Opinion
C079815
10-23-2019
THE PEOPLE, Plaintiff and Respondent, v. DEONTE LINDELL MARTEZ UPCHURCH et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F04978)
Defendants Deonte Lindell Martez Upchurch and Matthew Russel Brownwood appeal after they were both convicted of (1) first degree murder of victim Wesley C. and (2) robbery. (Pen. Code, §§ 187, 211; statutory section references that follow are to the Penal Code unless otherwise stated.) As to Brownwood, the jury also found him guilty of possession of a firearm by a felon (§ 29800, subd. (a)), and found true the allegations of special circumstance felony-murder based on robbery (§ 190.2, subd. (a)(17)) and personal discharge of a firearm causing death (§ 12022.53, subd. (d)). As to Upchurch, the jury found "not true" the special circumstance allegation of felony-murder based on robbery.
On appeal, Brownwood argues (1) ineffective assistance of counsel in failing to secure exclusion of a witness's opinion that defendants entered premises with intent to commit robbery; (2) the trial court erred in limiting impeachment of a witness and (3) refusing to instruct the jury on voluntary intoxication; (4) instructional error allowed jurors to find him guilty of murder without unanimously agreeing on the degree; (5) the prosecutor's closing argument curtailed the jury's ability to find self-defense and accidental killing; and (6) the court imposed an unauthorized parole revocation restitution fine (§ 1202.45). In a supplemental brief, Brownwood seeks remand for the trial court to exercise its discretion to strike the firearm enhancement under legislation enacted after his conviction. (§§ 12022.5, 12022.53; Stats. 2017, ch. 682, § 2 (Sen. Bill No. 620), eff. Jan. 1, 2018.)
As to Brownwood's appeal, we strike the section 1202.45 fine and remand for the trial court to consider whether to exercise its discretion to strike the gun enhancement under the new legislation. We otherwise affirm Brownwood's judgment.
Upchurch, besides joining in some of his codefendant's arguments, separately argues the trial court erred in (1) instructing the jurors they did not have to agree on a murder theory; (2) instructing that he could be convicted of second degree murder as a natural and probable consequence of petty theft; and (3) refusing to instruct that he was not guilty under a natural and probable consequence theory if Brownwood acted in perfect self-defense or committed a lesser manslaughter offense. Upchurch also argues the cumulative effect of errors was prejudicial, and he joins in Brownwood's arguments where appropriate. In a supplemental brief, Upchurch claims entitlement to relief under legislation enacted after his conviction -- Senate Bill No. 1437 -- that limits accomplice liability for murder under felony-murder on the natural and probable consequences doctrine. (§§ 188, 189, 1170.95; Stats. 2018, ch. 1015 (Sen. Bill No. 1437 (SB 1437)), eff. Jan. 1, 2019.)
As to Upchurch's appeal, we affirm his judgment but without prejudice to Upchurch filing a petition for SB 1437 relief in the trial court pursuant to section 1170.95.
FACTS AND PROCEEDINGS
Defendant Upchurch was a neighbor of victim Wesley C. and sometimes bought marijuana from Wesley.
Around 9:00 p.m. on July 20, 2014, Upchurch went to Wesley's house, where Wesley was entertaining several friends, including his girlfriend K.M. and friends K.C., J.Y., and J.L. Upchurch asked to buy some "weed." Wesley said he did not have any to sell. Yet there were several jars of marijuana on the table where Wesley and his friends were sitting.
Upchurch said he had a friend waiting outside, and Wesley said the friend could come in. Upchurch let defendant Brownwood into the house. Defendants asked to buy a quarter pound of marijuana. The victim laughed. Brownwood asked for less. K.C. told defendants to leave. K.C. walked out the front door because he got a bad feeling and felt there was something wrong with the situation. Defendants were grabbing their waistbands as if they had something concealed. Outside, K.C. could see inside through the window. K.C. noticed a young man standing outside who appeared extremely fidgety. Inside the house, J.Y. also got a bad feeling about the way Brownwood kept putting his hands in his pockets and in his waistband. The victim's girlfriend felt it was "like a Rite-Aid robbery" with defendants walking into the house as if with intent to steal, rob and injure.
Inside, both defendants picked up and looked at the jars of marijuana. Brownwood said, "My gun's worth more than this." Upchurch grabbed the bigger jar and handed it to Brownwood, who opened it, smelled inside, closed the jar, said, "thank you very much," and started to leave the house with the marijuana. Upchurch grabbed other, smaller jars of marijuana, and followed.
Wesley said, "What the fuck," got up from the table, pursued defendants, caught up to them in the living room, and tried to grab the marijuana back. Brownwood pulled out a gun, aimed it at Wesley from an inch away, and pulled the trigger twice. One gunshot struck Wesley in the chest, and he staggered backwards and fell to the floor. The other bullet passed through J.L.'s hat and went into a television.
Outside, K.C. heard the gunshots, grabbed a fire poker from the barbecue, and struck Upchurch in the nose as he come out the front door. Upchurch fell to the ground. K.C. did the same with Brownwood. While K.C. looked inside the house to see what was going on, defendants fled down the street in opposite directions.
Wesley died of a gunshot wound to the chest fired from a very close range.
On the floor next to the victim, police found a Smith and Wesson .22 caliber revolver with two spent casings and three live rounds. Brownwood later admitted to police that he brought the gun into Wesley's house.
The jury saw a video recording of Upchurch's police interview, in which he admitted he and Brownwood went to Wesley's house but denied they attempted to steal marijuana or rob Wesley. Upchurch claimed he was taking a small jar of marijuana outside to show a friend who was waiting outside, when "somebody" started shooting a gun. Upchurch claimed Brownwood returned fire after being shot in the face. Upchurch denied knowing that Brownwood was carrying a gun, yet identified it as a .22 caliber Smith and Wesson.
Brownwood Defense
Brownwood testified at trial. He admitted previous convictions of a felony and two misdemeanors that bore on his credibility. He owned and carried a .22 caliber Smith & Wesson gun in July 2014, including the day in question, because a friend of his had been shot outside Brownwood's house two weeks earlier, and Brownwood was not sure if the shot was meant for him. According to Brownwood, Upchurch did not know that Brownwood carried a gun.
Brownwood went to Wesley's house to buy marijuana. Wesley said he did not have any for sale, yet there was at least a quarter pound in a jar on the table. Brownwood smelled it, did not like it, set it back down, and turned to leave. He heard a female's voice ask, "ho ho ho, what do you think you are doing?" As he turned, Wesley punched him. They "tussle[d]" and Brownwood saw what looked like a gun in Wesley's hand and heard a gun go off. Brownwood hit the wall during the "tussle" and pulled out his gun. He just wanted to leave, but Wesley had him by the wrist. Brownwood pulled the trigger without pointing the gun. Wesley slammed Brownwood against the wall. The gun was pressed between the two of them, and it went off again, accidentally. Brownwood fled. He denied being hit by a fire poker but had a swollen nose and forehead and a black eye.
Upchurch Defense
Upchurch did not testify at trial. He presented testimony from neighbors who lived across the street from Wesley, heard a commotion that night, and went outside. One saw a girl -- later identified as one of Wesley's guests -- run from the direction of the house where the shooting occurred, drop what appeared to be a purse in the neighbor's yard, and walk back empty-handed. The police did not find anything in the yard. Another neighbor heard gunshots and screaming that night.
Police who took statements from witnesses testified J.Y. told police everything seemed all right at first; he did not tell police that he saw the form of a gun in Brownwood's pocket before the shooting.
Blood drawn from Upchurch at 1:30 p.m. the day after the killing showed the presence of the primary psychoactive ingredient for marijuana and an anti-anxiety drug, but no alcohol.
Verdict and Sentencing
The jury found both defendants guilty of murder (Count One) and robbery (Count Two) and found Brownwood guilty of possession of a firearm by a felon (Count Three). The jury found true the special circumstance (felony murder during robbery) and gun-use allegations as to Brownwood, but found "not true" the special circumstance allegation as to Upchurch.
The trial court sentenced Brownwood to life in prison without possibility of parole for murder, plus 25 years to life for gun use. The court imposed a four-year term for robbery and a two-year term for gun possession, but stayed execution of those terms under section 654.
The court sentenced Upchurch to a term of 25 years to life in prison for the first-degree murder, plus four years for robbery stayed pursuant to section 654.
DISCUSSION
BROWNWOOD'S APPEAL
I
Claims of Evidentiary Error
A. Lay Opinion
Brownwood argues (with joinder by Upchurch) that trial counsel rendered ineffective assistance by failing to object to opinion testimony of the victim's girlfriend K.M., that defendants entered Wesley C.'s home with the intent to commit robbery and harm people. There is no basis for reversal.
Upchurch filed a motion in limine to exclude as improper lay opinion (Evid. Code, § 800) the girlfriend's opinion, as related to police, that "It felt more like they [defendants] were looking for something or someone to rob." Counsel conceded the witness should be allowed to testify why she felt fear.
Brownwood joined in the motion, arguing it was improper for the girlfriend to guess what was in defendants' minds. The prosecutor argued that, for the witness to testify about her fear, she had to explain what she thought was going to happen.
The trial court deferred ruling on the motion.
At trial, the following occurred:
"[Girlfriend]. I said [to police] that Matthew Brownwood was very cocky about his actions, and that's all I can remember at this second.
"Q. Do you recall characterizing their actions as like a Rite-Aid robbery?
"A. Yes, I do.
"[Upchurch's counsel]: Objection; move to strike, leading, 352.
"[Brownwood's counsel]: Join.
"THE COURT: Sustained as to leading.
Q. [By the prosecutor]: Do you recall characterizing the type of actions they were doing in taking the marijuana
"A. Yes, I did.
"Q. -- to something else?
"A. As a robbery, yes.
"Q. And what term did you use in describing that robbery?
"[Upchurch's counsel]: Your Honor, may we approach?
"THE COURT: Okay.
"(An unreported conference was held between Court and Counsel at the bench.)
"THE COURT: All right. Next question, please.
"[Prosecutor]: I'm going to have to have a readback, but I believe she referred to it -- she's already characterized it.
"THE COURT: All right. I'm going to sustain the objection in terms of how it was posed. Rephrase, please.
"Q. [Prosecutor]: Did you tell the detective it was like a Rite-Aid robbery?
"A. Yes, I did.
"Q. And what did you mean by that description?
"A. They were in an intent to come in the house and to do nothing but get something
"[Upchurch's counsel]: Objection; speculation, motion to strike.
"THE COURT: You have to let her finish answering the question, and then I can decide whether or not the objection should be sustained and be stricken, okay? But this collision of beginning of an answer and objection is very difficult for me, okay? [¶] Sustained as to speculation; stricken.
"Q. [Prosecutor]: When you gave a description to the detective of it being like a Rite-Aid robbery, what were you meaning; why did you use that term?
"A. Because I felt that they entered the home the way they did was very -- as such as a Rite-Aid robbery, somebody who walks in with the intent to steal and rob and injure or do bodily harm to somebody and then just leave without any consequences."
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness for a reasonably competent attorney, and (2) there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that the defendant would have obtained a more favorable result absent counsel's shortcomings. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence as a matter of trial strategy. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) When the record on appeal lacks indication of the reason for counsel's decision, we affirm the conviction unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The mere failure to object rarely rises to a level implicating one's constitutional right to effective legal counsel. (People v. Boyette (2002) 29 Cal.4th 381, 433.)
Brownwood argues there could be no conceivable reason not to object to the girlfriend's testimony as to what she meant by a "Rite-Aid robbery." However, defense counsel did object and the court struck the testimony insofar as it speculated about defendants' state of mind. Thereafter, the witness merely described her perception of defendants' body language and attitude, which was not objectionable because it helped explain the fear the witness described she felt, which was relevant to the robbery charge. (§ 211 [robbery is the felonious taking of personal property by force or fear]; § 212 [fear may be fear of immediate and unlawful injury to "anyone in the company of the person robbed at the time of the robbery"].) To the extent the testimony could be characterized as lay opinion, lay opinion testimony is admissible if "rationally based on the perception of the witness" and "helpful to a clear understanding of his testimony." (Evid. Code, § 800.) She was "terrified" by Brownwood's comment about a gun and his "cocky" attitude. Counsel may have concluded that further objection would only make the testimony more significant to the jurors. (People v. Williams (1997) 16 Cal.4th 153, 215.)
Thus, defendants fail to show deficient performance by trial counsel.
Additionally, defendants fail to show prejudice. The girlfriend was not the only witness to get a bad feeling from defendants' conduct. And defendants' further actions supplied strong evidence of robbery, in that they tried to leave with the victim's marijuana and used deadly force when the victim tried to stop them.
We conclude defendants fail to show grounds for reversal based on the girlfriend's testimony.
B. Exclusion of Misdemeanor Convictions to Impeach
Brownwood argues (with joinder by Upchurch) that the trial court abused its discretion and violated their right to present a defense by precluding the defense from impeaching eyewitness K.C. with his four misdemeanor convictions for illegal retention of lost property in 2000 and vandalism in 2002.
The trial court ruled in limine that the prior misdemeanor convictions were too remote, having occurred 13 years ago within a short period of time when K.C. was 20 to 22 years old, and there was no further criminal conduct over the next 13 years.
Trial courts have discretion under Evidence Code section 352 to bar impeachment with prior convictions when their probative value is substantially outweighed by their prejudicial effect. (Evid. Code, § 352; People v. Clair (1992) 2 Cal.4th 629, 654.) Age of a conviction is an important factor in determining whether it is too remote to be used for impeachment. (Clair, at p. 655.) The court's exclusion of 13-year old misdemeanors was not an abuse of discretion.
Nor did the ruling violate defendants' constitutional right to present a defense. As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. (Boyette, supra, 29 Cal.4th at pp. 427-428; People v. Hall (1986) 41 Cal.3d 826, 834.) The defense cross-examined K.C. on his perceptions, inconsistencies between his statement to police and trial testimony, and potential bias including that the victim had been K.C.'s "dear friend" for years.
Moreover, defendants were not prejudiced by exclusion of the 13-year-old misdemeanor convictions. While K.C. was initially present in the house, he had stepped outside and did not actually witness the taking of the marijuana or the shooting. Several other witnesses testified as to the actual robbery and shooting.
Defendants fail to show reversible error regarding exclusion of the prior convictions.
II
Claims of Instructional Error
A. Voluntary Intoxication
Brownwood argues (with joinder by Upchurch) that the trial court erred in refusing a request to instruct the jury on voluntary intoxication of Brownwood.
The victim's girlfriend testified that, when Brownwood came into the house, "[h]e was under the influence. I know he was[,]" because his "eyes were red and dilated, and they were bright red." Based on this testimony, Brownwood asked the court to instruct the jury on voluntary intoxication. The court denied the request.
A defendant is entitled to a jury instruction on voluntary intoxication only when there is substantial evidence that the defendant was voluntarily intoxicated and that the intoxication affected the defendant's actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677 [witness testimony that defendant was "probably spaced out" provided "scant" evidence of intoxication].) An intoxication instruction is not required when the evidence shows a defendant ingested drugs or alcohol, unless the evidence also shows he became intoxicated to the point where he failed to form the requisite intent or attain the requisite mental state. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.)
Here, the witness merely opined Brownwood was under the influence because his eyes were red and dilated. There was no evidence that she had ever previously seen Brownwood or had personal knowledge regarding his activities that day or whether he ingested anything. Nor did the witness or anyone else present any evidence of impairment of ability to form intent.
The trial court properly refused to instruct on voluntary intoxication.
B. CALCRIM No. 548 - "Theories" of Murder
Brownwood argues CALCRIM No. 548, as given to the jury, was improper because it expressly authorized the jurors to find him guilty of murder without unanimously agreeing on the degree of murder. Brownwood claims a violation of his federal and state constitutional and statutory right to a unanimous verdict on the degree of murder. (§ 1157 [when defendant is convicted of crime which is distinguished into degrees, jury must find the degree of which he is guilty]; People v. Russo (2001) 25 Cal.4th 1124, 1132; but see, Schad v. Arizona (1991) 501 U.S. 624, 634 , fn. 5 [characterizing contention as a due process claim because, in noncapital cases, state criminal defendants have no federal right to a unanimous verdict].) The jury need not agree on a particular theory of culpability but must unanimously agree on the degree. (People v. Smith (2014) 60 Cal.4th 603, 618; People v. Dixon (1979) 24 Cal.3d 43, 53.)
We will assume for the sake of argument that the contention is not forfeited by failure to raise it in the trial court. (§ 1259 [appellate court may review any instruction that affects substantial rights].)
The People agree the modified instruction, in isolation, was improper. (People v. Johnson (2016) 243 Cal.App.4th 1247, 1279-1280 [first-degree felony-murder for attempted robbery or second-degree murder as aider and abettor]; People v. Sanchez (2013) 221 Cal.App.4th 1012, 1019 [first-degree felony-murder based on kidnapping, or second-degree murder as natural and probable consequence of assault].) But the People argue that in the context of all the instructions as a whole, there is no reasonable likelihood the jury applied it improperly, and consequently there is no reversible error. (People v. Solomon (2010) 49 Cal.4th 792, 822 [defendant who claims a jury instruction was subject to erroneous interpretation by the jury must show a reasonable likelihood that the jury misapplied the challenged instruction in the context of the total instructions].)
The defense nevertheless urges a stricter standard of prejudice -- whether error was harmless beyond a reasonable doubt because, for example, "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the [necessary] finding." (Johnson, supra, 243 Cal.App.4th at p. 1281.) We conclude other aspects of the verdict and evidence leave no reasonable doubt that the jury unanimously agreed on the same degree of murder.
We reject, post, Upchurch's separate argument of the same point.
The court planned to instruct with CALCRIM No. 548, which at the time of defendant's 2015 trial, stated: "The defendant has been prosecuted for murder under two theories: (1) malice aforethought, and (2) felony murder. [¶] Each theory of murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory."
After defendant's 2015 trial, the February 2016 edition of the criminal jury instructions added at the end of CALCRIM No. 548 a bracketed portion "[, but you must unanimously agree whether the murder is in the first or second degree]. [Orig. brackets]." However, as noted by the defense, the Bench Notes at the time of trial stated the instruction should not be given if the prosecution was relying on mutually exclusive theories of homicide supporting different degrees of murder. (Johnson, supra, 243 Cal.App.4th at p. 1278, fn. 18.)
Brownwood's counsel expressed concern about how self-defense instructions might be construed in relation to CALCRIM No. 548 and asked the trial court to modify the instruction to make it clear that felony-murder was first-degree murder and malice-aforethought was second-degree murder.
The court agreed and instructed the jury:
"Defendant Brownwood has been prosecuted for murder under two theories: (1) first degree felony murder, and (2) second degree malice aforethought.
"Defendant Upchurch has been prosecuted for murder under two theories: (1) first degree felony murder, and (2) second degree murder under the natural and probable consequences doctrine.
"Each theory of murder has different requirements, and I will instruct you on both.
"You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory."
The defense argues the error cannot be found harmless, because the instruction improperly referred to first-degree murder and second-degree murder as "theories" rather than separate crimes. But the record leaves no reasonable doubt that all jurors agreed on first-degree murder.
Although CALCRIM No. 548 did not expressly tell the jurors they must all agree on the degree of murder, other instructions and the verdict forms themselves supplied this requirement.
Thus, the trial court instructed the jury with CALCRIM No. 640 that "I can accept a verdict of guilty or not guilty of second degree murder only if all of you have found defendant . . . not guilty of first degree murder. [¶] . . . [¶]
"1. If all of you agree that the People have proved beyond a reasonable doubt that defendant . . . is guilty of first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms for that count.
"2. If all of you cannot agree whether defendant . . . is guilty of first degree murder, inform me that you cannot reach an agreement and do not complete or sign any verdict forms for that count.
"3. If all of you agree that defendant . . . is not guilty of first degree murder but also agree that defendant . . . is guilty of second degree murder, complete and sign the form for not guilty of first degree murder and the form for guilty of second degree murder. [etc.] . . ." (Italics added.)
Additionally, the jury verdict forms make clear that the jurors all agreed on first-degree murder: "We, the Jury in the above-entitled cause, find the defendant, MATTHEW BROWNWOOD, GUILTY of the crime of violation of Section 187(a) of the Penal Code of the State of California ( Murder in the First Degree of WESLEY C[.] ) . . . ." (Emphasis added.) The jury returned the same verdict for Upchurch, i.e., Guilty of "Murder in the First Degree of WESLEY C[.] . . . ." The jurors left unsigned the verdict forms for "Murder in the Second Degree."
Additionally, the prosecutor told the jurors in closing argument that "all twelve of you" would have to find each defendant not guilty of felony murder before turning to second-degree murder. After closing arguments, the trial court instructed the jury with CALCRIM No. 640.
The verdict forms, in conjunction with CALCRIM No. 640 and the prosecution's argument to the jury, satisfy us that the jury's verdicts were unanimous. Sanchez, supra, 221 Cal.App.4th at page 1025, considered CALCRIM No. 640 insufficient to cure prejudice. There, however, the trial court not only gave CALCRIM No. 548 that unanimity was not required, but also reinforced the error when the jury asked during deliberations about the meaning of second degree murder. (Id. at pp. 1023-1025.) The question led the trial court to realize it had not explained that the natural and probable consequence doctrine was the basis for second-degree murder. In answering the jury's question, the trial court repeated that unanimity was not required. The appellate court concluded that there was no way, on the record there presented, to determine whether the jury followed CALCRIM No. 640 or the court's instruction "during deliberations." (Id. at pp. 1023, 1025.)
Here, there was no reinforcement of the erroneous instruction. Johnson, supra, 243 Cal.App.4th at page 1280, said there was no requirement that a jury inquiry need be made during deliberations before a jury instruction can be found to have been given in error. Nevertheless, Sanchez said the trial court undermined CALCRIM No. 640 by the manner in which it answered the jury's question during deliberations. (Sanchez, supra, 221 Cal.App.4th at p. 1025.) Here, nothing undermined CALCRIM No. 640.
Moreover, as to Brownwood, any error regarding degree of murder was harmless in light of the jury's finding that the special-circumstance allegation was true. (People v. Moore (2011) 51 Cal.4th 386, 412.)
We conclude beyond a reasonable doubt that the jury unanimously agreed on first-degree murder.
III
Brownwood's Claim of Prosecutorial Misconduct (Error)
Brownwood contends the prosecutor committed misconduct by suggesting in closing argument that, before the jury could find he acted in self-defense or killed accidentally, the jury must first conclude he did not take any marijuana. The People prefer to characterize the claim as one of prosecutorial "error," arguing there is no evidence the prosecutor had a culpable state of mind. The People further argue Brownwood forfeited this claim by failing to object during closing argument and fails to show the forfeiture constituted ineffective assistance of counsel, and in any event the prosecutor's argument was not improper.
Buried in Upchurch's appellate brief, which we discuss post, is a hidden joinder in Brownwood's contention of prosecutorial misconduct.
We conclude any claim of prosecutorial misconduct or error was forfeited; the forfeiture was not ineffective assistance of counsel; and there was no prosecutorial misconduct or error.
As to Brownwood, the trial court instructed the jury on self-defense and accident.
CALCRIM No. 505 -- Justifiable Homicide: Self-Defense -- told the jury that Brownwood was not guilty of second degree murder or manslaughter if he killed in self-defense, i.e., that he reasonably believed he was in imminent danger of being killed or suffering great bodily injury, reasonably believed the immediate use of deadly force was necessary to defense against that danger, and used no more force than was reasonably necessary to defend against that danger. The instruction also stated, "The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter."
The court also instructed the jury with CALCRIM No. 510 -- Excusable Homicide: Accident -- that a killing is excused and therefore not unlawful if the defendant was (1) doing a lawful act in a lawful way, (2) acting with the usual and ordinary caution of a reasonably careful person in a similar situation, and (3) acting without any unlawful intent. The instruction also said the People have the burden of proving beyond a reasonable doubt that the killing was not excused, and if the People failed to meet their burden, the jury must find the defendant not guilty of murder or manslaughter.
In closing argument, the prosecutor told the jury: "If you found -- if you believe Mr. Brownwood took nothing, as he testified to, he smelled it, set it down, not good stuff, I'm walking out. And as he walks out, [the victim] [Wesley] misinterprets it or something, and for whatever reason decides, I'm going to go get that guy with the gun I supposedly have, even though he has nothing in his hands.
"And Mr. Brownwood gets attacked by [Wesley] and gets hit by a gun. Then under Mr. Brownwood's version of the facts, he would have a possible reliance on self-defense, and he could turn around and fight back.
"And if he believed deadly force was being used against him, that shots are being fired, and maybe I see the gun and hit me with a gun [sic], but I heard shots, and maybe he'll use it on me, that he would have a right to pull his gun and use it in self-defense.
"And if you find that that's an unreasonable use of self-defense, it didn't have to be a shot in the chest, could have been in the ground or another warning shot, you find it an unreasonable use of self-defense, and that would make it a manslaughter.
"If you believe his version, Brownwood's, that in the struggle, there was an accident. I pulled my gun out and accidentally shot, that would be involuntary manslaughter.
"If you believe that he's taking nothing, and [Wesley] comes out drunk and hits him, and he turns around, and you don't think he really has a right to self-defense, that he pretty much jumped the gun and just said, he's pissed off. Hey, you just hit me, dude. Takes his gun and shoots him point blank that close at the chest and shoots at another guy at the table because his intent is to kill, then you have a second degree murder.
"But the only way you get to those types of scenarios for Mr. Brownwood is if you find him not guilty of the robbery of [sic] murder. If you find that he took nothing, you actually believe what he told you on the stand, that he got attacked for no reason. And from that, those different scenarios followed.
"So as I told you from the very beginning, not all the law needs to apply, depends on what the facts you find [sic]. I would suggest or argue that the facts suggested by Mr. Brownwood are completely ridiculous, not even close to what happened that night by virtue of another gun, by virtue of him not having anything in his hand."
It is improper for a prosecutor to misstate the law to the jury, and the question is whether there is a reasonable likelihood the jury construed or applied the subject remarks in an objectionable fashion. (People v. Whalen (2013) 56 Cal.4th 1, 77; People v. Thomas (2012) 53 Cal.4th 771, 797.) The reviewing court does not lightly infer that the jury drew the most damaging meaning from the remarks but instead considers them in the context of the argument as a whole. (People v. Frye (1998) 18 Cal.4th 894, 970; People v. Dennis (1998) 17 Cal.4th 468, 522.)
A claim of prosecutorial misconduct is forfeited if the defendant fails to make a timely objection in the trial court and ask the trial court to admonish the jury to disregard an improper argument. (People v. Panah (2005) 35 Cal.4th 395, 462.) The claim will not be deemed forfeited if (1) an objection and/or request for admonition would have been futile, or (2) an admonition would have been insufficient to cure the harm. (Ibid.)
Neither defendant made a timely objection in the trial court or asked for an admonition. Brownwood does not show an objection would have been futile or an admonition insufficient. Instead, he accuses his trial lawyer of ineffective assistance of counsel for failing to object to the prosecutor's argument to the jury that self-defense did not apply if the jury found Brownwood was "tak[ing]" property at the time. Brownwood maintains the prosecutor misstated the law of self-defense, because the self-defense doctrine would still apply if Brownwood had merely attempted a petty theft of the marijuana by carrying a jar of marijuana toward the exit, to which the victim reacted with unreasonable force.
However, this argument conflicts with Brownwood's own testimony that he took nothing. A reasonably competent defense attorney could have concluded that the prosecutor's argument was not improper, and that the prosecutor's reference to a "taking" was best understood as a response to Brownwood's testimony that he did not take any marijuana.
Moreover, when read in the context of the entire argument, and given the trial evidence, there is no reasonable likelihood the jury misconstrued or misapplied the prosecutor's argument in an objectionable fashion. The prosecutor was specifically discussing Brownwood's testimony that he took nothing and was highlighting the contrast between Brownwood's claim and the prosecutor's evidence that Brownwood took the marijuana and used force to try to keep it (i.e., robbery). We agree with the People that the prosecutor was not purporting to explain to the jury all the abstract intricacies possible in intersections of robbery, theft, and self-defense, but was discussing the law as it applied to the two factual scenarios presented by the parties.
The prosecutor's argument was proper. (People v. (Jorge) Gonzalez (2016) 246 Cal.App.4th 1358, 1380-1381 [neither accident nor self-defense is a defense to felony murder].)
IV
Parole Revocation Restitution Fine Under Section 1202.45
The trial court imposed a $10,000 parole revocation restitution fine under section 1202.45, suspended pending successful completion of parole. Brownwood argues the fine was unauthorized because his sentence does not include a period of parole. The Attorney General concedes the point, and we accept the concession.
Section 1202.45 provides in part: "(a) In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." The fine shall be suspended unless parole is revoked. (§ 1202.45, subd. (c).) The section 1202.45 fine must be assessed when the sentence includes a period of parole. (People v. Battle (2011) 198 Cal.App.4th 50, 63 (Battle).)
The trial court sentenced Brownwood to life in prison without the possibility of parole for the murder, plus 25 years to life for the firearm enhancement. Brownwood also received determinate terms of four years for robbery and two years for illegal firearm possession (Counts Two and Three), but both were stayed pursuant to section 654.
When a defendant is sentenced to life without the possibility of parole (LWOP), a section 1202.45 fine may not be imposed, even though the defendant also receives a determinate term in conjunction with the LWOP. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.) When a defendant's current sentence does not presently allow for parole, and there is no evidence it ever will, no additional parole revocation restitution fine should be imposed, and any such fine should be stricken. (Ibid.; Battle, supra, 198 Cal.App.4th at p. 63.)
We agree with Brownwood that a different result is not compelled by People v. Brasure (2008) 42 Cal.4th 1037, which upheld a section 1202.45 fine imposed but suspended on a determinate sentence where the defendant was also sentenced to death, not LWOP. (Id. at p. 1075.)
We order the section 1202.45 fine stricken.
V
SB 620 -Discretion to Strike Enhancement (Brownwood)
We allowed Brownwood to file a supplemental brief invoking legislation enacted while this appeal was pending -- Senate Bill No. 620 (SB 620; Stats. 2017, ch. 682, § 2, effective Jan. 1, 2018) -- which now gives trial courts discretion to strike firearm enhancements under section 12022.53. (§ 12022.53, subd. (h) ["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"].)
SB 620 applies retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; In re Estrada (1965) 63 Cal.2d 740, 744.) Here, the amendment took effect before Brownwood's conviction became final on appeal, and therefore SB 620 applies. (See People v. Viera (2005) 35 Cal.4th 264, 305-306.)
Remand is required to allow the trial court to consider exercising its discretion, unless the record reveals a clear indication that the trial court would not have reduced the sentence even if it had discretion to do so at the time of sentencing. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
The People argue remand is not needed because there is no reason to believe that the trial court would exercise its discretion to strike Brownwood's firearm enhancement.
However, the record is ambiguous. In sentencing Brownwood, the trial court commented on "how very senseless the loss of [Wesley]'s life was, and the callousness with which Mr. Brownwood acted in pulling out that .22 and shooting an unarmed man in his own living room, in front of his friends and loved ones, all over some marijuana." However, the court also stated, "as to you, Mr. Brownwood, I don't -- don't relish imposing the type of sentence I'm going to be imposing, but the policies have been set, laws have been enacted to sort of say, as a society, when another person's life is taken, we then look at how that person's life was taken under the type of circumstances that were involved and then have a jury decide to what degree and then have punishment flow accordingly. And that's where we are today."
Since the record does not clearly indicate whether the trial court would have applied the section 12022.53 enhancement had SB 620 been in effect at the time of sentencing, we remand for the trial court to exercise its discretion.
As to Brownwood's appeal, we modify the judgment to strike the section 1202.45 fine and remand for the trial court (1) to consider whether to strike or dismiss the section 12022.53 enhancement, and (2) in any event, to prepare an amended abstract of judgment deleting the section 1202.45 parole revocation restitution fine.
UPCHURCH'S APPEAL
In addition to Upchurch's joinder in Brownwood's contentions, as noted above, Upchurch presents his own arguments.
I
Claims of Instructional Error
A. Degree of Murder
Upchurch contends CALCRIM No. 548 improperly allowed the jury to convict of murder without unanimously agreeing on a degree of murder. Upchurch argues he did not forfeit the point by failing to raise it in the trial court, because the instruction adversely affects substantial rights (§ 1259), and any forfeiture is due to ineffective assistance of counsel.
As with Brownwood, we reject Upchurch's challenge to CALCRIM No. 548, because the verdict forms and other instructions, particularly CALCRIM No. 640, and the prosecutor's arguments to the jury, show that CALCRIM No. 548 was harmless beyond a reasonable doubt.
B. Self-Defense
Upchurch argues he was denied a fair trial by the trial court's refusal to instruct the jury specifically that he was not guilty of second-degree murder under a natural/probable consequence theory if Brownwood killed in perfect self-defense or committed a lesser manslaughter offense. Upchurch argues the error is not harmless because the prosecutor in closing argument told the jurors that, in order to apply self-defense to Brownwood as to second-degree murder, they had to believe Brownwood did not take anything before he fired his gun. Upchurch joins in Brownwood's contention of prosecutorial misconduct, which we have already rejected. We now reject Upchurch's arguments.
The point is moot, because Upchurch was convicted of first-degree murder, not second-degree murder. Also, no specific instruction was needed, as the instructions regarding natural/probable consequences already incorporated any defenses to murder.
The court instructed the jurors, as to Brownwood only, that if they found self-defense or accident applicable, then Brownwood was not guilty of second degree murder or manslaughter. The court also instructed on voluntary manslaughter based on imperfect self-defense and involuntary manslaughter as to Brownwood only.
Upchurch asked the court to instruct the jurors that he was not guilty of any homicide under the natural/probable consequences theory if Brownwood acted in lawful self-defense. On appeal, Upchurch maintains a similar instruction should have been given regarding accident, though he did not so request in the trial court.
The court expressed the view that, if the jury acquitted Brownwood of murder but convicted him of manslaughter, other instructions such as CALCRIM No. 403 adequately informed the jury that Upchurch could not be convicted of second degree murder because that would not be a foreseeable outcome.
CALCRIM No. 403 (natural/probable consequence where only the non-target offense is charged) told the jurors that, to find Upchurch guilty of second degree murder, "you must decide whether he is guilty of petty theft. [¶] To prove that [he] is guilty of murder, the People must prove that:
"1. That defendant is guilty of petty theft;
"2. During the commission of theft a co-participant in that theft committed the crime of murder;
"AND
"3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the theft. [¶] . . . [¶]
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. . . . [¶] . . . [¶]
"The People are alleging that the defendant [Upchurch] originally intended to aid and abet petty theft.
"If you decide that the defendant aided and abetted that crime and that murder was a natural and probable consequence of that crime, the defendant is guilty of murder."
On appeal, Upchurch argues this instruction would have led the jurors to believe that they could find Brownwood guilty of manslaughter, yet find Upchurch guilty of murder.
But that did not happen. The jury found both defendants guilty of murder.
Moreover, the jury was instructed that Upchurch was guilty of second degree murder under the natural/probable consequences doctrine only if a co-participant "committed the crime of murder." Accordingly, had the jury found Brownwood committed no offense or merely manslaughter, it could not have found Upchurch guilty of murder.
Additionally, the natural/probable consequences instructions told the jurors to refer to the separate instructions on murder and petty theft to decide whether they were committed, which necessarily incorporated all of the relevant instructions including self-defense and accident. The instructions adequately informed the jury that any defense/excuse to murder applicable to Brownwood would necessarily affect the determination regarding Upchurch's culpability.
Upchurch fails to show reversible instructional error regarding self-defense or accident.
C. Instruction on Natural/Probable Consequence of Petty Theft
Upchurch claims the court erred by instructing the jury with CALCRIM No. 403 -- at the prosecution's request and over defense objection -- that Upchurch could be convicted of second-degree murder as a natural and probable consequence of petty theft if the jurors found that Upchurch was guilty of petty theft, during which a co-participant committed murder, and "[u]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the [petty] theft." The instruction added: "The People are alleging that the defendant [Upchurch] originally intended to aid and abet petty theft. [¶] If you decide that the defendant aided and abetted that crime and that murder was a natural and probable consequence of that crime, the defendant is guilty of murder."
The trial court gave this instruction over defense objection, based on the prosecutor's concern that the jury might find Upchurch intended only a "snatch and grab," and Brownwood acting as a "lone wolf" converted it to a robbery with force. Murder could be a foreseeable result of a "snatch and grab" under the unique circumstances of this case (including, e.g., stealing drugs from a drug dealer's home while the drug dealer and several of his friends watched; Upchurch had been using marijuana for about 12 years, thought this drug dealer was violent, knew Brownwood owned a Smith and Wesson .22 caliber gun and carried it for drug deals, and would have heard Brownwood loudly say his gun was worth more than the marijuana) -- all supporting an inference that Upchurch knew Brownwood carried his gun into the house that night.
Upchurch claims the instruction presented the jury with a "legally unsupported theory" that second-degree murder could be a natural and probable consequence of a trivial petty theft, violating his right to a fair trial and lightening the prosecution's burden.
We need not address this argument, because even assuming for the sake of argument that there was any problem with the petty theft instruction for second-degree murder, it could not have prejudiced Upchurch in light of the fact that the jury expressly found Upchurch committed robbery, not petty theft, and found Upchurch guilty of first-degree murder, not second-degree murder. He tries to bootstrap this point to his complaint about CALCRIM No. 548's failing expressly to tell jurors they must unanimously agree on the degree of murder, but we have already rejected that contention. Contrary to Upchurch's view, his argument about CALCRIM No. 403 does not make clear that he was prejudiced by CALCRIM No. 548.
Upchurch argues the guilty verdicts on first-degree murder and robbery cannot render moot his challenge to the natural/probable consequence instruction for second-degree murder, because the jury (1) asked a question about force during deliberations and (2) found "not true" for Upchurch the special-circumstance allegation of murder in the commission of robbery (§ 190.2). We disagree.
The special-circumstance instruction, CALCRIM No. 703, told the jurors that, if they decided Upchurch was guilty of first degree murder but was not the actual killer, they could not find true the special-circumstance unless they found (1) his participation in the robbery began before or during the killing, (2) he was a major participant in the robbery, and (3) when he participated in that crime, he acted with "reckless indifference to human life," meaning he "knowingly engages in criminal activity that [he] knows involves a grave risk of death."
Contrary to Upchurch's argument, the jury's rejection of the special-circumstance allegation does not cast a reasonable doubt on whether the jury decided he was merely engaged in a petty theft that Brownwood's unanticipated conduct converted into a robbery. The special-circumstance instruction, CALCRIM No. 703, posed a subjective test that Upchurch actually knew his activity involved a grave risk of death, whereas CALCRIM No. 403 posed an objective test that "a reasonable person in the defendant's position would have known" that murder was a natural and probable consequence of theft. It was not logically inconsistent for the jury to convict of first-degree murder and robbery yet find not true the special-circumstance allegation. (People v. (Jorge) Gonzalez (2018) 5 Cal.5th 186, 202-203.) We separately address, post, Upchurch's invocation of new legislation on accomplice liability for murder (Sen. Bill No. 1437; Stats. 2018, ch. 1015), enacted while this appeal was pending.
Moreover, we know the jury did not believe Upchurch was merely engaged in petty theft, because the jury did not sign the verdict form that would have found Upchurch guilty of petty theft as a lesser offense of robbery, and the trial court instructed the jury "I can accept a verdict of guilty of a lesser crime only if you have found a defendant not guilty of the corresponding greater crime."
Nor does the jury's question during deliberations prove anything. The jury asked for a definition of " 'force,' as it applies to actions taken in commission of a robbery. What actions could constitute 'force.' " The court responded: "What constitutes 'force' is a factual question to be determined by the jury. It should be defined using its ordinary, everyday meaning. It must be more than the incidental touching necessary to take the property. The application of force may be used when taking the property or when carrying it away." The jury's question says nothing about the jury's deliberations or decisions.
We observe the jury also asked for clarification because the special-circumstance instruction referred to subdivision (d) of section 190.2, while the charging forms referred to subdivision (a) of that statute. The court explained that subdivision (d) pertains to the law relating to an aider/abettor's "intent," while the forms correctly identified subdivision (a) as the specific provision for murder in the commission of robbery. Again, this does not undermine the verdict.
We conclude Upchurch fails to show grounds for reversal of his judgment based on instructional error.
II
SB 1437 - Accomplice Liability for Felony-Murder (Upchurch)
We allowed Upchurch's request for supplemental briefing in which he invokes legislation enacted while this appeal was pending -- Senate Bill No. 1437 (Stats. 2018, ch. 1015, eff. Jan. 1, 2019) -- which amends sections 188 and 189 to reduce accomplice liability for felony-murder where the accomplice did not commit the act that killed the victim. (§ 188, subd. (a)(3) ["Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime"].) Section 189, subdivision (e), provides that a participant in the perpetration of a felony listed in subdivision (a) -- i.e., first-degree felony-murder for specified felonies such as robbery -- in which a death occurs is liable for murder only if he was the actual killer, or acted with intent to kill in aiding and abetting the actual killer, or was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2 [special circumstance].
The new legislation also adds section 1170.95, which provides a procedure by which those already convicted of murder before the 2018 enactment of SB 1437 may seek retroactive relief in a petition to the trial court. (People v. Martinez (2019) 31 Cal.App.5th 719, 724 (Martinez).)
Martinez held that SB 1437 cannot be invoked on direct appeal of a conviction. Rather, the Legislature by creating the section 1170.95 mechanism, which facially applies to both final and nonfinal convictions, clearly indicated that SB 1437 should not be applied retroactively to nonfinal convictions on direct appeal. (Id. 31 Cal.App.5th at p. 727.) Section 1170.95 allows a person convicted "of felony murder or murder under a natural and probable consequences theory" to file a petition with the trial court that sentenced him, to have the conviction vacated and be resentenced when three conditions are met: (1) the charges allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) the petitioner was convicted of first degree or second degree murder following a trial [or plea agreement]; and (3) the petitioner "could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing, the prosecutor must file and serve a response, and the petitioner may file and serve a reply. (§ 1170.95, subd. (c).) If the trial court concludes the petitioner has made a prima facie showing, the court shall issue an order to show cause and shall hold a hearing at which the prosecution shall have the burden of proof. (Id., subd. (d).) The prosecutor and the petitioner "may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Id., subd. (d)(3).) "If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." (Id. subd. (d)(2), emphasis added.)
Though Martinez relegated the defendant to the remedy of a trial court petition under section 1170.95, Martinez in dictum observed that it was not foreclosing the possibility of immediate relief on direct appeal of a conviction if a defendant could present a particularly strong case for SB 1437 relief. (Id. 31 Cal.App.5th at p. 729.) Such a defendant could seek a stay of his pending appeal to pursue SB 1437 relief in the trial court, and an appellate court -- if convinced it is supported by good cause -- could order the pending appeal stayed, with a limited remand to the trial court for the sole purpose of permitting the trial court to rule on a section 1170.95 petition. (Ibid., citing People v. Awad (2015) 238 Cal.App.4th 215, 222.)
Here, defendant sought a stay of the appeal and a limited remand. We denied the request but invited the parties to submit supplemental letter briefs addressing what effect, if any, SB 1437 would have on the prosecution's alternate theory of second-degree murder based, not on aiding/abetting by Upchurch, but on Upchurch's own implied malice in his direct perpetration of petty theft with conscious disregard that the natural and probable consequence was danger to human life under the particular circumstances of the case.
In their supplemental briefs, Upchurch and the Attorney General both agree that the prosecution presented no such alternate theory to the jury but instead relied solely on a theory of liability for Upchurch as an aider and abettor. (E.g., People v. Prettyman (1996) 14 Cal.4th 248, 262; People v. Montes (1999) 74 Cal.App.4th 1050, 1055.) Having reviewed all instructions and closing arguments to the jury, we are not so sure.
Nevertheless, we need not and do not decide whether Upchurch could be convicted of second degree murder based on his own implied malice in personally committing a petty theft with conscious disregard that the natural and probable consequence of his action was dangerous to human life under the specific circumstances. We merely conclude Upchurch does not present good cause for invoking SB 1437 on direct appeal and thus cannot circumvent the procedural remedy afforded by the Legislature in section 1170.95.
III
Claim of Cumulative Error
Having reviewed all of Upchurch's contentions, we reject his argument that the cumulative effect of errors deprived him of due process and requires reversal.
DISPOSITION
As to defendant Brownwood, the section 1202.45 fine is stricken. We remand for the trial court (1) to consider whether to strike or dismiss the section 12022.53 enhancement, and (2) in any event, to prepare an amended abstract of judgment deleting the section 1202.45 parole revocation restitution fine. The judgment against Brownwood is otherwise affirmed.
As to defendant Upchurch, the judgment is affirmed without prejudice to Upchurch filing a petition for relief in the trial court pursuant to section 1170.95.
/s/_________
HULL, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MAURO, J.