Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 62046003
MORRISON, J.
A jury convicted Jackie Lee Townsend of first degree murder and found he used a firearm and caused great bodily injury. (Pen. Code, §§ 187, 12022.5, subd. (a), 12022.53, subd. (d).) The trial court sentenced him to prison for 50 years to life and he timely appeals.
Defendant’s main contentions of error center on the instructions, argument and evidence pertaining to provocation, which can reduce a murder to manslaughter. Defendant claims the trial court improperly instructed on provocation and allowed the prosecutor to misstate the law of provocation in argument; however, because the trial court should not have given any instruction on provocation, we need not address whether those instructions and argument were correct as to manslaughter. Out of an abundance of caution we construe his briefs to raise the separate but connected contention that similar claimed errors impaired the jury’s ability to properly consider whether there was provocation sufficient to reduce the murder to second degree murder. We also find that evidence about the victim’s mental health would not have cured the lack of the evidence of provocation, therefore we need not decide whether that evidence was properly excluded.
We also address two minor arguments. We reject defendant’s claim that he is entitled to an additional day of custody credit due to the delay between his arrest and his arrival at jail, but accept his claim that a stayed enhancement must be stricken, a claim conceded by the Attorney General. We shall modify the judgment and affirm.
FACTS
A detailed examination of the evidence shows that the facts of this case do not implicate the provocation doctrine, at least as to manslaughter, and provide background for the issue as it pertains to second degree murder.
Defendant was a 67-year-old alcoholic manual laborer who lived in a poor section of “old” Roseville. For two and a half months in 2004 he rented a room from Mary Ellen Smith, known in the area as “Scary Ellen.”
Two weeks before he shot and killed Smith, defendant told his best friend George Bayles, and Bayles’s girlfriend Theresa Schuster, that he went into Smith’s room with a shotgun, intending to “blow her head off” while she was in bed, but changed his mind. He offered Schuster $50 to hurt Smith, to “kick her ass.” For two weeks he “periodically” talked about hurting Smith. The only specific complaints he mentioned were a dispute about recyclable cans belonging to him which Smith had cashed in, and Smith’s carping about his general messiness, in particular his failure to clean up toaster crumbs.
On September 3, 2004, defendant saw his doctor for a back injury and the doctor suggested a pain management routine; the doctor, who had been treating defendant for chronic pain for a number of months, saw no signs of dementia. But he suggested that defendant drink less.
On September 7, 2004, defendant told Bayles he was “fed up” and wanted to kill Smith. He was worried about having to live in his van. Bayles, who lived on the same block as defendant, offered to let defendant room with him and said there was a vacancy; defendant replied: “‘Well, I wanted to at least hit the bitch[.]’” He said he could commit a crime to get “three hots and a cot,” meaning room and board in a penitentiary. Both Bayles and Schuster testified defendant was not drunk, although he had had some beer.
Bayles’s landlord, Dan Tyler, who lived downstairs from Bayles and Schuster and who had previously rented a room to defendant, testified he saw defendant at around 7:30 that night; defendant told him that Smith was picking on him, “I’m dying,” and “I ought to kill her,” and that he would have a roof over his head in prison. Tyler offered to let defendant move into a vacant (or vacant “pretty soon”) room “any time if he wanted to,” and also talked about defendant temporarily living in his van, but defendant left.
Defendant had left Bayles’s place at around 7 p.m. and returned about an hour and a half later, telling Bayles and Schuster something like: “I just got Mary Ellen. I shot that bitch four times.” After some discussion Bayles and Schuster left to call 911. Defendant was on “his phone calmly talking to his girlfriend Dee.” Schuster testified defendant was not drunk.
Roseville Police Department officers found Smith, aged 47, in her bed, under a blanket with four holes in it, with four close-range wounds to the chest—any of which could have been fatal—and no defensive wounds; the television was turned on to The X-Files. They found a shotgun in defendant’s room with a live shell in it, four expended shells (three in the victim’s bedroom and one in the kitchen), and an open shell box with five missing. A partially empty 24-ounce beer can was found on the porch rail.
While in a patrol car defendant said “The bitch is dead,” “I’m in deep shit. Oh well,” and “I did what I wanted to do.” He was calm, and although he smelled of alcohol he did not seem drunk. At jail he told an officer “I shot the bitch. She deserved it.” He said he had a beer after he shot Smith.
During a recorded interrogation defendant said Smith “Pissed me off,” but when asked “How long has it been building up for,” he replied “Tonight.” He knew Smith was called Scary Ellen but he rented a room from her because she did not bother him. He described her as a “Ding-a-ling.”
When he got home that night, Smith began complaining about the allegedly dirty kitchen floor and bathroom walls, “just . . . totally bitching.” When asked if this was the first time she had bothered him, he answered “Basically, yes.” “And then I walked up to her bedroom and I said, Mary Ellen, I’m going down for a beer. Would you like to have one? No and you get your nose out of my door. You knock on my door when you want something. I said your god dammed door is open lady. Well knock on it. Okay. So it just escalated. I loaded my fucking shotgun and I killed her. Period.”
He later said he had kept the gun loaded under his bed. He explained the “escalation” as follows: “I haven’t done a god damn thing to deserve this[,] and she said, well I’m through talking. I said well god damnit, I ain’t. She said, well you no longer have living room privileges to watch TV. I said what the hell are you talking about? I done paid half of everything here . . . and it just . . . it just escalated. She said don’t poke your nose at. I don’t know. It just escalated, that’s all. I don’t know. I don’t know what got into her head. I killed her ass, excuse me . . . .”
He could not remember how long it was between her last comment and the killing because his “gut was churning,” but he also said “I go from zero to fist very quickly but I wasn’t mad [mad], I was just . . . what the hell’s the matter with her? (unintelligible) a bitch . . . and I was just . . . it just hurt.” He repeated that he was not mad when he shot her, but felt “well, this is it, you bitch.”
Defendant told the officers that he shot Smith in her bed four times and then walked to a market to buy some beer. He said that she was dead after the first shot—though he later said he did not know—but “Don’t ask me why I fired four shots. Don’t ask me because I do not know.” “I fired that first shot and I said, Jack, you’ve done it. I said, fuck it. . . . I fired three more.” “I don’t want somebody [to] say well it was premeditated. Well, I was just pissed, man. I was thinking about it. How do you know. . . . I mean look, how you gonna . . . how you gonna accommodate that thought that I’m gonna kill that bitch? Okay? How you gonna accommodate that thought and—and really do it?” Later he said, “The bitch is . . . the wicked witch is dead! Okay? I can’t answer these questions because I don’t know.”
Although at one point he seems to cry, during most of the interview defendant is calm and he chuckles or laughs at times, such as when he was asked by an officer if it felt better when he shot her. Near the end he says he’s “calm. I’m cool as a cucumber right now.” When he refers to Smith he is disdainful and he mimics her.
Bayles testified that he never saw Smith’s poor conduct, but had heard from defendant that she was unstable and would be friendly and then abruptly nasty, such as telling defendant to “get the fuck out of the house[.]” Defendant told Bayles that Smith’s constant behavior wore him down and he could not put up with it any longer. Schuster confirmed that defendant was upset because of a dispute about recyclable cans which Smith claimed were hers, and Smith’s complaints about the toaster.
Kevin Hubert had been Smith’s boyfriend in the recent past and had lived with her for nearly four years. He testified she had mood swings and erupted into violent tirades; she was verbally abusive and demeaning, and accused Hubert of being dirty and a slob around the house.
Defendant’s girlfriend testified he told her Smith could be happy and then down, was impatient, and said he was dirty and a pig, which made him feel upset, belittled and angry, so he was trying to save money to move out. She spoke to him by telephone before and after he killed Smith. He first said that Smith had told him he would have to move out, even though his rent was paid through the end of the month, and he could commit a crime to get room and board and should shoot Smith in the “butt.” In the last call he said he shot Smith because she ran him down and he could not stand it.
Bayles testified defendant talked to himself and might be getting senile; defendant’s girlfriend had heard him talking to himself and repeating himself.
A blood sample taken from defendant at about 12:30 a.m. at the jail showed a blood alcohol level of .11; an expert opined his level would have been around .16 or .17 at around 9:15 p.m., assuming he had only one beer after that time. The expert testified that heavy drinkers have a greater tolerance for alcohol than others.
Dr. John Wicks, a neuropsychologist, tested defendant and concluded that although he had an average I.Q., he had impaired “executive” functioning, such as impulse control problems, due to brain damage caused by chronic alcoholism.
Dr. Albert Globus, a psychiatrist, testified defendant was a depressed alcoholic, and his brain scan showed “mild atrophy” consistent with “very mild early dementia.” Alcohol tolerance may affect the degree of impairment of motor skills while drinking, but not the degree of impairment of thought. Defendant would be more sensitive than other people to a confrontation and less able to block or control an inappropriate response.
DISCUSSION
I. Issues Relating to Provocation and Manslaughter
Defendant’s first three issues (1) fault the provocation instructions given and refused, (2) urge that the prosecutor misstated the law of provocation, and (3) contend that the trial court excluded defense evidence which, if believed, would have bolstered the claim of provocation.
We agree with the Attorney General that the record does not contain sufficient evidence of provocation to warrant an instruction on that doctrine as it relates to manslaughter. The trial court erred—to defendant’s benefit—by so instructing. Assuming that the trial court misinstructed on the doctrine, and that the prosecutor misstated its elements, the errors were harmless. (People v. Steele (2002) 27 Cal.4th 1230, 1251-1254 (Steele) [evidence did not show provocation; no need to determine if refused instructions were accurate]. Also, the excluded defense evidence would not have changed the result; that is, adding it to the evidence already in the record would still not warrant instruction on provocation. Therefore, any error in the exclusion of this evidence was also harmless.
Portions of defendant’s briefs can be read to raise the connected claim that certain errors affected the jury’s ability to consider provocation as it relates to second degree murder. We reject all of these claims, as well.
A. No Substantial Evidence of Provocation
Deputy District Attorney Suzanne Gazzaniga repeatedly and correctly argued that no manslaughter instructions based on provocation should have been given. The trial court gave such instructions, either believing that defendant was entitled to instruction on any theory relied upon by the defense or misjudging the amount of evidence required.
A defendant is entitled to instructions if and only if a theory is supported by substantial evidence; the fact a defendant relies on a theory does not of itself suffice. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1059; see People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 (Gutierrez) [as applied to provocation].)
Although Smith’s behavior may have caused defendant to develop an abiding hatred of her, there is no evidence her conduct fit the legal definition of “provocation” sufficient to reduce a murder to manslaughter. (See 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes against the Person, §§ 213-219.)
1. The Legal Standard
One form of manslaughter is an unlawful killing “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a); see id., § 188 [malice may be implied “when no considerable provocation appears”].) Even when a person premeditates a killing, “the law acts out of forebearance for the weakness of human nature and, where sufficient facts are shown, will disregard the actual deliberate and malicious intent and reduce the crime to manslaughter.” (People v. Van Ronk (1985) 171 Cal.App.3d 818, 823; see People v. Rios (2000) 23 Cal.4th 450, 460-462; People v. Czahara (1988) 203 Cal.App.3d 1468, 1478 [finding provocation means “that the defendant’s behavior, while still reprehensible, is an understandable product of common human weakness, and therefore partly excusable”].)
“The provocation may be anything that arouses great fear, anger, or jealousy.” (Witkin, supra, § 213.) However, cases finding provocation typically involve adultery, a violent assault or other extreme acts by the victim; a simple assault or rude behavior rarely suffices. (Id., §§ 214-215.) This flows from the objective component of the test, that is, that the acts of the victim must be serious enough to obscure the reason or inflame the passions of a reasonable person. Thus, although verbal abuse may be sufficient, such abuse must be so extreme as to be likely to inflame a reasonable person. (Id., §§ 216-217; see People v. Lee (1999) 20 Cal.4th 47, 59 [enough to cause an “ordinary person of average disposition to act rashly or without due deliberation and reflection”]; People v. Logan (1917) 175 Cal. 45, 49 [neither a “man of extremely violent passion” nor “an excessively cowardly man” is excused unless the provocation “would naturally tend to arouse the passion of the ordinarily reasonable man”]; People v. Golsh (1923) 63 Cal.App. 609, 614 (Golsh) [“such as would have a like effect upon the mind and emotions of the average man—the man of ordinary self-control”].)
Similarly, an objective test determines when a reasonable person would have cooled down: “[W]hilst one man is phlegmatic and cool, never acting except with deliberate purpose, another . . . is passionate and irascible, the creature of impulse, whose hot flames will continue flaring up long after they would have subsided in the man of ordinary self-mastery[.]” (Golsh, supra, 63 Cal.App. at pp. 616-617; see People v. Pride (1992) 3 Cal.4th 195, 250 [criticism of work performance three days before killings, “insufficient as a matter of law”]; People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1245-1246 [two weeks since grandson had contact with grandparents he killed, too long]; People v. Ashland (1912) 20 Cal.App. 168, 175-178 [husband killed man who had relations with his wife 17 hours after she told him about it, too long]; People v. Dixon (1961) 192 Cal.App.2d 88, 90-91 [30-40 minutes]; Witkin, supra, § 219.)
In extreme cases words may be enough. The key is usually the relationship between the killer and victim. A classic example is where a wife taunted a husband for weeks about her infidelity and inflamed his passions while denying him sexual relations. (People v. Berry (1976) 18 Cal.3d 509, 513-516 (Berry).) An ideal person would leave such a spouse, but an ordinarily reasonable one might feel unable to walk away from a marriage or similar attachment, out of pride, shame or other emotions. (See People v. Bridgehouse (1956) 47 Cal.2d 406, 413-414 [Bridgehouse killed wife’s lover unexpectedly found to be living at mother-in-law’s house]; People v. Borchers (1958) 50 Cal.2d 321, 325-329 [unfaithful fiancée who may have given money to a pimp, threatened suicide, and taunted Borchers to kill her]; People v. McCowan (1986) 182 Cal.App.3d 1, 7-8, 15 [McCowan killed ex-wife and her mother and father after lengthy marriage and bitter divorce case; he became enraged when his former mother-in-law “made [an] obscene gesture at him”]; People v. Doyle (1958) 162 Cal.App.2d 158, 159-160 [wife stabbed husband who struck her and dared her to stab him].)
But where there is no emotional attachment between the parties, words alone will rarely, if ever, cause a reasonable person to become inflamed and lose his self-control. (See People v. Lucas (1997) 55 Cal.App.4th 721, 739-740 [Lucas shot into adjacent car; even if the occupants were smirking, giving him dirty looks and calling him names, a reasonable person would not be inflamed].) This flows from the general rule: “‘“A provocation of slight and trifling character, such as words of reproach, however grievous they may be . . . is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.”’” (People v. Najera (2006) 138 Cal.App.4th 212, 226, quoting People v. Wells (1938) 10 Cal.2d 610, 623.)
2. The Facts of Provocation in this Case
There was evidence from other sources that Smith was known in the area as “Scary Ellen” and was verbally abusive and had abrupt mood swings. But because defendant did not testify, the only evidence about what Smith said or did to him, both the night he killed her and in the previous two weeks, was from defendant’s statements to the police and to his friends.
The evidence, viewed in defendant’s favor, shows that Smith made defendant angry in the following ways: She threatened to deny him television privileges and to kick him out of the room he had already paid for. She took his recyclable cans and kept the money from their sale. She falsely called him dirty and a pig, and blamed him for leaving toaster crumbs and not cleaning the kitchen.
This does not show that Smith provoked defendant in the legal sense. They were not lovers and had no emotional ties, and defendant was not trapped in that rooming house.
Instead, the evidence shows premeditation, based on defendant’s statements over a two-week period, and the fact that he not only threatened to hurt or kill Smith, he made a practice-run at killing her two weeks before the murder by entering her bedroom while she slept.
In an illustrative case, which adds the circumstance of a five-year marriage and therefore provided more reason to apply the provocation doctrine, a man poured gasoline on his wife while she was in bed and set her on fire. He claimed the trial court should have instructed on provocation because they had been fighting earlier and she had threatened him with a knife. The California Supreme Court found this was not sufficient:
“While defendant and Mary Ann had argued, Mary Ann was in bed when defendant began his physical assault by pouring gasoline on her. Furthermore, between defendant and Mary Ann, bickering, yelling, and cursing were the norm. . . . Neither was defendant’s drinking on the day of the fire different than on any other day. Accordingly, the trial court did not err in failing to instruct on voluntary manslaughter based on heat of passion.” (People v. Cole (2004) 33 Cal.4th 1158, 1216.)
Testimony about defendant’s own temper was irrelevant to this calculus. He told police he went from “zero to fist” quickly, and Dr. Globus testified that defendant was overly sensitive and less able to control poor responses, particularly when drinking. This does not speak to the reasonable person component of provocation. (Lucas, supra, 55 Cal.App.4th at p. 740 [“As for [defendant’s] intoxication or paranoia, those are conditions incompatible with the reasonable-person standard”]; Golsh, supra, 63 Cal.App. at p. 614.)
Because no substantial evidence supported instruction on provocation to reduce the crime to manslaughter, any error in the instructions or argument on manslaughter was harmless.
B. Exclusion of Victim’s Mental Health Records
Defendant contends the trial court improperly excluded evidence which would have bolstered his claim of provocation. Specifically, the trial court refused to allow the defense access to Smith’s mental health records, or to allow testimony (such as by Dr. Globus or Smith’s treating doctor) that Smith was a paranoid schizophrenic and used amphetamines.
Defendant concedes the existing record and offers of proof are adequate for U.S. to “determine the essential content and materiality of the excluded evidence.”
The offer of proof by defense counsel shows that the excluded evidence, coupled with the evidence adduced at trial, would still not have amounted to substantial evidence of provocation. We will describe how the issue was raised and what evidence defendant hoped to glean from the mental health records.
The defense moved for discovery of Smith’s mental health records, alleging they “may be relevant to the question of provocation and defendant’s mental state.” The People in part asserted that the request was premature. Judge Couzens denied without prejudice a request for the court to review the records in camera, concluding the trial judge would be in a better position to address the issue.
Defense counsel revealed that he knew Smith had a long history of drug and mental problems, theft-related convictions, heroin addiction and the fact that she had “substantial” levels of methamphetamine and amphetamine in her blood when defendant killed her. He asserted that Smith’s “psychological, intoxication and criminal records are critical to the mental state defenses at issue in this case.”
The People opposed this claim partly because there was no evidence Smith was aggressive when defendant killed her. Defense counsel replied that Smith had “paranoia, schizophrenia, depression” and drug addiction, and the trial court should review her mental health records in camera to see “if they reveal anything resembling these matters. Dr. Globus will testify that persons with these types of mental problems have a character and personality for rude, angry, degrading, belittling and demeaning treatment of others,” treatment allegedly experienced by defendant at Smith’s hands. Defense counsel also suggested that once he saw the records he could call her treating psychologist “who can tell U.S. that he has personal knowledge with Mary Ellen and that she had paranoid delusions and that she was changeable, provocative, and all of these behaviors that are consistent with what the tirade that happened on that night.” (Sic.) An investigative report stated that Hubert would testify Smith was a paranoid schizophrenic and heard the voice of a demon.
The trial court allowed the defense to introduce character evidence as to Smith’s reputation and specific instances of conduct relevant to show her actions on the night she was killed. She excluded evidence of Smith’s criminal history and drug use. She rejected the defense request that she review the mental health materials, ruling in part that “[t]here are no allegations that the victim in this case ever threatened the defendant with bodily injury or death. There are no allegations that defendant feared for his safety or felt that he was in imminent danger.” Further, “There is no suggestion that the defendant in this case was aware of any specifics of the victim’s mental health records. On the contrary, his knowledge was limited to her reputation in the community and her specific characteristics displayed in the years that he knew her. All of that evidence is admissible through the testimony of the other [character] witnesses that actually knew the victim, not through defense’s expert solely on review of her mental health records.” Finally, even if relevant “and a proper subject of expert testimony,” the court found the evidence more prejudicial than probative. (Evid. Code, § 352.)
Defendant renewed his request, but the trial court adhered to its in limine ruling. This followed an Evidence Code section 402 hearing at which Dr. Globus testified as follows: It appeared to him from statements (by Hubert, Bayles, Schuster and by defendant to others) and by toxicology reports—but not Smith’s mental health records, which he had not seen—that Smith was a paranoid schizophrenic, which means she could display aggressive and confrontational behavior, act irrationally and make irrational responses, particularly while under the influence of amphetamines, which “can produce paranoid states or aggressive states that are . . . devastating to a person’s well-being.” Because of defendant’s poor self image, depression and mild brain damage, unfounded or irrational criticisms would be “particularly devastating,” especially if he had been drinking. Dr. Globus opined that reviewing Smith’s records would help corroborate his view of Smith’s mental state. Defense counsel explained the records would “show that [defendant] acted in response to a set of circumstances that caused him to snap, that caused him to break, and that he was vulnerable in that regard for the reasons that Dr. Globus has set forth.”
At trial, defendant introduced evidence of Smith’s reputation, through the testimony of Bayles, Shuster and Hubert, as we have described earlier. On appeal defendant couches his claim as a denial of discovery about and evidence of Smith’s “character for provocation.”
In his brief defendant summarizes what he believes the proposed evidence would have proved. First, it would have corroborated the “irrational and confrontational behavior described by defendant and Hubert.” Second, Dr. Globus could have linked the evidence of Smith’s mental problems to defendant’s mental state, specifically by showing that because of a schizophrenic’s irrational thinking, “her actions typically would startle another person interacting with her[,]” and her actions would appear to be aggressive and hostile (since they would not be responsive to reality), thereby causing the recipient to feel insulted. Defendant, given his poor self-esteem, depression, alcoholism and brain damage, would be particularly bothered by such conduct and particularly ill-equipped to respond appropriately to such conduct.
But the offer of proof would not have shown actions by Smith which would have provoked defendant. Nothing in the mental health records, or expert testimony based thereon, would have shown that defendant was dependent on Smith in any way. The offer to prove that Smith was a paranoid schizophrenic and used drugs which enhanced her aggressive tendencies would not add any weight to the evidence of what she actually did to provoke defendant. In other words, the offer of proof based on Smith’s medical records would not have cured the insufficiency of evidence of provocation. As indicated, evidence of defendant’s vulnerability to offense by such behavior was irrelevant to the objective gravity of Smith’s conduct. (Lucas, supra, 55 Cal.App.4th at p. 740.)
The gap in the defense case was not caused by the exclusion of Smith’s medical records but by the lack of evidence of severe provocative conduct by Smith. Testimony by Dr. Globus, based on his expertise in general and a review of Smith’s medical records, might explain how unpleasant living with a paranoid schizophrenic on methamphetamines might be, but that would not change the dearth of evidence of what Smith actually did, as described above, which primarily came into evidence through defendant’s statements to the police and to his friends.
To the extent defendant posits there may have been other provocative things Smith did, there is no evidence of it in the record, it is speculative and the mental health evidence would not have made it concrete. (See Pride, supra, 3 Cal.4th at p. 250 [“Defendant also suggests the killings may have occurred as the result of a ‘bitter argument’ between him and Kimele immediately beforehand. This scenario is purely speculative”].)
Because the offer of proof showed that the records would not bolster the claim of provocation, we need not decide whether it was properly excluded nor whether the trial court properly declined to review the materials: Any error was harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 834-837; Najera, supra, 138 Cal.App.4th at pp. 225-226.)
C. Second Degree Murder
At disconnected points in his briefing, without separate headings or analysis, defendant alludes to the effect of provocation on first degree murder. Assuming he intended to make arguments about this doctrine apart from the arguments about manslaughter, we reject them.
People v. Valentine (1946) 28 Cal.2d 121, held that “the existence of provocation which is not ‘adequate’ to reduce [murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.” (Id. at pp. 130-132.) This creates a sort of imperfect provocation, where the defendant acts out of a heat of passion, but the degree of provocation is not objectively severe enough to inflame the passions of a reasonable person. In such a case the crime may be reduced to second-degree murder, as the jury was instructed. (CALJIC Nos. 8.50, 8.73.)
However, as with perfect provocation, it is not necessary to instruct on imperfect provocation absent substantial evidence. (See People v. Ward (2005) 36 Cal.4th 186, 214-215 [“record contains no evidence of what, if any, response [Ward] had to the purported [gang] challenges”].) Because a finding of imperfect provocation negates premeditation, not malice, the test is phrased differently.
In People v. Fenenbock (1996) 46 Cal.App.4th 1688, the evidence showed a group of people planned to punish the victim for an alleged child molestation, and a couple of days later a number of those in the group grabbed him and savagely killed him. Fenenbock’s testimony was that he did not learn about the molestation claim until the day of the killing; although he admitted hitting the victim, he denied participating in the murder, testifying he calmed one of the other assailants down and then left the area. (Id. at pp. 1692-1702.) The trial court refused to instruct on any crimes less than first degree murder. Fenenbock argued the trial court should have instructed on provocation, as it pertained to second degree murder and to voluntary manslaughter. The court rejected these claims. As to second degree murder, Fenenbock reasoned as follows:
“The Wickersham court explained that the evidence of provocation must ‘justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately . . . .’ [Quoting People v. Wickersham (1982) 32 Cal.3d 307, 329.]
“In the present case, for the reasons we have already expressed, there is no evidence to suggest that the reports of child molesting precluded defendant Fenenbock from acting without premeditation and deliberation. The prosecution’s evidence showed that after confronting [the victim] with his fist, defendant Fenenbock drove to a remote spot in the woods, accompanied by a group of other men, for the declared purpose of killing [the victim]. Fenenbock and the others then stabbed and mutilated [the victim] in retaliation for his suspected [child molestation].” (Id. at pp. 1705-1706.)
Unlike Fenenbock, defendant herein did make statements to the police and his friends to the effect that he killed Smith in response to her constant carping and other verbal ill-treatment. However, like in Fenenbock’s case, there is overwhelming evidence of premeditation, given his statements to his friends in the weeks before the killing, which were not seriously contested at trial. Moreover, even the rosiest version of defendant’s story to the police shows that after Smith told him not to poke his nose in her room and that he had just lost his television privileges, he left her room, went to his room to retrieve his shotgun. He changed his story about whether it was already loaded or whether he loaded it then, and although the open shell box corroborates the latter version, we will assume it was already loaded. He then went into her room while she was in bed under the covers. Then, he explained as follows: “I fired that first shot and I said, Jack, you’ve done it. I said, fuck it. . . . I fired three more.” “I don’t want somebody [to] say well it was premeditated. Well, I was just pissed, man.” After he went to get a beer and spoke to his friends and girlfriend, he told a number of officers, calmly, that he shot the “bitch” or the “wicked witch.” He said he did “what I wanted to do,” “I shot the bitch. She deserved it.” He did not show the remorse that would be expected of a person who had not planned a killing, but who responded unreasonably to perceived provocation. Instead, his actions and statements before and after the killing showed an explicit desire for revenge, to punish Smith for her unpleasant behavior. But a passion for revenge cannot support any theory of provocation. (Berry, supra, 18 Cal.3d at p. 515; Valentine, supra, 28 Cal.2d at p. 139; Fenenbock, supra, 46 Cal.App.4th at p. 1704.)
Again, the practice run of two weeks before and his two weeks of threats abundantly show premeditation, not a direct and immediate response to provocation by the victim: “If, previous to his return home on the night of October 23, the defendant had considered and formed the intent to kill Bernice if he caught her ‘running around’ again then unquestionably the homicide would be murder of the first degree and the mere fact that he was angry at the time would not mitigate the degree.” (People v. Thomas (1945) 25 Cal.2d 880, 890.)
This is in stark contrast to a case like People v. Fields (1950) 99 Cal.App.2d 10. Fields had had no prior dispute with his friend, shot him during a quarrel after drinking, then immediately called out for a doctor and begged that his friend not die. The appellate court reduced his conviction to second degree murder, finding “this killing occurred as a result of one of those sudden and unconsidered impulses upon which men in the condition of appellant not uncommonly act, and which they regret after even slight reflection, rather than as a result of any deliberation or premeditation.” (Id. at p. 13.)
Defendant was angry at Smith, but the jury could not have found that he “formed the intent to kill as a direct response to the provocation and had acted immediately,” on these facts. (Wickersham, supra, 32 Cal.3d at p. 329; see Fenenbock, supra, 46 Cal.App.4th at pp. 1705-1706; People v. Middleton (1997) 52 Cal.App.4th 19, 34 [“Defendant ran to the door and could have fled on foot or returned to the main house and telephoned the police. Instead he chose to return and get his gun”].) Thus, it does not appear that imperfect provocation caused defendant to kill Smith.
The jury was free to disbelieve parts of any witness’s testimony, and defendant impliedly asserts the jury could find defendant told his friends all about Smith’s bad behavior, but that they were lying about the threats he made over the prior two weeks and the night of the killing. Although there is no clear reason why the jury would pick and choose parts of defendant’s friends’ stories in this case, we address defendant’s contentions as they pertain to second degree murder, and find that his claims of reversible error lack merit.
1. Burden of Proof on Provocation
Defendant contends the trial court failed to identify the burden of proof for provocation. We disagree.
The jury was instructed (CALJIC NO. 2.90) that defendant was presumed innocent and the People had the burden of proving him guilty beyond a reasonable doubt. The jury was instructed (CALJIC No. 8.20) that a deliberate and premeditated killing was first-degree murder, and that if the killing “was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.”
Provocation was defined (CALJIC Nos. 8.42-8.44) and the jury was instructed (CALJIC No. 8.73): “If the evidence establishes that there was provocation which played a part in inducing the unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.” The jury was also instructed (CALJIC NO. 8.71) that if had a reasonable doubt about the degree of murder it had to return a second degree verdict. As for manslaughter, the jury was instructed (CALJIC No. 8.50) that the People had the burden to prove that the killing “was not done in the heat of passion or upon a sudden quarrel.” Although no similar instruction was given as to provocation and second degree murder, the jury would have understood that the People’s burden to prove deliberation encompassed the burden to negate any reasonable doubt about imperfect provocation.
Defendant does not explicitly argue about second degree murder in this portion of his brief, but faults CALJIC No. 8.50 because it does not state that the People have to disprove “provocation,” only that the People have to disprove “heat of passion” and “sudden quarrel.” But provocation is the result of the “sudden quarrel” or “heat of passion,” as the definitional instructions on provocation make clear. (CALJIC Nos. 8.42-8.44.) Accordingly, although defendant proposed an instruction which would explicitly stated that the People had the burden to prove “that provocation is absent,” the point was adequately covered by the instructions which were given and no basis for reversal is shown.
2. “Words Alone” may be Provocation
Defendant also sought an instruction stating that “Words alone may be sufficient to cause adequate provocation for voluntary manslaughter.” A similar pinpoint instruction arguably would have been proper as to second degree murder, although defendant does not explicitly argue the point. But the instructions that were given and the arguments of counsel allowed the jury to find that “words alone” were enough to show provocation, whether perfect or imperfect. The instructions referred to a “quarrel,” which the jury would understand meant an argument. (See CALJIC No. 8.43.) Defense counsel so interpreted the law in argument (“It can be verbal”), and the prosecutor did not dispute this, but instead argued that the things Smith said were not enough to establish provocation. Although the requested instruction may have been correct, no prejudice is shown.
3. Circumstantial Evidence
Defendant contends the trial court gave the wrong instruction on circumstantial evidence. He asked the trial court to give CALJIC No. 2.02, which focuses on circumstantial evidence used to prove mental state and intent, but the court gave CALJIC No 2.01, which addresses circumstantial evidence generally. Assuming the trial court erred, the error was harmless.
The instruction given told the jury that a guilty verdict could not be based on circumstantial evidence unless the evidence was both consistent with guilt and “cannot be reconciled with any other rational conclusion;” further, each necessary fact to establish circumstances or inferences pointing to guilt must be proven beyond a reasonable doubt and doubts must be resolved against a finding of guilt. (CALJIC No. 2.01.) The instruction not given would have made the same points but only as to circumstantial evidence of intent or mental state. (CALJIC No. 2.02.)
“CALJIC No. 2.02 was designed to be used in place of CALJIC No. 2.01 when the defendant’s specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. (See Use Note to CALJIC No. 2.02.) It should not be given where the evidence is either direct or, if circumstantial, is not equally consistent with a conclusion of innocence. [Citations.] Furthermore, it should not be given simply because the incriminating evidence is indirect, but is appropriate only when proof of guilt depends upon a pattern of incriminating circumstances.” (People v. Honig (1996) 48 Cal.App.4th 289, 341; see People v. Marshall (1996) 13 Cal.4th 799, 849 [“Use of CALJIC No. 2.01, rather than 2.02, is proper unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state”].)
We tend to agree with defendant that the only element to be proven circumstantially in this case was his intent or mental state. In the trial court and on appeal the People state that circumstantial evidence would be used to show who pulled the trigger. This is not correct. Defendant’s statements to the police and to his friends that he shot Smith were direct, not circumstantial, evidence. They were party admissions which, if believed, showed without the need for inference that defendant shot Smith.
However, CALJIC No. 2.01 encompassed the principles of the refused instruction, although it did not emphasize (or “pinpoint”) them. (Marshall, supra, 13 Cal.4th at p. 849 [CALJIC No. 2.01 “the more inclusive instruction”].) There is no reason to suppose that the alleged error was prejudicial.
4. Prosecutorial Argument
Defendant asserts that the prosecutor conflated the idea of heat of passion and the response to the heat of passion. That is, he complains that in her argument the prosecutor suggested the killing was unreasonable and therefore the heat of passion claim could not meet the objective component standard. He faults such arguments, trial counsel’s failure to object, and the trial court’s failure to take corrective action. However, all of these points pertain to and only to the provocation as it relates to manslaughter; they have no application to provocation as it relates to the degree of murder. Therefore, we need not address these claims.
5. Conclusion as to Second Degree Murder
Assuming there was sufficient evidence to make provocation relevant to the issue of the degree of murder on these facts, none of the claimed errors caused any prejudice, and they were not the sort which might cumulate to cause prejudice.
II. Custody Credit
Defendant was arrested late on September 7, 2004, but not placed in jail until very early on September 8, 2004. He received custody credit from the time he was in jail, but on appeal he seeks credit for the partial day he was bound for but not actually in jail. We reject defendant’s claim.
Defendant was credited with time he was “in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility . . . or similar residential institution[.]” (Pen. Code, § 2900.5, subd. (a).) The statute does not grant credit for time that a person is merely detained while under arrest, even if he or she is headed to jail. (See People v. Ravaux (2006) 142 Cal.App.4th 914, 919-921.)
III. Firearm Enhancement
Defendant contends that because the trial court imposed an enhancement for causing great bodily injury with a firearm (§ 12022.53, subd. (d)) it had to strike, not merely stay, the enhancement for use of a firearm (id., § 12022.5, subd. (a)). The Attorney General concedes the point.
We accept the Attorney General’s concession. Section 12022.53, subdivision (f) provides: “An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.” If the section 12022.5 enhancement cannot be imposed, it must be stricken.
In People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), in addition to discussing other firearm enhancement sentencing issues, the court reasoned as follows:
“We next conclude where, as here, an enhancement under section 12022.53 applies, the trial court must strike the firearm use finding under section 12022.5.[fn.] ‘An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to . . . section [12022.53].’ (§ 12022.53, subd. (f) . . . .)
“. . . Section 12022.5 must be construed in conjunction with section 12022.53 where, as here, personal firearm use under section 12022.53 is also alleged. The court strikes a section 12022.5 enhancement under subdivision (f) of section 12022.53, which provides that ‘An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.” (Italics added.) Such directive is mandatory. No discretion is involved. [Citations.]
“Respondent’s companion position is that the trial court properly imposed and stayed the section 12022.5 enhancements, because ‘by staying the enhancement, it preserved . . . Medina’s sentence in the event of a reversal on another enhancement or count’ and ‘safeguarded the section 12022.5 findings properly made at trial.’ Respondent urges that by staying the section 12022.5 enhancements, the court ‘did not add “additional” prison terms’ proscribed by section 12022.53, which, as rephrased by respondent, ‘mandates that the greatest enhancement be imposed and prohibits imposition of “additional term[s] of imprisonment” for the enhancement. (§ 12022.53, subd. (f).)’
“This position is untenable in the face of the plain and clear language that a section 12022.5 firearm use enhancement ‘shall not be imposed . . . in addition to an enhancement imposed pursuant to . . . section [12022.53].’ (§ 12022.53, subd. (f).)
“Moreover, such position is also based on the faulty premise that staying of the section 12022.5 enhancement is necessary ‘in the event of a reversal on another enhancement or count.’ No such need arises. In the situation where the reviewing court finds no enhancement under section 12022.53 could be imposed, then the section 12022.5 finding would be revived by operation of law.” (Bracamonte, supra, 106 Cal.app.4th at pp. 712-713 & fn. 5.)
We know that California Rules of Court, rule 4.447 appears to state a different view:
“No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant’s service of the portion of the sentence not stayed.”
But a rule promulgated by the Judicial Council cannot impair the force of a statute. (Cal. Const., art. VI, § 6(d) [“rules adopted shall not be inconsistent with statute”]; see Maribel M. v. Superior Court (1998) 61 Cal.App.4th 1469, 1476.) Further, the commentary to rule 4.447 recognizes that “[s]tatutory restrictions may prohibit or limit the imposition of an enhancement in certain situations[,]” and in part cites section 12022.53, subdivision (f), the very statute involved here, as such an example. (Advisory Com. com., Cal. Rules of Court, rule 4.447.) Thus, this rule affords no basis for departing from the command that lesser enhancements “shall not be imposed” on these facts. (§ 12022.53, subd. (f).)
The heart of the dissent is the undeniable fact that section 12022.5, subdivision (c) provides “Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” However, where a greater firearm enhancement is imposed pursuant to section 12022.53, section 12022.53 itself compels striking the lesser enhancement and doing so in that limited circumstance does not impair the public policy immanent in section 12022.5. The apparent conflict disappears when the statutes are read in light of their purpose, within the sentencing scheme created by the Legislature. (See People v. Thomas (1992) 4 Cal.4th 206, 210.)
It is the duty of the court to pass sentence and impose the prescribed punishment. (§ 12, see People v. Cheffen (1969) 2 Cal.App.3d 638, 641.) The failure to pronounce sentence on all counts and enhancements would result in an unauthorized sentence. (See People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) Unless a statute provides otherwise, an enhancement may be imposed or stricken, but it may not be stayed. (See People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589.)
In both sections 12022.5 and 12022.53, the Legislature wanted courts to increase the punishment for defendants who, in addition to the substantive crime they committed, use firearms in various ways. (See, e.g., People v. Palacios (2007) 41 Cal.4th 720, 725 & fn. 3 (Palacios).) However, the Legislature created overlapping definitions, such that a single offense may trigger two or more enhancements.
The Legislature provided that as to conduct meeting the terms of one or more enhancements under section 12022.53, only one shall be imposed, and other specified firearm enhancements—including under section 12022.5—“shall not be imposed” on such persons. We presume, in adopting this language, that the Legislature was aware that the only normal alternative to imposing an enhancement is to strike it. (See People v. Harrison (1989) 48 Cal.3d 321, 329.)
With this in mind, we must reëxamine the language limiting striking enhancements, contained in both section 12022.53, subdivision (h) and 12022.5, subdivision (c), as follows:
“Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
Section 1385 permits a judge to dismiss an action or strike an enhancement in the interests of justice, under his or her discretion, within statutory limits. (See People v. Thomas (2005) 35 Cal.4th 635, 644.) The command of section 12022.53, subdivision (f) that more than one relevant enhancement “shall not be imposed” does not call for any exercise of discretion. (Bracamonte, supra, 106 Cal.App.4th at p. 713.) But the reference to section 1385 in these two statutes points to a resolution: The statutes provide that “Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section . . . .” (§ 12022.53, subd. (h) & § 12022.5, subd. (c), italics added.) That does not mean that the enhancements cannot be stricken within the plain command of these provisions of law, more specifically, by force of section 12022.53 itself. Instead, the language prevents trial courts from superimposing “other provisions” of law (e.g., § 654, 1385) on the operation of section 12022.53. (See Palacios, supra, 41 Cal.4th 720 [section 654 does not affect imposition of section 12022.53 enhancements].)
Section 12022.53, subdivision (a) lists the substantive offenses to which the statute applies. Subdivisions (b), (c), and (d) set out increasingly serious penalties for perpetrators who use, discharge or injure someone with, a firearm “in the commission of” the listed offenses. Subdivision (e) defines those principals subject the enhancements. Subdivision (f) provides that “Only one” enhancement under that statute “shall be imposed” and that other statutory enhancements, including under section 12022.5 , “shall not be imposed[.]” Subdivision (g) precludes probation or suspension of imposition of sentence. Then subdivision (h), in language identical to section 12022.5, subdivision (c) limits the ability to strike enhancements.
It is clear that the Legislature wrote section 12022.53 to ensure that the greatest possible firearm enhancement would be imposed. Thus, section 12022.53 subdivision (h) forbids the importation of the ability to strike from other statutes but not from within section 12022.53 itself. Further, importing the ability to strike from section 12022.53 does no violence to section 12022.5, subdivision (c) because the reason for striking the lesser enhancement is to facilitate the imposition of a greater enhancement. Thus, the result sought to be avoided by section 12022.5, subdivision (c), such as a court striking the enhancement as a discretionary ruling under section 1385, is avoided when the purpose is to impose a greater enhancement.
We do not believe our holding is groundbreaking. A defendant cannot stand convicted of both a greater and a lesser included offense. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson (1986) 42 Cal.3d 351, 355.) When a jury convicts a defendant of both a greater and an included offense, the defendant is punished for the greater offense and the included offense is stricken. (See People v. Moran (1970) 1 Cal.3d 755, 763.) This is true even if the offense is one contained in section 1203.6—offenses for which imposition or execution of sentence may not be stayed and which the trial court is not authorized to strike under section 1385. (See People v. Tanner (1979) 24 Cal.3d 514, 520.) It does not seem controversial to apply the same rule to included enhancements, and it appears the Legislature intended the same rule to apply, although admittedly clearer language could have been used.
Finally, we agree with the court in Bracamonte that, if an lesser enhancement is stricken and the greater enhancement is later invalidated, the lesser enhancement “would be revived by operation of law.” (Bracamonte, supra, 106 Cal.App.4th at p. 713, fn. 5.) When we reverse on appeal a greater enhancement on grounds not applicable to a lesser enhancement, we can reinstate the lesser enhancement findings. (See § 1260.) Likewise, if a greater enhancement is invalidated in a state habeas corpus proceeding, the habeas corpus court may reinstate the lesser enhancement findings. (See §§ 1484, 1489; In re Bower (1985) 38 Cal.3d 865, 880.) This procedure is already used in the analogous situation of lesser included offenses for which a defendant cannot stand convicted despite a guilty verdict. Thus, striking the findings rather than staying punishment on the lesser enhancements does not prejudice the People.
For all of these reasons we accept the joint position of the parties that the section 12022.5 enhancement be stricken.
DISPOSITION
The judgment is modified to strike the enhancement under Penal Code section 12022.5 and is otherwise affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
I concur: SIMS , Acting P.J.
ROBIE, J., Concurring and Dissenting.
I concur in the lead opinion except for its conclusion that the trial court should have stricken the firearm enhancement under Penal Code section 12022.5. As I will explain, I believe the enhancement finding under section 12022.5 cannot lawfully be stricken, but at the same time I believe the trial court erred in imposing an additional term of imprisonment based on that finding, then staying that term pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Before I explain why this is so, I believe it is important to clarify the terminology of sentence enhancements. “By definition, a sentence enhancement is ‘an additional term of imprisonment added to the base term.’” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898.) The statutes at issue here -- sections 12022.5 and 12022.53 -- both provide various sentence enhancements for the use of a firearm in the commission or attempted commission of a crime.
For these sentence enhancements to apply to a particular defendant, the requisite facts, e.g., personal use of a firearm in the commission of a murder, must be alleged in the information or indictment. (See § 12022.53, subd. (j); People v. Najera (1972) 8 Cal.3d 504, 509, fn. 4.) This is a sentence enhancement allegation.
Also for these sentence enhancements to apply, the requisite facts, as alleged, must be admitted by the defendant or found true by the trier of fact. (See § 12022.53, subd. (j); People v. Najera, supra, 8 Cal.3d at pp. 509-510.) The latter is a sentence enhancement finding.
Thus, we have enhancement allegations, enhancement findings, and the actual sentence enhancements.
With that understood, I turn to the issue in this case. Here, the jury found true an enhancement allegation under section 12022.53, subdivision (d), and another under section 12022.5, subdivision (a). Subsequently, the trial court (Judge Nichols) imposed the 25-year-to-life sentence enhancement provided by section 12022.53, subdivision (d), and imposed but stayed a 10-year sentence enhancement pursuant to section 12022.5, subdivision (a).
I agree with the lead opinion that the trial court erred in imposing, then staying, the section 12022.5 enhancement. I do not agree, however, that the proper course is to strike that enhancement.
Subdivision (f) of section 12022.53 (section 12022.53(f)) provides in pertinent part that “[a]n enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.” Thus, section 12022.53(f) specifies what the trial court must do when (as here) the jury makes enhancement findings under this section and section 12022.5 for a single crime. What the trial court must do is simply not impose the section 12022.5 enhancement.
Section 12022.53(f) does not say what the trial court should do, if anything, about the underlying enhancement finding. Guidance on that point, however, is found in subdivision (c) of section 12022.5 (section 12022.5(c)), which provides that “[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” Thus, section 12022.5(c) tells the trial court to leave the enhancement finding alone.
Rather than striking the section 12022.5 enhancement finding in contravention of section 12022.5(c) -- as advocated by the lead opinion and People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713 and footnote 5 -- the trial court should have simply imposed no punishment based on that finding, as directed by section 12022.53(f). This is comparable to suspending the imposition of a sentence when granting probation. (See § 1203, subd. (a).) The underlying jury finding or verdict remains in place, but no punishment is imposed at that time.
To be fair to Judge Nichols, there is a rule of court that supports what she did here. Rule 4.447 of the California Rules of Court provides that “[n]o finding of an enhancement may be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent upon the defendant’s service of the portion of the sentence not stayed.”
Rule 4.447 of the California Rules of Court tells trial courts to do exactly what Judge Nichols did -- impose sentence for an aggregate term of imprisonment, including any and all enhancements, without regard to any law prohibiting the imposition of one or more of those enhancements, then simply “stay execution of so much of the term as is prohibited or exceeds the applicable limit.”
In my view, however, rule 4.447 of the California Rules of Court is invalid -- at least as applied to a case like this when multiple firearm enhancement findings are made under sections 12022.5 and 12022.53. As I have explained, section 12022.53(f) expressly prohibits the imposition of a firearm enhancement under section 12022.5 in conjunction with the imposition of an enhancement under section 12022.53. Where the Legislature has commanded that certain enhancements shall not be imposed, the Judicial Council has no authority to allow or require action to the contrary. (See Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532 [“Rules promulgated by the Judicial Council may not conflict with governing statutes”].)
Based on the foregoing analysis, I would reverse the judgment to the extent it imposed, then stayed, punishment for the section 12022.5 sentence enhancement. This would leave the underlying enhancement finding in place, as section 12022.53(f) contemplates and section 12022.5(c) requires.