People v. Anderson CA2/2 ( 2021 )

Filed 12/21/21 P. v. Anderson CA2/2
Modification of opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B282048
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138556)
v.
ORDER MODIFYING
ROBERT ANDERSON, OPINION AND DENYING
REHEARING
Defendant and Appellant. [CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on December 17,
2021, be modified as follows:
1. On page 4, the following is added as the last sentence of
footnote 5: On remand, the trial court may exercise its expanded
sentencing discretion under section 654 as amended by Assembly
Bill No. 518 (2021–2022 Reg. Sess., eff. Jan. 1, 2022).
2. On page 4, the last sentence of the first paragraph is
changed to read: We affirm the judgment of conviction and
remand with directions that the trial court exercise its discretion
with respect to the imposition of the firearm enhancement under
section 12022.53 and to reconsider which sentences to stay
pursuant to section 654 as amended by Assembly Bill No. 518.
3. On page 29, Heading V is modified to read:
V. In Light of Senate Bill No. 620 and Assembly Bill
No. 518, the Matter Must Be Remanded to Enable
the Trial Court to Exercise Its Discretion to
Impose or Strike the Firearm Enhancements and
to Reconsider the Counts on Which to Stay the
Sentence
4. On page 31, the following paragraph is added before the
Disposition:
In a supplemental brief filed November 21, 2021, appellant
contends that Assembly Bill No. 518, which amends section 654,
will apply retroactively when it becomes effective on January 1,
2022. (People v. Frahs (2020) 9 Cal.5th 618, 629 [Estrada rule of
retroactivity applies to statutory changes that merely make a
reduced punishment possible].) As amended, section 654 affords
trial courts increased sentencing discretion to determine which
sentences to stay. Although the amendment to section 654 is not
yet effective, by the time the matter comes before the trial court
to exercise its discretion with respect to the firearm
enhancements under section 12022.53, subdivision (h), Assembly
Bill No. 518 will have gone into effect. Accordingly, on remand,
2
the trial court may exercise its expanded sentencing discretion
under section 654 as amended by Assembly Bill No. 518.
5. On page 31, the second sentence of the Disposition is
modified to read: The matter is remanded with directions that
the trial court exercise its discretion with respect to imposition of
the firearm enhancement under Penal Code section 12022.53,
and to reconsider which sentences should be stayed under Penal
Code section 654.
This modification changes the judgment.
Appellant Robert Anderson’s petition for rehearing is
denied.
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
3
Filed 12/17/21 P. v. Anderson CA2/2 (unmodified opinion)
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE 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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B282048
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138556)
v.
ROBERT ANDERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Tammy Chung Ryu, Judge. Affirmed in part
and remanded with directions.
Mark R. Yanis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
Robert Anderson appealed the judgment entered following
a jury trial in which he was convicted of two counts of attempted
premeditated murder (Pen. Code,1 §§ 187, subd. (a)/664; count 1,
Tony Rivas, & count 4, Carlos Manzur); two counts of shooting at
an occupied motor vehicle (§ 246; counts 2 & 3); conspiracy to
commit a crime (dissuading a witness) (§§ 182, subd. (a)(1), 136.1,
subd. (a); count 5); and attempting to dissuade a witness (§ 136.1,
subd. (a)(2); count 6). As to both attempted murders the jury
found true the allegations that appellant had personally used a
firearm (§ 12022.53, subd. (b)) and personally discharged a
firearm (§ 12022.53, subd. (c)). With respect to the attempted
murder in count 1, the jury also found true the allegation that the
personal and intentional discharge of a weapon caused great
bodily injury to Rivas. (§ 12022.53, subd. (d).) The trial court
sentenced appellant to an indeterminate term of 55 years to life
plus a consecutive determinate term of 21 years and 8 months.
We affirmed the judgment of conviction in an unpublished
opinion on September 30, 2019.2 Our Supreme Court granted
review and subsequently transferred the matter to this court
with directions to vacate the prior decision and to reconsider the
cause in light of People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke).
(Cal. Rules of Court, rule 8.528(d).) In Lemcke, our Supreme
Court undertook an examination of CALCRIM No. 3153 to resolve
1 Undesignated statutory references are to the Penal Code.
2 People v. Anderson (Sept. 30, 2019, B282048) [nonpub.
opn.] (Anderson I).
3 CALCRIM No. 315 instructs in relevant part:
2
the following question: “ ‘Does instructing a jury with CALCRIM
No. 315, which directs the jury to consider an eyewitness’s level
of certainty when evaluating an identification, violate a
defendant’s federal and state due process rights?’ ” (Lemcke, at
pp. 653–654.) While finding no due process violation on the
record before it, Lemcke “join[ed] other jurisdictions (and the
California Commission on the Fair Administration of Justice) in
acknowledging that [inclusion of the certainty factor in
CALCRIM No. 315] has the potential to mislead jurors.”
(Lemcke, at p. 665.)
On remand, appellant contends that our Supreme Court’s
concerns in Lemcke about the potential risks presented by
inclusion of the certainty factor in CALCRIM No. 315 were
realized in this case. The result, according to appellant, was a
due process violation mandating reversal. 4 We disagree.
“You have heard eyewitness testimony identifying the
defendant. As with any other witness, you must decide whether
an eyewitness gave truthful and accurate testimony. [¶] In
evaluating identification testimony, consider the following
questions: [¶] . . . [¶] How certain was the witness when he or she
made an identification?” (CALCRIM No. 315, italics added.)
4 With his supplemental brief on remand, Anderson filed a
petition for writ of habeas corpus in which he challenged trial
counsel’s effectiveness for failing to call an expert on eyewitness
identification, failing to raise the issue of defective police
procedures in obtaining the identifications, and failing to confront
Rivas with numerous inconsistencies between his initial defective
identification and his certain identification at trial, as well as
other factors undermining Rivas’s credibility. We have
considered the habeas petition concurrently with our review on
3
We also decline appellant’s invitation to revisit our
conclusion in Anderson I that the trial court’s error in limiting
the impeachment of Rivas was harmless beyond a reasonable
doubt.5 Accordingly, we vacate our prior opinion and reconsider
the matter in light of Lemcke, supra, 11 Cal.5th 644. We affirm
the judgment of conviction and remand with directions that the
trial court exercise its discretion with respect to the imposition of
the firearm enhancement under section 12022.53.
FACTUAL BACKGROUND
The attempted murders
On May 3, 2015, about 11:30 a.m., Tony Rivas parked his
red Volkswagen in front of the driveway of the San Pedro Market,
blocking the exit from the market’s parking lot. Rivas and his
passenger, Carlos Manzur, went into the market to make a
remand, but because we are issuing an order to show cause in the
habeas proceeding, we need not address petitioner’s arguments
on habeas in this opinion.
5 Appellant also contended on appeal that: (1) The trial
court violated appellant’s confrontation rights by preventing
defense counsel from confronting Rivas with evidence he was
giving false testimony and by admonishing Rivas outside the
jury’s presence regarding his comportment as a witness; and
(2) The trial court’s failure to instruct the jury on the lesser
included offense of attempted voluntary manslaughter violated
appellant’s constitutional rights, requiring reversal because the
error relieved the prosecution of the burden of proving each
element beyond a reasonable doubt. We reject these contentions,
affirm appellant’s conviction, and, in light of Senate Bill No. 620
(Stats. 2017, ch. 682, § 2), remand the matter to permit the trial
court to exercise its discretion as to the formerly mandatory
firearm enhancements imposed under section 12022.53.
4
purchase. When Rivas and Manzur returned to their car, two
women in a white Buick whose car was blocked from exiting the
parking lot began yelling at Rivas. The women insulted Rivas,
calling him a “fucking Mexican”; Rivas responded, “Fucking
nigger,” and drove away. The white Buick followed Rivas’s car at
a close distance as Rivas drove north on San Pedro Street. When
Rivas made a U-turn at 118th Street, the Buick did the same and
continued behind Rivas as he proceeded south on San Pedro.
As they drove, Rivas and Manzur saw one of the women in
the Buick speaking on a phone. After a few turns, Rivas noticed
a white truck behind his car in front of the Buick. The truck
followed the Volkswagen to 124th Street, where Rivas stopped
near the middle of the road facing Avalon Boulevard. The truck
stopped on the passenger side about 8 to 13 feet behind Rivas’s
car. Rivas testified that the truck was a full size, double cab
Chevy pickup truck, which was taller than Rivas’s car.
When the vehicles came to a stop on 124th Street, the
driver of the truck yelled, “did you have a problem with my
mom?” or words to that effect. Rivas replied, “I don’t have a
problem with your mother. I don’t have a problem with you.”
The driver then brandished a chrome nine-millimeter handgun6
and pointed it at the Volkswagen. Rivas pleaded with the driver
not to shoot, but as Rivas pulled his car slightly forward, the
driver fired the gun through the rear passenger window of the
Volkswagen. The bullet broke the window, passed through the
6 Police recovered seven .45-caliber bullet casings on 124th
Street west of Avalon Boulevard. Although the barrel widths
differ, when viewed from the side a .45-caliber handgun and a
nine-millimeter handgun appear virtually indistinguishable.
5
Volkswagen’s driver’s seat, and struck Rivas in the back, causing
him to bleed profusely and lose feeling in his legs and feet. 7 The
gun appeared to jam as the driver tried to fire a few more times.
The truck then pulled forward, made a U-turn at Avalon
Boulevard and drove back toward Rivas’s car. Rivas told Manzur
he had been hit and to get out of the car. Manzur exited the
vehicle and ran as several shots were fired in his direction. As
Rivas sat in his car unable to move his legs, the driver of the
truck fired twice more at the Volkswagen, striking the driver’s
side door.
The shooting at the food truck
Shirley Diaz Andrade was in her food truck parked on
Avalon Boulevard at 124th Street when she heard a gunshot and
saw a red car and a white pickup truck behind it on 124th Street.
She saw the truck pull in front of the red car and make a U-turn.
The driver of the truck held a gun outside the window and fired
three more times at the red car. The shooter then pointed his
gun toward the food truck and fired. Andrade dropped to the
floor and heard a bullet hit the door of her truck.
The investigation
Andrade was unable to identify the driver of the truck, but
described him as a Black male wearing a white sleeveless T-shirt.
She described the truck as a white four-door Chevy Silverado
pickup with a black towing apparatus on the rear. She
memorized the last three digits of the truck’s license plate (568).
7 The bullet that lodged in Rivas’s back damaged two of his
spinal cord nerves. As a result, Rivas was unable to walk when
he was discharged from the hospital, and at the time of trial
nearly two years after the shooting he still had no feeling in his
right leg, he needed crutches to walk, and he used a wheelchair.
6
Using the partial license plate number of the truck
provided by Andrade, police located a white GMC pickup truck
with the license plate 8X24568 that matched the description of
the suspect vehicle.8 DMV records showed the truck registered to
appellant, who lived next to the San Pedro Market on 119th
Street.
Both Rivas and Manzur identified appellant in a six-pack
photo array as the driver of the pickup truck who followed the red
Volkswagen and shot at them. Rivas and Manzur also identified
appellant as the shooter at the preliminary hearing, in the first
trial in October 2016, and at trial.
Surveillance video from the San Pedro Market before the
shooting showed Rivas and the occupants of the Buick exchange
words in the parking lot, Rivas’s execution of a U-turn, and the
Buick following the Volkswagen. Another surveillance video from
a different angle showed the Buick in the parking lot, the truck
parked in front of appellant’s house on the street, and appellant
wearing a white sleeveless T-shirt speaking with the women in
the Buick. After the Buick could be seen driving toward San
Pedro Street, the video showed appellant walking through the
market parking lot talking on the phone, walking back from the
San Pedro Street side of the market, running in the direction of
his residence and the truck, and the truck driving away. The
video then showed the truck returning from the direction of San
Pedro Street sometime later.
8 Rivas, Manzur, and Andrade identified that truck as the
vehicle used in the shooting.
7
The jail phone calls
At the preliminary hearing, Rivas testified that a woman
had visited his home and told “him not to testify⎯or come to
court.” The woman was identified as Amanda Hegarty, whom
appellant had called numerous times from jail between
November 2015 and January, sometimes using another inmate’s
booking number to place the calls. Among other things, appellant
and Hegarty discussed how Rivas might be persuaded not to
testify that appellant was the shooter.
The defense case
Appellant testified. He admitted the truck belonged to him
and agreed that he could be seen in the surveillance video
walking across the San Pedro Market parking lot talking on the
phone, but he denied driving the truck the morning of May 3,
2015, and he denied that he was the shooter. Rather, appellant
explained that his friend Davion had borrowed the truck the
night before, and after returning the next morning had driven it
off again without permission.
On the morning of the shooting, Davion parked the truck in
front of appellant’s house, but sat in the vehicle for over an hour.
Two women came to appellant’s house to look at a Chevy Malibu
appellant had for sale. Davion was still in the truck as appellant
was showing the car to the women, who complained that Davion
had not told them there was so much wrong with the car. The
women left without purchasing the Malibu and walked back to
the white Buick, which was parked in the San Pedro Market
parking lot. Appellant followed the women to their car and gave
them directions to another person in the neighborhood who sold
Saturns for less than appellant was asking for the Malibu. As
appellant was walking back in the direction of his house after the
8
women had left, he called the other car seller. In subsequent
testimony appellant stated that as he was leaving the parking lot
he was calling his friend, “O,” who had recently had a heart
attack.
Just as appellant ran back to his house Davion drove away
in appellant’s truck.
Rivas lived on 119th Street, a few houses down from
appellant on the same side of the street. Rivas was known in the
neighborhood as “Happy,” and he and appellant were acquainted.
Appellant testified that the purpose of the phone calls with
Hegarty was to get Rivas to come to court so that Rivas would
recognize that appellant was not the man who shot him.
DISCUSSION
I. The Exclusion of Rivas’s Prior Inconsistent
Testimony and the Trial Court’s Admonition of
Rivas Outside the Jury’s Presence
Appellant contends the trial court violated his
confrontation rights by preventing defense counsel from
impeaching Rivas with prior inconsistent testimony from the
preliminary hearing, which would have demonstrated Rivas was
giving false testimony at trial. Although erroneous, we conclude
the court’s limitation on this impeachment was harmless beyond
a reasonable doubt. Appellant further contends that by
admonishing Rivas outside the jury’s presence, the trial court
improperly prevented the defense from demonstrating Rivas’s
hostile demeanor under questioning, thereby violating appellant’s
right to confront this key witness. However, having failed to
object on this or any ground, appellant forfeited the claim.
9
A. The erroneous limitation on the impeachment of
Rivas was harmless beyond a reasonable doubt
1. Relevant background
At the preliminary hearing the prosecutor asked Rivas
what he saw when the white truck was stopped. Rivas
responded, “I saw the gun. It got stuck and he was making it
unstuck. I saw that he had the gun outside, and I thought it was
a policeman and I thought he’s gonna kill me.” The court
sustained defense counsel’s objection that the testimony was
nonresponsive and granted the request to strike it.
At trial Rivas denied testifying previously that he believed
the shooter was a police officer, proclaiming, “No. No. I never
said that. No. Why would I accuse him of being a police officer
when he confronted me that if I had had a problem with his
mother or with him? Why would I confuse someone that was
going to kill me with a police officer? No. No. No.” When
defense counsel sought to impeach Rivas with his preliminary
hearing testimony, the prosecutor requested a sidebar conference.
At sidebar the trial court observed, “It looks like that
portion of the testimony was stricken.” Defense counsel pointed
out that the objection had been sustained because the testimony
was nonresponsive. The trial court then ruled that defense
counsel could ask Rivas if he had testified he thought the shooter
was a police officer, but he could not refer to the preliminary
hearing transcript because Rivas’s answer had been stricken and
“should have been struck from the record.” The trial court
explained, “If it’s stricken, then you cannot refer to it. And I
don’t know exactly how the court reporter’s supposed to do it. If
it’s stricken, it’s supposed to be—not appear on the record in the
transcript.”
10
When cross-examination resumed, defense counsel asked
Rivas, “Your testimony is you have never said in court that you
thought the person who was shooting at you was a police officer?”
The trial court then sustained the prosecutor’s objection on the
ground that the question had been “asked and answered.”
2. The trial court erred in preventing the defense from
impeaching Rivas with his prior inconsistent statement, but the
error was harmless beyond a reasonable doubt
The trial court incorrectly reasoned that the portion of
Rivas’s preliminary hearing testimony which was stricken had
ceased to exist and therefore could not be used for impeachment.
To the contrary, although Rivas’s statement was inadmissible for
its truth as prior testimony, Rivas nevertheless spoke the words—
“I thought it was a policeman and I thought he’s gonna kill me”—
and those words were admissible to impeach Rivas’s trial
testimony that he never made such a statement. (People v.
Corella (2004) 122 Cal.App.4th 461, 470, 471 [witness’s “words
were stricken as testimony but continued to constitute her
‘statement,’ ” admissible for impeachment].)
Assuming without deciding that the trial court’s improper
limitation on impeachment infringed appellant’s confrontation
rights, the error does not warrant reversal in this case.
“ ‘ “Confrontation clause violations are subject to federal
harmless-error analysis under Chapman v. California (1967) 386
U.S. 18, 24.” [Citation.] We ask whether it is clear beyond a
reasonable doubt that a rational jury would have reached the
same verdict absent the error.’ ” (People v. Livingston (2012) 53
Cal.4th 1145, 1159; People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 395.) “ ‘The correct inquiry is whether, assuming
that the damaging potential of the cross-examination were fully
11
realized, a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt. Whether such an error
is harmless in a particular case depends upon a host of factors,
all readily accessible to reviewing courts. These factors include
the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.’ ” (People v. Greenberger (1997) 58
Cal.App.4th 298, 350, quoting Delaware v. Van Arsdall (1986)
475 U.S. 673, 684.)
Applying these factors to the instant case, we find the
court’s error was harmless.
Rivas’s testimony was central to the prosecution’s case, and
he was subjected to extensive cross-examination. He was also
impeached numerous times with prior inconsistent statements as
well as with a prior conviction for possession of cocaine for sale in
the 1980’s. Inconsistencies in Rivas’s account of the incident, his
willingness to deny giving testimony that plainly appeared on the
record of prior proceedings, and Rivas’s belligerence under cross-
examination were on full display throughout Rivas’s testimony.
In one such instance, after testifying that before May 3, 2015, he
had seen appellant driving the white truck past his house, Rivas
was impeached with his preliminary hearing testimony that he
had never seen appellant or his truck before the day of the
shooting. Not only did Rivas contradict his prior testimony, but
he denied ever making such a statement. At other points Rivas
was impeached with prior testimony about the sequence of events
when Rivas exchanged insults with the women in the Buick,
12
when he first saw the white truck following him, and with prior
testimony that he was never afraid because he was a “beast” and
a “bad ass.”
The prosecution presented fairly compelling evidence that
appellant was the shooter. Apart from the excluded statement
that he thought the shooter was a police officer, Rivas positively
identified appellant as the shooter from a photo six-pack before
trial, at the preliminary hearing, and at trial. Rivas’s testimony
was consistent with Manzur’s, who also identified appellant as
the shooter from a photo line-up before trial, at the preliminary
hearing, and at trial. The evidence established that appellant
owned the truck used in the shooting, and appellant, who could
be seen on surveillance video wearing a white tank top, matched
Andrade’s description of the shooter as African-American and
wearing a white sleeveless shirt. The surveillance video also
showed appellant speaking to the two women in the Buick,
walking through the market parking lot with a phone to his ear,
and then running in the direction of his residence and truck.
Immediately thereafter the truck could be seen driving away.
Finally, appellant testified that he was not the shooter,
offering his friend Davion as the likely culprit. The jury was not
required to accept appellant’s account, however. Indeed, a
rational trier of fact could disbelieve any portions of appellant’s
testimony that it deemed self-serving and draw any contrary
inferences supported by the evidence. (People v. Silva (2001) 25
Cal.4th 345, 369; People v. Ewing (2016) 244 Cal.App.4th 359,
378; see U.S. v. Selby (9th Cir. 2009) 557 F.3d 968, 976
[“ ‘[d]isbelief of a defendant’s own testimony may provide at least
a partial basis for a jury’s conclusion that the opposite of the
testimony is the truth’ ”].)
13
Under these circumstances, we conclude that the trial
court’s improper limitation on Rivas’s impeachment to be
harmless beyond a reasonable doubt. (People v. Brown (2003) 31
Cal.4th 518, 546.)
B. Appellant forfeited any claim based on the trial
court’s admonition of Rivas outside the presence of the jury
1. Relevant background
Defense counsel’s cross-examination of Rivas frequently
elicited rambling nonresponsive answers and outbursts,
prompting the court to admonish Rivas on multiple occasions.
Finally, Rivas declared, “I don’t even want to answer anymore
because those questions are not worth it anymore.” At this, the
court promptly took a break and admonished Rivas outside the
presence of the jury:
“You have been subpoenaed to testify as a witness whether
you like it or not. And as a witness [the] only job you have is to
answer the questions. You may not understand . . . why these
questions are being asked. But that is not a reason for you to get
frustrated or not answer the questions. . . . You have to answer
the questions. [¶] And you’re making it go longer and longer by
trying to just say what you want to say instead of answering the
questions. You need to answer the questions the attorneys are
asking whether you like the question or not. [¶] . . . [¶] My
observation is, when you don’t like the question, you start saying
something else. Or you’re going ahead and trying to anticipate
what the question is going to be. But that’s not what you can do
as a witness in the case.” The court added, “I don’t want to keep
stopping you because I’ve already done it several times. I don’t
like to do that with a witness. Because I don’t want the jurors to
14
have any—develop any opinions just because they see me
interrupting you.”
2. Because appellant did not object below the claim is
forfeited
Appellant did not object to the court admonishing Rivas
outside the jury’s presence at all, much less on the ground that
the procedure violated his right to confrontation. Hence, the
claim is forfeited. (People v. Smith (2001) 24 Cal.4th 849, 852
[“As a general rule, only ‘claims properly raised and preserved by
the parties are reviewable on appeal’ ”].)
II. The Trial Court Had No Sua Sponte Duty to
Instruct on Attempted Voluntary Manslaughter
Based on Heat of Passion
Appellant contends the trial court erred in omitting
instruction on attempted voluntary manslaughter on the basis of
its mistaken belief that attempted voluntary manslaughter is not
a lesser included offense of attempted murder. According to
appellant, the trial court had a sua sponte duty to instruct the
jury on attempted voluntary manslaughter based on heat of
passion, and its failure to do so violated appellant’s Sixth
Amendment right to have the jury decide every element of the
offense. We disagree.
A. The trial court’s duty to instruct
It is settled that in a criminal case, even absent a request,
“a trial court is obligated to instruct the jury on all general
principles of law relevant to the issues raised by the evidence.
[Citation.] It is error for a trial court not to instruct on a lesser
included offense when the evidence raises a question whether all
of the elements of the charged offense were present, and the
question is substantial enough to merit consideration by the
15
jury.” (People v. Booker (2011) 51 Cal.4th 141, 181; People v.
Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
However, “ ‘[a]n instruction on a lesser included offense
must be given only if there is substantial evidence from which a
jury could reasonably conclude that the defendant committed the
lesser, uncharged offense, but not the greater, charged offense.’ ”
People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).) “The
‘substantial evidence requirement is not satisfied by “ ‘any
evidence . . . no matter how weak’ ” ’ ” (ibid.), and “[s]peculative,
minimal, or insubstantial evidence is insufficient to require an
instruction on a lesser included offense” (People v. Simon (2016) 1
Cal.5th 98, 132). “On appeal, we review independently the
question whether the trial court improperly failed to instruct on a
lesser included offense.” (People v. Souza (2012) 54 Cal.4th 90,
113.)
B. Attempted voluntary manslaughter as a lesser
included offense of attempted murder
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the
unlawful killing of a human being without malice.’ (§ 192,
subd. (a).) Manslaughter is a lesser included offense of murder,
and a defendant who commits an intentional and unlawful killing
but who lacks malice is guilty of voluntary manslaughter. Heat
of passion is one of the mental states that precludes the
formation of malice and reduces an unlawful killing from murder
to manslaughter.” (Nelson, supra, 1 Cal.5th at p. 538;
Breverman, supra, 19 Cal.4th at p. 154.) Just as voluntary
manslaughter is a lesser included offense of murder, so too is
attempted voluntary manslaughter a lesser included offense of
attempted murder. (People v. Millbrook (2014) 222 Cal.App.4th
161122, 1137 [“the offense of attempted murder is reduced to the
lesser included offense of attempted voluntary manslaughter
when the defendant acted upon a sudden quarrel or in the heat of
passion”]; see People v. Gutierrez (2003) 112 Cal.App.4th 704,
708–709.)
Our Supreme Court has explained: “A heat of passion
theory of manslaughter has both an objective and a subjective
component. [Citations.] [¶] ‘ “To satisfy the objective or
‘reasonable person’ element of this form of voluntary
manslaughter, the accused’s heat of passion must be due to
‘sufficient provocation.’ ” ’ ” (People v. Moye (2009) 47 Cal.4th
537, 549 (Moye).) Legally sufficient provocation is that which
“ ‘causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation.’ [Citation.] Further,
the ‘proper standard focuses upon whether the person of average
disposition would be induced to react from passion and not from
judgment.’ ” (Nelson, supra, 1 Cal.5th at p. 539.)
“For purposes of the heat of passion doctrine, ‘provocation
is sufficient not because it affects the quality of one’s thought
processes, but because it eclipses reflection. A person in this
state simply reacts from emotion due to the provocation, without
deliberation or judgment.’ [Citation.] The standard requires
more than evidence that a defendant’s passions were aroused.
The facts and circumstances must be ‘ “sufficient to arouse the
passions of the ordinarily reasonable man.” ’ ” (Nelson, supra, 1
Cal.5th at p. 539.)
As for the subjective element of voluntary manslaughter
based on provocation, the high court has explained that the
defendant “must be shown to have killed while under ‘the actual
influence of a strong passion’ induced by such provocation.”
17
(Moye, supra, 47 Cal.4th at p. 550; Nelson, supra, 1 Cal.5th at
p. 539.) The court has emphasized that “[i]t is not sufficient that
a person ‘is provoked and [then] later kills.’ ” (Nelson, at p. 539.)
Rather, where “ ‘ “sufficient time has elapsed between the
provocation and the fatal blow for passion to subside and reason
to return, the killing is not voluntary manslaughter.” ’ ” (Moye,
supra, 47 Cal.4th at p. 550, quoting Breverman, supra, 19 Cal.4th
at p. 163.)
C. Substantial evidence did not support instruction on
attempted voluntary manslaughter in the present case
Appellant’s claim fails because there was insufficient
evidence in this case to support either the objective or the
subjective element of attempted voluntary manslaughter based
on heat of passion.
Appellant argues that Rivas’s use of the words “fucking
nigger” during the verbal altercation with the two women in the
Buick “might have easily provoked an ordinary reasonable
[B]lack man in this neighborhood to act rashly and without
deliberation, and from passion rather than judgment.” However,
the objective standard is not the reaction of a reasonable Black
man in appellant’s neighborhood. As our Supreme Court has
long held in determining whether a provocation meets the
objective standard for voluntary manslaughter, “no defendant
may set up his own standard of conduct and justify or excuse
himself because in fact his passions were aroused.” (People v.
Logan (1917) 175 Cal.45, 49 People v. Cole (2004) 33 Cal.4th
1158, 1215–1216 [same]; see also People v. Enraca (2012) 53
Cal.4th 735, 759 (Enraca) [“standard is not the reaction of a
‘reasonable gang member’ ”]; People v. Gutierrez (2002) 28 Cal.4th
181083, 1144 [passion for revenge will not reduce murder to
manslaughter].)
In this regard, appellant’s reliance on People v. Millbrook,
supra, 222 Cal.App.4th 1122 is misplaced. There, the victim had
been aggressive throughout the night of the party and had made
threatening statements and engaged in shouting matches with
other guests before arguing with the defendant. (Id. at p. 1141.)
Immediately before the shooting, the victim escalated the fight
with the defendant, and with his fists clenched, lunged at the
defendant, who then shot him. (Ibid.) The appellate court held
this evidence sufficient to permit a jury to conclude that a
reasonable person in the defendant’s position could have acted in
the heat of passion, thus warranting instruction on voluntary
manslaughter. (Id. at pp. 1141–1143.)
Here, by contrast, Rivas insulted two women outside of
appellant’s presence,9 but did not threaten or engage in any
physical violence. In such situations, our Supreme Court has
repeatedly rejected arguments that insults “would induce
sufficient provocation in an ordinary person to merit an
instruction on voluntary manslaughter.” (Enraca, supra, 53
Cal.4th at p. 759; People v. Gutierrez (2009) 45 Cal.4th 789, 826
(Gutierrez) [“a voluntary manslaughter instruction is not
warranted where the act that allegedly provoked the killing was
no more than taunting words”]; People v. Avila (2009) 46 Cal.4th
680, 706 [gang challenge insufficient provocation]; People v.
Manriquez (2005) 37 Cal.4th 547, 586 [name calling and taunting
9 There is no evidence to support appellant’s statement that
either of these women was appellant’s “loved one,” much less the
speculation that appellant might have witnessed the exchange.
19
defendant to use weapon insufficient provocation].) In short, a
provocation, “ ‘such as words of reproach, however grievous they
may be, . . . is not recognized as sufficient to arouse, in a
reasonable man, such passion as reduces an unlawful killing with
a deadly weapon to manslaughter.’ ” (People v. Wells (1938) 10
Cal.2d 610, 623.)
Not surprisingly, appellant does not even argue that the
subjective component of heat of passion was satisfied here. Not
only was evidence completely lacking that appellant shot at Rivas
and Manzur “ ‘while under “the actual influence of a strong
passion” induced by [objectively sufficient] provocation’ ” (Enraca,
supra, 53 Cal.4th at p. 759), but appellant’s state of mind was
never in issue or argued by the defense. Indeed, appellant
presented evidence completely at odds with a heat of passion
defense: he averred that he had never seen the women before, he
refuted that either was a relative of his, he denied receiving a
phone call from any woman telling him she had just been called a
“nigger,” and he categorically denied any knowledge of the
altercation in the parking lot or any name-calling between Rivas
and the women. In short, appellant vehemently denied any
involvement with the shooting, suggesting instead that his friend
Davion had taken appellant’s truck and shot Rivas.
In light of this defense, the only issue at trial on the
attempted murder charges was appellant’s identity as the
shooter. “ ‘A trial court need not, however, instruct on lesser
included offenses when the evidence shows that the defendant is
either guilty of the crime charged or not guilty of any crime (for
example, when the only issue at trial is the defendant’s identity
as the perpetrator). Because in such a case “there is no evidence
that the offense was less than that charged” [citation], the jury
20
need not be instructed on any lesser included offense.’ ”
(Gutierrez, supra, 45 Cal.4th at pp. 825–826.) As another court
explained, “When defendant denied he shot the [victim], none of
the alleged evidence of heat of passion . . . was of the type ‘that a
reasonable jury could find persuasive.’ [Citation.] Simply stated,
the duty to instruct on inconsistent defenses does not extend to
cases such as this where the sworn testimony of the accused
completely obviates any basis for finding a lesser included
offense.” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1021–
1022; People v. Gutierrez, supra, 112 Cal.App.4th at p. 709
[“Generally, when a defendant completely denies complicity in
the charged crime, there is no error in failing to instruct on a
lesser included offense”].)
III. CALCRIM No. 315
On remand, appellant contends that the trial court’s
instruction that the jury consider the level of certainty in a
witness’s identification in assessing its accuracy violated
appellant’s due process rights because the instruction, along with
the prosecutor’s argument to the jury in this case, misdirected
the jury to equate Rivas’s certainty in his identification with
accuracy. Appellant maintains the error was prejudicial under
either federal or state standards, particularly in light of the trial
court’s improper exclusion of Rivas’s preliminary hearing
testimony that Rivas had thought the shooter was a police officer.
Respondent counters that any error was harmless based on
overwhelming evidence of appellant’s guilt.
A. The Lemcke decision
In Lemcke, our Supreme Court acknowledged that
“[c]ontrary to widespread lay belief, there is now near unanimity
in the empirical research that ‘eyewitness confidence is generally
21
an unreliable indicator of accuracy.’ ” (Lemcke, supra, 11 Cal.5th
at p. 647.) However, the research also shows that “ ‘jurors . . .
tend to overvalue the effect of . . . certainty . . . in determining the
accuracy of eyewitness identifications.’ ” (Id. at p. 665.) The
court noted that as currently worded, CALCRIM No. 315 does
nothing to correct the common misconception that a witness’s
high degree of certainty in an identification correlates to
accuracy. (Id. at pp. 647, 666.) Rather, by “merely directing the
jury to consider a witness’s level of certainty, without any further
caveats, [the instruction] effectively operates to reinforce that
misconception.” (Id. at p. 666.) “This is especially problematic
because many studies have also shown eyewitness confidence is
the single most influential factor in juror determinations
regarding the accuracy of an identification.” (Id. at p. 647.) And,
as the court acknowledged, the danger of misleading jurors
increases where the prosecution’s case relies almost entirely on
the testimony of a single witness who expresses a high degree of
certainty in the identification. (Id. at p. 666.)
The Supreme Court also warned that “[t]he risk of juror
confusion is heightened by the structure of CALCRIM No. 315,
which lists witness certainty among numerous other factors the
jury should consider when assessing the eyewitness testimony.
As written, the instruction implies that each of these factors have
a direct, linear bearing on accuracy. For instance, ‘How well
could the witness see the perpetrator’ implicitly prompts the jury
to believe that if the witness could see the perpetrator well, the
identification should be given more weight, and vice versa; ‘How
closely was the witness paying attention,’ ‘Was the witness under
stress when he or she made the observation,’ ‘Did the witness
ever fail to identify the defendants,’ all do the same. Hearing the
22
certainty instruction in this context increases the risk that the
jury will infer certainty operates the same way—as having some
direct relationship with the accuracy of the identification.”
(Lemcke, supra, 11 Cal.5th at p. 666.)
Despite the risks of allowing a jury to consider the level of
an eyewitness’s confidence to determine the accuracy of an
identification, Lemcke noted that inclusion of the certainty factor
in CALCRIM No. 315 does not, by itself, violate due process.
(Lemcke, supra, 11 Cal.5th at pp. 646–647, 661.) A due process
violation occurs only if the jury instruction⎯“ ‘ “in the context of
the instructions as a whole and the trial record” ’ ”⎯ renders the
defendant’s trial fundamentally unfair, most often by lowering
the prosecution’s burden of proof. (Id. at pp. 647, 655, 661,
quoting People v. Foster (2010) 50 Cal.4th 1301, 1335.) Our
Supreme Court has long held that CALCRIM No. 315 (and its
predecessor, CALJIC No. 2.92) does not violate due process
because it “does not direct the jury that ‘certainty equals
accuracy.’ ” (Lemcke, at pp. 647, 655–657; see People v. Sánchez
(2016) 63 Cal.4th 411, 462 (Sánchez).) Rather, “[t]he instruction
leaves the jury to decide whether the witness expressed a credible
claim of certainty and what weight, if any, should be placed on
that certainty in relation to the numerous other factors listed in
CALCRIM No. 315.” (Lemcke, at p. 657.)
The Lemcke court’s examination of the record before it also
revealed sufficient safeguards to prevent the jury from
improperly inferring that a witness’s certainty in making an
identification ensures its accuracy. Our Supreme Court
concluded, “when considered ‘ “in the context of the instructions
as a whole and the trial record” ’ [citation], . . . listing the
witness’s level of certainty as one of 15 factors the jury should
23
consider when evaluating an eyewitness identification did not
render [defendant’s] trial fundamentally unfair or otherwise
amount to a due process violation.” (Lemcke, supra, 11 Cal.5th at
p. 661.)
Despite the absence of a due process violation in the case
before it, Lemcke nevertheless determined “there is a risk that
the current version of the instruction will prompt jurors to infer
that an eyewitness’s certainty in an identification is generally a
reliable indicator of accuracy.” (Lemcke, supra, 11 Cal.5th at
p. 669.) To avoid the risk that the current version of the
instruction poses, the Supreme Court exercised its supervisory
powers to direct California trial courts to omit the certainty
factor from CALCRIM No. 315 until the language might be
revised to minimize possible juror misdirection on this point.
(Ibid.)
B. Inclusion of the certainty factor did not violate
appellant’s due process rights
Lemcke’s rejection of the defendant’s due process claim was
based on the presence of several safeguards that the court found
effectively prevented the jury from improperly inferring the
accuracy of an identification from a witness’s certainty. These
included: (1) The defendant in Lemcke presented expert witness
testimony to rebut the misconception that certainty equals
accuracy by casting grave doubt on the utility of confidence to
assess accuracy, and labeling in-trial identification testimony as
“particularly meaningless” (Lemcke, supra, 11 Cal.5th at p. 658);
(2) other jury instructions given countered the possibility that
CALCRIM No. 315 lowered the prosecution’s burden of proof
(ibid.); and (3) defense counsel had ample opportunity to cross-
examine witnesses regarding the accuracy of the identification,
24
inconsistencies in other statements about the crime, and
problematic aspects of the identification procedures the
investigating officers used (id. at p. 660).
However, nothing in Lemcke suggests these elements are
prerequisites to a fair trial in which identification is at issue, nor
does the absence of any of these safeguards inevitably result in a
due process violation. The defense did not present an eyewitness
identification expert in this case, even though it could have.
Nevertheless, appellant had a full and fair opportunity to test the
reliability and accuracy of the eyewitness identification testimony
through cross-examination. And defense counsel took full
advantage of this opportunity, substantially impeaching Rivas’s
credibility and challenging the accuracy of the eyewitness
identifications. The witness certainty factor in CALCRIM
No. 315 did not impede the defense’s ability to confront the
eyewitness identification testimony, raise inconsistencies in
Rivas’s and Manzur’s identifications, or point out deficiencies in
the identification procedures used by police.
Moreover, as Lemcke emphasized, “the instruction merely
lists the witness’s level of certainty at the time of identification as
one of 15 different factors that the jury should consider when
evaluating the credibility and accuracy of eyewitness
testimony.” 10 (Lemcke, supra, 11 Cal.5th at p. 657.) Here, many
of those factors tended to seriously undermine Rivas’s credibility
and the accuracy of his identification, as defense counsel
forcefully argued to the jury. In addition, not only did these
factors cast doubt on the accuracy of Manzur’s identification, but
10 In this case, the certainty factor was one of 14 factors the
court instructed the jury to consider.
25
the certainty factor itself allowed the defense to highlight the
notable lack of certainty in Manzur’s identification of the shooter
in the photo lineup.
Our Supreme Court in Lemcke found that other
instructions given in that case undermined defendant’s argument
that the certainty language lowered the prosecution’s burden of
proof and violated his due process rights by denying him a
meaningful opportunity to present a complete defense. (Lemcke,
supra, 11 Cal.5th at pp. 658, 660.) These included a general
instruction on witness testimony that “ ‘[p]eople sometimes
honestly . . . make mistakes about what they remember’ and that
the jurors were responsible for ‘judg[ing] the credibility or
believability of the witnesses,’ ” the instruction that the
defendant is presumed innocent, and that the prosecution had
the burden of proving all elements of the crime including the
identity of the perpetrator beyond a reasonable doubt. (Id. at
p. 658.) These general instructions were given in this case, too,
thus fully apprising the jury of its duties regarding assessment of
a witness’s credibility and the prosecutor’s burden to prove guilt
beyond a reasonable doubt. (Lemcke, supra, 11 Cal.5th at p. 658.)
Moreover, CALCRIM No. 315 itself made this burden clear,
instructing jurors that “[t]he People have the burden of proving
beyond a reasonable doubt that it was the defendant who
committed the crime. If the People have not met this burden, you
must find the defendant not guilty.”
Jurors are presumed to have understood and correctly
applied the trial court’s instructions unless there is evidence of
confusion or the jury requested further guidance on the issue at
hand. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) Moreover,
in addition to CALCRIM No. 315, the trial court read CALCRIM
26
No. 226, which, like CALCRIM No. 315, lists numerous factors
(12) the jury may consider in evaluating the accuracy of witness
testimony. The trial court also read CALCRIM No. 316, which
informs the jury how evidence of a witness’s prior felony
conviction, crime or other misconduct may be considered in
evaluating the witness’s credibility. And in closing argument, the
prosecutor urged the jury to review each of these instructions in
evaluating the credibility and testimony of every witness. We
find no indication in the record that these instructions confused
or misled the jury, and the instructions taken as a whole do not
support the conclusion that the jury was encouraged to give any
more weight to the certainty factor than to any of the other 25
factors the jury was told to weigh.
The record as a whole shows that the inclusion of the
certainty factor as one of 26 factors to be considered by the jury
did not render the trial fundamentally unfair. Aside from Rivas’s
confident identification and Manzur’s somewhat ambivalent one,
there was abundant evidence strongly pointing to appellant as
the shooter. Andrade identified the shooter as a Black man
wearing a white tank top⎯a description that matched the person
who could be seen walking across the market parking lot on the
surveillance video shortly before the shooting. Appellant owned
the truck used in the shooting and he conceded that he was the
person in the video shown speaking to the two women in the
Buick, walking with a phone to his ear, and then running toward
his truck before it was driven away. Appellant also engaged in
conduct that clearly indicated consciousness of guilt⎯he tried to
recruit others to intimidate Rivas and he was caught in multiple
lies. Further, the prosecution did not make Rivas’s confidence in
his identification of appellant the cornerstone of its entire case.
27
Although she twice highlighted Rivas’s “100 percent positive . . .
identification”, the prosecutor elsewhere argued, “We have
[Rivas]. We have [Manzur]. We have [Andrade]. We have the
white truck. We have surveillance videos. We have jail calls.
And we have the defendant’s testimony because in this case
defendant’s testimony is evidence of guilt.” Indeed, in rebuttal,
the prosecutor went so far as to argue, “We didn’t need the
eyewitness testimony” in light of the “tons of circumstantial
evidence,” defendant’s own statements, and the “direct evidence”
of defendant’s identity as the shooter.
In sum, when the single, short certainty factor is viewed in
the context of the entire record, including all of the evidence, jury
instructions, and arguments of counsel, we find no fundamental
unfairness that deprived appellant of his due process rights or
lessened the prosecution’s burden of proof. (See Lemcke, supra,
11 Cal.5th at pp. 646–647.)
IV. Pitchess
Prior to the first trial the trial court granted a defense
motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess), for a review of the personnel records of Detective
Sanchez, the Spanish speaking detective who assisted and
translated when Manzur was interviewed by police. Following an
in camera review of the requested records to determine if they
contained evidence of misconduct involving “misstating the
evidence, preparing false police reports, lying, [or]
untruthfulness,” the trial court found no discoverable
information.
Appellant asks this court to conduct an independent review
of the in camera hearing on the Pitchess motion. Respondent
contends that appellant forfeited the right to independent review
28
on appeal because he failed to renew his Pitchess motion before
the second trial. However, assuming the request is not forfeited,
respondent does not oppose an independent review by this court.
Because, as appellant points out, nothing in Detective
Sanchez’s personnel file had changed since the trial court found it
contained no discoverable information, there was no basis for the
defense to renew its Pitchess motion prior to the second trial, and
no reasonable likelihood of a different outcome. To hold
appellant forfeited appellate review of the Pitchess ruling in these
circumstances would require an idle act by the defense and a
pointless exercise by the trial court. The law does not require
idle acts. (Civ. Code, § 3532; People v. Financial Casualty &
Surety, Inc. (2016) 2 Cal.5th 35, 48.)
We have reviewed the sealed record of the in camera
proceedings and conclude the trial court satisfied its obligations
in determining whether the requested records contained
discoverable information. No abuse of discretion occurred. (See
People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
V. In Light of Senate Bill No. 620, the Matter Must Be
Remanded to Enable the Trial Court to Exercise Its
Discretion to Impose or Strike the Firearm
Enhancements
The jury found true all five of the firearm enhancement
allegations, and appellant’s sentence includes a consecutive
indeterminate term of 25 years to life under section 12022.53,
subdivision (d) and a consecutive determinate term of 20 years
pursuant to section 12022.53, subdivision (c). The parties agree
that in light of Senate Bill No. 620, the matter must be remanded
to allow the trial court to exercise its discretion as to these
formerly mandatory firearm enhancements.
29
On October 11, 2017, the Governor signed Senate Bill
No. 620. (2017–2018 Reg. Sess.) Previously, section 12022.53
required the imposition of specified sentencing enhancements
based on a true finding that the defendant personally and
intentionally discharged a firearm in the commission of a felony
(§ 12022.53, subd. (c)) or personally and intentionally discharged
a firearm causing great bodily injury (§ 12022.53, subd. (d)). The
trial court had no discretion to strike any applicable
enhancement. (Former § 12022.53, subd. (h).) The legislation
amends section 12022.53, subdivision (h) to remove the
prohibition on striking a firearm enhancement and allows the
court “in the interest of justice pursuant to Section 1385 and at
the time of sentencing, [to] strike or dismiss an enhancement
otherwise required to be imposed by this section.” (Stats. 2017,
ch. 682, § 2.)
Senate Bill No. 620 took effect on January 1, 2018, and the
amendment to section 12022.53 applies retroactively to nonfinal
judgments under the rule of In re Estrada (1965) 63 Cal.2d 740,
745. (People v. Chavez (2018) 22 Cal.App.5th 663, 712 [“amended
section 12022.53, subdivision (h) applies to all nonfinal
judgments”].) Therefore, because the judgment of conviction in
appellant’s case was not final when Senate Bill No. 620 took
effect, appellant is entitled to the benefits of the amendments to
section 12022.53.
At appellant’s sentencing in this case, the trial court gave
no indication whether it would strike the firearm enhancements
had it been aware of any discretion to do so. In such instances,
remand for a new sentencing hearing is required. (People v.
Almanza (2018) 24 Cal.App.5th 1104, 1110 [“[r]emand is required
unless the record reveals a clear indication that the trial court
30
would not have reduced the sentence even if at the time of
sentencing it had the discretion to do so”]; People v. McDaniels
(2018) 22 Cal.App.5th 420, 425 [same].) Remand is therefore
appropriate here to allow the trial court to exercise its discretion
as to whether to strike or impose the firearm enhancements in
accordance with section 12022.53, subdivision (h).
DISPOSITION
The judgment of conviction is affirmed. The matter is
remanded with directions that the trial court exercise its
discretion with respect to imposition of the firearm enhancement
under Penal Code section 12022.53.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
31