People v. Harper CA2/5 ( 2016 )

Filed 2/22/16 P. v. Harper CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B257355
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA055372)
v.
NICHOLAS BRIAN HARPER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Blanchard, Judge. Affirmed with directions.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Timothy M. Weiner, Deputy Attorney
General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant, Nicholas Brian Harper, of voluntary manslaughter.
(Pen. Code, § 192, subd. (a).)1 The jury found defendant personally used a shotgun in the
commission of the offense. (§ 12022.5, subd. (a).) Defendant was sentenced to 21 years
in state prison. We affirm the judgment. But we direct that defendant’s abstract of
judgment be amended.
II. THE EVIDENCE
A. The Shooting
On February 7, 2012, defendant shot and killed James McElroy. Defendant and
Mr. McElroy were close friends and roommates. Defendant tossed his weapon, a .410-
guage shotgun, off of their apartment’s balcony into the bushes below. Defendant tossed
a gun belonging to Mr. McElroy into the bushes as well. Initially, defendant lied to the
police and others. He repeatedly said “two male Blacks” shot Mr. McElroy. Defendant
subsequently confessed to shooting Mr. McElroy, but claimed it was an accident.
Defendant said they were trying to force his loaded shotgun closed when it fired.
Defendant said the shotgun was “pretty close” to the victim’s face when it discharged,
maybe five to six inches away.
Mr. McElroy’s girlfriend, Carla Barajas, was sleeping in a bedroom when she
heard the gunshot. When Ms. Barajas entered the living room, Mr. McElroy was sitting
on the couch with blood gushing out of his mouth. Defendant was standing in front of
Mr. McElroy. Defendant held his cellular telephone in his hand. Defendant was talking
to someone. He was telling them to send an ambulance. A recording of a telephone call
1 Further statutory references are to the Penal Code unless otherwise noted.
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to an emergency operator was introduced at trial. On the tape defendant can be heard
saying, “I’m so fucking sorry dude,” and “James I’m so sorry.”
Ms. Barajas ran into the bathroom and locked the door. She called Mr. McElroy’s
mother, Clemmie J. Graves. Defendant “busted” into the bathroom. (Subsequent
investigation showed the bathroom door latching mechanism had been damaged and the
door had been forced inward.) Defendant grabbed Ms. Barajas by the shoulders with
both hands. Defendant told Ms. Barajas, “Two Black guys did it.” Ms. Barajas described
defendant’s demeanor as unemotional, nervous, aggressive and very focused. Ms.
Barajas said defendant was trying to be convincing.
Ms. Graves entered the apartment with her daughter, Shante McElroy. Defendant
was standing near Mr. McElroy. Mr. McElroy was fighting defendant off with both
hands. Defendant told Ms. Graves that “two Black guys” had shot her son. Ms. Graves
asked defendant to help her lift Mr. McElroy off the couch. But when defendant got
close, Mr. McElroy pushed defendant away with all his strength. Defendant approached
Ms. McElroy. Mr. McElroy grabbed Ms. McElroy’s wrist and “yanked” her away from
defendant. At trial, Ms. McElroy described defendant’s demeanor. Ms. McElroy
testified defendant’s face showed “no emotion.”
Deputy Michael Rose questioned defendant at the scene. Defendant said, “Two
male Blacks” were responsible. Deputy Rose asked defendant to describe how the men
shot Mr. McElroy. Defendant said, “I pulled out the gun.” Defendant stopped and shook
his head. Then defendant said, “He pulled out the gun . . . .”
Deputy Gustavo Munoz also interviewed defendant at the scene. Defendant told
Deputy Munoz that “two male Blacks” shot Mr. McElroy. Defendant said the two men
had approached him in the apartment complex parking lot. They wanted to buy
marijuana. Defendant told the men to meet him at the apartment. When the two men
walked into the living room, one pulled out a rifle and shot Mr. McElroy. The two men
fled on foot in an unknown direction.
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B. The Ballistics and Firearms Evidence
Mr. McElroy died of a gunshot wound to the face. A medical examiner, Dr. Raffi
Djabourian, testified the entrance wound was inside Mr. McElroy’s mouth. The entrance
wound was outside Mr. McElroy’s teeth. Dr. Djabourian said the gun’s barrel was
against Mr. McElroy’s teeth when the fatal shot was fired. Dr. Djabourian based his
conclusion on the nature of the injuries and the soot pattern left by the discharge.
Individuals with expertise in firearms and ballistics testified for both the
prosecution and the defense. The witnesses disagreed about a crucial fact—whether the
shotgun could have gone off accidentally as defendant had described. Manual Munoz
testified for the prosecution. Mr. Munoz had test-fired defendant’s shotgun. He observed
varying soot and spread patterns depending on the distance from the target. Mr. Munoz
concluded the weapon could not have accidentally discharged as defendant claimed
because properly functioning safety mechanisms would have prevented it.
Dr. Bruce Krell testified for the defense. Dr. Krell had also test-fired the shotgun.
Dr. Krell concluded the weapon was about 16 inches from Mr. McElroy’s face when it
was fired. Further, Mr. McElroy’s wound was “consistent with an attempt to force the
loaded barrel closed,” in Dr. Krell’s opinion. Dr. Krell testified the weapon could have
been accidentally “slam fire[d]” as defendant claimed. Dr. Krell’s videotaped
demonstration of such an accidental discharge was shown to the jury. On cross-
examination, Dr. Krell acknowledged the ammunition he had used was not the same type
as that recovered from the crime scene. In rebuttal, Mr. Munoz testified Dr. Krell could
not have “slam fire[d]” the weapon as demonstrated absent a defect in the weapon. Mr.
Munoz further testified no such defect existed.
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C. Defendant’s Prior Statements About Shooting Mr. McElroy
Mr. McElroy was 6 feet, 3 inches tall and weighed 260 pounds. Mr. McElroy was
bigger and taller than defendant. Prior to the shooting, several witnesses had heard
defendant threaten to shoot rather than fight Mr. McElroy. Ms. McElroy testified that
one month prior to the shooting, defendant tried to pick a fight with Mr. McElroy. Mr.
McElroy told defendant to, “Knock it off.” Defendant responded: “Well, I wouldn’t
fight you anyway. If I were ever to fight you, I would shoot you or stab you.” Mr.
McElroy’s aunt, Sonia Tran, one to three months prior to the shooting, heard defendant
tell Mr. McElroy, “[T]hat if he ever had to fight him, that he would just shoot him.”
Defendant’s exact words were, “I wouldn’t waste my time. I would just shoot you.” On
the Saturday before Mr. McElroy’s death, defendant told Ms. Tran: “If he had to fight
James, that he wouldn’t [waste] his time. [He would] just shoot him.” A friend, Austin
Montemayor, similarly testified that on two or three occasions defendant said to Mr.
McElroy: “[Y]ou’re too big. [If] I want to get down with you[,] I’ll shoot you.” There
was also evidence defendant made a similar statement to his girlfriend, Lucia Pacheco.
On January 10, 2012, a month prior to the shooting, defendant sent a text message to Ms.
Pacheco stating, “Don’t talk back to me or I’ll shoot you in the face.”
D. Mr. McElroy’s Fear of Defendant
The prosecution presented evidence Mr. McElroy feared defendant. Mr. McElroy
spoke to Ms. Tran. Mr. McElroy was concerned about defendant having a firearm in the
apartment. Mr. McElroy wanted to confront defendant about removing the shotgun from
the home. According to Ms. Tran, Mr. McElroy was scared and felt threatened and he
was concerned something bad might happen. Mr. McElroy was friends with Brandon
Alvarado. Mr. Alvarado testified that tension had been building between defendant and
Mr. McElroy in the weeks preceding the shooting. Approximately one week prior to the
shooting, Mr. McElroy spoke to Mr. Alvarado. Mr. McElroy was concerned about
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defendant having access to a firearm. Mr. Alvarado described Mr. McElroy’s fear thusly,
“That he thought that [defendant] was gonna do him dirty.”
E. Defendant’s Motive
The prosecution presented evidence of two possible motives for the shooting. One
was that defendant and Mr. McElroy were arguing over the rent. Defendant had been
served with a notice to pay or quit. And, earlier in the evening, prior to the shooting, Ms.
Barajas heard defendant and Mr. McElroy argue about the rent. The rent was due the
following day. The other possible motive was Mr. McElroy’s relationship with
defendant’s girlfriend, Ms. Pacheco. As noted above, Mr. Alvarado testified Mr.
McElroy had a romantic relationship with Ms. Pacheco. Mr. Alvarado had seen Mr.
McElroy and Ms. Pacheco “holding hands and kissing” on more than one occasion. Mr.
Alvarado did not know whether defendant was aware of the relationship. But two weeks
prior to Mr. McElroy’s death, Mr. Alvarado saw a text message from defendant to Mr.
McElroy. The message said something like: “You’re my best friend, my brother. You
stabbed me in my back. How could you do this to me?” And, according to Mr.
Alvarado, on the day of the shooting, defendant and Mr. McElroy “looked like they
weren’t talking to each other” and “weren’t getting along.” Another friend, Jonathan Isai
Olguin SiFuentes, testified Mr. McElroy seemed “troubled” on the day of the shooting.
But Mr. SiFuentes did not hear defendant and Mr. McElroy argue or exchange angry
words. Ms. Graves testified a lot of tension had developed between defendant and her
son, Mr. McElroy, in the few weeks prior to the shooting. Mr. McElroy and Ms. Barajas
had moved into the apartment occupied by defendant and Ms. Pacheco. One week later,
Ms. Pacheco had moved out. Ms. Graves testified Ms. Pacheco “didn’t seem
comfortable” with “the whole” situation.
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III. DISCUSSION
A. Defendant’s Motion to Suppress His Statements
1. Defendant’s contentions
Sheriff’s Detectives Dan McElderry and Robert Gray interviewed defendant on
February 8, 2012, in the immediate aftermath of the shooting, and six days later, on
February 14, 2012. Defendant argues statements he made during those interviews were
obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 444
(Miranda). The trial court denied defendant’s motion to suppress. We conclude the trial
court should have suppressed defendant’s February 8, 2012 statement. Also, we
conclude the trial court could reasonably deny defendant’s motion to suppress his
February 14, 2012 statement. And, we conclude any error was harmless beyond a
reasonable doubt.
2. Standard of review
Our Supreme Court has explained: “Under Miranda and its progeny, ‘a suspect
[may] not be subjected to custodial interrogation unless he or she knowingly and
intelligently has waived the right to remain silent, to the presence of an attorney, and, if
indigent, to appointed counsel.’ (People v. Cunningham (2001) 25 Cal. 4th 926, 992.) If
at any point in the interview the suspect invokes the right to remain silent or the right to
counsel, ‘the interrogation must cease.’ (Miranda, supra, 384 U.S. [at p.] 474; see id. at
pp. 444-445.) . . . . [¶] In reviewing a trial court’s Miranda ruling, we accept the court’s
resolution of disputed facts and inferences and its evaluations of credibility, if supported
by substantial evidence, and we independently determine, from the undisputed facts and
facts properly found by the trial court, whether the challenged statement was illegally
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obtained. (People v. Gonzalez (2005) 34 Cal. 4th 1111, 1125.)” (People v. Bacon (2010)
50 Cal. 4th 1082, 1104-1105; accord, People v. Duff (2014) 58 Cal. 4th 527, 551.)
3. The February 8, 2012 questioning of defendant
Defendant’s initial interview occurred in the hours following the shooting in a
sheriff’s station. Defendant was not under arrest. But defendant’s hands were “bagged”
pending gunshot residue tests. Detectives McElderry and Gray did not know whether
defendant was a suspect. They were aware defendant had blamed others. The detectives
questioned defendant in an interview area of the sheriff’s station. The interview was
audio recorded.
At the outset of the interview, defendant was read his Miranda rights. A
conversation concerning those rights ensued: “[Detective] Gray: . . . I want you to relax
and just we’re - - we’re gonna talk, you know, and try to figure out exactly what
happened over there. All right? Uhm, because you’re here, in the station, we’re going to
advise you of your rights. You’re not under arrest but because you’re here in the station,
talking to us; right? Have you ever been arrested before? [¶] [Defendant]:
(INAUDIBLE.) [¶] [Detective] Gray: What for? [¶] [Defendant]: Bullshit, small shit.
[¶] [Detective] Gray: Okay. Can you read? [¶] [Defendant]: Little bit. [¶] [Detective]
Gray: Come up closer over here ‘cause I want to go over this with you. I’m going to ask
you these questions, and at the end of the question I’m going to ask you do you
understand. If you understand, let me know yes. I’m going to give you my pen. If you
could do me a favor, if you don’t mind, if you understand, put a ‘Y’ after each question;
okay? Here’s the pen. Okay, you have the right to remain silent. Do you understand? Is
that a yes or no. [¶] [Defendant]: Yes. [¶] [Detective] Gray: Anything you say may be
used against you in a court. Do you understand? [¶] [Defendant]: Yes. [¶] [Detective]
Gray: You have the right to an attorney during questioning. Do you understand? [¶]
[Defendant]: (INAUDIBLE.) [¶] [Detective] Gray: If you cannot afford an attorney,
one will be appointed for you before any questioning. Do you understand? [¶]
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[Defendant] (INAUDIBLE.) [¶] [Detective] Gray: Do me a favor, if you don’t mind,
sign it and date it and today’s the – February 8th. Just on the bottom here is cool.
[Writing sounds can be heard on the audio tape.] [¶] [Defendant]: What is this? If you
desire an express waiver ask a yes or no question such as, ‘do you want to talk about
what happened?’ [¶] [Detective] Gray: Yeah. [¶] [Defendant]: What does that mean?
[¶] [Detective] Gray: Meaning we ask you ‘do you want to talk about what happened?’
[¶] [Defendant]: Then I can tell you no, then I can go? [¶] [Detective] Gray: No. [¶]
[Detective] McElderry: Do you want to explain to us what happened? [¶] [Defendant]:
No. I’m just trying to understand that part. [¶] [Detective] Gray: No. It says – it’s not a
trick or anything. That’s not a trick. That’s why I let you go and read the whole thing.
We’re not trying to pull the wool over your eyes. It’s just yes or no, do you want to talk
about it? [¶] [Defendant]: My buddy just, I mean, you told me he died. I don’t want to
be here and I don’t want to talk with you guys. [¶] [Detective] Gray: Well, I know but --
but -- [¶] [Defendant]: I don’t want to talk to nobody. [¶] [Detective] Gray: That’s
your buddy though; right? [¶] [Defendant]: Yeah, that’s my buddy. [¶] [Detective]
Gray: Okay. Good friend of yours? [¶] [Defendant]: Yeah. [¶] [Detective] Gray:
How long you known him for? [¶] [Defendant]: Years, years. [¶] [Detective] Gray:
Well, when you say years, two years, three years, --” (Italics added.) At this point, a
discussion ensued about matters other than the shooting itself including defendant’s
relationship with the victim and the victim’s family.
Defendant subsequently told the detectives the shooting was accidental:
“[Detective] Gray: Okay. . . . So, what happened today? [¶] [Defendant]: We were
drinking. Now, we decided to clean our guns. I got a 410 and for some reason when we
got done cleaning it we tried to load it and see what would happen. It wasn’t clicking
down. It wasn’t breaking together. So, he told me to hold the butt and he would snap it
up, you know, and when it snapped together it went off.” Defendant admitted, “I know
I’m in trouble” and “I just fucking shot my friend in the face, dude.” Defendant said he
had initially lied about how the shooting occurred because he was “freaking out.” When
pressed for details, defendant repeated that, “For some stupid, idiotic reason we decided
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to start cleaning our guns and stuff like that.” Defendant described the events leading to
the shooting. The transcript of the interview states: “[Defendant]: . . . After I was
cleaning, we put [a] round in and we tried to snap it . . . and for some reason it wouldn’t
go. And he’s - - he’s a strong guy, . . . and so, he’s like - - he told me to hold the butt and
shit and he would (SOUND); you know? Soon as it closes, it went off. Blew his fucking
face off; right?” According to defendant, Mr. McElroy was sitting on the couch with
both hands on the barrel trying to snap it in when the weapon fired. Defendant admitted
throwing the guns off the balcony into the bushes. He denied at first that he had forced
the bathroom door open. He said the lock had been a problem in the past. And they had
a Chihuahua for a while that chewed on the wood panel. Ultimately defendant admitted,
“[A]fter I looked for the towel, I think Carla went and locked herself in and I went and I
had tried to go open it but it was locked.” At the conclusion of the interview, defendant
described the events as, “A tragic accident.” He said: “But is there negligence here? I
don’t know.”
At the Evidence Code section 402 hearing in the trial court, Detective McElderry
described the circumstances surrounding the Miranda warnings. Detective Gray read
defendant’s Miranda rights from a card. Detective Gray sat next to defendant.
Defendant followed along as Detective Gray read the admonitions. Defendant wrote a
“Y” after each admonition. Defendant signed and dated the card, as did Detective Gray.
Defendant then inquired about the instruction to law enforcement officers at the bottom
of the card, which read, “If you desire an express waiver, ask a yes or no question such
as, do you want to talk about what happened?” Detective McElderry recalled the
circumstances as follows: “[Detective] Gray was explaining to [defendant] what that
express waiver was. As [defendant] asked the question, ‘Does that mean I don’t have to
talk to you? And I can go home’ - - I remember something about him saying something
about going home - - I believe that ‘no’ was ‘no, you’re not going home’; whether or not
he talked to us or not. I mean, we had an investigation to conduct. We had - - his home
was locked down, because there were crime scene investigators at his home.”
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In the trial court, defense counsel argued there was a violation of defendant’s
Miranda rights in that defendant said he did not want to talk to the detectives. The trial
court disagreed and found as follows. The advisement to law enforcement officers at the
bottom of the card was not something a suspect was meant to read. The advisement
would be confusing to anyone unfamiliar with the law. When defendant’s confusion
arose, all three men began to speak at the same time. But, according to the trial court,
defendant had already indicated he understood his rights. Defendant’s response to the
question about whether he wanted to talk about “it” did not invoke his right to remain
silent in the trial court’s view. Instead, defendant was clearly upset that Mr. McElroy had
died. And defendant did not want to talk about it with anyone. But then he voluntarily
talked to the detectives. Thus, the trial court ruled no violation of defendant’s right to
silence had occurred. On appeal, defendant argues: “[T]he record does not show that
[defendant] was advised of, and understood his rights, let alone waived them. While a
waiver under some circumstances may be inferred from the defendant’s conduct
[citation], [s]uch authorities do not apply here because they presuppose that the defendant
was aware of and understood his rights in the first instance. For this reason alone, the
February 8 statement should have been suppressed. [¶] Additionally, the statement
should have been suppressed because [defendant] unequivocally stated that he did not
want to talk to the detectives.”
4. Defendant expressly asserted his right to silence during the February 8, 2012
questioning
We conclude defendant unambiguously and unequivocally asserted his right to
remain silent. Following Miranda warnings and waiver, police interrogations must cease
when an interviewee invokes his or her right to counsel or to remain silent. (Michigan v.
Mosley (1975) 423 U.S. 96, 100-101; Miranda, supra, 384 U.S. at pp. 473-474; People v.
Cunningham (2015) 61 Cal. 4th 609, 645; People v. Suff (2014) 58 Cal. 4th 1013, 1068.)
But the interviewee’s invocation of the right to remain silent must be unambiguous and
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unequivocal. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382; People v. Suff,
supra, 58 Cal.4th at p. 1068; People v. Scott (2011) 52 Cal. 4th 452, 481.) The test is
objective–would a reasonable officer in light of the circumstances understand the
statement to be a request to cease the interview. (Davis v. United States (1994) 512 U.S.
452, 459 [right to counsel]; People v. Cunningham, supra, 61 Cal.4th at p. 646; People v.
Nelson (2012) 53 Cal. 4th 367, 371-372, 376.) As the United States Supreme Court
explained in Davis, “[I]f a suspect makes a [statement] that is ambiguous or equivocal in
that a reasonable officer in light of the circumstances would have understood only that
the suspect might be invoking the right [to remain silent], our precedents do not require
the cessation of questioning.” (Davis v. United States, supra, 512 U.S. at p. 459; accord,
People v. Williams (2010) 49 Cal. 4th 405, 432.) Stated differently, our Supreme Court
has explained: “‘It is not enough for a reasonable police officer to understand that the
suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal
statement, law enforcement officers are not required under Miranda . . . to ask clarifying
questions or to cease questioning altogether.’ (People v. Stitely (2005) 35 Cal. 4th 514,
535; see Davis v. United States[, supra,] 512 U.S. [at p.] 452.)” (People v. Suff, supra, 58
Cal.4th at p. 1068.) Moreover, as our Supreme Court stated in Williams, “In certain
situations, words that would be plain if taken literally actually may be equivocal under an
objective standard, in the sense that in context it would not be clear to the reasonable
listener what the defendant intends.” (People v. Williams, supra, 49 Cal.4th at p. 429; see
People v. Sauceda-Contreras (2012) 55 Cal. 4th 203, 218.) Moreover, in Williams, our
Supreme Court further explained, “‘A defendant has not invoked his or her right to
silence when the defendant’s statements were merely expressions of passing frustration
or animosity toward the officers, or amounted only to a refusal to discuss a particular
subject covered by the questioning.’ [Citations.]” (People v. Williams, supra, 49 Cal.4th.
at pp. 433-434 [“I don’t want to talk about it” was an expression of the defendant’s
frustration]; accord, e.g., People v. Stitely, supra, 35 Cal.4th at p. 535 [“I think it’s about
time for me to stop talking” expressed apparent frustration only].)
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The Attorney General relies upon the analysis in Williams, Stitley and Suff and
asserts that in the context of the interaction on February 8, 2012, defendant did not
unequivocally assert the right to silence. The Attorney General argues the trial court’s
characterization of the conversation between defendant and the detectives is supported by
the recorded interview. Defendant was upset about the death of Mr. McElroy, a friend.
He expressed reluctance to talk about the evening’s events. Defendant did not want to
talk about it with anyone. In these circumstances, a reasonable investigator could
understand defendant’s statement, “I don’t want to talk with you guys,” to merely mean I
do not want to discuss the shooting. According to the Attorney General, a reasonable
investigator could have understood defendant’s statement to mean I am willing to tell
you, the detectives, what happened. Following defendant’s statement, Detective Gray
asked defendant at length about matters not directly related to the shooting itself. This
included: defendant’s relationship with Mr. McElroy; defendant’s relationship with the
victim’s family; and where defendant grew up. The conversation proceeded without
interruption. Defendant answered each question without hesitation. It was several
minutes before Detective Gray asked any questions about the shooting. Defendant
continued to answer the detectives’ questions. Defendant voluntarily explained what
happened. Thus, the Attorney General argues that context demonstrates there was no
violation of defendant’s Miranda rights. We are unpersuaded.
The United States Supreme Court has described the nature of an unequivocal
assertion of the right to silence which requires an immediate cessation of questioning:
“[The defendant] did not say that he wanted to remain silent or that he did not want to
talk with the police. Had he made either of these simple, unambiguous statements, he
would have invoked his “‘right to cut off questioning.’” Mosley, supra, [423 U.S.] at [p.]
103 (quoting Miranda, supra, [384 U.S.at [ him p.] 474). Here he did neither, so he did
not invoke his right to remain silent.” (Berghuis v. Thompkins, supra, 560 U.S. at p. 382;
see United States v. Plugh (2011) 648 F.3d 118, 124-127; People v. Villasenor (2015)
242 Cal. App. 4th 42, 62-70.) Here, the context is clear, defendant made it clear—he did
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not want to talk to the detectives or anybody else. Thus, his statements at the February 8,
2012 interview were inadmissible.
5. The February 14, 2012 questioning of defendant
Defendant was in custody on an unrelated warrant until February 14, 2012.
Detectives McElderry and Gray learned defendant was about to be released from jail.
They went to the jail to talk to defendant. Detectives McElderry and Gray were
accompanied by a Detective Sylvia Brossoiet. All three detectives were armed. The
detectives waited for defendant in the public lobby into which inmates were released.
When defendant entered the public lobby, the following ensued: “[Detective]
Gray: Hey Brian, how you doing? [¶] [Defendant]: My people been trying to reach you
guys forever. [¶] [Detective] Gray: What happened? [¶] [Defendant]: My family and
them, trying to talk to you guys to see what’s going on. [¶] [Detective] McElderry: I
know your dad’s been calling. [¶] [Defendant]: Yeah. My sisters and my wife, my dad.
[¶] [Detective] McElderry: I know. We were out the last couple days so they were
calling like crazy the last couple days. [¶] [Defendant]: So what’s going on? [¶]
[Detective] Gray: Well, we just want to rap with you real quick, too. I know you just got
released but can we rap with you real quick? [¶] [Defendant]: Yeah. [¶] [Detective]
Gray: Okay, let’s go in here. [¶] [Defendant]: Thank you, sir.” Detective Gray
escorted defendant to an unlocked room off the lobby. It was a deoxyribonucleic acid
sample collection room where out-of-custody individuals could submit samples. The
room was in the public area of the jail facility. The detectives left the door open.
Defendant sat in a chair next to Detective Gray. Defendant was closest to the door.
Defendant was not handcuffed or otherwise restrained.
Defendant talked about what he had been hearing from others with respect to the
shooting. Detective Gray then told defendant: “Well, we wanted to talk to you . . . just
one more time . . . just to be thorough. [¶] . . . [¶] . . . And to get this - - this thing about
how this whole thing happened again.” Defendant was advised no charges had been filed
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against him as a result of the shooting. At the detectives’ request, defendant described at
length the events leading to Mr. McElroy’s death. Defendant explained that during a
recent hunting outing, the gun had been “giving us a little bit of” problems. As a result,
defendant decided to clean the weapon. Defendant then loaded the gun and attempted to
snap it shut, but it was not working. Mr. McElroy offered to help. Defendant described
how he was standing and holding the gun. Defendant described what Mr. McElroy, who
was sitting, was doing. Detective Gray asked, “So, you don’t remember your finger on
the trigger . . . ?” Defendant answered, “Yeah, but I – I’m pretty sure it was on it.”
Defendant reiterated that he had lied about the “two black guys” because he “freaked
out.” He admitted encountering Carla in the bathroom and saying, “Hey, two black guys
did this.”
The detectives asked defendant to describe how close the end of the barrel was to
Mr. McElroy’s face when the gun discharged. Detective Gray told defendant, “[T]his is
important.” Eventually, defendant said it was “pretty close,” maybe five to six inches
away. The detectives then confronted defendant with the autopsy findings. Detective
Gray said, “[B]y all accounts, according to the coroner, the barrel is inside his mouth
when it goes off.” Defendant responded: “Fuck no. What the fuck?” Defendant
repeatedly and vehemently denied that the gun had been in Mr. McElroy’s mouth when it
discharged. Defendant told the detectives: “I would have never fucking put the barrel in
his mouth and fucking took that guy’s life like that, dude. Never.” Detective Gray
subsequently asked, “Why were you loading the gun?” Defendant responded: “I don’t
know. Just to keep it loaded right there by my bed, I guess, like I said; you know? I
don’t know. Like there’s no legitimate reason. . . . It was just, I guess, to have it loaded,
like I said, and to have it right there by my bed.” Defendant talked at length about the
events of the day preceding the shooting. The discussion returned to the manner in which
the shooting occurred. Defendant ultimately conceded that the gun might have been in
Mr. McElroy’s mouth when it fired. But defendant denied any memory of it. The
transcript of the interview states: “[M]aybe after we clicked, if there was movement or
something, you know, maybe, like I said, you know, maybe the eyesight had poked him
15
and it went off. You know? [¶] . . . [¶] . . . Maybe that could of happened but from
what I remember, I don’t remember it being in his mouth. . . . [T]hen again, . . . maybe I
just started freaking . . . Because it happened (SNAPS FINGERS) so fucking fast.” At
the end of the interview, defendant was arrested.
In the trial court, defense counsel argued the interview was custodial and Miranda
warnings should have been given in that: the interview took place in a custodial facility;
defendant was taken to a separate room, away from the public; the door was only
partially open; there were three armed detectives in the room with defendant; and, at the
conclusion of the interview, defendant was arrested. The trial court found the setting was
not custodial. We agree.
Miranda procedures only apply in custodial settings. (Miranda, supra, 384 U.S. at
p. 444; People v. Tom (2014) 59 Cal. 4th 1210, 1244; People v. Storm (2002) 28 Cal. 4th
1007, 1037.) And, as our Supreme Court recently reiterated, “For Miranda purposes,
custodial status arises if a person has been ‘taken into custody or otherwise deprived of
his freedom of action in any significant way.’ [Miranda, supra, 384 U.S. at p. 444].)”
(People v. Elizalde (2015) 61 Cal. 4th 523, 531, fn. omitted; accord, People v. Storm,
supra, 28 Cal.4th at p. 1037.) Our colleagues in Division Two summarized the
applicable law in the case of In re Kenneth S. (2005) 133 Cal. App. 4th 54, 64, as follows:
“In determining whether an individual was in custody, a court must examine all of the
circumstances surrounding the interrogation, but the ultimate inquiry is simply whether
there was a ‘“formal arrest or restraint on freedom of movement” of the degree associated
with a formal arrest.’ (California v. Beheler (1983) 463 U.S. 1121, 1125 [(per curiam)],
quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495 . . . .) The deprivation can be
constructive as well as actual. ‘[C]ustody occurs if the suspect is physically deprived of
his freedom of action in any significant way or is led to believe, as a reasonable person,
that he is so deprived.’ (People v. Arnold (1967) 66 Cal. 2d 438, 448, disapproved on
other grounds in Walker v. Superior Court (1988) 47 Cal. 3d 112, 123.) [¶] The objective
circumstances of the interrogation, not the subjective intention of the interrogating officer
or the subjective understanding of the person being questioned, is evaluated in
16
determining whether the person was in custody at the time of the questioning. ‘A
policeman’s unarticulated plan has no bearing on the question whether a suspect was “in
custody” at a particular time’; rather, ‘the only relevant inquiry is how a reasonable man
in the suspect’s position would have understood his situation.’ (Berkemer v. McCarty
(1984) 468 U.S. 420, 442.) The United State [sic] Supreme Court has made clear, in no
uncertain terms, that any inquiry into whether the interrogating officers have focused
their suspicions upon the individual being questioned (assuming those suspicions remain
undisclosed) is not relevant for purposes of Miranda. (Stansbury v. California (1994)
511 U.S. 318, 320.) An officer’s knowledge or beliefs may bear upon the custody issue
only if they are conveyed, by word or deed, to the individual being questioned. (Cf.
Michigan v. Chesternut (1988) 486 U.S. 567, 575, fn. 7, citing United States v.
Mendenhall (1980) 446 U.S. 544, 554, fn. 6 (Opn. of Stewart, J.).) But ‘[e]ven a clear
statement from an officer that the person under interrogation is a prime suspect is not, in
itself, dispositive of the custody issue. . . .’ (Stansbury v. California, supra, [511 U.S.] at
p. 325.)” (Accord, People v. Macklem (2007) 149 Cal. App. 4th 674, 689-690.) Even
when detectives interject accusatory or skeptical questions, absent other evidence of
restraint on a person’s freedom of movement, the nature of the questioning does not
convert voluntary presence into custody. (People v. Moore (2011) 51 Cal. 4th 386, 402-
403.) As the United States Supreme Court has summarized: “Two discrete inquiries are
essential to the determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person have
felt he or she was not at liberty to terminate the interrogation and leave.” (Thompson v.
Keohane (1995) 516 U.S. 99, 112, fn. omitted; accord, People v. Cromer (2001) 24
Cal. 4th 889, 895; In re Joseph H. (2015) 237 Cal. App. 4th 517, 530-531.)
Here, defendant was greeted after he was released from custody on an unrelated
warrant into the public lobby of a jail. Defendant agreed to speak with the three
detectives. In fact, he was eager to talk to the detectives and thanked them for the
opportunity to do so. The interview took place in a room off of the lobby, in a public
area of the jail facility. The door to the room was partially open. Defendant sat closest to
17
the door. Defendant was not handcuffed or otherwise restrained. Detective McElderry
told defendant no charges had been filed as a result of the shooting. The detectives
eventually exhibited skepticism as to defendant’s claim the gun was not in Mr. McElroy’s
mouth. Their questioning then took on an accusatory edge. However, there was no other
change in the manner of questioning. Under these circumstances, a reasonable person
would have believed that she or he was not under arrest and was at liberty to leave.
Because defendant was not in custody, the prophylactic Miranda rule is inapplicable to
the February 14, 2012 interview. And the prior questioning after defendant said he did
not want to speak to the detectives does not affect the admissibility of his noncustodial
statements on February 14, 2012. (Oregon v. Elstad (1985) 470 U.S. 298, 308-309;
Michigan v. Tucker (1974) 417 U.S. 433, 446-448; People v. Davis (2009) 46 Cal. 4th
539, 598-599; People v. Lujan (2001) 92 Cal. App. 4th 1389, 1409; see Dickerson v.
United States (2000) 530 U.S. 428, 441.)
6. Prejudice
We conclude any error in admitting defendant’s February 8, 2012 in custody
statements to the detectives is harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S.18, 22; People v. Jablonski (2006) 37 Cal. 4th 774, 816-817.)
Defendant made essentially the same statements on February 14, 2012 after he was
released from county jail custody. During both interviews, defendant said the shooting
was an accident. The shooting occurred when Mr. McElroy and defendant were trying to
snap the loaded weapon closed. Standing alone, the February 14, 2012 post-release
statement is sufficient to mitigate any prejudice. Further, the prosecution evidence
concerning defendant’s involvement in the shooting of Mr. McElroy was overwhelming.
Even if both the February 8 and 14, 2012 statements were inadmissible, the
alleged error would still be harmless. The prosecution testimony, apart from the evidence
provided by defendant’s two challenged statements, was almost solely consistent with a
malicious premeditated homicide. By contrast, defendant’s February 8 and 14, 2012
18
statements were more consistent with the manslaughter verdict then any of the other
prosecution evidence. The recorded February 8, 2012 statement contains moving
evidence of defendant’s remorse over Mr. McElroy’s death. And, defendant’s February
14, 2012 statement was also entirely consistent with the manslaughter verdict that was
returned. Stated differently, unlike the typical case involving inadmissible confessions,
here the strongest evidence limiting defendant’s culpability were his own statements to
the authorities. Any error in connection with either defendant’s February 8 and 14, 2012
statements was harmless beyond a reasonable doubt. It was purported error that strongly
militated to defendant’s benefit by mitigating his culpability.
B. Other Evidentiary Issues
1. Standards of review
A trial court has broad discretion in ruling on the admissibility of evidence—both
in terms of its relevance and whether its prejudicial effect outweighs its probative value.
(People v. Jones (2011) 51 Cal. 4th 346, 373; People v. Horning (2004) 34 Cal. 4th 871,
900.) We review the trial court’s evidentiary rulings for an abuse of discretion. (People
v. Lucas (2014) 60 Cal. 4th 153, 229 [relevance], disapproved on another point in People
v. Romero (2015) 62 Cal. 4th 1, 53, fn. 19; People v. Clark (2011) 52 Cal. 4th 856, 893
[Evid. Code, § 352]; People v. Geier (2007) 41 Cal. 4th 555, 586, overruled on another
point by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [Evid. Code, § 1250,
subd. (a)].) As our Supreme Court explained in People v. Williams (2008) 43 Cal. 4th
584, 634-635: “A trial court’s discretionary [evidentiary] ruling[s] . . . ‘“must not be
disturbed on appeal except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]”’ (People v. Rodrigues [(1994)] 8 Cal.4th [1060,] 1124-1125.)” As
we will explain, as a result of the evidentiary rulings, we find: no abuse of discretion; no
improper admission of highly inflammatory and prejudicial evidence rendering
19
defendant’s trial fundamentally unfair; and no denial of the right to effective assistance of
counsel.
2. Out-of-court statements
Defendant challenges several out-of-court statements admitted in support of the
prosecution’s case. First, the prosecution presented motive evidence to the effect that Mr.
McElroy had a romantic relationship with defendant’s girlfriend. As noted above, Mr.
Alvarez testified to observing romantic conduct between Mr. McElroy and Ms. Pacheco.
Further, two weeks prior to the shooting, defendant sent Mr. McElroy a text stating:
“You’re my best friend, my brother. You stabbed me in my back. How could you do
this to me?” Defendant moved to exclude the text message as irrelevant hearsay that was
more prejudicial than probative. The trial court concluded the text was a party admission,
was circumstantial evidence of motive, and was more probative than prejudicial. On
appeal, defendant does not challenge the trial court’s party admission finding. Defendant
argues there was a complete lack of context to the text message, therefore the jury had no
basis on which to evaluate whether it referred to a trivial or a serious matter. We find no
abuse of discretion. The text message evidence was properly before the jury as a party
statement. (Evid. Code, § 1220; People v. Smith (2015) 61 Cal. 4th 18, 48.) And it was
probative on the issue of motive. It is well established that: “‘“[B]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value generally exceeds its
prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.”
[Citations.]’ ([People v.] Gonzalez [(2005)] 126 Cal.App.4th [1539,] 1550.)” (People v.
McKinnon (2011) 52 Cal. 4th 610, 655; accord, People v. Evans (2011) 200 Cal. App. 4th
735, 749; People v. Samaniego (2009) 172 Cal. App. 4th 1148, 1168; People v. Garcia
(2008) 168 Cal. App. 4th 261, 275; People v. Pertsoni (1985) 172 Cal. App. 3d 369, 375;
People v. Lopez (1969) 1 Cal. App. 3d 78, 85.) Here, the trial court could reasonably
conclude the probative value of the evidence outweighed any prejudicial effect.
20
Second, there was evidence defendant was unwilling to fight Mr. McElroy. This
was because of Mr. McElroy’s size. Instead, defendant threatened to just shoot Mr.
McElroy. Defendant challenges the admission of those prior statements. Defendant
argues they were improper criminal disposition or propensity evidence. The trial court
found the statements were admissible under the state-of-mind exception, Evidence Code
section 1250, subdivision (a)(2) states in part: “Subject to Section 1252 [lack of
trustworthiness], evidence of a statement of the declarant’s then existing state of mind,
emotion, or physical sensation (including a statement of intent, plan, motive, design,
mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
[¶] . . . [¶] . . . The evidence is offered to prove or explain acts or conduct of the
declarant.” There was no abuse of discretion. The statements were admissible under
Evidence Code section 1250, subdivision (a)(2). They were nonhearsay circumstantial
evidence the shooting was not nonaccidental. In other words, without abusing its
discretion the trial court could rule that defendant acted in conformity with his expressed
state of mind. (People v. Gutierrez (2002) 28 Cal. 4th 1083, 1138; People v. Karis (1988)
46 Cal. 3d 612, 634-637; People v. Spector (2011) 194 Cal. App. 4th 1335, 1392-1397; see
People v. Howard (1988) 44 Cal. 3d 375, 402-403.)
Defendant argues the statements were inadmissible absent evidence he had
described circumstances that would motivate such a shooting. And defendant argues the
statement was inadmissible in the absence of evidence from which it could be inferred the
shooting was in fact motivated by such circumstances. Accepting defendant’s argument
as relevant, we find the present evidence met that test. Defendant had threatened to shoot
Mr. McElroy. This was because Mr. McElroy was bigger than defendant. There was
evidence defendant was angry with Mr. McElroy. There was evidence tension had been
building between the two men in the weeks preceding the shooting. During the day the
shooting occurred, the two men appeared not to be speaking to each other. Ms. Barajas
heard them arguing shortly before the shooting. The jury could reasonably infer
defendant had reason to fight Mr. McElroy. Instead, consistent with the prior statements,
defendant simply shot Mr. McElroy.
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3. Mr. McElroy’s fear of defendant
As noted above, evidence Mr. McElroy feared defendant was admitted at trial.
Mr. McElroy had expressed concern that there were guns in the apartment they shared
and something bad might happen. Further, as noted, there was testimony as to Mr.
McElroy’s fears, “That he thought that [defendant] was gonna do him dirty.” Defendant
contends the evidence was “blatantly improper hearsay” and inadmissible propensity
evidence. We find no abuse of discretion. The evidence was admissible under Evidence
Code section 1250 to refute defendant’s claim the shooting was accidental. (People v.
Lew (1968) 68 Cal. 2d 774, 779-780; see People v. Riccardi (2012) 54 Cal. 4th 758, 816.)
As the Attorney General explains, “[This evidence] tended to refute the suggestion . . .
that Mr. McElroy trusted [defendant] enough to have asked him to hold the butt of a
shotgun that was pointed at Mr. McElroy’s head while he ‘snapped it up,’ and that the
shooting was the result of an accidental discharge.”
4. Dr. Krell’s Testimony
As noted above, Dr. Krell testified for the defense concerning firearms and
ballistics evidence. Defendant argues the trial court improperly limited questioning
concerning Dr. Krell’s status as a court appointed witness. Further, defendant argues the
trial court improperly prohibited questioning as to the fact if it would fix Dr. Krell’s level
of compensation.
First, the trial court excluded evidence Dr. Krell was court-appointed. At trial,
defendant was represented by Hung Du. On appeal, defendant argues Mr. Du, was
precluded from showing Dr. Krell was more than just a “hired gun.” Dr. Krell testified
he was “on the panel of the proved experts” for Los Angeles County. Mr. Du
subsequently asked Dr. Krell, “How did you actually get appointed to this case?” The
trial court did not allow Dr. Krell to answer. The trial court ruled Dr. Krell’s credibility
may not be enhanced implying the superior court had deemed him an “expert” and put
22
the weight of its appointment behind him. Further, the trial court ruled Dr. Krell’s
credibility could not be bolstered by informing the jury who would be determining the
level of his compensation. The trial court ruled: “[T]he implication that you are trying to
get is there is no bias because the court is a neutral person, is the one paying him as
opposed to the defendant himself. [¶] There’s only one reason the court is paying and
that’s because the defendant is indigent.” Mr. Du responded: “I respectfully disagree. I
believe that I do have the right to provide the jury and let them make the decision as to
whether or not this individual is bias[ed] based on who pays him.”
A trial court may appoint a witness to express an opinion for an indigent defendant
and fix the compensation for his or her services. (Evid. Code, § 730; People v. Stuckey
(2009) 175 Cal. App. 4th 898, 908.) The compensation so fixed is paid by the county in
which the action is pending. (Evid. Code, § 731, subd. (a)(1); People v. Stuckey, supra,
175 Cal.App.4th at p. 908.) And, pursuant to Evidence Code section 722, subdivision
(b), “The compensation and expenses paid or to be paid to an expert witness by the party
calling him is a proper subject of inquiry by any adverse party as relevant to the
credibility of the witness and the weight of his testimony.” (People v. Berryman (1993) 6
Cal. 4th 1048, 1071, disapproved on another point in People v. Hill (1998) 17 Cal. 4th 800,
823, fn. 1; People v. Price (1991) 1 Cal. 4th 324, 457.)
Here, however, the defense sought to enhance Dr. Krell’s credibility by
introducing evidence as to who set the amount of his compensation. We find no error in
the trial court’s ruling. Evidence Code section 722, subdivision (b) does not authorize
inquiry as to the source of a court appointed opinion witness’s compensation under these
circumstances. Moreover, the trial court could reasonably rule Dr. Krell’s testimony was
not subject to special credence because his compensation was fixed by the court. The
same is true in terms of the fact Dr. Krell would be compensated by Los Angeles County
rather than by the defendant. (See People v. Coddington (2000) 23 Cal. 4th 529, 615-616,
disapproved on another point in Price v. Superior Court (2001) 25 Cal. 4th 1046, 1069,
fn. 13; People v. Stansbury (1993) 4 Cal. 4th 1017, 1059.)
23
The trial court also relied on Evidence Code section 352, stating: “[I]f I were to
allow that, what would happen is on cross-examination the People could then get into the
whole panel and how it works and how the defendant must be indigent in order for the
court to write a check, taxpayers to pay their money, and under [Evidence Code section]
352, not only do I think that that will hurt your client but it is certainly not relevant. [¶]
It’s going to be an undue consumption of time. It would be necessary to correct the
implication that is improper for you to bring up in the first place.” Defendant has not
challenged this ruling. And, in any event, we would not find any abuse of discretion.
Second, defendant further asserts the trial court improperly limited inquiry into Dr.
Krell’s background as a firearms and ballistics instructor. Dr. Krell testified in part that:
he was “a firearms instructor”; he had “about 16 or 17 years as a firearm instructor”; he
had also been, for 2 years, a part-time civilian instructor for the Marine sniper school; and
he offered training in his current occupation “in using a handgun, using a carbine, . . .
us[ing] a precision rifle and using a shotgun.” The trial court sustained a relevance
objection, however, as to further evidence Dr. Krell had instructed others. The trial court
reasoned instructing others was not a basis for Dr. Krell’s expertise. The trial court
explained: “The content of his classes is not relevant. That was where you were going.”
There was no abuse of discretion. The trial court could reasonably conclude evidence as
to the classes Dr. Krell taught was not sufficiently probative to warrant extensive
testimony.
Finally, defendant asserts violations of various constitutional rights in blanket
terms. The trial court’s rulings did not deprive defendant of a defense, nor did it violate
any of defendant’s constitutional rights. (People v. Lucas, supra, 60 Cal.4th at pp. 270-
271; People v. Ramos (1997) 15 Cal. 4th 1133, 1175.) As our Supreme Court has
repeatedly observed, “Th[e] routine application of state evidentiary law does not
implicate [a] defendant’s constitutional rights.” (People v. Brown (2003) 31 Cal. 4th 518,
545, fn. omitted; accord, People v. Jones (2013) 57 Cal. 4th 899, 957; People v. Riccardi,
supra, 54 Cal.4th at pp. 809-810; People v. Castaneda (2011) 51 Cal. 4th 1292, 1341;
People v. Taylor (2010) 48 Cal. 4th 574, 650; People v. Mills (2010) 48 Cal. 4th 158, 194;
24
People v. Lewis (2009) 46 Cal. 4th 1255, 1289; People v. Hovarter (2008) 44 Cal. 4th 983,
1010.) Moreover, our Supreme Court has described the circumstances when
constitutional claims are not properly preserved, “As defendant provides no elaboration
or separate argument for [his] constitutional claims, we decline to address further these
boilerplate contentions.” (People v. Hovarter, supra, 44 Cal.4th at p. 1010; accord,
People v. Mills, supra, 48 Cal.4th at p. 194; People v. Brown, supra, 31 Cal.4th at p. 537-
538, fn. 6; People v. Hardy (1992) 2 Cal. 4th 86, 150.) The same is true here. Defendant
has failed to demonstrate any of his constitutional claims have merit.
C. CALJIC No. 8.45
Mr. Du requested an involuntary manslaughter instruction to the effect that: “A
killing is unlawful within the meaning of this instruction if it occurred: [¶] 1. During the
commission of an unlawful act [not amounting to a felony] which is dangerous to human
life under the circumstances of its commission . . . .” (CALJIC No. 8.45.) Mr. Du argued
marijuana possession was the unlawful act. Mr. Du explained: “[W]hen you take the
totality of the facts, between the using of the gun while under the influence, with the
possession of the marijuana, that would rise to the level of an unlawful act within the
meaning of the jury instruction.” The trial court denied the request, finding neither being
under the influence of, nor possession of marijuana was dangerous to human life under
the circumstances of its commission. The trial court did instruct the jury on voluntary
intoxication as it affects specific intent or mental state pursuant to CALJIC No. 4.21. Our
review is de novo. (People v. Souza (2012) 54 Cal. 4th 90, 113; People v. Booker (2011)
51 Cal. 4th 141, 181.) We find no error. An involuntary manslaughter conviction may be
based on the commission of a misdemeanor that is dangerous under the factual
circumstances of its commission. (See People v. Cox (2000) 23 Cal. 4th 665, 670-676;
People v. Wells (1996) 12 Cal. 4th 979, 984-988.) Defendant’s unlawful possession or
use of marijuana was not dangerous to human life under the circumstances of this case
within the meaning of CALJIC No. 8.45.
25
D. Sentencing
For the first time on appeal, defendant challenges the trial court’s reliance on his
sophisticated planning to impose the upper term. First, defendant argues the trial court
relied on “nonexistent ‘facts’” to impose the upper term insofar as the court found:
“[G]iven the story the defendant told and the way in which the weapons were discarded
and the scene was set up, it leads the court to believe that this wasn’t just something that
he thought of after the gun went off. It’s a clear indication of a sophisticated plan in this
case.” Defendant reasons the jury found him guilty of voluntary manslaughter, “which
denotes a finding of a sudden quarrel or hea[t] of passion.” In a related vein, he reasons
the jury therefore rejected the proposition that there was planning. Second, defendant
contends the trial court’s reference to planning reflects “an institutional bias” in favor of
an assumption that he was in fact guilty of murder. Defendant forfeited these claims by
failing to raise them at sentencing. (People v. Boyce (2014) 59 Cal. 4th 672, 730-731;
People v. Scott (1994) 9 Cal. 4th 331, 353.)
Even if the issue were properly before us, and assuming for the sake of argument
there was error, we would find no prejudice. The trial court relied on seven aggravating
factors in imposing the upper term: “1. The crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness. [¶] 2. The manner in which the crime was carried out
indicates planning, sophistication, or professionalism. [¶] 3. The defendant took
advantage of a position of trust or confidence to commit the offense. [¶] 4. The
defendant has engaged in violent conduct that indicates a serious danger to society. [¶]
5. The defendant’s prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing seriousness. [¶] 6. The
defendant was on probation or parole when the crime was committed; and [¶] 7. The
defendant’s prior performance on probation or parole was unsatisfactory.” (Defendant
did not object to the trial court’s consideration of any of these aggravating
circumstances.) In addition, the trial court noted defendant did not take responsibility for
26
his actions. Instead, defendant blamed the shooting on nonexistent individuals causing
limited law enforcement resources to be diverted, putting innocent persons in the area at
risk and delaying Mr. McElroy’s treatment. Our Supreme Court has held, “When a trial
court has given both proper and improper reasons for a sentence choice, a reviewing
court will set aside the sentence only if it is reasonably probable that the trial court would
have chosen a lesser sentence had it known that some of its reasons were improper.
(People v. Avalos (1984) 37 Cal. 3d 216, 233.)” (People v. Price, supra, 1 Cal.4th at p.
492; accord, People v. Calhoun (2007) 40 Cal. 4th 398, 410 [conc. opn. of Kennard, J.];
People v. Davis (1995) 10 Cal. 4th 463, 552.) Moreover, only one aggravating factor is
required to impose an upper term. (People v. Black (2007) 41 Cal. 4th 799, 813; People v.
Osband (1996) 13 Cal. 4th 622, 728.) Here, the trial court cited multiple aggravating
circumstances supporting the upper term. (People v. Avalos, supra, 37 Cal.3d at p. 233;
People v. Gutierrez (1992) 10 Cal. App. 4th 1729, 1735-1736; People v. Coulter (1983)
145 Cal. App. 3d 489, 494.) It is not reasonably probable the trial court would have
imposed the mid or low term had defendant raised the present objections. And, absent a
reasonable probability of a different result, defendant’s ineffective assistance of counsel
claim also fails. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Carrasco
(2014) 59 Cal. 4th 924, 982; In re Champion (2014) 58 Cal. 4th 965, 1007-1008.)
E. Abstract of Judgment
The parties agree that the abstract of judgment must be amended to reflect that
defendant was convicted of voluntary manslaughter, not murder. (People v. Jones (2012)
54 Cal. 4th 1, 89; People v. Mitchell (2001) 26 Cal. 4th 181, 185.)
27
IV. DISPOSITION
The judgment is affirmed. Upon remittitur issuance, the clerk of the superior court
shall prepare a corrected abstract of judgment reflecting defendant’s conviction of
voluntary manslaughter rather than murder. And then, the superior court clerk is to
deliver a copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
KUMAR, J*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
28