Opinion
H044453
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE CARLOS ROMERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161675)
A jury convicted defendant Jose Carlos Romero of first degree murder (Pen. Code § 187, subd. (a)), unlawful possession of a firearm (§ 29800, subd. (a)(1)), and unlawful possession of ammunition (§ 30305, subd. (a)(1)). The jury also found true the allegation that defendant personally discharged a firearm causing great bodily injury and/or death (§ 12022.53, subd. (d)). In a separate proceeding, the trial court found that defendant had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to 25 years to life for murder, a consecutive term of 25 years to life for the firearm enhancement, and a consecutive one-year term for the prior prison term enhancement.
All further statutory references are to the Penal Code. --------
Defendant raises two issues on appeal. First, defendant argues that the trial court prejudicially erred when it failed to instruct the jury on the lesser included offense of voluntary manslaughter. Second, defendant contends that he is entitled to a remand so that the trial court may exercise its discretion regarding imposition of the firearm enhancement.
We find defendant's claim regarding the jury instruction barred by the invited error doctrine. However, as to the sentencing issue, we agree that a remand is warranted. Therefore, we reverse the judgment with directions to the trial court.
I. Background
On September 24, 2015, defendant travelled to Alondra Pinedo's apartment to visit their son, who lived with Pinedo. Also living with Pinedo at the time were Kimberly Shackleford and her husband, Eric Shackleford. Defendant's relationship with Pinedo was not amicable. When defendant arrived at Pinedo's apartment, Pinedo refused to let defendant see their son. Defendant and Pinedo argued for a "significant" period of time. Later, Eric and defendant began to argue. Pinedo thought that the argument "was about drugs."
At around 3:00 p.m., Kimberly called Eric. She could hear Eric and defendant arguing. Kimberly arrived at the apartment at around 3:30 p.m. Soon thereafter, Eric left, telling Kimberly that he "was going to smoke a cigarette and go speak with [defendant]." As he was leaving, Pinedo, from her window, also asked Eric where he was going. He replied that he was going "to his cousin's house to smoke a cigarette." Pinedo lost sight of Eric as he walked away. A short time later Pinedo heard a gunshot.
Salvador Morales was at the same apartment complex to fix a car belonging to Jesse Zepeda. As Morales worked on the car, defendant drove up and parked in front of Morales. According to Morales, defendant seemed "super mad" about "some money." Defendant spoke with Zepeda. Zepeda left to go back to his apartment. Morales then saw defendant walk toward the basketball hoops in the parking lot, pull out a gun, and shoot Eric in the face. Defendant put the gun back in his pocket, returned to his car, and drove off.
II. Discussion
A. Failure to Give Lesser Included Instruction
Defendant contends that the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter. The Attorney General contends that there was no error, but even if there was error, defense counsel invited the error and therefore cannot challenge it on appeal.
1. Background
In discussing the jury instructions, the trial court asked whether there was any objection to the court giving the voluntary manslaughter instruction. The prosecution objected, arguing that "[t]he facts of the case point to it's either a murder or it's not." Defense counsel stated that such an instruction may be confusing because he did not intend to argue for voluntary manslaughter. Counsel asked for time to think about the issue. The trial court tabled the matter.
The next day, the trial court returned to the issue of the voluntary manslaughter instruction and asked defense counsel if he wanted the instruction given. Defense counsel replied: "We'll submit to the Court on that, your Honor." The trial court stated: "I guess if you're going to argue it, I need to give it." Defense counsel replied: "I'm not going to." The trial court asked again for defense counsel's position on the instruction, noting that it is "hard when you say submitted. . . . I don't know. Does that mean you are requesting it or you're not. Submitted is usually what you say in response to them requesting something." Defense counsel replied: "I'm not particularly requesting it." The court stated: "You're not." The prosecution added: "Neither are the People." The trial court concluded: "Okay, if you're not requesting it and you're not requesting, I won't give it." The trial court later instructed the jury on the elements for a conviction of murder and the additional findings required for first degree murder.
2. Analysis
" '[A] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.' [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 905.) However, " '[t]he invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction.' [Citation.]" (People v. Moore (2011) 51 Cal.4th 386, 410.)
In determining whether the doctrine of invited error applies, "[t]he issue centers on whether counsel deliberately caused the court to fail to fully instruct . . . ." (People v. Cooper (1991) 53 Cal.3d 771, 831 (Cooper).) If "counsel made a conscious, deliberate tactical choice between having the instruction and not having it," the doctrine of invited error will apply. (Ibid.) If, however, "counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found." (Ibid.)
In People v. Lara (1994) 30 Cal.App.4th 658, 673 (Lara), this court found invited error where "the trial court expressly acknowledged its general duty to instruct on [lesser included offenses] but was concerned that giving them here would contradict the defense of excessive force." The trial court "asked for defense counsel's thoughts on the matter." (Ibid.) Counsel replied that she was "not requesting for any [lesser included offenses]." (Ibid.) This court determined that "[i]n this context, defense counsel's comment was the equivalent of saying that she did not want lesser instructions." (Ibid.)
As in Lara, we conclude that defense counsel invited the error that defendant now challenges on appeal. In the instant case, the trial court asked whether there was any objection to the issuance of a voluntary manslaughter instruction. Defense counsel suggested that such an instruction may be inappropriate or confusing given that he did not intend to argue voluntary manslaughter. After allowing defense counsel a day to consider the issue further, the trial court again pressed defense counsel about the instruction. The trial court expressly acknowledged its obligation to give lesser included instructions. Defense counsel confirmed he would not argue voluntary manslaughter and therefore was "not particularly requesting it." Based on this record, it is clear that "counsel made a conscious, deliberate tactical choice between having the instruction and not having it." (See Cooper, supra, 53 Cal.3d at p. 831.) Defense counsel made an express decision to not request the voluntary manslaughter instruction, knowing that this decision would cause the court not to give the instruction. Therefore, invited error applies and defendant may not obtain appellate review of this issue.
B. Remand for Trial Court to Exercise Discretion
Defendant argues that his case should be remanded so that the trial court may exercise its sentencing discretion with respect to the firearm enhancement. The Attorney General agrees that defendant is entitled to a remand.
At the time of sentencing, section 12022.53 prohibited a trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5.) Effective January 1, 2018, section 12022.53 was amended to provide as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2.)
Under In re Estrada (1965) 63 Cal.2d 740, "[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) "Here, the amendment to subdivision (h) of Penal Code section 12022.53 . . . necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes this case." (People v. Woods (2018) 19 Cal.App.5th 1080, 1091; accord, People v. Robbins (2018) 19 Cal.App.5th 660, 679 [finding section 12022.53, subd. (h) to be retroactive].)
Accordingly, a remand is appropriate in this case to allow the trial court the opportunity to exercise its discretion with respect to the firearm enhancement.
III. Disposition
The judgment is reversed and the matter is remanded to the trial court with directions to exercise its discretion under section 12022.53, subdivision (h). If the court strikes the firearm enhancement, it shall resentence defendant. If the court does not strike the firearm enhancement, it shall reinstate the judgment.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.