Opinion
F068137
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL DUNCAN MCDONALD, Defendant and Appellant.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRM016970)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant appeals from his conviction of brandishing a firearm and voluntary manslaughter with a firearm use enhancement. He claimed self-defense in response to the homicide charge. He contends evidence of the victim's character for violence was admitted to show both the victim's state of mind and his conduct in conformity with that character trait on the day of his death. The trial court, however, erroneously instructed the jury it could consider the evidence only on the issue of defendant's state of mind. Additionally, defendant contends the jury instruction on self-defense incorrectly added as an element a requirement that defendant used no more force that was reasonably necessary to defend against the danger. He contends if he reasonably believed he was in imminent danger of being killed or suffering great bodily harm, and he reasonably believed immediate use of deadly force was necessary to defend against that danger, he was justified in using lethal force as a matter of law, and there was no additional requirement that he use no more force than was reasonably necessary. Finally, defendant contends the trial court abused its discretion in sentencing him by using a finding of great violence as an aggravating factor, when the violence was inherent in the offense and did not make it distinctively worse than the ordinary offense of voluntary manslaughter. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 2011, defendant shot his son, Donald McDonald, to death in defendant's home. Although some of the circumstances were disputed, the evidence essentially showed the following: In the evening on that date, Donald, his wife, Sandra, and his friend, Curtis Tipton, were at defendant's mobilehome. Donald was living there with defendant, at least part of the time. Donald and defendant began arguing in the house. Subsequently, when Sandra and Tipton were in Donald's bedroom, they heard Donald and defendant arguing heatedly outside. Sandra and Tipton went outside; Tipton tried to intervene to calm the situation. The argument continued for 10 to 20 minutes.
Some of the individuals are referred to by their first names because they share a last name with others involved. This is done for clarity and convenience. No disrespect is intended.
There was some dispute regarding whether Sandra was also living in defendant's home.
Donald, Sandra, and Tipton decided to leave. As they were walking away, however, they realized Donald's keys and wallet and Sandra's purse were still in the bedroom. Donald tried to go in the back door, but defendant prevented him. Donald pushed defendant up against the side of the house, with his hands in the lapel area or on defendant's shoulders, and "got in his face." Donald told defendant "he would kick his ass like he used to kick his ass when he was a little kid, but he promised his Nana ... he wouldn't do that." Donald released defendant and defendant managed to go inside and lock the door.
Donald climbed in through the bedroom window. Sandra testified the plan was for Donald to get the items off the bed, then unlock the front door so she could enter and get clothes to take with them. Sandra and Tipton heard a gunshot. Tipton helped Sandra climb in through the bedroom window. Tipton testified he saw defendant through the back screen door, and defendant pointed a rifle at him, told him leave, and threatened to kill him. Tipton called 911 and ran to the front of the property to get the address. When Sandra entered the house from the bedroom, she saw defendant in the kitchen, holding a rifle aimed toward the living room. She called for Donald, and defendant pointed and stated, "He's laying right there. I shot him." Sandra ran to Donald and cradled his head while she cried. Defendant told her to leave and she went out the front door; defendant followed her onto the front porch. He threw the gun into the front yard, but later retrieved it. He offered Sandra his cell phone and told her to call 911, but she said Tipton had already done it. When the police arrived, defendant complied with their instructions, admitted he shot Donald, and was arrested.
Defendant testified that, after locking himself in the house, he heard a noise and saw Donald approaching fast, growling and threatening to kill him. Donald started pushing the dining room table into defendant; defendant had picked up the .22 rifle, which was in the dining room, before Donald came in. Donald reached over like he was going to grab the barrel of the gun to take it away from defendant, but when Donald pulled on the barrel, the gun went off. Donald sustained one gunshot wound to the head; the pathologist testified there was no stippling on the body, which is a sign of a close-range gunshot.
The defense evidence included testimony that Donald was very strong, quick, and short-tempered, had assaulted defendant several times in the past, and had told other family members that someday he would kill his father. Defendant testified he was afraid of Donald, and if he fought back or tried to get away when Donald attacked him, it just made Donald angrier.
Defendant was charged as follows: in count 1, with murder (Pen. Code, § 187, subd. (a)) with a firearm enhancement (§ 12022.53, subd. (d)); in count 2, with making criminal threats against Tipton (§ 422); and in count 3, with drawing or exhibiting a firearm in Tipton's presence (§ 417, subd. (a)(2)). On count 1, the jury found defendant guilty of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), and found the firearm enhancement true. It found defendant guilty on count 3, but was unable to reach a verdict on count 2, which the People then dismissed. The trial court sentenced defendant to the midterm of six years on the voluntary manslaughter count, with a four year enhancement; it imposed a concurrent six month sentence on the misdemeanor count of exhibiting a firearm.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court modified the enhancement to reflect it was imposed pursuant to section 12022.5, subdivision (a).
DISCUSSION
I. Self-defense Instruction
"The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law." (People v. Posey (2004) 32 Cal.4th 193, 218.) Defendant challenges the accuracy of the self-defense instruction given to the jury.
At trial, defendant contended he shot Donald in self-defense, when Donald entered his home through a window and attacked him. The trial court instructed the jury with CALCRIM No. 505, as follows:
"The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:
"1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury.
"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger.
"AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were
reasonable, the danger does not need to have actually existed...." (Italics added.)
The trial court also instructed the jury with CALCRIM No. 506, as follows:
"The defendant is not guilty of murder if he killed to defend himself in his home. Such a killing is justified, and therefore not unlawful, if:
"1. The defendant reasonably believed that he was defending his home against Donald McDonald, who tried to enter that home intending to commit an act of violence against someone inside;
"2. The defendant reasonably believed that the danger was imminent;
"3. The defendant reasonably believed that the use of deadly force was necessary to defendant against the danger;
"AND
"4. The defendant used no more force than was reasonably necessary to defend against the danger."
Defendant has not challenged this instruction.
Defendant contends that the third enumerated element, and the italicized language in the following paragraph, do not accurately reflect California law. He argues: "Appellant does not quarrel with the proposition that the right of self-defense is limited to the use of such force as is reasonable under the circumstances. Appellant's contention is that, under section 197, when a defendant reasonably believes he is in imminent danger of death or great bodily injury, and reasonably believes the immediate use of deadly force is necessary to avert the danger, he may kill his attacker in self-defense. In other words, the use of lethal force is, as a matter of law, 'reasonable' under these circumstances. There is no additional requirement that the defendant limit himself to using only the amount of lethal force that was 'reasonably necessary.'"
Defendant argues section 197 does not impose a separate requirement that "[t]he defendant used no more force than was reasonably necessary to defend against that danger." Section 197 provides, in pertinent part:
"Homicide is ... justifiable when committed by any person in any of the following cases:
"(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
"(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
"(3) When committed in the lawful defense of such person, ... when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished ...."
The statute codifies the common law, and should be read in light of it. (People v. Ceballos (1974) 12 Cal.3d 470, 478.) For example, although the statute refers to " 'resisting any attempt ... to commit a felony,' " (id. at p. 477) courts have read into the statute a "limitation that the felony be ' "some atrocious crime attempted to be committed by force." ' " (Id. at p. 478.) When the character of the crime and the manner of its perpetration do not reasonably create a fear of great bodily harm, " 'there is no cause for the exaction of a human life.' " (Ibid.)
Describing the doctrine of self-defense as set out in section 197, the court in People v. Clark (1982) 130 Cal.App.3d 371 (Clark) stated: "Where from the nature of an attack a person, as a reasonable person, is justified in believing that his assailant intends to commit a felony upon him, he has a right in defense of his person to use all force necessary to repel the assault; he is not bound to retreat but may stand his ground; and he has a right in defense of his person to repel the assault upon him even to taking the life of his adversary. [Citation.] Justification does not depend upon the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant act out of that fear.... In defending himself, however, a person may use only that force which is necessary in view of the nature of the attack; any use of excessive force is not justified and a homicide which results therefrom is unlawful." (Id. at p. 377, italics added.)
In Clark, the defendant was convicted of involuntary manslaughter. (Clark, supra, 130 Cal.App.3d at p.375.) He contended the evidence established self-defense as a matter of law. (Id. at p. 377.) The defendant had engaged in an affair with Gayle, who eventually told her husband, David, about it. David threatened the defendant and attempted to confront him several times. On the day of the homicide, David and Gayle passed the defendant and his wife on the road. When the defendant arrived home, David had blocked the driveway with his truck. David approached the defendant's vehicle window, stating, "your time is now." The defendant took out the gun he had begun carrying in his vehicle and, as David reached into the window, it discharged. David died from the gunshot wound. (Id. at p. 376.)
The court stated: "The rule which may be derived from the decisional law is that where the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine. [Citation.] Where the evidence is uncontroverted, but reasonable persons could differ on whether the resort to force was justified or whether the force resorted to was excessive, then the issue is a question of fact for the trier of fact." (Clark, supra, 130 Cal.App.3d at p. 379.)
The court further explained: "The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules which are applicable in this case. First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury; thus '[a] misdemeanor assault must be suffered without the privilege of retaliating with deadly force.' [Citations.] Under these two principles a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack." (Clark, supra, 130 Cal.App.3d at p. 380; accord, People v. Humphrey (1996) 13 Cal.4th 1073, 1094 [" 'Detached reflection cannot be demanded in the presence of an uplifted knife.' [Citation.] 'In defending himself, however, a person may use only that force which is necessary in view of the nature of the attack ...' "].)
The court concluded the defendant had a right to defend himself against David's attack, because it was clear David intended to force a physical confrontation with the defendant. (Clark, supra, 130 Cal.App.3d at p. 380.) David was not armed, however, and the defendant did not testify he believed David intended to use a weapon against him. David's expressed intention was to beat the defendant up, and "the evidence did not establish that the victim was so physically overwhelming that defendant had reason to fear great bodily injury from such an encounter." (Id. at pp. 380-381.) Thus, the evidence did not establish as a matter of law that the defendant was justified in using deadly force. (Id. at p. 381.)
In People v. Bates (1967) 256 Cal.App.2d 935 (Bates), after drinking together in a bar, the defendant and several others went to the defendant's restaurant for sandwiches and beer. (Id. at p. 936.) The decedent repeatedly asked to see the kitchen; the defendant finally told him to "look," meaning to look in the door, but not enter. Instead, the decedent went into the kitchen and began rummaging in the refrigerator. (Id. at pp. 937-938.) The defendant told him to leave the kitchen, and tried to pull him out by his arm. The decedent grabbed a knife and they scuffled; the decedent struck the defendant in the hip area with the knife. The defendant grabbed the decedent's hand and pulled the knife out, secured the knife, and stabbed the decedent several times, causing his death. (Ibid.) The defendant was convicted of involuntary manslaughter, but contended he acted in self-defense as a matter of law. (Ibid.)
The court stated: "A 'justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary, to resist the other party's misconduct; that use of excessive force destroys the justification, but the question of whether there was such an excess is ordinarily one of fact for the jury to determine.' [Citation.] [¶] Even if it is assumed, as testified by appellant, that deceased began the affray, the jury could well have found that the force used by appellant under the circumstances far exceeded the amount of force necessary to defend himself." (Bates, supra, 256 Cal.App.2d at p. 939.)
In People v. Beyea (1974) 38 Cal.App.3d 176 (disapproved on another ground in People v. Blacksher (2011) 52 Cal.4th 769, 808), one defendant provoked a fight with the decedent. When the decedent appeared to be getting the better of the fight, a second defendant joined in, and the two defendants beat and kicked the decedent for 15 to 20 minutes, while the decedent asked them to stop and said he had had enough. (Beyea, at pp. 186-187.) The court stated: "The jury was also warranted in rejecting defendants' claims of self-defense. The law of self-defense is based on the reasonable appearance of imminent peril of death or serious bodily injury [citation]. It is also clearly the law that the use of excessive force destroys the justification for the use of force [citation]. The jury could well conclude that defendants used excessive force and continued to do so long after the decedent had been disabled." (Id. at p. 190.)
In People v. Young (1963) 214 Cal.App.2d 641 (Young), the court reversed the defendant's conviction of voluntary manslaughter, finding the trial court failed to properly instruct that homicide is justifiable when resisting an attempt to commit a felony or defending a person from the commission of a felony, in this case a robbery. The evidence showed the defendant and the decedent were eating in a cafe, when the defendant took his money out to pay and the decedent snatched it out of the defendant's hand. (Id. at p. 646.) The defendant demanded the money back, but the decedent pulled out a pocket knife and threatened to kill the defendant if he tried to take it back. (Id. at pp. 646-647.) The defendant grabbed a knife from behind the counter, and the two men moved outside, each holding the other's knife arm. At that point, the court stated, if the jury believed the defendant's evidence, he "had established the basis for a justifiable homicide provided he did not indulge in more force than necessary to recapture his money." (Id. at p. 649.)
The prosecution witnesses testified the decedent and the defendant continued the fight outside, with the defendant slashing at the decedent almost continuously; the defendant then chased the decedent until he fell at the curb, where the defendant plunged the knife into his chest as he lay in the gutter. (Young, supra, 214 Cal.App.2d at pp. 649-650.) The defendant, however, testified the two were holding each other during most of the fight, and the decedent only fell to his knee at the curb, then rose and threw himself on the defendant's knife, inflicting the mortal wound on himself. (Id. at p. 650.) Although the court found it "difficult to envisage the jury finding that defendant did not use excessive and savage force to do away with" the decedent, it concluded "the factual conflict over who inflicted the fatal wound and how it was done necessitates a holding that the question of excessive force was one of fact for the jury." The failure to instruct on the defendant's theory that he was resisting a felony and to submit that question to the jury resulted in prejudicial error. (Ibid.)
In People v. Aguirre (1938) 11 Cal.2d 248, the defendant challenged one of the jury instructions on self-defense, which stated: " 'In the effort to save his own [life], or to avoid the infliction of great bodily injury upon him, the person in danger, real or apparently real, may use so much force as is necessary to meet such danger and no more. If he goes beyond this limit, he transcends the law of self-defense, and becomes himself a wrongdoer.' " (Id. at p. 253.) The court stated: "It is claimed that such language requires the defendant at his peril to determine the amount of force necessary to meet the danger. The contention is that the instruction is fatal because it did not include the italicized words in the following sentence: 'may use so much force as to the mind of a reasonable person, is necessary to meet such danger and no more'. The instructions might well have included the phrase which the defendant claims should have been included; but its omission did not constitute prejudicial error, when the balance of the instruction is taken into consideration, wherein it was very plainly indicated to the jury that the action of the defendant, on his plea of self-defense, should be tested by what a reasonable man would do under like circumstances." (Ibid.) Thus, where the defendant claimed he used lethal force in self-defense, the court found the jury was properly instructed that his use of force in self-defense was limited to the force a reasonable person would consider necessary to meet the danger.
In light of these precedents, we conclude the trial court did not err in instructing the jury with CALCRIM No. 505. That instruction properly included as an element of self-defense the limitation that "[t]he defendant used no more force than was reasonably necessary to defend against that danger." When a person reasonably believes he is in imminent danger of being killed or suffering great bodily injury, and the immediate use of deadly force is necessary to defend against that danger, he still may use only the amount of force a reasonable person in the same situation would believe was necessary to repel the attack.
The decision in People v. Mercer (1962) 210 Cal.App.2d 153 (Mercer), which was cited by defendant, is not to the contrary. In Mercer, the defendant was giving the decedent a ride home when the decedent asked him to stop the car. The defendant did so; the decedent got out of the car, told the defendant he had a weapon, and demanded the defendant get out of the car and give the decedent his money. (Id. at pp. 155-156.) Fearing the decedent had a gun, the defendant pulled his gun out of the glove compartment and shot the decedent twice. (Id. at p. 156.) Defendant was convicted of second degree murder. (Id. at p. 154.)
The appellate court applied a rule that, " 'if the prosecution presents as a part of its case a statement of the defendant evidencing justification for the alleged crime, the prosecution is bound by that evidence in the absence of proof to the contrary.' " (Mercer, supra, 210 Cal.App.2d at p. 158.) There was no evidence regarding how the shooting occurred other than the defendant's statements, which provided justification for the shooting. The court rejected the People's contention that the defendant used excess and unreasonable force in defending himself, finding the contention "fail[ed] to find any support in the record." (Id. at p. 161.) "Although it is true that appellant fired two shots at the deceased, the rule is well established that one who, without fault, is placed under circumstances sufficient to excite the fears of a reasonable man that another designs to commit a felony or some great bodily injury and to afford grounds for a reasonable belief of imminent danger, may act upon those fears alone and may slay his assailant and be justified by appearances. [Citations.] 'Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh in too nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety.' " (Ibid.)
The court did not hold that the issue of excessive or unreasonable force was irrelevant because the amount of force the defendant was privileged to use to counter acts that appeared to threaten death or great bodily injury was not limited by a requirement of reasonableness. Rather, it found that the record did not support a finding of excessive or unreasonable force. The court's remaining statements regarding use of deadly force and "the law does not weigh in too nice scales the conduct of the assailed" indicated that, in considering the justification for and the reasonableness of the defendant's actions, the jury was to consider all of the circumstances as they reasonably appeared to the defendant at the time, including the exigency of the situation.
We conclude the trial court's instruction on self-defense using CALCRIM No. 505 was proper.
II. Character Evidence Instruction
Defendant challenges the trial court's jury instruction concerning the use of evidence of Donald's character. The trial court modified CALCRIM No. 350 to address both evidence of defendant's character and evidence of Donald's character. After instructing the jury regarding the use of "character testimony that defendant was loving and supportive of Donald," it instructed the jury regarding Donald's character traits as follows:
"You have also heard character testimony that Donald McDonald had various character traits. [¶] The character testimony regarding Donald McDonald can be considered for the limited purpose of the effect that information had on the defendant's state of mind, if any, at the time of the shooting."
Defendant contends the jury should have been instructed that the evidence of Donald's character for violence could also be considered in determining Donald's state of mind (whether he intended to harm defendant when he climbed through the bedroom window after defendant locked him out of the house) and whether Donald was the aggressor at the time of the fatal encounter.
A. Propriety of instruction
Generally, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101.) However, "[i]n a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (Evid. Code, § 1103, subd. (a).) Under this provision, "in a prosecution for a homicide or an assaultive crime where self- defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor." (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446.)
Initially, the trial court stated evidence of Donald's violent conduct or threats of violence would be admitted only for its effect on defendant's state of mind on the issue of self-defense, that is, whether defendant believed he was in imminent danger and there was a need to protect himself from death or great bodily injury. After further discussion, however, the trial court agreed with defense counsel that the evidence also would be admissible under Evidence Code section 1103, subdivision (a), as evidence Donald acted in conformity with a character for violence. The trial court admitted defendant's testimony about Donald's violent acts toward defendant on the day of the shooting and on prior occasions, as well as testimony of family members regarding Donald's statements to them that someday he would kill his father.
Without modification, CALCRIM No. 350 addresses only evidence of the defendant's character. The trial court informed counsel it had modified the instruction to address evidence of Donald's character as well:
"THE COURT: [Defense counsel], I made one change on jury instructions. 350, if you'll look at 350.
"[DEFENSE COUNSEL]: Let me pull it, Judge.
"THE COURT: I set it on your desk.
"[DEFENSE COUNSEL]: Okay. That's fine.
"THE COURT: There is character testimony about both.
"[DEFENSE COUNSEL]: Right.
"THE COURT: I need to cover both."
Later the same day, after the testimony had been completed, the trial court again addressed the jury instructions and stated: "I changed 350. I told you both that I had made the change. I felt there was character evidence being offered as to the defendant as well as Donald. And with respect to Donald's character evidence it can be only considered for a limited purpose. So I wanted to clarify that[.]" Defense counsel again did not object to or comment on the trial court's modification of CALCRIM No. 350 or the limitation on the use of evidence of Donald's character.
The modified version of CALCRIM No. 350 with which the jury was instructed limited the jury's use of evidence of Donald's character to "the effect that information had on the defendant's state of mind, if any, at the time of the shooting." Thus, the jury could consider the character evidence only in determining whether defendant actually and reasonably believed he was in danger of death or great bodily injury at Donald's hands at the time of the shooting and needed to use deadly force to defend himself. The trial court did not instruct the jury it could consider the testimony regarding Donald's violence or threats as evidence that Donald was acting in conformity with his character for violence, that is, as evidence that Donald was the aggressor at the time of the shooting.
The People do not dispute that the trial court admitted the evidence of Donald's violent character traits to show conduct in conformity with those traits, or that the jury instruction actually given failed to inform the jury the evidence could be used for that purpose. Rather, the People contend that defendant forfeited any challenge to the instruction by failing to object in the trial court and that any error in the instruction was harmless.
B. Forfeiture of issue by failing to object
Generally, a defendant forfeits the right to appeal claimed errors by failing to object in the trial court. (People v. Christopher (2006) 137 Cal.App.4th 418, 426.) Jury instructions are excepted from this rule. "The appellate court may ... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.) " ' "The cases equate 'substantial rights' with reversible error, i.e., did the error result in a miscarriage of justice?" ' " (Christopher, at pp. 426-427.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. Accordingly, it seems far better to state straightforwardly, as we now do, that an appellate court may ascertain whether the defendant's substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court." (People v. Anderson (1994) 26 Cal.App.4th 1241, 1249.)
Thus, defendant did not forfeit the alleged error in the jury instructions by failing to object in the trial court, if the alleged error resulted in a miscarriage of justice.
C. Miscarriage of justice
"Errors in jury instructions are questions of law, which we review de novo." (People v. Jandres (2014) 226 Cal.App.4th 340, 358.) The harmless error test set out in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), applies to errors in jury instructions, when they constitute mere errors in the presentation of the case to the jury, and not fundamental structural defects that rendered the proceedings unfair regardless of the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 174-176.) Under the Watson test, a miscarriage of justice is found "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." (Watson, at p. 836.) The Watson standard applies here.
The trial court has a duty to give legally correct instructions when it chooses to give instructions on a particular point. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citation.] ' "The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." ' " (Id. at p. 1016.)
The trial court reviewed legal authorities offered by defendant and determined that evidence of Donald's prior violent acts and threats was admissible under Evidence Code section 1103, subdivision (a)(1). Thus, it was admissible as evidence that Donald had a violent character and acted in conformity with his character for violence at the time of the shooting, that is, that he was the aggressor. Subsequently, however, after admitting evidence of Donald's character, the trial court gave the jury an instruction stating that evidence of Donald's character was admissible only for its effect on defendant's state of mind. Thus, the instruction was erroneous, in light of the trial court's prior determination that the evidence could also be used as evidence of Donald's propensity to act in conformity with his violent character. The People do not deny the instruction was incorrect.
The jury found defendant not guilty of first and second degree murder, but guilty of voluntary manslaughter. The jury instructions defined murder as causing the death of another person with malice aforethought and without lawful excuse or justification. (CALCRIM No. 520.) The trial court instructed that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter" under two circumstances: "if the defendant killed someone because of a sudden quarrel or in the heat of passion," or "if the defendant killed a person because he acted in imperfect self-defense." (CALCRIM Nos. 570, 571.) It set out three elements required for heat of passion:
"1. The defendant was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;
"AND
"3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.)
It also set out the elements of imperfect self-defense:
"1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury;
"AND
"2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;
"BUT
"3. At least one of those beliefs was unreasonable." (CALCRIM No. 571.)
By finding defendant not guilty of murder, but guilty of manslaughter, the jury found defendant acted either in the heat of passion or in imperfect self-defense. Either finding would appear to be based on a conclusion that Donald's actions in entering the residence and approaching defendant provoked defendant to shoot him or led defendant to believe Donald was about to kill him or inflict great bodily injury on him. The verdicts are consistent with a conclusion by the jury that Donald acted aggressively toward defendant after entering the house through the bedroom window. The verdicts do not appear compatible with a finding that Donald peaceably walked from the bedroom toward the front door after entering defendant's residence through the bedroom window, and defendant, the only aggressor, shot him. Thus, even without an instruction that the evidence of Donald's character could be used in determining whether he acted in conformity with his character for violence and was the aggressor at the time of the shooting, it appears the jury concluded Donald acted violently or aggressively toward defendant at the time of the shooting.
Thus, the critical issue in defendant's claim of self-defense was whether he reasonably believed that he was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against the danger. The version of CALCRIM No. 350 given by the trial court stated: "The character testimony regarding Donald McDonald can be considered for the limited purpose of the effect that information had on the defendant's state of mind, if any, at the time of the shooting." The self-defense instruction more specifically stated: "If you find that Donald McDonald threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable." The trial court instructed the jury on the use of the character evidence on the critical issue of the reasonableness of defendant's conduct and beliefs. Even without an instruction that the jury was permitted to consider the character evidence to determine whether Donald was an aggressor in the encounter, the jury implicitly made that determination.
Accordingly, we conclude, on the record as a whole, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Watson, supra, 46 Cal.2d at p. 836.) Defendant has not demonstrated reversible error.
III. Sentencing
"Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years." (§ 193, subd. (a).) When three possible terms of imprisonment are provided as the penalty for a criminal offense, "the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) That choice is reviewable on appeal for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The sentencing discretion to be exercised by the trial court " 'is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.' " (Ibid.) That burden is a heavy one. (People v. Bradley (2012) 208 Cal.App.4th 64, 89.)
The trial court imposed the midterm sentence of six years on the voluntary manslaughter count. It found two aggravating factors that justified imposition of the midterm sentence: that the crime involved great violence and that there was a needless termination of Donald's life. The trial court found there were three mitigating factors; it also mentioned other circumstances it considered in reaching its decision to impose the midterm sentence. Defendant challenges the trial court's reliance on both aggravating factors. He argues that violence is inherent in voluntary manslaughter, "great violence" is required to qualify as an aggravating factor (Cal. Rules of Court, rule 4.421(a)(1)), and a finding of "great violence" requires that the circumstances make the defendant's offense "distinctively worse than the ordinary" offense of voluntary manslaughter (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) Defendant contends the circumstances do not meet that test, so the trial court abused its discretion in using "great violence" as an aggravating factor. Further, he asserts the needless termination of a life is a factor present in every case of voluntary manslaughter, so it does not make the offense distinctively worse than the ordinary offense. Therefore, it could not properly be considered as an aggravating factor. The People contend defendant forfeited his argument by failing to object to the sentence on those grounds in the trial court.
All further references to rules are to the California Rules of Court.
A. Forfeiture
The California Supreme Court has held "that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) The court reasoned that the trial court is required to orally announce its reasons at sentencing in order to encourage the careful exercise of discretion and decrease the risk of error. (Id. at p. 351.) At that time, the parties can bring any errors or ambiguities to the trial court's attention and have them corrected or clarified immediately. (Ibid.) "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing." (Id. at p. 353.) If counsel does not raise the issue when the trial court fails to properly make or articulate its discretionary sentencing choices, lack of a timely and meaningful objection forfeits the claim. (Id. at pp. 351, 353.) This rule includes "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.)
A broad, general objection at sentencing is not sufficient to preserve specific grounds to be raised on appeal. (People v. De Soto (1997) 54 Cal.App.4th 1, 8-9 (De Soto).) "Without any specifically articulated reasons for the objections, the court had no real basis upon which he could evaluate the claims and correct the errors, if any existed." (Id. at p. 9.)
"In making sentencing choices, the trial judge is confronted with a maze of statutes and rules, the intricacy of which rival the Internal Revenue Code. By reason of this complexity and the ever-changing guidelines, sentencing error is not uncommon. In an effort to avoid error, it is therefore reasonable to place the obligation to formulate specific objections squarely on defense counsel, and not on the judge charged with efficient management of a busy trial calendar. Defendant's expectation that this court will now consider the merits of his specific objections made for the first time on appeal, merely because trial counsel acknowledged his awareness of Scott's requirements, but did not comply with them, is unacceptable. For us to do so would be to disregard and usurp the role of the trial courts and to participate in the taxing of precious judicial resources." (De Soto, supra, 54 Cal.App.4th at p. 9.)
The probation report listed as aggravating factors that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness," (Rule 4.421(a)(1)) and "[t]he defendant was armed with or used a weapon at the time of the commission of the crime" (Rule 4.421(a)(2)). In his sentencing brief, defendant argued in favor of the low-term sentence, emphasizing mitigating factors. He also briefly asserted that neither great bodily injury nor the use of a firearm could be used as an aggravating factor, citing authorities prohibiting dual use of the same factors that were elements of the offense or were used as an enhancement to impose the upper term or consecutive terms. At the sentencing hearing, the trial court interpreted defendant's position to be that great bodily injury and use of a firearm could not be considered in aggravation because they were elements of the offense, and defense counsel agreed.
At sentencing, defendant did not object to the sentence on the ground the circumstances of the case were insufficient to show great violence as an aggravating factor, or on the ground senseless or needless loss of life was inherent in the offense. Defendant concedes he did not raise the argument in the trial court that a factor in aggravation must make the offense distinctively worse than the ordinary offense of that kind. Because defendant did not make a "timely and meaningful objection" (Scott, supra, 9 Cal.4th at p. 351) in the trial court on the same specific grounds asserted in this court, and because the trial court was thereby denied an opportunity to consider those arguments and immediately adjust the sentence, if appropriate, defendant's challenge to the trial court's exercise of its discretion in sentencing has been forfeited.
B. Ineffective assistance of counsel
Defendant argues that, if this court finds the challenge to his sentence was forfeited, then his trial counsel provided ineffective assistance. A criminal defendant has a right to the effective assistance of counsel at trial and sentencing. (In re Scott (2003) 29 Cal.4th 783, 811; People v. Cropper (1979) 89 Cal.App.3d 716, 719-720 (Cropper).) " 'A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel's performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome.' " (In re Scott, at p. 811.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' " (People v. Weaver (2001) 26 Cal.4th 876, 925.) "A claim on appeal of ineffective assistance of counsel must be rejected ' "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' [Citations.] Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, 'the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsel's conduct or omission.' " (People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
Defendant argues that, "[u]nder existing law, a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." (Scott, supra, 9 Cal.4th at p. 351.) He argues defense counsel's representation is ineffective if counsel fails to make an appropriate objection to an erroneous sentencing decision adverse to the defendant. He concludes there can be no rational tactical reason for failing to make such an objection, so trial counsel's performance in this case was deficient.
In support of its statement, quoted above, that defense counsel who fails to pursue the most advantageous sentencing alternative may be found incompetent, Scott cited two cases. The first discussed ineffective assistance of counsel in the context of the defendant's habeas corpus petition. (Scott, supra, 9 Cal.4th at p. 351, citing People v. Cotton (1991) 230 Cal.App.3d 1072, 1085-1087.) In the second case (Cropper, supra, 89 Cal.App.3d 716), the court, on appeal, found trial counsel's representation inadequate because the record affirmatively showed counsel had, in effect, argued against his client at sentencing. (Id. at p. 721.) When the trial court asked defense counsel for his comments at sentencing, counsel stated he agreed with the probation department's evaluation, which recommended against probation and found four aggravating factors and no mitigating factors; counsel asked the trial court to permit the defendant to speak. (Id. at p. 718.) The defendant then argued his own case for probation, which the trial court denied. (Id. at pp. 718-719.) Because counsel had an ethical obligation not to argue against his client, the appellate court concluded the record established the inadequacy of trial counsel's performance. (Id. at pp. 720-721.)
Defendant here merely asserts that defense counsel in the trial court failed to object to an alleged error in sentencing on the same grounds asserted on appeal. He then concludes, in one sentence, without discussion, that "there could be no rational tactical reason" for failing to object on the grounds raised in this appeal.
This is not a case like Cotton in which defense counsel was given an opportunity to explain his actions in a habeas corpus proceeding. Nor is it a case like Cropper, where the defendant was able to identify facts in the appellate record that affirmatively disclosed that trial counsel acted contrary to his ethical obligations to his client, so no tactical reason could have justified his actions.
If we accept defendant's contention that an unexplained failure to make a timely objection to the trial court's sentencing choice on an assertedly valid ground necessarily constitutes ineffective assistance of counsel whenever defendant simply asserts there could be no rational tactical reason for the failure to object on that ground, we eviscerate the forfeiture rule. The very failure to object that caused a forfeiture of the issue would also demonstrate ineffective assistance and avoid that forfeiture.
Defendant has not met his burden of demonstrating that defense counsel's representation at sentencing was deficient. He has not identified anything in the appellate record that affirmatively discloses trial counsel had no tactical reasons for the objections he raised and did not raise at the sentencing hearing. Consequently, we cannot conclude on this record that counsel rendered ineffective assistance. Defendant's charge of sentencing error has been forfeited.
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
POOCHIGIAN, J.