beers” and marijuana within approximately six hours. Defense counsel asserted
defendant did not plan the shooting because he was intoxicated.
Defendant’s trial counsel, in evaluating the case, could reasonably conclude that
the proof of intoxication was stronger than the proof of provocation. Defense counsel
might believe the evidence of intoxication was stronger because few people would
doubt that 30 beers in six hours plus marijuana would cause a person to be inebriated;
however, many people might doubt that Jones’s statements and actions amounted to
provocation. (See People v. Souza, supra, 54 Cal.4th at p. 116 [victim must cause
provocation]; People v. Carasi, supra, 44 Cal.4th at p. 1306 [same].)
Thus, in assessing the case, defense counsel could reasonably choose to argue
only intoxication to the jury because it was a stronger and clearer theory and would lead
to the same second degree murder conviction as would a provocation theory. Defense
counsel may not have wanted to muddy his theories by presenting two alternative routes
to second degree murder, and therefore chose to present only the stronger intoxication
theory. Accordingly, we conclude defendant has not established that his counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms.
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F. PROSECUTORIAL ERROR
1. PROCEDURAL HISTORY
Prior to trial, the trial court granted defendant’s motion to exclude references to
defendant’s possible white supremacist associations and/or beliefs. The trial court
reasoned that the case did not involve a hate crime so such evidence would be more
prejudicial than probative. (Evid. Code, § 352.)
During trial, the prosecutor asked Carmen, “Anything unusual about the white
pickup truck?” The prosecutor was referring to the truck defendant was driving during
the killing. Carmen responded, “He had stickers in the back of the window. It was just
like a regular 4x4 TRD, white in color, he had stickers on the back window, like maybe
an Obama sticker or swastika and there was another one but I don’t remember what that
is.” The prosecutor asked Carmen, “Well, do you have a photographic memory of what
the stickers are on the truck?” Carmen replied, “Well, there was a swastika sticker, if
that’s what you’re—I’m not.”
When Ernest testified, the following exchange occurred:
“[Prosecutor]: Are you familiar with the defendant’s vehicle?
“[Ernest]: A white Toyota truck.
“[Prosecutor]: Anything unusual about that vehicle?
“[Ernest]: No, just the regular truck with stickers on the back windows.
“[Prosecutor]: What kind of stickers?
“[Ernest]: Not a skeleton but, like a German helmet on a decal on there, might
have been a clothing line, I’m not sure.”
19
While the jury was at its lunch recess, the trial court remarked that Carmen
testified about a swastika sticker on defendant’s truck and Ernest testified about a
sticker for a clothing line on defendant’s truck; defense counsel clarified Ernest
mentioned a German helmet. Defense counsel said he did not believe the prosecutor
had a malicious intent, and the point of the prosecutor’s question was to prove stickers
had been on the truck and that defendant removed them. The prosecutor said, “Right
and [defense] Counsel’s aware of this and so the Court knows, nowhere does it make a
reference to a Swastika sticker, so that was out of the blue, news to both of us.” The
court said it would admonish the jury to not consider the swastika evidence for any
purpose.
At the end of the day, the trial court said to the jury, “There was testimony from
one of the witnesses about perhaps the vehicle identified as belonging to the defendant
that had a Swastika or German helmet, clothing design, whatever, you’re not to interpret
anything about that design one way or the other. The sole purpose is identification,
stickers and for the purpose of testimony. What you use it for is up to you, but as far as
what it is, not relevant, even if you believe it was a Swastika or a helmet, [it] has
nothing to do with the case and just keep that in mind because that came out. There’s
no bearing on the case at all.”
2. ANALYSIS
Defendant asserts the prosecutor erred by failing to ensure his witnesses
complied with the in limine ruling prohibiting references to defendant’s alleged support
for racist organizations. The People assert defendant forfeited this issue by failing to
20
object in the trial court, or to the extent defendant’s trial counsel requested an
admonishment, the trial court complied with the request. (See People v. Tully (2012) 54
Cal.4th 952, 1037-1038 (Tully) [failure to object on grounds of prosecutorial
misconduct forfeits the issue].) We choose to address the merits of defendant’s
contention.
“ ‘ “It is, of course, misconduct for a prosecutor to ‘intentionally elicit
inadmissible testimony.’ [Citations.]” [Citation.] Such misconduct is exacerbated if
the prosecutor continues to elicit such evidence after defense counsel has objected.’
[Citation.] However, a prosecutor cannot be faulted for a witness’s nonresponsive
answer that the prosecutor neither solicited nor could have anticipated.” (Tully, supra,
54 Cal.4th at p. 1035.)
The prosecutor said he had no knowledge of a swastika sticker being on
defendant’s truck prior to Carmen’s testimony. As a result, the prosecutor could not
have anticipated Carmen’s testimony regarding the swastika sticker. Because the
prosecutor could not have anticipated the testimony, there was no misconduct. (See
Tully, supra, 54 Cal.4th at p. 1038 [prosecutor could not have anticipated the testimony
so there was no misconduct].)
When the prosecutor asked Carmen a yes or no question about having a
photographic memory, Carmen gave a nonresponsive answer that again mentioned the
swastika sticker. Because Carmen’s answer was nonresponsive, the prosecutor could
not predict that Carmen would again discuss the swastika sticker. Because the
prosecutor could not have anticipated Carmen’s answer, we conclude there was no
21
misconduct. (See Tully, supra, 54 Cal.4th at p. 1038 [prosecutor could not have
anticipated the testimony so there was no misconduct].)
When the prosecutor asked Ernest about the stickers on the truck, Ernest
mentioned a German helmet sticker that might be associated with a clothing company
logo. It does not appear from this record that the prosecutor was attempting to elicit
inadmissible evidence from Ernest. For example, the prosecutor did not follow-up with
Ernest to ask what other stickers may have appeared on the truck. Ernest’s failure to
mention any stickers other than the possible clothing company sticker indicates that the
prosecutor may have instructed Ernest not to mention any racist stickers. In sum, on
this record, it has not been demonstrated that the prosecutor intentionally elicited
inadmissible testimony. Therefore, we conclude prosecutorial misconduct has not been
established.
G. CUMULATIVE ERROR
Defendant contends the cumulative prejudicial effect of the alleged errors in
“Arguments I to IV” (subsections C-F) require the judgment be reversed. We have
found no errors. Therefore, we have nothing to cumulate. (See People v. Duff (2014)
58 Cal.4th 527, 562 [“nothing to cumulate”].)
H. SENTENCE
1. PROCEDURAL HISTORY
In count 1, for the offense of first degree murder (§ 187, subd. (a)), with the
special circumstance of lying in wait (§ 190.2, subd. (a)(15)), the trial court imposed a
sentence of life without the possibility of parole (LWOP). In regard to the firearm
22
enhancement (§ 12022.53, subd. (d)) associated with the murder conviction, the trial
court said, “[T]hat’s a mandatory term of 25 years to life.” The LWOP and 25-years-to-
life sentences were to be served consecutively.
In count 2, for the offense of attempted murder (§§ 187, subd. (a), 664)), which
was committed willfully and with premeditation and deliberation (§ 189), the trial court
imposed a “statutory sentence [of] seven years to life.” As to the firearm enhancement
(§ 12022.53, subd. (d)) associated with the attempted murder conviction, the trial court
said “25 years to life by statute.” The 25-years-to-life firearm enhancement sentence
was consecutive to the “seven years to life” sentence; however, all of the count 2
sentence was to be served concurrent to the count 1 sentence. Thus the trial court
pronounced defendant’s total sentence as “25 years to life, plus life without the
possibility of parole.”
2. ATTEMPTED MURDER SENTENCE
Defendant contends his sentence for attempted murder should be life, rather than
seven years to life. The People concede defendant is correct.
The trial court sentenced defendant to prison for a concurrent term of seven years
to life for the attempted murder conviction. The sentence for an attempted murder that
is deliberate and premeditated is imprisonment for life with the possibility of parole.
(§ 664, subd. (a).) Accordingly, we will reverse defendant’s attempted murder sentence
and direct the trial court to impose a concurrent term of life with the possibility of
parole.
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3. FIREARM ENHANCEMENT
Defendant requests this court remand the case to the trial court so the trial court
can exercise its discretion regarding whether to strike one or both of the firearm
enhancements (§ 12022.53, subd. (d)). (§ 12022.53, subd. (h).) The People concede the
case should be remanded.
The trial court sentenced defendant on June 10, 2016.
On January 1, 2018, section 12022.53, subdivision (h), became effective. (Sen.
Bill. No. 620 (2017-2018 Reg. Sess.) § 2.) That subdivision provides, “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.” (§ 12022.53, subd. (h).) Prior to the effective date of
section 12022.53, subdivision (h), the imposition of a 25-years-to-life sentence was
mandatory for a violation of section 12022.53, subdivision (d). (Sen. Bill. No. 620
(2017-2018 Reg. Sess.).)
Unless there is evidence to the contrary, courts presume that the Legislature
intends for a statutory amendment reducing criminal punishment to apply retroactively
in cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748;
People v. Brown (2012) 54 Cal.4th 314, 324.) This presumption is applied not only to
amendments reducing a criminal penalty, but also to amendments giving the trial court
discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
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Section 12022.53, subdivision (h), vests the trial court with the discretion, at
sentencing, to strike or dismiss a firearm enhancement, which would result in a
defendant having a lesser sentence. There is nothing in the language of section
12022.53, subdivision (h), or in the broader language of the Senate Bill, indicating the
Legislature intended the subdivision to be only prospective. (Sen. Bill. No. 620 (2017-
2018 Reg. Sess.).) Accordingly, we conclude section 12022.53, subdivision (h), may be
applied in the instant case because (1) it vests the trial court with authority to lower
defendant’s sentence, and (2) defendant’s sentence was not final at the time the
subdivision became effective. (People v. Francis, supra, 71 Cal.2d at pp. 75-76.) We
will reverse the sentences for defendant’s firearm enhancements so that the trial court
may exercise its discretion under section 12022.53, subdivision (h).
DISPOSITION
Defendant’s sentence for the attempted murder conviction (§§ 187, subd. (a),
664); count 2) is reversed. The trial court is directed to impose a concurrent term of life
with the possibility of parole (§ 664, subd. (a)) for the attempted murder conviction in
count 2. The sentences for the firearm enhancements in counts 1 and 2 (§ 12022.53,
subd. (d)) are reversed. The trial court is directed to exercise its discretion under section
12022.53, subdivision (h).3 If the trial court elects not to strike or dismiss one or both
enhancements, then the trial court is directed to resentence defendant for the firearm
enhancement(s) (§ 12022.53, subd. (d)). The trial court is directed to issue an amended
3 Nothing in this opinion is intended to indicate in what manner the trial court should exercise its discretion.
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abstract of judgment and forward it to the appropriate agency/agencies. In all other
respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
26
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's conviction for attempted murder was supported by substantial evidence under the doctrine of transferred intent, and that the lying-in-wait special circumstance applies to unintended victims via the same doctrine. The court further held that the trial court properly refused to instruct on heat of passion manslaughter because the victim's actions did not constitute sufficient provocation.
Issues
Whether substantial evidence supports the attempted murder conviction when the defendant intended to kill one person but mistakenly killed another.
Whether the transferred intent doctrine applies to the lying-in-wait special circumstance.
Whether the trial court erred in refusing to instruct on heat of passion voluntary and attempted voluntary manslaughter.
Whether trial counsel rendered ineffective assistance by failing to request an instruction on how provocation affects the degree of murder.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“Defendant intended to kill Jones. Defendant mistakenly aimed his gun at Olivera and killed Olivera. Defendant’s mens rea created two crimes with a single bullet.”
“Transferred intent applies to premeditation and deliberation, and therefore, it also applies to killings that qualify for the lying-in-wait special circumstance.”
“The evidence reflects that Jones’s statements informing defendant that defendant would have to wait 10 minutes, and Jones’s acts of holding the door closed and swatting at defendant’s hand would not cause an ordinary person of average disposition”