Opinion
F075832
10-10-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHN MUNOZ, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF161547A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
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John Munoz strangled his cellmate R. Kim at Kern Valley State Prison. A jury acquitted him of murder but found him guilty of voluntary manslaughter. On appeal he raises three issues: (1) the court erred in its jury instructions; (2) the court erred in its sentence; and, alternatively, (3) conditional remand is appropriate for a limited resentencing hearing. We find merit in the third claim but otherwise affirm the verdict and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
I. Trial Proceedings
Munoz and Kim were cellmates in a maximum security prison. In April 2015, Munoz strangled Kim during a fight inside their cell. He was subsequently charged with first degree murder. (Pen. Code, § 187, subd. (a).) The murder charge alleged enhancements for five prior strike and five prior serious felony convictions. (Pen. Code, §§ 667(b)-(i), 1170.12(a)-(j), & 667(a).)
At trial, Munoz's strategy was to paint Kim as a violent drunk. Various witnesses testified Kim regularly drank alcohol in prison. They also testified Kim, when intoxicated, was "loud and belligerent," "very violent," "verbally abusive," "verbally aggressive" towards Munoz, and "wild."
Munoz testified in his own defense. He claimed he was defending himself and described the circumstances leading up to the deadly encounter. The night before the fight, Kim was intoxicated and upset with Munoz. Kim's anger and drinking continued into the morning, culminating in a fatal challenge to fight Munoz.
Heeding the challenge, Munoz believed he needed to strike first, and so he did. The fight was on and, after shattering a guitar upon Kim's head and body, Munoz choked him to death.
After deliberating, the jury convicted Munoz of the lesser included offense of voluntary manslaughter (Pen. Code, § 192, subd. (a)), not murder.
II. Sentencing Hearing
At a bifurcated court trial, all enhancements were found true. Because this was a Three Strikes case, Munoz was sentenced to 38 years to life in prison, calculated as follows: the upper term of 11 years, tripled, plus five years for the Penal Code section 667, subdivision (a) conviction. The court ordered that sentence to run consecutive to the 42-year, eight month prison term Munoz was already serving for convictions in 2011.
Respondent's brief indicates Munoz's prior Los Angeles convictions resulted in a 38-year term. However, the probation report indicates the aggregate sentence for Munoz's two 2011 convictions was 42 years, eight months.
DISCUSSION
Munoz raises three issues on appeal. First, he contends the court erred in its jury instructions. Second, he contends the court did not understand its discretion at sentencing. Finally, he seeks conditional remand for the trial court to exercise newly granted discretion to strike the five-year prior serious felony enhancement. We reject the first two contentions but agree with the third.
I. The Jury Instructions Were Not Erroneous
A. Additional Background
During the trial, Munoz objected to the prosecution's plan to present rebuttal evidence to prove his violent character. At that point, Munoz had already introduced evidence regarding Kim's violent character.
Despite having introduced several specific examples of Kim's violent character through other witnesses, Munoz claimed that evidence was offered only to prove his own state of mind during the altercation. Because the evidence was not introduced to prove Kim's violent character but rather only to prove his own actual and reasonable belief in needing to defend himself during the deadly encounter, the prosecution's rebuttal evidence was not admissible. The trial court rejected his argument and ruled the prosecution's rebuttal evidence admissible pursuant to Evidence Code section 1103.
Munoz expends significant energy discussing this ruling in his briefs but does not appeal the ruling. The trial court rested its ruling on People v. Clark (1982) 130 Cal.App.3d 371. Clark rejected an identical argument regarding state of mind because "neither the court nor the prosecution was required to accept defendant's representation that he intended only to prove his personal knowledge of the victim." (Id. at p. 384.) Here, Munoz presented evidence of Kim's violent character relevant only to prove character. Because the evidence was not relevant to state of mind and was introduced before any rebuttal evidence, there is no issue with the ruling.
While maintaining her objection to the evidence's admissibility, Munoz's trial counsel requested a jury instruction limiting the relevance of violent character evidence. After conferring with counsel, the court crafted a special instruction and, as pertinent, informed the jury:
"You have heard testimony regarding the character for violence, or lack thereof, regarding both [] Kim and John Munoz.
"You may consider testimony that the defendant knew that [] Kim had threatened or harmed others in the past only for the purposes described in CALCRIM instructions 505 regarding self-defense and 521 [sic] regarding imperfect self-defense.
"You have heard testimony regarding the defendant's character for violence based on the following three convictions: his 2011 conviction for assault by means of force likely to cause great bodily injury; his 2011 conviction for
assault by a prison inmate; and his 2011 conviction for a felony involving violence but not dishonesty. You may not find the defendant guilty based on these prior convictions alone, and my [sic] find him guilty only if all the evidence proves his guilt beyond a reasonable doubt."Munoz contends these instructions erroneously allowed the jury to consider his violent character to prove conduct during the altercation, but not Kim's violent character to prove Kim's conduct during the altercation. For the reasons that follow, we find the instructions accurately defined the law and were not erroneous or misleading.
The purpose referred to in CALCRIM No. 505 instructed: "If you find that [] Kim threatened or harmed the defendant in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] If you find that the defendant knew that [] Kim had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable."
Both the written and oral instructions mistakenly refer to the instruction on imperfect self-defense as CALCRIM No. 521. Munoz does not dispute that the correct instruction is CALCRIM No. 571. The purpose referred to in CALCRIM No. 571 instructed: "If you conclude the defendant acted in complete self-defense his action was lawful and you must find him not guilty of any crime. [¶] ... [[¶] If you find that [] Kim threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant's beliefs. [¶] If you find that the defendant knew that [] Kim had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs."
The Attorney General argues Munoz forfeited this claim by not objecting to the instruction. But having already objected to the evidence necessitating the jury instruction in the first place, Munoz's counsel was left to grapple with the evidence she believed was inadmissible. At that point, a proper instruction was necessary to effectively represent her client. And because she had previously objected to the underlying evidence, an objection may have been both futile and harmful to the defense. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1328-1329 [futile objection exception].) Recognizing the close arguments regarding forfeiture on each side, and with judicial economy in mind, we will reach the claim's merits. (See People v. McKinnon (2011) 52 Cal.4th 610, 658-661 [reaching merits despite close forfeiture issue].)
B. Analysis
"As a general rule, evidence that is otherwise admissible may be introduced to prove a person's character or character trait. ([Evid. Code,] § 1100.) But, except for purposes of impeachment (see [Evid. Code,] § 1101, subd. (c)), such evidence is inadmissible when offered by the opposing party to prove the defendant's conduct on a specified occasion ([Evid. Code,] § 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act ([Evid. Code,] § 1101, subd. (b))." (People v. Falsetta (1999) 21 Cal.4th 903, 911.)
Evidence Code section 1103 governs the admissibility of violent character evidence in criminal cases and carves out an exception to the general rule prohibiting "disposition to commit" evidence. "[I]f the defendant has offered 'evidence that the victim had a character for violence or a trait of character tending to show violence,' the prosecution is permitted to offer 'evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct)' in order 'to prove conduct of the defendant in conformity with the character or trait of character.' (§ 1103[, subd.] (b), italics added.) In other words, if, as in the present case, a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently during the events in question, then the prosecution is permitted to introduce evidence demonstrating that (1) the victim was not a violent person, and (2) the defendant was a violent person, from which the jury might infer it was the defendant who acted violently." (People v. Fuiava (2012) 53 Cal.4th 622, 695-696 (Fuiava).)
Undesignated statutory references are to the Evidence Code.
Because there is no pattern jury instruction to explain this evidence statute to jurors, a court must craft its own instructions to correctly state the law.
We review de novo whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) " '[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.' " (People v. Delgado (2017) 2 Cal.5th 544, 574.) "We look to the instructions as a whole and the entire record of trial, including the arguments of counsel." (People v. Mason (2013) 218 Cal.App.4th 818, 825.) If reasonable, we interpret the instructions to " 'support the judgment rather than to defeat it.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Here, the court's special instruction required the jury to consider Kim's violent character in conjunction with the perfect and imperfect self-defense instructions (CALCRIM Nos. 505 and 571). The perfect self-defense instruction informed the jury it could consider Kim's violent character in determining whether Munoz's "conduct and beliefs were reasonable."
Reading the instructions together, the jury was free, when considering perfect self-defense, to adopt or reject any reasonable inference from the evidence regarding Kim's violent character, including that Kim was "belligerent," "violent," "aggressive," "abusive," or "wild," both before and during the altercation. The instructions correctly "invit[ed] the jury to infer that [Kim] acted violently during the events in question." (Fuiava, supra, 53 Cal.4th at p. 696.)
The instructions for imperfect self-defense informed the jury they could consider Kim's violent character when evaluating Munoz's actual beliefs regarding self-defense. More importantly, the instruction required the jury to acquit him if they believed the perfect self-defense instruction applied.
We presume jurors understand, correlate, and follow the court's instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746 [jury presumed to understand and follow instructions; People v. Yeoman (2003) 31 Cal.4th 93, 139 [fundamental presumption that jurors understand and follow instructions]; People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors presumed to understand, correlate, and follow instructions].) Munoz has not overcome this presumption and we reject his contrary claim.
II. There Was No Sentencing Error
A. Additional Background
At the bifurcated trial, the court found true five prior strike convictions and five prior serious felony convictions. Because it was a Three Strikes case, the court adhered to the Three Strikes sentencing scheme.
Sentencing upon a third strike conviction requires the sentencing court to select the greatest minimum term of imprisonment amongst three options. (Pen. Code, § 667, subd. (e)(2)(A).) Option one is calculated as "[t]hree times the term otherwise provided as punishment." (Pen. Code, § 667, subd. (e)(2)(A)(i).) Option two is 25 years. (Pen. Code, § 667, subd. (e)(2)(A)(ii).) Option three is calculated as a normal conviction but "includes any applicable enhancement that would be used to lengthen the term the defendant would receive absent the Three Strikes law." (People v. Acosta (2002) 29 Cal.4th 105, 115.)
Determining the correct option requires the court to first select "the upper, middle or lower term in accordance with [Penal Code] section 1170, subdivision (b) just as it would if there were no three strikes law. The court then triples the selected term. If the resulting term is greater than the terms under options 2 and 3, the court imposes the resulting term as the minimum term of the indeterminate life sentence. If the resulting term is less than the terms under options 2 and 3, the court imposes whichever of these latter two options yields the greater minimum term." (People v. Keelen (1998) 62 Cal.App.4th 813, 820 (Keelen).)
Here, the court stated it "review[ed] the possible sentencing options in this case," and "interpret[ed] the statute as requiring [it] and mandating [it] to select the longest of the three possible options." The court concluded option one was the "longest."
Munoz was then sentenced utilizing the upper term for voluntary manslaughter (11 years). (Pen. Code, § 193, subd. (a).) After tripling the term and adding the five-year prior serious felony enhancement, the total sentence pronounced was 38 years to life in prison.
Munoz argues the trial court erred because it was not aware of the calculation procedure described in Keelen above. We reject the argument.
B. Analysis
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Pen. Code, § 1170, subd. (b).) "In determining the appropriate term, the court may consider," amongst other items, "the probation officer's report." (Ibid.)
We presume the trial court is aware of its sentencing discretion. (People v. Martinez (2017) 10 Cal.App.5th 686, 728; In re Consiglio (2005) 128 Cal.App.4th 511, 516; Pen. Code, § 664.) "A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' " (People v. Jones (2009) 178 Cal.App.4th 853, 860 (Jones).)
" 'In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " [Citations.] Second, a " 'decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " (Jones, supra, 178 Cal.App.4th at p. 861.)
Munoz argues the trial court believed it was required to select the upper term in calculating option one. Munoz primarily bases his argument for error on the trial court's comments that it was required to "select the longest of the three possible options." We disagree for two reasons.
First, the trial court is statutorily required to "select the longest of the three possible options." (Pen. Code, § 667, subd. (e)(2)(A).) Second, the court was entitled to consider the probation report "in determining the appropriate term." (Pen. Code, § 1170, subd. (b).)
Here, the probation report weighed the factors in mitigation and aggravation. The report found no circumstances in mitigation and three factors in aggravation (numerous prior convictions, prior unsatisfactory probation performance, and violent criminal history in public and in prison). "Based on the" factors "in mitigation and aggravation," the report concluded the upper term was appropriate to calculate the three sentencing options.
Then, after "review[ing] the possible sentencing options," the court agreed option one was the appropriate sentence because it provided the greatest minimum term. Munoz bears the burden to "clearly show" the court was unaware of its discretion to calculate option one with the lower or middle terms. (See Jones, supra, 178 Cal.App.4th at p. 861; cf. People v. Carmony (2004) 33 Cal.4th 367, 378 [trial court abuses its discretion where it is not aware of its sentencing discretion].) Because Munoz has not "clearly show[n]" error, we find no abuse of discretion and reject his contrary claim.
III. Conditional Remand Is Appropriate Under Senate Bill 1393
Munoz contends newly granted discretion to trial courts to strike five-year prior serious felony enhancements applies to his case because it is not yet final on appeal. The Attorney General concedes its application to this case but argues remand is "unwarranted." We accept the concession and believe remand is warranted.
Senate Bill 1393 "g[a]ve trial courts discretion at sentencing to strike five-year prior serious felony enhancements in 'furtherance of justice.' " (People v. Johnson (2019) 32 Cal.App.5th 26, 68 (Johnson).) The bill applies retroactively to all cases not yet final on appeal. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.) The bill took effect on January 1, 2019. (Id. at p. 971.) Because the sentencing hearing in this case occurred in 2017, the trial court did not yet have discretion to consider striking the five-year prior serious felony enhancement.
(Stats. 2018, ch. 1013, §§ 1-2.)
At sentencing, the court made multiple equivocal comments when it ultimately declined to strike any enhancements. The court stated, "this [was] an unusual case and there are certain aspects of it that are difficult because there are frankly somewhat strong factors both ways with regards to whether the Romero motion should be granted." In commenting on the evidence, the court believed "there was some level of provocation involved." On this record, we decline to conclude the trial court "would ... not have exercised its discretion to lessen the sentence." (Johnson, supra, 32 Cal.App.5th at p. 69.) A conditional remand is warranted on this issue.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court ultimately denied the Romero motion. --------
DISPOSITION
We conditionally remand this case to the trial court to consider whether striking the five-year prior serious felony enhancement is appropriate. In all other respects, the judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P. J. /s/_________
SMITH, J.