California Court of Appeal Jan 14, 2015 No. E058996Unpublished
Filed 1/14/15 P. v. Hebert CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058996
v. (Super.Ct.No. RIF1105818)
COLIN WILLIAM HEBERT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed with directions.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and
Respondent.
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I
INTRODUCTION
Defendant Colin William Hebert appeals from judgment entered following jury
convictions for two counts of attempted premeditated murder (Pen. Code, §§ 664 and
187, subd. (a);1 counts 1 and 2); three counts of assault with a firearm (§ 245, subd.
Defendant challenges the prosecutor’s statements during closing argument that
premeditation and deliberation is “more like a yellow light. It happens to people all the
time, right? You’re driving towards an intersection, there’s a light and it turns yellow.
[¶] What goes through your head? [¶] How fast are you going? [¶] Is there anyone
behind you? [¶] Are there any other cars to your left or right? [¶] How far is the light
from you? [¶] Do you see any police officers? [¶] Is there anyone in the intersection?
[¶] Any pedestrians around? [¶] Is it day? [¶] Is it night? [¶] Are you running late?
[¶] Can you afford an extra five minutes? [¶] Do you know this intersection? [¶] Is it
one of those that has a really long red light or a really short red light? [¶] What lane are
you in? [¶] Can you take a right on the red light instead and save a couple minutes? [¶]
All of those things go through your head in, what, a second or two? And you make a
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decision. You consider all the factors and you make a decision. ‘I’m either going to stop
or I’m going to go.’ Right? [¶] That is deliberation and premeditation, and that’s an
everyday decision, right? But ultimately, it can be life or death [¶] Car accidents kill
people. They do. Especially things like this where you blow a yellow light, and you t-
bone someone, or you put the brakes on too hard and you get rear ended. [¶] These are
life and death decisions. These are the kinds of decisions that can end up with someone
getting hurt. Does that mean you didn’t deliberate? No. [¶] Look at the jury instruction
on this issue. Time has nothing to do with it. It’s focus.”
Defense counsel moved for a mistrial on the ground the prosecutor incorrectly
explained premeditation by analogizing it to deciding whether to proceed through the
intersection on a yellow light. The trial court denied the objection. The court stated, “I
think that’s actually argument of counsel, clearly argument of counsel by way of analogy.
And I invite the Defense to point out to the jury how baseless that analogy is, as
apparently it is the belief of the Defense that it’s an improper analogy, that you can make
that argument to the jury. That’s a jury issue.”
Citing People v. Glen Johnson (2004) 119 Cal.App.4th 976 (Glen Johnson),
People v. Danny Johnson (2004) 115 Cal.App.4th 1169 (Danny Johnson), and People v.
Nguyen (1995) 40 Cal.App.4th 28 (Nguyen), defendant argues this comparison of the
thought process used when going through an intersection with that of killing someone,
trivialized the premeditation and deliberation element of murder by equating it to the
decisionmaking process used in daily life to decide routine matters. A finding of
deliberation for a murder conviction based on premeditated and deliberate acts requires
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proof of “careful thought and weighing of considerations for and against the proposed
course of action.” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) Defendant argues
the prosecution’s comparison of the decisionmaking process used when proceeding
through an intersection to that of killing someone, was a mischaracterization designed to
diminish the prosecution’s burden on the issue of premeditation and deliberation.
Glen Johnson, Danny Johnson, and Nguyen are not on point since they concern
the propriety of the prosecutor’s statements and jury instruction on the meaning of the
phrase, “beyond a reasonable doubt.” The court in Glen Johnson concluded the trial
court and prosecutor’s statements regarding reasonable doubt, made during jury selection
and closing argument, improperly lowered the prosecution’s burden of proof below the
due process requirement of proof beyond a reasonable doubt by equating proof beyond a
reasonable doubt to everyday decisionmaking in a juror’s life. (Glen Johnson, supra, 119
Cal.App.4th at p. 985.) The court in Danny Johnson similarly rejected the notions “that
people planning vacations or scheduling flights engage in a deliberative process to the
depth required of jurors or that such people finalize their plans only after persuading
themselves that they have an abiding conviction of the wisdom of the endeavor. Nor can
we say that people make such decisions while aware of the concept of ‘beyond a
reasonable doubt.’” (Danny Johnson, supra, 115 Cal.App.4th at p. 1172.) In Nguyen, the
court stated it “strongly disapprove[d] of arguments suggesting the reasonable doubt
standard is used in daily life to decide such questions as whether to change lanes or
marry.” (Nguyen, supra, 40 Cal.App.4th at p. 36.)
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The instant case is distinguishable from Glen Johnson, Danny Johnson and
Nguyen in that defendant’s objection here does not concern the prosecutor or the trial
court improperly amplifying the concept of reasonable doubt. There was no
misstatement of the reasonable doubt standard. Defendant’s objection here concerns the
murder element of “premeditation and deliberation.” Furthermore, the trial court
properly instructed the jury on premeditation and deliberation.
Although the court in Nguyen concluded the prosecutor made improper statements
regarding reasonable doubt, the court did not reverse the defendant’s burglary conviction
because “Nguyen was not prejudiced since the prosecutor did direct the jury to read the
reasonable doubt instruction and the jury was correctly instructed on the standard. We
must presume the jury followed the instruction and that the error was thereby rendered
harmless.” (Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) Likewise, here, even assuming
the prosecutor’s argument on premeditation and deliberation was improper, defendant
was not prejudiced because the trial court properly instructed the jury on premeditation
and deliberation, and we must presume the jury followed the instruction. (Ibid.) The
court also instructed the jury that nothing the attorneys said was evidence, including their
remarks during closing arguments. There thus was not a reasonable likelihood that the
jury construed or applied any of the complained-of statements on deliberation and
premeditation in an objectionable fashion. (People v. Adams, supra, ___ Cal.4th at p.
___ [2014 Cal. LEXIS 10319, [56]].)
In addition, there was substantial evidence supporting the jury’s finding of
premeditation and deliberation. Defendant appeared at Mandujano’s house three times
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within a short period of time. The first time, defendant and Cervantes got into a verbal
and physical fight. The second time, defendant yelled for Cervantes to come outside, and
finally left after yelling for about 10 minutes. The third time, defendant returned with
two companions and began shooting at Cervantes when he came outside, not just once
but three times, while he was standing near Mandujano. This evidence was more than
sufficient to support the jury’s finding that defendant fired his gun and committed
attempted murder of Cervantes and Mandujano with premeditation and deliberation.
Even if the prosecutor’s statements regarding premeditation and deliberation were
improper, they were harmless beyond a reasonable doubt. (People v. Lewis (2006) 139
Cal.App.4th 874, 887; Neder v. U.S. (1999) 527 U.S. 1, 2; People v. Adams, supra, ___
Cal.4th at p. ___ [2014 Cal. LEXIS 10319, [56]].)
V
EX POST FACTO RIGHTS
Defendant contends the trial court violated his ex post facto rights under the
federal and state Constitutions by imposing a restitution fine and parole revocation
restitution fine, each in the amount of $280. When defendant committed the charged
crimes, the statutory fine amounts were each a minimum of only $200 under sections
1202.4, subdivision (b)(1), and 1202.45. During the sentencing hearing, the trial court
stated that it would impose the minimum amount allowable. The prosecutor and defense
counsel believed the minimum amount was $280, which the trial court accordingly
imposed.
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The People agree the restitution and parole revocation restitution fines should each
be reduced to $200. “It is well established that the imposition of restitution fines
constitutes punishment, and therefore is subject to the proscriptions of the ex post facto
clause and other constitutional provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143.)
Imposition of a parole revocation restitution fine pursuant to section 1202.45 is also
viewed as punitive for ex post facto purposes. (People v. Isaac (2014) 224 Cal.App.4th
143, 147.)
We look to the applicable statutes in effect at the time of defendant’s offense to
determine whether the $280 fines violated the ex post facto clause. (People v. Souza,
supra, 54 Cal.4th at p. 143.) The minimum amount of each fine at the time of
defendant’s November 5, 2011, crimes was $200. (§ 1202.4, Stats. 2011, ch. 45 (S.B.
208), § 1 [eff. July 1, 2011, to Dec. 31, 2011]; § 1202.45, Stats. 2007, c. 302 (S.B. 425),
§ 15 [eff. Jan. 1, 2008, to Dec. 31, 2012.) Since the record shows that the trial court
intended to impose the minimum restitution and parole revocation restitution fines
permissible under sections 1202.4, subdivision (b)(1), and 1202.45, the court should have
imposed $200 for each of the two fines. Therefore, as the parties agree, defendant’s
restitution and parole revocation restitution fines must be reduced to $200 for each fine.
VI
ABSTRACT OF JUDGMENT AND MINUTE ORDER
Defendant requests this court to direct the trial court to amend the abstract of
judgment and May 31, 2013 minute order to reflect accurately the sentence imposed at
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the hearing on May 31, 2013. The People agree the minute order and abstract of
judgment are incorrect as to sentencing on counts 3 and 4.
The reporter’s transcript states that during the sentencing hearing, the trial court
ordered count 4 to be the principal term and imposed the middle term of three years for
the crime, three years for the section 12022.7, subdivision (a) enhancement, and 10 years
for the section 12022.5, subdivision (a) enhancement. Counts 3, 5, and 6 were stayed
under section 654. The May 31, 2013 minute order and abstract of judgment incorrectly
state that the section 12022.5, subdivision (a), firearms use enhancement was stayed
under section 654 as to count 4, and imposed as to count 3, which is a stayed count.
Where there is a discrepancy between the reporter’s transcript and the minute
order or abstract of judgment, the oral pronouncement controls. (People v. Zackery
(2007) 147 Cal.App.4th 380, 385; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here,
because the oral pronouncement controls, the May 31, 2013 minute order and abstract of
judgment must be amended to state that the section 12022.5, subdivision (a), firearms use
enhancement is imposed as to count 4, and stayed under section 654 as to count 3, as
stated in the reporter’s transcript.
VII
DISPOSITION
The restitution and parole revocation restitution fines are each ordered reduced
from $280 to $200, under the version of sections 1202.4, subdivision (b)(1), and 1202.45
in effect at the time defendant committed the charged crimes. In addition, the trial court
is directed to amend the May 31, 2011 minute order and abstract of judgment to state that
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the section 12022.5, subdivision (a), firearms use enhancement is imposed as to count 4,
not count 3, which is stayed under section 654. The superior court is further ordered to
modify the abstract of judgment to reflect the reduction in the restitution and parole
revocation restitution fines to $200 each, and to forward a certified copy to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that there was sufficient evidence to support the defendant's conviction for attempted murder under the kill zone theory and that the prosecutor's analogy regarding premeditation did not constitute prejudicial error. However, the court found the trial court erred in imposing restitution fines exceeding the statutory maximum in effect at the time of the crimes and ordered corrections to the sentencing documents.
Issues
Whether there was sufficient evidence to support the conviction for attempted murder of Mandujano.
Whether the prosecutor committed misconduct by misstating the law regarding premeditation and deliberation.
Whether the trial court violated the defendant's ex post facto rights by imposing restitution fines under statutes not in effect at the time of the crimes.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The trial court, however, erred in imposing restitution and parole revocation restitution fines, each in the amount of $280, when the statutory minimum in effect at the time defendant committed the charged crimes was $200.”