Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 152556
Swager, Acting P. J.
Defendant was convicted following a jury trial of second degree murder (Pen. Code, § 187) and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), along with an enhancement for personal use and discharge of a firearm causing death (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subds. (b) & (d), 12022.7, subd. (a)). He was sentenced to an aggregate term of 40 years to life in state prison.
In this appeal defendant objects to an instruction given by the trial court on his constitutional right not to testify. We find that the instruction was erroneous, but was not prejudicial to defendant. We therefore affirm the judgment as modified to correct the unauthorized imposition of a concurrent sentence of one-third of the middle term on count 2.
STATEMENT OF FACTS
Defendant and the murder victim, Jamon Williams, had a history of animosity. Williams was known on the streets as a drug dealer and pimp in south Berkeley. He was also previously the “boyfriend” of defendant’s younger sister Deshawna Chatman. Then, after Williams and Chatman became friends in 2004 and 2005, Williams was Chatman’s pimp; she also sold “crack and weed” for him on the streets. Chatman testified that Williams had a reputation on the streets for violence, and carried a gun in his pants and car. She further testified that Williams threatened defendant in the past.
On the morning of June 25, 2005, Chatman called Williams to ask him to give her and her friend Kenisha Ramsey a ride to the mall. Williams agreed to meet them at the corner of “San Pablo and 60th” in Berkeley. After Chatman and Ramsey waited there for Williams for about 20 minutes, defendant arrived in the front passenger seat of a Toyota Camry driven by his best friend Sean McClelland. Chatman and Ramsey got in the car with McClelland and defendant, along with another friend, Robert Cole, who agreed to buy gas with a stolen credit card in exchange for a ride to his house.
While Chatman was in McClelland’s car she received a call from Williams, who warned her to “get out before he come snatch [her] out of the car.” Chatman left McClelland’s vehicle and briefly spoke with Williams, who was the passenger in a small white car driven by someone else. Williams started talking disparagingly about defendant, and exclaimed, “I beat his ass.” Chatman attempted to “keep the peace” by telling Williams that she got a ride with defendant and McClelland only because they arrived first. When Chatman returned to the car she told the others that Williams wanted to fight defendant. Defendant became angry, as did McClelland.
As McClelland drove away, he expressed that he wanted to “go holler” at Williams. McClelland turned around, pulled up next to the white car and said to Williams, “Can I talk to you?” Williams left his car and approached the driver’s side of McClelland’s vehicle “in a rage.” Williams had nothing in his hand except a “Hawaiian Punch or something.” McClelland stood next to the driver’s door as he and Williams “just started yelling at each other.” McClelland asked Williams why he had “a problem” with defendant; Williams replied that he would “beat that nigga’s ass.” Chatman thought that Williams looked like he “was going to hit” McClelland.
Defendant left his position in the passenger seat, walked rapidly around the rear of McClelland’s car, and approached within 18 inches of Williams with a gun drawn. Williams put his hands up to shoulder level with his “palms out.” Defendant then shot Williams repeatedly. Williams attempted to run, but hit a pole and dropped to the ground. As Williams attempted to “raise up,” defendant stood over him and fired the “rest of the clip” at the victim. Williams then “laid flat on the ground.” No one observed any weapon in the victim’s hands.
After the shooting defendant put the gun in his pocket and ran down the street away from the two cars. He was quickly picked up by McClelland, who drove the entire group to defendant’s grandmother’s house in Richmond. On the way there in the car and later at the house Ramsey heard defendant state that he “doesn’t fight, he kills.” They were told later by defendant’s cousin that Williams had died. Ramsey and Chatman did not observe defendant respond to the report of the death of Williams, but Cole subsequently told a police officer that defendant smiled, jumped in the air and pumped his fist upon hearing the news.
Defendant was arrested without resistance on the afternoon of June 30, 2005, while riding a Golden Gate Transit bus. He was in possession of a 9-millimeter semiautomatic gun in his waistband that was loaded with a round in the chamber. The hammer of the gun was pulled back, and “ready to fire.” A magazine containing additional live rounds was found in defendant’s back pocket. Cartridge cases recovered from the scene of the shooting were compared to bullets test-fired from the gun seized from defendant, and were determined to have been fired from the same weapon.
Defendant testified at trial in support of his claim of self-defense. He recounted past episodes of violence he personally encountered in his life, including the shooting of his friend McClelland in November of 2004. After McClelland was shot, defendant bought the gun found in his possession when he was arrested. In December of 2004, defendant was a passenger in a car with McClelland on the freeway in Emeryville when a red Cadillac pulled alongside. Williams was in the Cadillac along with two other occupants, one of whom rolled down the window and pointed a gun at defendant. No shots were fired, and the Cadillac “got off the freeway.” On another occasion about a month before the shooting of Williams, defendant, his brother and a friend were in a vehicle in Richmond when another car pulled up and someone inside “started shooting” at them. No one was hit, but the car was “shot up.”
Defendant also described his hostile relationship with Williams. During one telephone conversation Williams threatened to shoot defendant’s mother’s “house up,” and shoot defendant. Defendant’s sister Chatman also told him of other threats directed at him by Williams. Defendant felt that Williams was not “a safe person to be around,” and advised his sister to “leave him alone.”
On the morning of June 25, 2005, defendant and McClelland intended to meet “some females” and “hang out.” They drove by the liquor store on San Pablo and 60th to buy cigarettes and juice. Chatman and Ramsey, who were also there, asked for a ride, as did Cole, and McClelland agreed. Chatman, Ramsey and Cole sat in the back seat; McClelland was the driver, and defendant occupied the front passenger seat. As they waited to leave the intersection, a small white car approached and pulled over near them on San Pablo Avenue. Williams was in the passenger seat of the white car. Chatman and Cole left McClelland’s car to talk to Williams. Defendant remained in the front passenger seat, and did not hear their conversation with Williams.
After Chatman and Cole got back in McClelland’s car he drove away from the liquor store. McClelland decided to return, however, when Chatman mentioned that Williams “made some threats” and “wanted to fight” defendant. McClelland stated that he wanted to “get the problem solved.” He pulled his Camry over to the driver’s side of the white car and asked to talk to Williams.
Both McClelland and Williams left their respective cars and Williams walked “very fast” toward McClelland with “his hand stuck in his jacket like he had a gun or something.” Defendant feared that Williams “would pull out a gun and shoot” McClelland. As Williams and McClelland engaged in heated conversation, defendant left the front passenger seat and walked around to the back of the car, where he stopped momentarily. Williams then approached defendant and called him “a bitch.” Defendant testified that the victim “had his hands rolled up, then he put his hands in his jacket at his waistline.” Defendant thought, “somebody was going to get shot, somebody was going to die.” He pulled out his gun and shot Williams. After Williams fell, defendant remained frightened, so he continued to shoot at the victim until all his bullets had been fired. He then ran around the corner, where McClelland picked him up in the car.
They drove to defendant’s grandmother’s house in Richmond, where they were later told that Williams was dead. Defendant testified that he was “feeling bad,” and denied that he celebrated, pumped his fists or jumped up and down after the shooting. The next day, defendant learned that his brother Cory and McClelland had been shot and killed.
The defense also presented expert opinion testimony from psychologists who interviewed and evaluated defendant. They testified that defendant suffers from symptoms of cognitive impairment, paranoia, hypervigilance and posttraumatic stress syndrome, due to continued exposure to assaults, tragedies and street violence. As a result, defendant was prone to a “lowered threshold for what triggers the feeling of danger,” and “overreacting” to threats.
DISCUSSION
I. The CALCRIM No. 355 Instruction .
Defendant complains that the trial court erred by instructing the jury in accordance with a modified version of CALCRIM No. 355. Although defendant testified at trial, the court decided to give the CALCRIM No. 355 instruction, amended to delete the standard admonitions to the jury not to consider or discuss during deliberations the defendant’s failure to testify. As given to the jury the instruction was: “Defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” Defendant argues that the instruction violated his due process rights by “lessening the prosecution’s burden of proof.” He maintains that the instruction as given by the trial court “encourage[d] the jury to infer” that if the defendant testified he was “conceding that the People ha[d] proven the charges beyond a reasonable doubt.” He adds that by “striking . . . the portion of the instruction prohibiting the jury from giving any evidentiary weight to the defendant’s decision to testify,” the court “compounded the error.” The effect of the instruction, asserts defendant, is that he was essentially forced to “give up” one constitutional right – to proof beyond a reasonable doubt – to secure another – the right to “testify in his own defense.”
The portion of CALCRIM No. 355 that the trial court deleted from the instruction given to the jury reads: “Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
A. Defendant’s Failure to Object to the Instruction .
As a threshold matter, we confront defendant’s failure to object to the instruction. The defense approved of the CALCRIM No. 355 instruction, then failed to object to the modified version given by the trial court after defendant testified. Thus, he may be found to have waived any present claim of error associated with CALCRIM No. 355 unless the error affected his substantial rights. (Pen. Code, § 1259; People v. Jackson (1996) 13 Cal.4th 1164, 1223; People v. Hardy (1992) 2 Cal.4th 86, 151–152; People v. Noble (2002) 100 Cal.App.4th 184, 189; People v. Collins (1992) 10 Cal.App.4th 690, 694–695.) “Normally, a defendant forfeits the right to appeal alleged errors ‘ “by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. [Citation.] The cases equate ‘substantial rights’ with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]” [Citation.]’ [Citation.]” (People v. Christopher (2006) 137 Cal.App.4th 418, 426–427, italics omitted; see also People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) “Generally, whether or not an appellate court should excuse the lack of a trial court objection ‘is entrusted to its discretion.’ [Citation.]” (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) If defendant’s challenge to the CALCRIM No. 355 instruction is sustained, his substantial rights would have been affected. We therefore find no invited error or forfeiture of the issue, and exercise our discretion to proceed to the substance of defendant’s objections to the instruction. (See People v. Guerra (2006) 37 Cal.4th 1067, 1134; People v. Gray (2005) 37 Cal.4th 168, 235.)
Penal Code section 1259 provides in pertinent part: “The appellate court may . . . review any instruction given . . ., even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
B. The Claim of Instructional Error .
The obvious flaw with the partial CALCRIM No. 355 instruction given by the trial court is that, while a correct statement of law, it was not relevant to the proceedings. Defendant testified, so the court had no reason to give any part of the CALCRIM No. 355 instruction. “It is error for a court to give an ‘abstract’ instruction, i.e., ‘one which is correct in law but irrelevant[.]’ [Citation.]” (People v. Rowland (1992) 4 Cal.4th 238, 282.) While “the trial court must instruct on the ‘principles of law relevant to the issues raised by the evidence, [the court] has the correlative duty “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” [Citation.]’ [Citation.]” (People v. Strunk (1995) 31 Cal.App.4th 265, 271.) The focus of our inquiry, then, is upon whether the jury may have erroneously and prejudicially interpreted the instruction in the manner proposed by defendant.
“In evaluating a claim the jury could have misconstrued an instruction, the test on review is ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ [Citations.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 938.) “[W]e must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) “[A]n erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury [citations], and whether an erroneous or inartfully phrased instruction misled the jury to the defendant’s prejudice is determined by reviewing the instructions as a whole.” (People v. Owens (1994) 27 Cal.App.4th 1155, 1159.) “The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 70–75; People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.)
Defendant’s contention is that from the instruction that a criminal defendant has a constitutional right not to testify and may rely on the state of the evidence to argue that the People have failed to prove the charges beyond a reasonable doubt, the jury must have inferred the reverse premise was also true: that defendant’s decision to testify indicates the prosecution proved the charges beyond a reasonable doubt. Nothing in the challenged instruction in any way suggested that form of opposite inference to the jury, and we do not find a reasonable likelihood that the jury applied the instruction to reduce the prosecution’s burden of proof. First, the jurors would have been forced to engage in exceedingly convoluted logic to turn the instruction completely around and resolve that defendant’s testimony conceded proof of the charges beyond a reasonable doubt, when such an admonition was never given to them. Second, other instructions given by the trial court reinforced the essential and unwavering constitutional principle that the prosecution bears the burden of proof beyond a reasonable doubt. The jury was separately so instructed with the standard reasonable doubt instruction (CALCRIM No. 220), which included the caveats that each element of the charged crimes must be proved beyond a reasonable doubt, all evidence at trial must be considered and compared to determine if “the People have proved their case beyond a reasonable doubt,” and unless the evidence (not defendant’s decision to testify) proved defendant guilty beyond a reasonable doubt he was entitled to acquittal. The People’s burden of proof beyond a reasonable doubt was also incorporated into the instructions on the elements of each of the offenses and the procedures for completion of the verdict forms. The jury was further advised to evaluate the credibility and strength of each witness “by the same standard,” which militated against the inference that defendant’s testimony, unlike other witnesses, acknowledged the prosecution’s proof of the crimes. (CALCRIM Nos. 226, 302.) Finally, the argument of the prosecutor reinforced the People’s burden of proof without any insinuation that it was influenced or altered by defendant’s decision to testify.
For instance, the prosecution told the jury, “[Y]our job is essentially determining whether I have proven my case beyond a reasonable doubt; and if I have, you have the duty to vote guilty, and if I haven’t, you have the duty to vote not guilty.”
Defendant directs our attention to the decision in Lindstadt v. Keane (2d Cir. 2001) 239 F.3d 191 (Lindstadt), which he submits is “identical” to the present case, with the exception of the fact that error was attributable to defense counsel rather than the court’s instruction. In Lindstadt, counsel announced during opening argument that his client “was under no obligation to testify; that, after hearing the state’s evidence, Lindstadt and counsel would decide ‘whether [the prosecutors] have proven their case’; and that, only ‘if they have made their case,’ Lindstadt would testify.” (Id. at p. 202, italics omitted.) The court concluded: “This gratuitous comment compelled Lindstadt to pay a heavy price for the exercise of his constitutional right to give testimony in his defense: by mounting the witness stand, he was conceding the prosecution had ‘proven their case.’ And the only way a prosecutor can prove a case is beyond a reasonable doubt.” (Ibid.) “Counsel’s inept opening statement assured that, before Lindstadt opened his mouth to testify, he admitted that the prosecution had made its case.” (Id. at p. 203.) The error did “not alone suffice” to establish ineffectiveness of counsel, but the court found that in conjunction with other grievous deficiencies in counsel’s investigation and research of the sexual abuse case the cumulative weight of error “fell ‘outside the wide range of professionally competent assistance.’ [Citation.]” (Id. at pp. 202, 204.)
We discern a glaring distinction between Lindstadt and the case before us. In Lindstadt, counsel directly stated that the defendant would testify only if the prosecution proved its case. Here, in contrast, the jury was told that defendant was not compelled to testify and could rely on the evidence to argue that the People failed to prove the charges beyond a reasonable doubt. We do not think the jury then proceeded to draw the contrary inference solely from defendant’s decision to testify that the People’s burden of proof had thereby been satisfied. We conclude the more likely and reasonable inference drawn from the instruction by the jury is that even without the defendant’s testimony the prosecution still bore the burden to prove each of the offenses beyond a reasonable doubt.
An instruction irrelevant to the case, such as the one before us, although erroneous, in “most cases” is “only a nonprejudicial technical error which does not constitute grounds for reversal. [Citations.] [¶] In any event, we will not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, we conclude the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error.” (People v. Dieguez, supra, 89 Cal.App.4th 266, 277–278.) In light of the burden of proof and evidentiary instructions given by the court, which we presume the jury followed (People v. Adcox (1988) 47 Cal.3d 207, 253), it is not reasonably likely the jury would have misunderstood CALCRIM No. 355 to mean essentially the converse of what it says. (See People v. Anderson, supra, 152 Cal.App.4th 919, 938.) We conclude that the prosecution’s burden of proof was not diminished by the instruction, and defendant was not forced to forego his constitutional right to proof beyond a reasonable doubt to exercise his constitutional right to testify in his own defense. No prejudicial instructional error was committed.
II. The Concurrent Sentence for Possession of a Firearm by a Felon .
The Attorney General asks us to correct an “unlawful sentence” in this appeal. At the sentencing hearing the court stated, “I will impose a concurrent sentence” of the middle term of two years on count 2 for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)), and asked, “Is that correct?” The prosecutor and defense counsel suggested that the proper sentence was one-third of the middle term, or eight months, and the trial court revised the sentence accordingly. The Attorney General now argues that the sentencing formula for concurrent terms is not one-third of the middle term under Penal Code section 1170.1, subdivision (a), and requests that we modify the sentence “to impose a concurrent term of two years rather than eight months.”
The Attorney General is correct that the trial court’s choice of a concurrent sentence called for imposition of a full base term, not one-third of the middle term as specified in Penal Code section 1170.1, subdivision (a). “Section 1170.1 provides the general formula for determining consecutive terms of imprisonment for persons convicted of two or more felonies.” (People v. Pelayo (1999) 69 Cal.App.4th 115, 123, italics added.) Under Penal Code section 1170.1, if a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the principal term, and any term consecutive to the principal term is a subordinate term that is calculated at only one-third of the middle term. (People v. Felix (2000) 22 Cal.4th 651, 655; People v. Miller (2006) 145 Cal.App.4th 206, 213–214.) In contrast, “Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.” (People v. Quintero (2006) 135 Cal.App.4th 1152, 115, fn. 3.)
Section 1170.1, subdivision (a), reads: “Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added.)
The imposition of a concurrent term calculated according to the consecutive term formula of section 1170.1 is an unauthorized sentence. “A sentence is said to be unauthorized if it cannot ‘lawfully be imposed under any circumstance in the particular case’ [citation], and therefore is reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ [Citations.] An obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (In re Sheena K. (2007) 40 Cal.4th 875, 887.) The unauthorized imposition of a concurrent sentence of one-third of the middle term, contrary to the statutory scheme, is subject to correction on appeal without an objection at trial. (See People v. Williams (2007) 156 Cal.App.4th 898, 907; People v. Corban (2006) 138 Cal.App.4th 1111, 1117; People v. Quintero, supra, 135 Cal.App.4th 1152, 1156, fn. 3.)
DISPOSITION
We vacate the unauthorized sentence on count 2 and correct it to reflect imposition of the full two-year middle term to run concurrently with count 1, and order the trial court to amend the court minutes and abstract of judgment accordingly; the clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections. In all other respects the judgment is affirmed.
We concur: Margulies, J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.