Opinion
C083303
05-12-2020
THE PEOPLE, Plaintiff and Respondent, v. KHOT PANYANOUVONG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F00271)
Defendant Khot Panyanouvong murdered his cell mate at the Sacramento County Jail. He was convicted by jury of first degree premeditated murder (Pen. Code, §§ 187, 189) and found by the trial court to have been previously convicted of a serious felony offense within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). After an unsuccessful motion to strike the prior serious felony conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced defendant to state prison to serve an indeterminate term of 50 years to life for the murder plus a consecutive determinate term of five years for the prior serious felony enhancement. (§ 667, subd. (a).)
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: the trial court prejudicially abused its discretion and violated his federal constitutional rights by (1) allowing the prosecution to impeach his testimony with a prior juvenile adjudication for burglary and (2) precluding defendant from introducing certain additional portions of his interview with detectives after the prosecution introduced portions of the same interview in its rebuttal case; the trial court prejudicially erred and further violated defendant's constitutional rights by (3) instructing the jury to consider evidence of voluntary intoxication only in deciding whether he acted with intent to kill or with deliberation and premeditation and (4) denying his request to modify language defining "great bodily injury" in the standard jury instructions setting forth the concepts of self-defense and imperfect self-defense; (5) the prosecutor engaged in prejudicial misconduct during her cross-examination of defendant by referring to information previously ruled inadmissible by the trial court; and (6) we must remand the matter for a new sentencing hearing because Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1, 2 (SB 1393)) that became effective January 1, 2019 and gives the trial court discretion to strike five-year prior serious felony enhancements in the interest of justice, applies retroactively to cases not yet final on appeal.
We affirm. Any error with respect to allowing the juvenile adjudication into evidence for impeachment was harmless. Also harmless was the trial court's exclusion of portions of defendant's interview with detectives sought to be introduced during the defense's surrebuttal. With respect to defendant's instructional error claims, the first is forfeited and both fail on the merits. Nor does defendant's assertion of prosecutorial misconduct require reversal. Finally, we also reject defendant's assertion the matter should be remanded to the trial court for an exercise of SB 1393 discretion.
FACTS
Defendant murdered his cell mate, the victim, during the early morning hours of January 16, 2015. We recite the facts surrounding the victim's violent death in the light most favorable to the judgment.
The night before the murder, defendant caused a disturbance at a Dollar Tree store. According to his trial testimony, he was under the influence of methamphetamine at the time. When sheriff's deputies arrived at the store in response to a call concerning his behavior, defendant was "nervous and anxious . . . kind of shifting from one foot to the next" and "appeared to be very angry." Defendant failed to comply with several commands issued by the deputies and was forcibly taken into custody. He was then transported to the Sacramento County Jail and booked for resisting a peace officer and violating the terms and conditions of his parole.
After a lengthy booking process, defendant arrived at his cell on the jail's intake floor at about 3:30 a.m. He was 35 years old and weighed over 200 pounds. Already in the cell was the victim, who was 68 years old and weighed 111 pounds. Only defendant knows what precisely transpired between these men during the next hour and a half. He provided conflicting accounts of events, one to detectives following the murder and another to the jury while testifying at trial. Defendant told detectives the victim was lying on the bottom bunk when he came in, the two briefly spoke, and then the victim "start[ed] coming at" defendant. During his testimony, defendant claimed he could not see whether anyone was on the bottom bunk because the light in the cell was covered and the cell was dark, but "possibly a guy was laying down" on that bunk, so defendant started to climb onto the top bunk to get some sleep. As defendant did so, the victim "came at" him, reached into his pants, touched his penis, and put a finger between his buttocks. According to his testimony, defendant was still feeling the effects of the methamphetamine he had taken earlier, "[h]earing voices, paranoia, scared, don't know what to do." However, during his interview with detectives, defendant denied having taken methamphetamine within several days of his arrest and further denied any sexual contact between him and the victim.
Returning to defendant's testimony, he claimed the voices in his head told him to "punch, punch, punch, punch, punch," so he did, believing he would die if he did not do so. Describing the assault, defendant stated: "I tried to keep him away from me, but he -- you know what I mean? I guess I have long hair. He got -- you know, he grabbed my hair and pulled. I headlock him. I was afraid. I was really afraid that I'm going to die. So (snapping) it happened (snapping) so fast (snapping). It happened so fast (snapping). It just happened so fast (snapping), like that." Defendant claimed he blacked out while he had the victim in a headlock and regained consciousness when "chow time" was announced over the intercom system.
Where relevant to the issues raised in this appeal, we provide more details of defendant's testimony in the discussion portion of the opinion.
During his interview with detectives, however, defendant did not claim to have blacked out. He also provided more details of his assault on the victim during that interview, admitting to using his fists and feet to punch and "stomp" his cell mate in the face and head until the victim was lying on the cell floor and no longer moving. Defendant then placed the victim back on the bunk and cleaned up some of the blood that was on the floor. He did so shortly before the breakfast announcement. The victim was still alive at this point.
Breakfast was announced at 5:18 a.m. The control officer who made the announcement told the inmates to come out of their cells to get breakfast and then return to their cells to eat. When the officer opened the cell doors remotely to allow the inmates to do so, most complied. The victim did not come out of the cell for breakfast. Defendant did, but was carrying his blankets and a towel, which was unusual. After picking up his breakfast, defendant sat down at a table in the cell block's common area to eat. The control officer instructed him several times over the intercom system to return to his cell. Defendant eventually complied.
Defendant made no attempt to summon help while in the common area. Nor did he push an emergency button that was inside the cell, either before coming out for breakfast or upon his return with his food. Instead, when defendant got back to the cell, he ate an orange and then held a blanket over the victim's face, admitting during his interview with detectives that he did so in order to stop the victim from making the gurgling sounds he had been making for "like, a hour and 45 minutes" and to, as he put it, "make sure he's get dead."
Twenty minutes after the breakfast announcement, while defendant was smothering the victim with a blanket, a sheriff's deputy was conducting an inmate count, walking in front of each cell and looking inside. When he got to defendant's cell, he saw defendant standing over the victim with "a blanket clenched in his fists, pressing it down over the face area of the victim." In addition to his fists, defendant was using his left knee to press the blanket into the victim's face. The deputy rattled the cell door handle to get defendant's attention, causing him to back away from the victim. Defendant then approached the cell door and said, "my cellie tried to rape me."
Seeing a large amount of blood on the bunk and floor of the cell, as well as on defendant's hands and pants, the deputy radioed for assistance. Additional deputies responded to the cell, after which defendant was forcibly removed and placed in a restraint chair. Deputies and medical staff provided emergency medical treatment to the victim, who was not breathing and did not appear to have a pulse, in an attempt to resuscitate him. Fire department personnel arrived a short time later and pronounced the victim dead. The cause of death was determined to be a combination of blunt force injuries and asphyxia.
DISCUSSION
I
Use of a Juvenile Adjudication to Impeach Defendant
Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by allowing the prosecution to impeach his testimony with a prior juvenile adjudication for burglary. Assuming, without deciding, the trial court abused its discretion, any error was harmless.
A.
Additional Background
The prosecution moved in limine to impeach defendant's testimony with three juvenile adjudications (two 1994 adjudications for robbery and one 1996 adjudication for burglary) and one adult conviction (2005 conviction for burglary). The prosecution's written motion seeking to admit this impeachment evidence clearly designated the 1994 robbery adjudications as juvenile adjudications, but not the 1996 burglary adjudication. Without drawing any distinction between juvenile adjudications and adult convictions, defense counsel moved to "limit the prior convictions and/or bad acts" for impeachment purposes.
At the hearing on these motions, the trial court and the parties treated the 1996 adjudication as an adult conviction. Defense counsel argued the 1994 adjudications and the 1996 "conviction" should be excluded "on the basis of remoteness." The trial court admitted the 1996 and 2005 "convictions," explaining: "I find that for the Defendant to testify and the jury to not have any knowledge with regard to his felony convictions, to the extent that they involve truth, honesty and moral turpitude[,] would be affirmatively to mislead the jury as to the Defendant." With respect to the 2005 conviction, the trial court noted it was "just 11 years ago" and "qualifies for moral turpitude," and found the probative value of the conviction outweighed any potential for undue prejudice under Evidence Code section 352.
With respect to admitting the 1996 "conviction," the trial court explained: "The 1996 conviction for [burglary] is 20 years old, and it's getting into that remoteness area. Although, when I look at the Defendant's pattern of criminality beginning in 1993, with the [first degree burglary]; 1994, there's two [robberies]; 1996, a [burglary]; 1998, [possession of a controlled substance] in which the Defendant was sentenced to State prison; 1999, a parole violation arising from a [disorderly conduct] violation; 2000 and 2001, two different [possession of a controlled substance] violations which resulted in parole violations; 2002, [possession of a controlled substance] violation which resulted in parole violations; 2005, [possession of a controlled substance], which the Defendant received two years in State prison; and then in 2009, apparently misdemeanor [driving under the influence] and some other Vehicle Code violations; 2010, [vandalism]; 2012, [vandalism]; 2013, [possession of a controlled substance]; 2013, another [possession of a controlled substance], which he received four years in State prison, that tells me -- I read those into the record just to establish on the record the Defendant has a pattern of 20 plus years of continuous criminality. [¶] So when I look at the 1996 [burglary] conviction, while it's 20 years old, it's part of a 22-year pattern. And when I apply the [Evidence Code section] 352 balancing test, I find that the jury should be made aware of his 1996 conviction because the probative value is very high. The potential for undue prejudice does not exceed the probative value."
The trial court excluded the 1994 juvenile adjudications, noting, "those are now outside the 20-year window, to the extent there's a 20-year window, but they are 22 years old." The trial court continued: "Of more importance to me, however, they were juvenile adjudications when the Defendant was, you know, 14 or 15 years of age. [¶] While they also demonstrate the ongoing criminality that I just outlined on the record, the law recognizes that a juvenile's mind is not fully developed. Their attitudes and behaviors are not that of adults. The law recognizes that their activities as juveniles should be treated differently than the similar activities done as adults." The trial court excluded these adjudications under Evidence Code section 352, explaining: "[I]n light of the fact that I'm allowing two felony [burglary] convictions as an adult, the probative value of two [robbery] adjudications as a juvenile is relatively low and should be excluded . . . largely because he was a young juvenile when he committed the offenses. And the nexus between that behavior as a 14-year-old in 1994 and his truthfulness on the stand is fairly attenuated."
Before defendant took the stand to testify, defense counsel alerted the trial court that the 1996 burglary was actually a juvenile adjudication. The prosecutor agreed. The trial court then conducted a new balancing assessment under Evidence Code section 352 and concluded: "I find on balance, when I consider all of the factors, which I outlined previously, the fact that he has two [burglaries], one in 2005 and one in 1996, the probative value exceeds any potential for undue prejudice, and I should continue to allow the People to use the 1996 [burglary] adjudication for impeachment purposes, whether it's an adult conviction or a juvenile adjudication."
B.
Analysis
" 'Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352.' [Citation.] This includes prior misconduct that was the subject of a juvenile adjudication. [Citation.]" (People v. Bedolla (2018) 28 Cal.App.5th 535, 550.) However, while the misconduct underlying such a juvenile adjudication is admissible for these purposes, at least where there has been no honorable discharge by the Youthful Offender Parole Board (People v. Lee (1994) 28 Cal.App.4th 1724, 1739), the law appears to be unsettled with respect to whether or not the fact of that adjudication is admissible. (Id. at pp. 1738-1740 [declining to decide whether People v. Wheeler (1992) 4 Cal.4th 284 that held the "right to Truth-in-Evidence" provision of the California Constitution abrogated the rule that defendants could be impeached by felony convictions only, abrogated People v. Jackson (1986) 177 Cal.App.3d 708 that held this constitutional provision did not alter the rule that defendants cannot be impeached by the fact of a juvenile adjudication].)
Here, the trial court ruled defendant could be impeached by the 1996 burglary adjudication and did not limit such impeachment to the misconduct underlying that adjudication. We need not, however, determine whether the trial court abused its discretion in this regard because any error was manifestly harmless.
The evidence against defendant was overwhelming. There was no dispute at trial that defendant killed the victim. According to his own statements to detectives, defendant did so by punching and stomping on the face and head of the older and much smaller man until he was lying motionless on the cell floor. Defendant then placed the victim back in his bunk, cleaned up some of the blood on the floor, and came out of his cell to get breakfast. When he returned, defendant smothered the victim with a blanket in order to stop him from making the gurgling sounds he had been making for "like, a hour and 45 minutes" and to, as he put it during the interview, "make sure he's get dead." Thus, defendant's own statements established a first degree premeditated murder.
Defendant's testimony conflicted with these prior statements and arguably supported his theories of voluntary manslaughter based on heat of passion and imperfect self-defense and involuntary manslaughter based on unconsciousness. However, even assuming defendant's account of the sexual assault, his reaction to it, and the blackout that occurred within seconds of that assault, if believed, would have reduced his culpability from murder to voluntary or involuntary manslaughter, this is so only if the jury also believed his testimony that he did not smother the victim to death with a blanket upon his return to the cell after getting breakfast. In that regard, defendant testified that when he got back to the cell, he ate an orange and then two voices in his head told him to "check on your bunkie." When he unsuccessfully tried to wake the victim up by shaking him and touching his face "kind of hard," the deputy arrived at the cell. However, that deputy provided a very different description of what defendant was doing to the victim, testifying that he was smothering him with a blanket that was clenched in his fists and using his knee to press the blanket into the victim's face. As already mentioned, defendant himself, in his statement to detectives, admitted this is what he was doing. The jury so concluded, finding defendant guilty of first degree premeditated murder.
Defendant does not argue on appeal that a reasonable juror would have found him not guilty of any homicide offense based on his trial theory of perfect self-defense, tacitly acknowledging, "the evidence from the autopsy and the jail cell itself tended to belie any notion that [he] acted in self-defense."
Thus, while we agree defendant's credibility was important to the jury's decision regarding his guilt, that credibility was undermined far more by his prior inconsistent statements in his interview with detectives and the testimony of the deputy who witnessed him smother the victim with the blanket, than it was by evidence of a 20-year-old juvenile burglary adjudication. Stated simply, there is no reason to believe the jury would have reached a different conclusion had they not been informed of that juvenile adjudication.
II
Exclusion of Additional Portions of Defendant's Police Interview
Defendant claims the trial court also prejudicially abused its discretion and further violated his constitutional rights by precluding him from introducing certain additional portions of his interview with police after the prosecution introduced portions of the same interview in its rebuttal case. While the trial court erred in this regard, we conclude the error was harmless.
A.
Additional Background
Portions of defendant's interview with detectives were played for the jury during the prosecution's rebuttal case. As we explained immediately above, these portions of the interview contradicted defendant's testimony concerning the victim's death. Most importantly for our purposes, defendant admitted to smothering his cell mate with a blanket after returning to the cell with his breakfast.
After these portions of the interview were played for the jury, defense counsel moved the trial court to admit other portions (28 excerpts) of the interview that were consistent with defendant's trial testimony. He sought to do so under Evidence Code section 1236 as prior consistent statements and under Evidence Code section 356, codifying the rule of completeness.
The trial court ruled none of the excerpts were admissible as prior consistent statements under Evidence Code section 1236. This ruling is not challenged on appeal. With respect to the rule of completeness, the trial court compared the transcript of the portions of the interview introduced by the prosecution with the transcript of the additional portions sought to be admitted by the defense in order to "identify which excerpts introduced by the People would justify admitting which excerpts proffered by the Defendant." The trial court's inquiry was whether or not the proffered excerpt "rebut[ted] or reasonably relate[d] to an excerpt" introduced by the prosecution. This focus was animated by section 1093, allowing a party in rebuttal or surrebuttal to "offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit[s] them to offer evidence upon their original case." (§ 1093, subd. (d).) Using this analysis, the trial court excluded 18 of the 28 proffered excerpts.
On appeal, defendant challenges the exclusion of 12 of these excerpts. We decline to set forth the content of each of these excerpts. For our purposes, it will suffice to note that in eight of them, defendant mentioned hearing voices. In the other four excerpts, defendant suggested the victim attacked him.
B.
Analysis
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Italics added.)
This provision "is sometimes referred to as the statutory version of the common law rule of completeness. [Citation.] According to the common law rule: ' "[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." [Citation.]' [Citation.]" (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3.) The purpose of the rule "is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he [or she] may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 156.) We review the trial court's determination of whether or not to admit evidence under this provision for abuse of discretion. (See People v. Pride (1992) 3 Cal.4th 195, 235.)
Defendant argues the trial court abused its discretion in excluding the proffered excerpts because they were on "the same subject" as the excerpts admitted into evidence by the prosecution, i.e., "the events surrounding [the victim's] death." Without directly disputing the admitted and excluded portions of the interview were on the same broad subject, the Attorney General nevertheless argues the trial court properly excluded the evidence because the proffered excerpts did not reasonably relate to or rebut the specific excerpts admitted by the prosecution. We agree with defendant. As our Supreme Court has stated: "Application of Evidence Code section 356 hinges on the requirement that the two portions of a statement be 'on the same subject.' . . . ' "In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry." ' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 861, overruled on another point in People v. Hardy (2018) 5 Cal.5th 56.)
Here, both the portions of defendant's interview admitted by the prosecution and the portions sought to be admitted by defendant were on the same subject of his actions and state of mind when he beat and smothered the victim to death. Omitting portions in which defendant claimed to be hearing voices when he did so and suggested the victim was the initial aggressor was likely to provide the jury with a misleading impression of his admissions to the detectives. (See People v. Vines, supra, 51 Cal.4th at p. 861 ["introduction of one portion without the other would have left a misleading impression in jurors' minds"].) To the extent the Attorney General's argument attempts to save the trial court's ruling on the basis of section 1093's requirement that evidence offered in surrebuttal must rebut evidence offered in the rebuttal case, we conclude that where Evidence Code section 356 applies, there is "good reason" for the trial court to allow the additional portions of the statement into evidence under section 1093, subdivision (d), even if those portions do not strictly rebut anything said in the portions of the statement admitted during the rebuttal case.
Nevertheless, regardless of which standard of assessing prejudice is used, we conclude the exclusion of the proffered excerpts was harmless. Beginning with exclusion of the excerpts suggesting the victim was the initial aggressor, we note the trial court admitted another excerpt in which he plainly stated as much. Thus, the jury was aware defendant consistently claimed the victim was the one who started the confrontation in the cell. Turning to the excluded excerpts in which defendant claimed he was hearing voices, while this information would have placed his admissions in the interview in context, and also corroborated defendant's trial testimony regarding hearing these voices, the existence of voices in defendant's head does not undermine his admission to smothering the victim with a blanket in order to kill him. Had the jury received these excerpts, it would have been faced with a choice between believing defendant's testimony that the voices told him to check on the victim, and that is what he was doing when the deputy arrived at the cell, and defendant's prior admission to the detectives that the voices told him to kill the victim, and he did so by smothering him with the blanket in order to make sure he was dead and stop him from making gurgling noises. Even with a proper context, this damning admission made during defendant's interview was still more than sufficient to establish he committed a first degree premeditated murder. And there is no reason to believe corroboration of defendant's testimony he was hearing voices would have swayed the jury to also believe his testimony regarding what those voices said and what he did in response, as opposed to what he told the detectives in that regard, especially since defendant's interview statement was corroborated by testimony from the deputy who witnessed defendant smothering the victim with the blanket.
III
Instruction Limiting Use of Voluntary Intoxication Evidence
Defendant further asserts the trial court prejudicially erred and violated his constitutional rights by instructing the jury with CALCRIM No. 625, directing the jury to consider evidence of voluntary intoxication only in deciding whether he acted with intent to kill or with deliberation and premeditation. He claims, "[t]he jury was entitled to consider intoxication in connection with the affirmative defense of self-defense and the lesser-included offense of voluntary manslaughter based on imperfect self-defense and . . . sudden quarrel/heat of passion." However, defendant's trial counsel did not object to this instruction or request modification to allow the jury to consider these additional claimed uses of the evidence. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818 . [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there was no error, much less a miscarriage of justice.
CALCRIM No. 625 states in relevant part: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose."
In People v. Soto (2018) 4 Cal.5th 968 (Soto), our Supreme Court has held evidence of voluntary intoxication is not admissible on the question of whether or not a defendant believed it necessary to act in self-defense: "Accordingly, CALCRIM No. 625 correctly permits the jury to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense." (Id. at p. 970.) This holding requires rejection of defendant's claim the jury should have been allowed to consider such evidence in connection with his theories of self-defense and imperfect self-defense.
We also conclude the reasoning of Soto, supra, 4 Cal.5th 968 is equally applicable to, and requires rejection of, defendant's argument that evidence of his voluntary intoxication should have informed the jury's consideration of whether he killed in the heat of passion. We therefore set forth that reasoning in some detail. As our Supreme Court explained, in amending former section 22 (Stats. 1995, ch. 793, § 1, renumbered by Stats. 2012, ch. 162, § 119, now section 29.4) in 1995, the Legislature sought to overrule that court's decision in People v. Whitfield (1994) 7 Cal.4th 437 (Whitfield), specifically the holding that former section 22 did not "preclude consideration of evidence of voluntary intoxication on the issue whether a defendant harbored malice aforethought, whether the prosecution proceeds on a theory that malice was express or implied" (Whitfield, at p. 451), and adopt the position espoused by Justice Mosk in his concurring and dissenting opinion in that case. (Soto, supra, 4 Cal.5th at pp. 976-977.) "Justice Mosk argued that ' "[g]eneral intent" and "specific intent" are shorthand devices best and most precisely invoked to contrast offenses that, as a matter of policy, may be punished despite the actor's voluntary intoxication (general intent) with offenses that, also as a matter of policy, may not be punished in light of such intoxication if it negates the offense's mental element (specific intent). [Citation.] Evidence of voluntary intoxication may be introduced to negate an element of offenses requiring relatively complex cogitation—a mental function integral to many crimes that contain a "definition [that] refers to defendant's intent to do some further act or achieve some additional consequence . . ." [citation]—because alcohol can interfere with such intent [citation].' [Citation.]" (Ibid.)
Section 29.4 provides in relevant part: "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought."
Applying Justice Mosk's reasoning to the defendant's argument in Soto that such evidence should be admissible on the question of whether he believed it was necessary to kill in self-defense, our Supreme Court explained: "Unlike the mental state of intent to kill, a belief that it is necessary to kill in self-defense does not involve the ' "intent to do some further act or achieve some additional consequence." ' [Citation.] Rather, it involves judgment. Intoxication can distort a person's perception of the unfolding circumstances, and thereby impair the sound judgment that is needed when deciding to use lethal force in self-defense. Accordingly, voluntary 'intoxication naturally lends itself to the crime's commission because it impairs the sound judgment or lowers the inhibitions that might stop a sober individual' from killing a perceived assailant. [Citation.] The mental state for unreasonable self-defense is precisely what Justice Mosk argued voluntary intoxication should not negate." (Soto, supra, 4 Cal.5th at p. 977.) The court further stated: "[I]t is clear what the Legislature intended to achieve when it amended former section 22: to prohibit voluntary intoxication from being an excuse for poor judgment when someone kills." (Id. at p. 978.)
The same reasoning applies with equal or greater force to the doctrine of heat of passion voluntary manslaughter. " 'The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . "[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances . . . ." ' [Citation.]" (People v. Rountree (2013) 56 Cal.4th 823, 855.) Defendant acknowledges evidence of his voluntary intoxication would not be relevant to the objective component of this doctrine, but argues, "it would be relevant to the subjective component, which requires the jury to first determine whether [he] actually and subjectively killed rashly due to a provocative action." Like using evidence of voluntary intoxication to prove a defendant believed it necessary to kill in self-defense, using such evidence to prove a defendant killed rashly "does not involve the ' "intent to do some further act or achieve some additional consequence." ' [Citation.]" (Soto, supra, 4 Cal.5th at p. 977.) Even more than in the imperfect self-defense context, using evidence of voluntary intoxication to prove rashness attempts to use such evidence to excuse poor judgment. That is precisely what the Legislature sought to prohibit in amending former section 22. (Id. at p. 978.) There was no instructional error.
IV
Denial of Defendant's Request to Modify CALCRIM Nos. 505 and 571
Defendant also contends the trial court prejudicially erred and further violated his constitutional rights by denying his request to modify language defining "great bodily injury" in the standard jury instructions setting forth the concepts of self-defense and imperfect self-defense. We disagree.
A.
Additional Background
The jury was instructed on self-defense with CALCRIM No. 505 and on imperfect self-defense with CALCRIM No. 571. Under each instruction, in order to find the doctrine applied, the jury was required to find, among other things, that defendant "believed that he was in imminent danger of being killed or suffering great bodily injury or . . . being raped." Each instruction further defined "[g]reat bodily injury" to mean, "significant or substantial physical injury" and "an injury that is greater than minor or moderate harm."
Before the jury was so instructed, defendant made two requests for pinpoint instructions. In the first proposed instruction (Pinpoint No. 1), defendant sought to have the following language added to CALCRIM Nos. 505 and 571: "A sexual battery, or the fear of suffering a sexual battery, may constitute 'great bodily injury.' You are the exclusive judges whether the defendant feared suffering great bodily injury in this case." He also proposed an alternative to Pinpoint No. 1 replacing "sexual battery" with "sexual molestation." In the second proposed instruction (Pinpoint No. 2), defendant sought to have the following language added to both CALCRIM instructions: "Great bodily injury simply means a significant or substantial physical injury. To be significant, the injury need not be so grave as to cause the victim permanent, prolonged or protracted bodily damage."
After hearing argument, the trial court denied both requests. We set forth and adopt its reasoning below.
B.
Analysis
A trial court "may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.)
Defendant's first requested instruction, Pinpoint No. 1, and its alternative version, incorrectly stated the law and was potentially confusing for the reasons stated by the trial court. As the trial court explained in denying defendant's request to provide this instruction: "Both Pinpoint No. 1 . . . and the alternate Pinpoint No. 1 have a clause that say[s] 'or the fear of suffering.' In the first case, it's suffering a sexual battery and the second one is suffering sexual molestation. So the proffered instructions ask me to tell the jury that a fear of suffering a sexual battery or a fear of suffering a sexual molestation is in and of itself a great bodily injury. That clearly is not the law. It may be that a fear of suffering a sexual battery or a fear of suffering a sexual molestation might constitute a fear of suffering great bodily injury, but the fear of the assault certainly does not in and of itself constitute a great bodily injury. So that portion of the instructions will be inappropriate on that basis."
The trial court then noted the remainder of the requested instruction "asks me to instruct the jury that every sexual battery or every sexual assault, regardless of the intensity or significance, as a matter of law . . . may constitute great bodily injury. It, of course, would remain a question of fact for the jury as to whether or not it did constitute great bodily injury, but they would be instructed that every sexual battery could be great bodily injury. That also is contrary to the law. Some sexual batteries and some sexual molestations may, in fact, constitute great bodily injury, but not every sexual molestation and not every sexual battery does, in fact, constitute great bodily injury." After the trial court pointed out the cases cited by defendant in the request were inapposite because they involved situations in which the victim became pregnant or was infected by a sexually transmitted disease, defense counsel added, "that's why the word 'may' is in there, that it may constitute great bodily injury, and that it's left up to the jury to make that determination." The trial court responded: "And it's already up to the jury to make that determination based upon the instruction of what constitutes great bodily injury, which is why I feel that if I tell them that sexual -- all sexual batteries or all sexual assaults may constitute great bodily injury, it leads them to make a mistake about the correct jury instructions. So I believe it causes -- it tends to mislead and confuse the jury with regard to the instruction." We agree.
With respect to Pinpoint No. 2, while neither a misstatement of law nor potentially confusing, we conclude the trial court nevertheless properly refused to provide the instruction because it was unnecessary and duplicative of the definition of "great bodily injury" already contained in CALCRIM Nos. 505 and 571. As the trial court stated: "The CALCRIM instruction on great bodily injury, I think, is fairly clear. It tells the jury what they need to know to make that factual determination." We agree with this assessment as well. There was no instructional error.
V
Prosecutorial Misconduct
Defendant claims the prosecutor engaged in prejudicial misconduct during her cross-examination of him by referring to information the trial court previously ruled inadmissible. Not so.
Prior to cross-examining defendant, the prosecutor asked the trial court to allow her to introduce evidence the victim had only been in custody for "a total of a week or two," arguing this would be relevant as tending to make it less likely he sexually assaulted defendant because, as the prosecutor put it, "the allegations that the Defendant is making is more attributable to somebody who has been institutionalized."
The trial court denied the request, explaining: "There's two assumptions there. One, it assumes that the person who has not been institutionalized didn't have homosexual tendencies or behavior other than through institutionalization, and it also assumes that everyone who does not have homosexual tendencies will have homosexual tendencies simply because they are institutionalized. [¶] When I apply the [Evidence Code section] 352 balancing test to that analysis, I find that the conclusions to be reached [are] highly speculative. Therefore, the . . . evidence is not highly probative, and the potential to mislead or confuse the jury or take up some court time exceeds any probative value."
Nevertheless, during her cross-examination of defendant, the prosecutor asked: "Now, as you walk in there, you size up [the victim], and you can tell, because this is your second home, that [the victim] is not like you. He's a newbie to this whole gig. Isn't that fair to say?" Defense counsel objected on grounds the question assumed facts not in evidence and violated the trial court's prior order. The trial court sustained the objection.
During the next break in the proceedings, defense counsel moved for a declaration of mistrial. The trial court denied the motion, explaining that while it was "unfortunate" for the prosecutor to have referred to the victim as a "newbie" at the jail, it was not "anything close . . . to grounds of a mistrial." We agree.
"Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' [Citation.] By contrast, our state law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and ' "it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct" ' [citation]." (People v. Davis (2009) 46 Cal.4th 539, 612.) " 'It is, of course, misconduct for a prosecutor to "intentionally elicit inadmissible testimony." [Citations.]' " (People v. Smithey (1999) 20 Cal.4th 936, 960.)
In denying defendant's motion for mistrial, the trial court did not appear to believe the prosecutor's reference to the victim as a "newbie" was an intentional attempt to violate the court's ruling. However, even assuming the reference amounted to misconduct, we conclude it neither infected the trial with unfairness rising to the level of a due process violation nor is there any reasonable probability of a more favorable outcome without that isolated reference. For the reasons already expressed in this opinion, the case against defendant was overwhelming. Any prosecutorial misconduct in referring to the victim as a "newbie" was harmless.
VI
Retroactivity of SB 1393
Defendant was sentenced on October 21, 2016. The law at that time did not allow the trial court to strike a serious felony prior used to impose a five-year enhancement under section 667, subdivision (a)(1). This prohibition was removed by SB 1393 effective January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues these amendments apply to him because his judgment is not yet final. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Our Supreme Court has also applied the Estrada rule to amendments giving the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
The Attorney General concedes the rule of Estrada, supra, 63 Cal.2d 740 requires retroactive application of SB 1393 to defendant's case, but argues remand is nevertheless unnecessary. As the Attorney General points out, we are not required to remand the matter to allow the trial court to exercise its discretion if "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Moreover, the trial court need not have specifically stated at the original sentencing hearing that it would not have stricken the enhancement if it had the discretion to do so. Rather, we may infer what the trial court's intent would have been from its statements and sentencing decisions at the original sentencing hearing. (See People v. McVey (2018) 24 Cal.App.5th 405, 419 ["In light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement"]; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 ["the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence" and therefore "no purpose would be served in remanding for reconsideration"].)
The Attorney General argues remand is unnecessary because the trial court denied defendant's Romero motion, and thereby clearly indicated it would not have exercised its discretion to strike the prior serious felony for purposes of the five-year enhancement. We agree.
We first note that in determining whether or not to strike a prior strike conviction for purposes of three strikes sentencing, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
In denying defendant's Romero motion, the trial court described the present offense as "extraordinarily violent." The trial court also chronicled defendant's criminal history, set forth previously in this opinion, and described it as "a horrendous criminal record." Both of these descriptions are borne out by the record. With respect to defendant's character, background, and prospects, the trial court noted he was "very polite and courteous" during the trial and expressed remorse for his actions to the probation officer. The trial court also considered defendant's age, 37 years old, but found it to be not particularly relevant to the analysis. More relevant to the trial court was his work skills, having worked as a barber for six or seven years, "a skill which would allow him to be gainfully employed in the community." Considering everything together, the trial court concluded defendant "is clearly in the heartland of the Three Strikes Law -- and also enhancements for prior convictions which are used as enhancements other than the doubling of the offense due to the strike." (Italics added.)
The italicized portion of the trial court's ruling clearly indicates the court's view defendant fell within the spirit of not only the three strikes law, but also section 667, subdivision (a), providing for the five-year enhancement. While that determination was based on the case law following the Romero decision, a similar analysis may properly be employed in determining whether or not to strike a prior for purposes of the five-year enhancement. This is a separate inquiry from the Romero inquiry, to be sure, and it does not follow that every defendant who falls within the spirit of the three strikes law under Romero cannot nevertheless have the additional five-year enhancement term stricken in furtherance of justice under section 1385 following the passage of SB 1393. But here, where the trial court stated defendant "is clearly in the heartland" of those deserving of the additional five-year enhancement, we conclude no purpose would be served by a remand for an exercise of SB 1393 discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. I concur: /s/_________
HULL, Acting P. J. Renner, J., Concurring and Dissenting.
I concur in all parts of the Discussion except the majority's analysis in part VI. As to part VI, I dissent.
I disagree with the majority's conclusion that the trial court's statements, when it originally sentenced defendant, clearly indicated it would not have stricken the prior serious felony conviction enhancement imposed under section 667, subdivision (a) had it been possible to do so at the time of this sentencing.
The court's statement that defendant "is clearly in the heartland of the three strikes law -- and also enhancements for prior convictions which are used as enhancements other than the doubling of the offense due to the strike" was made in a different context—setting aside a prior strike—that would have resulted in a more substantial reduction in defendant's overall sentence.
While it is potentially suggestive that the trial court declined to strike defendant's prior strike conviction, the record does not clearly indicate that the court would not have exercised its discretion to strike or dismiss the section 667, subdivision (a) enhancement had it been possible to do so at the time of the original sentencing. Indeed, defendant was sentenced to 50 years to life without the prior serious felony conviction enhancement. The fact that he was "in the heartland" of the enhancement does not mean the court would have found it necessary to impose it had that been the question before it.
Moreover, " '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand appropriate because the record did not clearly indicate the court would have imposed the same sentence had it been aware of the full scope of its discretion after a change in the law].)
Accordingly, I would remand for the trial court to exercise its informed discretion as to whether to strike the five-year enhancement.
/s/_________
RENNER, J.