even assuming the argument was not forfeited, the People maintain there is no instructional error. The People maintain the court's conclusion in Wiidanen as to instructional error was flawed; viewing the jury instructions from the entire charge of the court, a reasonable juror would have understood they were permitted to consider defendant's intoxication in considering whether his false denials were probative of a consciousness of guilt. Finally, any instructional error was not prejudicial and did not constitute a violation of federal due process.
We conclude that even assuming state law instructional error, such an error was neither prejudicial nor constituted a due process violation under federal law.
2. Standard of Review
Whether a jury instruction correctly states the law is reviewed under the independent or de novo standard of review. (People v. Kumar (2019) 39 Cal.App.5th 557, 563.) The appellate court "must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) "What is crucial ... is the meaning that the instructions communicated to the jury. If that meaning was not objectionable, the instructions cannot be deemed erroneous." (People v. Benson (1990) 52 Cal.3d 754, 801.) The correctness of the jury instructions "'"is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction."'" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
3. Analysis
a. Wiidanen and McGehee Decisions
In two published cases, the Third District Court of Appeal considered jury instructions on consciousness of guilt (CALCRIM No. 362) given in combination with (1) an instruction on voluntary intoxication (CALCRIM No. 3426) (Wiidanen, supra, 201 Cal.App.4th at p. 533) and (2) mental disturbance or impairment (CALCRIM No. 3428) (People v. McGehee (2016) 246 Cal.App.4th 1190 (McGehee)). In Wiidanen, the defendant was accused of orally copulating another man at a party who was unconscious at the time. (Wiidanen, supra, at p. 528.) The defendant was intoxicated when he was subsequently interviewed by police; he denied he had been at the party when the crime occurred and denied he had engaged in the alleged conduct. (Id. at pp. 529-530.) DNA evidence produced at trial proved his statements were false. (Id. at p. 530.) In McGehee, the defendant, who was mentally disturbed, stabbed his mother to death; knowing she was dead, he falsely told his sister—who lived with their mother—their mother was absent for a variety of reasons. (McGehee, supra, at pp. 1194, 1197-1200.) In both cases, the trial courts instructed on consciousness of guilt based on false statements made before trial, CALCRIM No. 362, and instructed on voluntary intoxication, CALCRIM No. 3426 (Wiidanen), and mental illness/impairment, CALCRIM No. 3428 (McGehee).
Both CALCRIM No. 3426 and CALCRIM No. 3428 preclude consideration of voluntary intoxication or mental illness/impairment for any purpose other than deciding whether the defendants possessed the requisite mental state for the crime charged. Without any modification to these instructions, the courts in Wiidanen and McGehee determined this preclusion affected the probative value of evidence tending to show consciousness of guilt: if the jury believed the defendant's intoxication or mental impairment prevented him from knowing the statements were false, the statements would not be probative of the defendant's consciousness of guilt. As a result, the courts concluded it was error to give the instructions that effectively precluded the jury from considering the defendant's intoxication as to consciousness of guilt. (Wiidanen, supra, 201 Cal.App.4th at p. 533; McGehee, supra, 246 Cal.App.4th at pp. 1204-1205.) Nevertheless, both courts determined this state law instructional error was neither prejudicial nor an error of federal constitutional dimension: the evidence before the jury reasonably indicated, despite intoxication or mental impairment, each defendant was aware of his guilt when he made the false statements. (Wiidanen, supra, at p. 533; McGehee, supra, at pp. 1204-1205.)
b. No Federal Due Process Violation
Defendant maintains the trial court in this case made the same instructional error identified by Wiidanen and McGehee, but, unlike those cases, he asserts the facts here cannot be rationally interpreted to support the suggested inference that his statements were knowingly false and therefore probative of his consciousness of guilt.
Assuming, without deciding, that instructing on voluntary intoxication (CALCRIM No. 625) and consciousness of guilt (CALCRIM No. 362) was a state law instructional error as determined by Wiidanen and McGehee, we nonetheless conclude any error in this regard was not constitutionally defective.
The consciousness of guilt instruction permits, but does not require, the jury to draw an inference that when a defendant makes a knowingly false or misleading statement before trial it may demonstrate a consciousness of guilt. "Permissive inferences violate due process only if the permissive inference is irrational." (People v. Goldsmith (2014) 59 Cal.4th 258, 270; Francis v. Franklin (1985) 471 U.S. 307, 314-315 ["A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury."].)
While defendant distinguishes the facts of this case from those in Wiidanen, the dissimilarities do not dictate a different result. In Wiidanen, the defendant was intoxicated when he was interviewed by police, but was nonetheless able to craft a narrative of events by selectively remembering facts that tended to exculpate him and then claimed a hazy recollection of neutral facts or facts that tended to inculpate him. (Wiidanen, supra, 201 Cal.App.4th at p. 534.) This ability to make tactical decisions about which facts to reveal reasonably suggested his false statements were knowingly made regardless of the effects of any intoxication. (Ibid.) In McGehee, the defendant's false statements were made in conjunction with elaborate efforts to prevent his sister from discovering their mother's dead body. (McGehee, supra, 246 Cal.App.4th at p. 1206.) The court reasoned he would not have undertaken all his efforts to keep his sister from finding the body had he really believed his mother was alive. (Ibid.) From the facts before the jury, it was reasonable to infer the defendant's false statements were indicative of his consciousness of guilt, regardless of any mental impairments he suffered. (Ibid.)
Unlike in Wiidanen and McGehee, defendant's false statements here were not woven into a self-protective narrative or course of conduct that was crafted to deceive, but the facts before the jury reasonably indicated defendant's denials were not random, incoherent words of someone who was too intoxicated to know or understand their falsity. Following his two statements denying any wrongdoing, defendant made the statements "It was me"; "I don't give a f---"; F--- those mutts"; and "f-----g bullfrogs." The facts before the jury tended to show defendant's actions toward his victims were in response to what he believed to be a rival gang encounter or a gang insult impinging on the respect he was due. Defendant's reference to "mutts" and "bullfrogs" along with the statement, "It was me" could be reasonably interpreted as referencing his assault of Joey and his mistaken belief that Joey had called him a "dog" as a sign of disrespect to which he retaliated by putting a gun to her head and pulling the trigger. Defendant also made a statement in the patrol car about the mother of his child that, standing alone, might have seemed like a non sequitur, but defendant testified at trial he had had an argument with her earlier that day; his statement about her in the patrol car was reasonably a reference to their argument and, as such, was another indication defendant remembered and was fully aware of the events of the day despite his intoxication. Defendant also recognized and understood he was being arrested—Deputy Gauthier testified he said, "Just take me to county. I want to get to my bunk." In other words, viewing his statements in total, it could be reasonably inferred defendant knew what he had done, and his initial denial of any wrongdoing was knowingly false and tended to indicate his consciousness of guilt. As such, the consciousness of guilt permissive inference was reasonable "in light of the proven facts before the jury," and there was no due process violation. (Francis v. Franklin, supra, 471 U.S. at p. 315.)
c. Any Error of State Law Was Harmless
On the same factual basis that we conclude there is no due process violation, we also conclude any state law instructional error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). Specifically, it was not reasonably probable that a result more favorable to defendant would have been reached if the jury had been permitted to consider defendant's intoxication with respect to his false statements and his consciousness of guilt. The jury had already considered defendant's intoxication, necessarily concluding it did not affect his ability to formulate the specific intent to kill. Moreover, the facts surrounding defendant's false statements on which the consciousness of guilt inference was grounded also indicated defendant was aware of what had happened, despite his intoxication, and knew his statements were false at the time he made them—the inferential conclusion was rational regardless of defendant's intoxication. In light of the evidence of defendant's guilt and the evidence indicating defendant was aware of his actions despite his intoxication, even if the jury had been expressly instructed they could consider defendant's intoxication in determining whether his false statements were knowingly made, it is not reasonably probable the jury would have reached a different result.
d. Argument Was Forfeited
Finally, as we conclude the presumed instructional error did not affect defendant's substantial rights nor was there a miscarriage of justice, we also conclude this argument was forfeited at trial: defense counsel requested the voluntary intoxication instruction without any modification; he made no objection when he knew the consciousness of guilt instruction also would be given; and counsel made no objection to the consciousness of guilt instruction either. (People v. Anderson (2007) 152 Cal.App.4th 919, 927 [failure to object to instructional error forfeits the issue on appeal unless the error affects the defendant's substantial rights]; see People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
III. Evidence of Gang Membership
A. Background
At trial, the prosecution theorized defendant tried to kill Joey when he was set off by Joey's question about dogs, which, in defendant's gang culture, represented a disrespectful challenge when spoken by a Bulldog gang rival. To establish this motive, the prosecution introduced evidence of four prior contacts defendant had with law enforcement showing he was a WFN gang member whose rivals include the Bulldog gang.
Defendant argues this evidence was improperly admitted because it was irrelevant character evidence, unduly prejudicial under Evidence Code section 352, and was violative of federal due process because it created impermissible character inferences.
B. Standard of Review
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Kopatz (2015) 61 Cal.4th 62, 85; People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390. 421, fn. 22; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) "'[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Zamudio, supra, 43 Cal.4th at p. 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)
C. No State Law Error
1. Legal Framework
Only relevant evidence is admissible. (Evid. Code, § 350.) "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness ..., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Evidence of a person's character or trait of character is generally inadmissible to prove that person's conduct (Evid. Code, § 1101, subd. (a)), but it may be admissible when it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Id., subd. (b).)
Even if evidence is relevant and otherwise admissible, pursuant to Evidence Code section 352 "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Italics added.) However, as the California Supreme Court has explained, "'"'Prejudice' as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption '"substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail. [Citation.]
'"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.'" [Citation.]' [Citation.] [¶] The prejudice that section 352 '"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]'" (People v. Scott (2011) 52 Cal.4th 452, 490-491; accord, People v. Tran (2011) 51 Cal.4th 1040, 1048.)
2. Analysis
Defendant maintains the prior contact evidence showing gang membership was only minimally relevant because it was cumulative and temporally stale; the evidence was unduly prejudicial because it directed the jury to make impermissible inferences about defendant's character. We disagree.
In cases that do not involve gang enhancements, such as this, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, evidence of gang membership is often relevant and admissible as to the charged offense. (Ibid.) "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilty of the charged crime." (Ibid.)
Here, the gang evidence was properly admitted. Evidence of gang membership explained why defendant ran at Joey, put a gun to her head, and ostensibly pulled the trigger; it tended to establish defendant had a specific intent to kill Joey. (See People v. Roldan (2005) 35 Cal.4th 646, 707 ["evidence of motive makes the crime understandable and renders the inferences regarding ... intent more reasonable"]; People v. Williams (1997) 16 Cal.4th 153, 193-194 [evidence the defendant was a gang member, along with evidence describing colors, behaviors, and areas of influence admissible to show motive and identity where prosecutor proved that the victim, a non-gang member, was dressed as a gang member when murdered].) One prior law enforcement contact established defendant was a witness to his friend being stabbed by a Bulldog gang member, which tended to show an additional and personal resentment or conflict between defendant and the Bulldog gang that supplied even greater motive for defendant's actions against Joey, who he mistakenly perceived as issuing a challenge or insult when she used the word "dog." This evidence was highly relevant to defendant's motive and establishing his intent toward Joey—it was not admitted as evidence of defendant's character as prohibited by Evidence Code section 1101, subdivision (a). (See Evid. Code, § 1101, subds. (a)-(b).)
Defendant argues the evidence lacks relevance because it was stale—it neither demonstrated any current association with the WFN street gang nor established any willingness by defendant, past or present, to engage in violence on behalf of the gang. While staleness or remoteness of prior act evidence is a factor in determining the probative value, there is no bright-line rule what amount of time renders something too remote to be relevant. (See People v. Harris (1998) 60 Cal.App.4th 727, 739 [remoteness or staleness of prior conduct is appropriate factor in Evid. Code, § 352 analysis, but no bright-line rule as to what is too remote].) Here, the time between the prior contacts indicating gang membership and the underlying events was approximately four years, which is not a particularly extensive amount of time, and the prior contacts constituted especially strong and direct evidence of gang membership. The evidence was not limited to a circumstantial suggestion of gang membership or indicative of a passing or casual gang association. The prior contacts included, among other things, defendant self-identifying as a WFN to law enforcement on three occasions, observation of defendant's stomach bearing a tattoo with the large letters "WFN," a substantial amount of gang graffiti in defendant's possession, and defendant witnessing a friend's stabbing by a Bulldog rival. Additionally, there was no evidence indicating defendant had disassociated with WFN since the prior contacts had occurred. Further, defendant admitted on the stand he has been a WFN gang member since he was initiated at age 13, and he was a WFN member at the time of the underlying offenses. The strength of the gang membership evidence from the prior contacts coupled with defendant's admission of gang membership and a lack of any evidence he had disassociated with the gang before the underlying events occurred significantly ameliorated the effects of any temporal staleness.
Moreover, the gang membership evidence did not constitute a large portion of the prosecution's case. The evidence was offered through four officers whose testimony was brief and consumed little time. The trial court restricted the details about the prior encounters with law enforcement by precluding most of the context of those contacts, further diluting any prejudicial effects. For example, there was no mention defendant's bedroom was searched pursuant to the terms of his probation or whether he was prosecuted or arrested during any of the prior encounters with law enforcement. These limitations mitigated much of the potential prejudice.
Defendant also argues the evidence's cumulative nature amplified its prejudicial effect: for example, there was already evidence of defendant's gang association based on his statements at the time of arrest referring to "WFN," "mutts," and "bullfrogs." The prior contacts showing gang membership were not cumulative. First, defendant's statements upon arrest of "WFN," "mutts," and "bullfrogs" did not constitute overwhelming evidence of defendant's gang membership; it was not cumulative of defendant affirmatively self-identifying to officers he was a WFN member and his WFN gang tattoos, which were much more direct evidence of gang membership than the phrases defendant uttered during his arrest. Second, the prior contact establishing defendant witnessed his friend being stabbed by a Bulldog rival was the sole evidence of a personal motive for revenge against the Bulldogs and was highly relevant to his attempt to kill Joey. Third, as noted above, it took very little time to place this evidence before the jury—it was not a burden on the judicial system or the jurors, nor did it present any risk of confusion. (See People v. Williams (2009) 170 Cal.App.4th 587, 611 [gang membership evidence cumulative because it concerned issue not reasonably subject to dispute and took up unreasonable amount of time at trial].)
In sum, the evidence was relevant to defendant's motive, and it was not significantly more prejudicial than probative. The trial court did not abuse its discretion in admitting this evidence.
D. No Due Process Violation
Although defendant argues the introduction of this evidence violated his due process rights and led to a fundamentally unfair trial, even assuming it was error to admit the evidence on state law grounds, we do not find this is one of those "rare and unusual occasions" where any error was of federal constitutional dimension. (People v. Albarran (2007) 149 Cal.App.4th 214, 232.) "'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is ... whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citation.]'" (Id. at pp. 229-230; accord, Jammal v. Van de Kamp (1991) 926 F.2d 918, 920.)
As discussed above, the gang membership evidence was highly relevant to motive, which was not undercut by any temporal remoteness. The evidence was not offered to prove a fact of which there was already overwhelming evidence or not reasonably subject to dispute. The presentation of the evidence did not take up an undue amount of time, and the evidence was carefully restricted to only four prior contacts that did not reveal whether defendant had committed or was charged with any crime as a result. Further, because it was relevant to motive, there were permissible inferences that could be drawn from the evidence other than impermissible inferences about defendant's character. The admission of this evidence did not render the trial fundamentally unfair.
E. Any State Law Error Was Harmless
Finally, even assuming the court abused its discretion in admitting this evidence—which it did not—the error was not prejudicial. "It is ... well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citations.] '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" 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. Richardson (2008) 43 Cal.4th 959, 1001, quoting harmless error standard announced in Watson, supra, 46 Cal.2d at p. 836.) Applying Watson, we conclude that, as to all counts, there is no reasonable probability defendant would have obtained a more favorable result absent the admission of prior law enforcement contacts showing gang membership evidence. On the stand, defendant admitted he was a WFN gang member at the time of the underlying events, and that he had used the terms "mutts" and "bullfrogs" to refer to rival gang members. Expert testimony validated defendant as a gang member. Defendant made gang-related statements at the time of his arrest, including "WFN," "bullfrogs," and "mutts," indicating his gang association. Based on the other gang membership evidence that was admitted, it is not reasonably probable that, had the prior gang association evidence not been admitted, a more favorable result to defendant would have been reached.
IV. Cumulative Error
Defendant contends that even if the errors alleged above are not in themselves reversible, they are so cumulatively. Not so. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having concluded only that there was potentially an error instructing the jury on consciousness of guilt and voluntary intoxication without modification, which was not prejudicial in itself, there is nothing to cumulate. As such, we necessarily reject defendant's claim of cumulative error resulting in prejudice. (People v. Williams (2013) 56 Cal.4th 165, 201; People v. Sedillo, supra, at p. 1068.)
V. Sentencing Under Senate Bill No. 620
A. Background
Defendant maintains the case must be remanded for a new sentencing hearing under Senate Bill No. 620 so the court may consider whether to exercise its new discretion to strike or dismiss defendant's firearm enhancements on each of the four convicted counts. He asserts Senate Bill No. 620 is retroactively applicable to his case because it was not yet final at the time the law went into effect.
The People agree that Senate Bill No. 620 applies retroactively: defendant was convicted, his sentence was enhanced under section 12022.5, subdivision (a), and section 12022.53, subdivisions (b) and (d), and his conviction is not yet final. The People dispute remand for resentencing is appropriate, however, because the record shows the trial court would not have exercised its discretion to lessen the sentence by striking the firearm enhancements. We conclude remand for resentencing is warranted.
We grant defendant's unopposed request for judicial notice of legislative materials and history related to the passage of Senate Bill No. 620. (Evid. Code, §§ 452, subd. (c), 459.)
B. Analysis
When it sentenced defendant, the trial court had no discretion to strike the firearm enhancements imposed under section 12022.5, subdivision (a), and section 12022.53, subdivisions (b) and (d). Effective January 1, 2018, Senate Bill No. 620 amended sections 12022.5 and 12022.53. Pursuant to those amendments, "[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." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) "The discretion conferred by the statute 'applies to any resentencing that may occur pursuant to any other law' (ibid.), and it applies retroactively to nonfinal judgments." (People v. McDaniels (2018) 22 Cal.App.5th 420, 446, quoting section 12022.53, subdivision (h) & citing People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
We accept the parties' position that the statute applies retroactively to defendant's case. (People v. Phung (2018) 25 Cal.App.5th 741, 763.) We agree with defendant that remand for a new sentencing hearing is appropriate. "[W]hen the record shows that the trial court proceeded with sentencing on the ... assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; see People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand required unless record reveals clear indication trial court would not have reduced the sentence even if it had the discretion to do so at the time of sentencing].) However, if "'the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.'" (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
In this case, remand is proper because the record contains no clear indication the trial court would refuse to strike one or more of the firearm enhancements had it the opportunity to do so. The trial court found the aggravating factors prevailed and imposed the upper term of nine years on count 2 (§§ 664, 187), the upper term of nine years on count 3 (§ 245, subd. (b)), and the aggravated term for the firearm enhancement under section 12022.5, subdivision (a), as to count 3 (the sentence for count 3 & for the firearm enhancement under count 3 were stayed). The court also ordered the terms to run consecutively rather than concurrently. Although these sentencing choices suggest the court might not exercise its discretion to strike the firearm enhancements, it does not foreclose the possibility. Specifically, in discussing the sentences for the firearm enhancements under section 12022.53, subdivision (d), the court expressly indicated it had no choice but to impose two 25 years-to-life indeterminate terms, which accounted for well over half of the total sentence imposed. Remand, therefore, is not futile. (See People v. McDaniels, supra, 22 Cal.App.5th at p. 427 ["Firearm enhancements carry heavy terms and in many cases constitute much if not most of the total sentence. Given these high stakes, it seems to us that a reviewing court has all the more reason to allow the trial court to decide in the first instance whether these enhancements should be stricken, even when the reviewing court considers it reasonably probable that the sentence will not be modified on remand."].)
We express no opinion as to how the trial court should exercise its discretion on remand, which is within the province of the trial court to exercise in the first instance.
VI. Clerical Error
The court imposed a sentence on count 3 as follows: "I will be imposing the base term of nine years plus ... that's the aggravated term of nine years plus the aggravated enhancement of ten years for 19 years on Count 3 stayed pursuant to [section] 654." The abstract of judgment does not include the 10-year sentence imposed for the firearm enhancement under section 12022.5, subdivision (a), on count 3.
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The clerical error in the abstract of judgment must be corrected to accurately reflect the sentence imposed as to count 3, despite that it was stayed under section 654. (People v. Mitchell, supra, at p. 185 [appellate courts that have properly assumed jurisdiction of cases may order correction of abstracts of judgment that did not accurately reflect the oral judgments of the sentencing court].)
DISPOSITION
The matter is remanded to allow the trial court to consider whether to exercise its discretion to strike or dismiss the firearm enhancements pursuant to Senate Bill No. 620 (see §§ 1385, 12022.5, subd. (c), 12022.53, subd. (h)) and, if necessary after the exercise of that discretion, resentence defendant as appropriate. The trial court is also instructed to prepare an amended abstract of judgment reflecting the 10-year sentence enhancement imposed under section 12022.5, subdivision (a), as to count 3, which was stayed under section 654. The amended abstract of judgment shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SMITH, J.