People v. Solomon CA2/5 ( 2020 )

Filed 11/23/20 P. v. Solomon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B299423
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA469798)
v.
DONTE SOLOMON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed as modified.
Deborah L. Hawkins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Donte Solomon of
second degree murder (Pen. Code, § 187, subd. (a)1), attempted
murder (§§ 664/187, subd. (a)), shooting at an inhabited dwelling
(§ 246), and possession of a firearm by a felon (§ 29800, subd.
(a)(1)). The jury found true the allegations that in the
commission of the murder, attempted murder, and shooting at an
inhabited dwelling defendant personally used and personally and
intentionally discharged a firearm causing death. (§ 12022.53,
subds. (b)–(d).) Defendant admitted he suffered one prior serious
felony conviction within the meaning of the Three Strikes law
(§§ 667, subd. (d) & 1170.12, subd. (b)); five prior convictions
within the meaning of section 667.5, subdivision (b); and one
conviction within the meaning of section 667, subdivision (a)(1).
The trial court sentenced defendant to 55 years to life in state
prison plus 34 years. It also imposed a $120 court facilities
assessment (Gov. Code, § 70373), a $160 court operations
assessment (§ 1465.8, subd (a)(1)), and a $300 restitution fine
(§ 1202.4, subd. (b)).2
On appeal, defendant contends the trial court erred in
failing to instruct the jury on heat of passion voluntary
manslaughter as a lesser included offense to murder, erred in
failing to hold a hearing on his ability to pay the assessments and
fine, and his section 667.5, subdivision (b) enhancements must be
1 All further statutory references are to the Penal Code
unless otherwise noted.
2 The trial court also imposed and stayed a $300 parole
revocation restitution fine. (§ 1202.45.)
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stricken pursuant to Senate Bill No. 136 (Senate Bill 136). We
order defendant’s section 667.5, subdivision (b) sentence
enhancements stricken and otherwise affirm the judgment.
II. BACKGROUND
A. Prosecution Evidence
In July 2018, Donniesha Gregory lived with two of her
children in an apartment on Dalton Avenue in Los Angeles. She
was in a relationship with R.P. Previously, she had dated
defendant, a Black P-Stone gang member. Gregory’s friend C.C.
had seen signs that R.P. was associated with the Rolling 60’s
gang.
On July 16, 2018, R.P. and C.C. visited Gregory at her
home. Gregory’s cousin M.S. was there. Gregory, R.P., C.C., and
M.S. spoke for about an hour in Gregory’s bedroom. At some
point M.S. left the room.
Just after M.S. left the room, C.C. and R.P. got up to leave,
but then heard a “commotion”—someone was driving a car up
and down the street and honking its horn. C.C. heard defendant
calling Gregory’s name, trying to convince her to come outside.
Gregory asked C.C. and R.P. to stay. R.P., who was armed with a
nine-millimeter handgun, sat on an ottoman by the bedroom
door.
At first, Gregory ignored defendant but eventually went to
the window. Defendant asked Gregory to open the door. He then
began yelling obscenities such as “‘Fuck Naps’” and “‘Fuck
Crabs.’” “Naps” was a derogatory term for the Neighborhood
Crips gang and “Crabs” was a derogatory term for the Crips gang.
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Gregory begged defendant to leave, saying that her children were
in the home. Defendant responded, “‘I don’t give a fuck.’”
At about 9:45 p.m., Gregory’s father and his friend arrived
at Gregory’s home. Before they entered Gregory’s home, the
father heard Gregory and defendant arguing. Gregory was
asking defendant to leave—“like she still [did not] want to be
bothered with him.” The father tried to calm defendant, telling
him, “‘Man, save this for another day. You can come back
tomorrow.’” The father’s friend described Gregory and
defendant’s interaction as “talking” or “arguing.”
R.P. got up from the ottoman and stood beside Gregory.
C.C. surmised that R.P. was also going to try to convince
defendant to leave. C.C. heard Gregory tell defendant, “‘I don’t
care about a gun,’” and then gunshots. Gregory suffered a single,
fatal gunshot wound to the head.
B. Defense Evidence
Defendant testified that on July 16, 2018, he and Gregory
were in an “open” relationship, which meant that they “saw”
other people. At about 8:50 a.m. that morning, he went to
Gregory’s home to check on her—she did not have a cell phone
and he had not seen her for three or four days. Gregory asked
defendant for money. Defendant said he did not have money to
give her, but would be able to give her some after work.
Defendant got off work at around 1:00 p.m. and went to
Gregory’s home to give her money, but no one was there. He then
drove to a park where he stayed for about four hours and smoked
a couple of marijuana “blunts” and drank a couple of beers. At
about 4:00 p.m., he drove to Gregory’s home, but she was not
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there, so he went to a bar. He stayed at the bar for about five
hours and had five or six shots of Remy.
Defendant left the bar and went to Gregory’s home. He
wanted to give her money and spend time with her. Although he
was intoxicated, he was not so intoxicated that he could not drive
or understand what was going on. Before he pulled into the
driveway, he turned off his headlights. Whenever he prepared to
park, he turned off his headlights.3
When defendant pulled onto Dalton Avenue, he saw R.P.’s
Land Rover parked on the street. Defendant met R.P. through
Gregory—she had been R.P.’s methamphetamine dealer when
she lived with defendant. Seeing R.P.’s car made defendant feel
“a little like on edge . . . a little afraid.” The reason for
defendant’s fear was that a couple of months prior, he and R.P.
had an “issue” near a gas station when R.P. jumped out of his car,
pulled a silver gun, and told defendant he was going to “‘bust’” on
defendant—meaning he was going to shoot defendant. Defendant
got into a car driven by defendant’s “other girlfriend” W.M. and
they drove away, chased by R.P. Due to W.M.’s “slick driving,”
she and defendant were able to escape.
Although defendant had not had other “issues” with R.P., it
had been awkward for defendant when he was released from
prison and learned that R.P. was living with Gregory. He really
did not like it, but understood that “when you go to prison,
sometimes, you know, things happen.” Even though R.P. was
staying with Gregory, defendant “didn’t have a problem with
[Gregory] or anything.”
3 On cross-examination, defendant admitted that a
surveillance video of his car pulling up to Gregory’s home showed
his headlights were turned off down the street.
5
Despite his fear of R.P., defendant pulled into Gregory’s
driveway and got out of his car. Defendant was a little
disappointed and felt disregarded when he saw R.P.’s car. He
thought Gregory was disloyal for allowing R.P. into her home
after R.P. had pulled a gun on him and also on Gregory and her
family members, but he was not mad at her. Defendant wanted
Gregory to come outside and tell him when her company was
leaving and when he could see her. Because she did not have a
telephone, he had been unable to speak with her—he really cared
about her and loved her.
Gregory came to the window, and defendant expressed his
displeasure that R.P. was in her home. Out of jealousy and fear,
he said foolish things like “‘Fuck Crabs.’” Defendant was holding
a nine-millimeter, semiautomatic handgun because he knew R.P.
was there and he was afraid. He had the handgun with him
because he had been shot, stabbed, jumped, and threatened by
people with guns in the past.
At some point, R.P. appeared in the window with a silver
object in his hand. Because R.P. had previously pulled a silver
gun on defendant, defendant believed the object was a gun. R.P.
was pointing the gun out of the window at defendant. Defendant
was afraid.
When defendant saw R.P. pointing the gun at him, he fired
a shot “up towards the air,” not trying to hurt anyone, but as a
warning to R.P. to move away from the window. Defendant’s
finger remained on the trigger, and when he leaned toward his
car because he was in danger, he fired a second shot by
accident—his handgun was a semiautomatic and “sometimes,
they just shoot on their own.” He did not shoot at the window or
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to kill anyone when he fired the two shots. Instead, he fired his
gun because he was concerned for his own safety.
Defendant got into his car and drove away. He returned
because he heard a shot after his second shot and then heard
Gregory scream. As he drove up, however, he saw someone
running down the driveway and he heard a couple of shots, so he
drove away.
III. DISCUSSION
A. Heat of Passion Voluntary Manslaughter Instruction
Defendant argues that the trial court erred by failing to
instruct the jury on heat of passion voluntary manslaughter as a
lesser included offense to murder. We disagree.
1. Standard of Review
Voluntary manslaughter is a lesser included offense of
murder. (People v. Breverman (1998) 19 Cal.4th 142, 154.) A
trial court must instruct, sua sponte, on all theories of a lesser
included offense that are supported by substantial evidence, but
not those without such evidentiary support. (Id. at p. 162.)
“[T]he existence of ‘any evidence, no matter how weak’ will not
justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury. [Citations.] ‘Substantial evidence’ in
this context is “‘evidence from which a jury composed of
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reasonable [persons] could . . . conclude[ ]’” that the lesser offense,
but not the greater, was committed. [Citations.]” (Ibid.)
2. Legal Analysis
Heat of passion voluntary manslaughter has an objective
element and a subjective element. (People v. Moye (2009) 47
Cal.4th 537, 549 (Moye).) The objective element is satisfied when
the victim engaged in conduct “sufficiently provocative that it
would cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection.” (Id. at p. 550;
People v. Lee (1999) 20 Cal.4th 47, 60 [“The provocation must be
such that an average, sober person would be so inflamed that he
or she would lose reason and judgment”].) The subjective
element is satisfied when the defendant “killed while under ‘the
actual influence of a strong passion’ induced by such provocation.
[Citation.]” (Moye, supra, 47 Cal.4th at p. 550.)
Defendant contends the elements of heat of passion
voluntary manslaughter were present because he was in a
romantic relationship with Gregory; he went to Gregory’s home
where he found his rival, R.P.; and he exchanged angry words
with Gregory when she would not let him in the house. Further,
he yelled obscenities at R.P. and fired his gun only when R.P.
came to the window. According to defendant, “there was strong
evidence that [defendant] was provoked by seeing his love
interest with his rival and was overcome with jealousy and
anger.”
There was not substantial evidence of the subjective
element of heat of passion voluntary manslaughter to require a
sua sponte jury instruction. Defendant testified that he and
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Gregory were in an “open” relationship—they dated other
persons. He knew before he went to Gregory’s home that Gregory
was dating R.P. and, although he did not like that they were
dating, he understood that things sometimes happen when you go
to prison. Defendant was not mad at Gregory when he saw R.P.’s
car at her home. He fired the first shot in the air, and not at the
window, to warn R.P. to move away from the window. He fired
the second shot accidentally. Given the evidence and
“defendant’s own testimony, no reasonable juror could conclude
defendant acted ‘“‘rashly or without due deliberation and
reflection, and from this passion rather than from judgment . . .’”
[citations]’ [citation] . . . .” (Moye, supra, 47 Cal.4th at p. 554.)
B. Ability to Pay Hearing
Defendant next contends the trial court violated his due
process rights and his right to be free of excessive fines by
imposing the $120 court facilities assessment, $160 court
operations assessment, and $300 restitution fine without holding
a hearing to determine his ability to pay. He argues that if he
forfeited his claim by failing to object in the trial court, then he
received ineffective assistance of counsel.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
the court held, “[D]ue process of law requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s
present ability to pay before it imposes court facilities and court
operations assessments under . . . section 1465.8 and
Government Code section 70373.” (Id. at p. 1164.) It further held
that the execution of a restitution fine under section 1202.4
“must be stayed unless and until the trial court holds an ability
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to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Ibid.)
“Ordinarily, a criminal defendant who does not challenge
an assertedly erroneous ruling of the trial court in that court has
forfeited his or her right to raise the claim on appeal.” (In re
Sheena K. (2007) 40 Cal.4th 875, 880.) This forfeiture doctrine
applies where a defendant fails to object to the imposition of fines
and fees at sentencing. (See, e.g., People v. Aguilar (2015) 60
Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.)
Defendant failed to object at his sentencing hearing to the trial
court’s imposition of the assessments and fine without a hearing
to determine his ability to pay. Accordingly, he has forfeited this
issue.
Citing Strickland v. Washington (1984) 466 U.S. 668, 687–
688, defendant contends that if we hold he forfeited his challenge
to the trial court’s imposition of the assessments and fine without
an ability to pay hearing, then defense counsel provided
ineffective assistance by failing to object before the trial court. To
establish ineffective assistance of counsel, “the defendant must
first show counsel’s performance was deficient, in that it fell
below an objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different. . . . On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason
and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
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assistance are more appropriately resolved in a habeas corpus
proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986,
1009 (Mai).)
The record is silent as to trial counsel’s reasons, if any, for
failing to object to the trial court’s imposition of the assessments
and fine without a hearing to determine defendant’s ability to
pay. Further, there is at least one satisfactory explanation of
counsel’s failure to request an ability to pay hearing. Defendant
had been sentenced to a lengthy term in custody and his
probation report reflected that there was “NO INDICATION OR
CLAIM OF SIGNIFICANT PHYSICAL/MENTAL/EMOTIONAL
HEALTH PROBLEM.” Thus, counsel could have concluded that
defendant was able to pay his assessments and fine. (People v.
Castellano (2019) 33 Cal.App.5th 485, 490 [relevant factors
regarding ability to pay “may include, but are not limited to,
potential prison pay during the period of incarceration to be
served by the defendant”], fn. omitted; People v. Jones (2019) 36
Cal.App.5th 1028, 1035 [“[w]ages in California prisons currently
range from $12 to $56 a month”].) Under these circumstances,
defendant cannot prevail on his appellate claim of ineffective
assistance of counsel. (Mai, supra, 57 Cal.4th at p. 1009; People
v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
C. Section 667.5, Subdivision (b) Sentence Enhancements
On October 8, 2019, the Governor signed Senate Bill 136,
which became effective on January 1, 2020. Senate Bill 136
amended section 667.5, subdivision (b) to provide, in relevant
part: “Except where subdivision (a) applies, where the new
offense is any felony for which a prison sentence or a sentence of
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imprisonment in a county jail . . . is imposed or is not suspended,
in addition and consecutive to any other sentence therefor, the
court shall impose a one-year term for each prior separate prison
term for a sexually violent offense as defined in subdivision (b) of
[s]ection 6600 of the Welfare and Institutions Code . . . .” Thus,
Senate Bill 136 amended section 667.5, subdivision (b) to
eliminate the one-year sentence enhancement for prior prison
terms other than those imposed for sexually violent offenses.
Defendant contends that we should strike his five,4 stayed,
one-year section 667.5, subdivision (b) sentence enhancements as
none of his prior prison terms was served for a sexually violent
offense.5 The Attorney General acknowledges that Senate Bill
136 is retroactive under In re Estrada (1965) 63 Cal.2d 740 and
agrees that defendant’s section 667.5, subdivision (b)
enhancements must be stricken. We agree with the parties.
Accordingly, we order the section 667.5, subdivision (b) sentence
enhancements stricken.
4 Defendant was charged with and admitted five section
667.5, subdivision (b) prior convictions. The trial court sentenced
defendant on only four of those admitted prior convictions. Our
opinion encompasses all five prior convictions.
5 Defendant’s five prior convictions were for unlawful driving
or taking of a vehicle (Veh. Code, § 10851, subd. (a)), possession
of a controlled substance (Health & Saf. Code, § 11350, subd. (a)),
criminal threats (§ 422), and felon in possession of a firearm (first
under § 12021, subd. (a)(1) and later under § 29800, subd. (a)(1)).
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IV. DISPOSITION
The judgment is modified to reflect that defendant’s one-
year enhancements imposed under 667.5, subdivision (b) are
stricken. As so modified, the judgment is affirmed. The clerk of
the superior court is directed to prepare an amended abstract of
judgment and to forward it to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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