People v. White CA1/2 ( 2024 )

Filed 5/16/24 P. v. White CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A166488
v.
LATRAIL WHITE, (Alameda County
Super. Ct. No. 22CR001348)
Defendant and Appellant.
A jury convicted Latrail White of special circumstances murder and
other offenses in connection with a drive-by shooting. On appeal, White
contends his conviction must be reversed due to evidentiary and instructional
errors. We affirm, but remand for the limited purpose of correcting the
sentencing minute order and abstract of judgment.
BACKGROUND
Information
In May 2022, the prosecution filed an information charging White with:
(1) murder (Pen. Code, § 187, subd. (a))1 with the special circumstances that
he discharged a firearm from a motor vehicle at another person outside the
vehicle with the intent to cause death (§ 190.2, subd. (a)(21)) and discharged
a firearm from a vehicle with the intent to inflict great bodily injury (§ 190,
1 All undesignated statutory references are to the Penal Code.
1
subd. (d)) (count 1); (2) shooting from a motor vehicle (§ 26100, subd. (c))
(count 2); (3) two counts of unlawful possession of a firearm (§ 29820,
subd. (b)) (counts 3 & 4); and (4) carrying a loaded firearm on his person in a
city (§ 25850, subd. (a)) (count 5). As enhancements to counts 1 and 2, the
information alleged that White personally used a firearm (§§ 12022.5,
subd. (a), 12022.53, subd. (b)) and discharged a firearm (§ 12022.53,
subd. (c)), causing great bodily injury or death (§ 12022.53, subd. (d)), and
personally inflicted great bodily injury (§ 12022.7).
Evidence at Trial2
On the morning of July 24, 2021, R.J.3 was talking to Travis Ward on
the sidewalk of 23rd Avenue between East 17th and Foothill Boulevard in
Oakland, when a woman approached them. Ward began to show her how to
ingest methamphetamine. At that point, R.J. walked away because he did
not like the smell of methamphetamine.
A couple minutes later, R.J. heard Ward whistle and saw him walk
towards the street. R.J. heard Ward say, “You a hard man to catch up with,”
but did not see who Ward was talking to. He next heard a man say, “Why are
you patting your pockets?” Ward responded, “My phone,” or “I’m looking for
my phone.” R.J. had known Ward for 15 years and had never seen him with
any type of weapon. R.J. next heard several pops. He heard Ward moan, and
realized Ward was being shot at. R.J. dove to the ground behind some
parked cars to avoid being hit.
2 We provide an overview of the facts here and additional facts in
connection with our discussion of defendant’s claims.
3 R.J. appeared in custody after being arrested for failing to comply
with a prosecution subpoena to appear; he admitted he was a reluctant
witness.
2
M.A.4 had known Ward for approximately 10 years. He described the
area near 23rd Avenue and Foothill Boulevard as a neighborhood “hang out”
area. M.A. was in his parked van on the corner of East 17th Street and 23rd
Avenue on the morning of July 24, 2021. He saw Ward speaking to R.J. and
a woman immediately before hearing four or five pops that sounded like
gunshots. M.A. heard a car engine revving. When he looked up, he saw a
blue two- or four-door Mercedes Benz sedan turn from southbound 23rd
Avenue onto Foothill Boulevard.
Ward was shot six times and died of multiple gunshot wounds. Police
found a cell phone next to Ward’s left hand. Police also found six FN model
5.7-by-28-millimeter casings. A criminalist with the Oakland Police
Department testified that she had examined tens of thousands of casings over
the course of her 15-year career, and had seen FN model 5.7-by-28-millimeter
casings approximately 20 times.
Surveillance footage, motor vehicle records, and witness testimony
connected White to the Mercedes used in the drive-by shooting. White was
observed driving the Mercedes down 23rd Avenue past a vigil for Ward on the
day of the murder.
Michael Jaeger, a homicide investigator with the Oakland Police
Department, testified that he authored a warrant for White’s arrest. Sheriff’s
deputies arrested White as he was driving the Mercedes on Highway 580
near Berkeley on August 10, 2021. When White got out of the car, he had a
Motorola G-Play cell phone in his hand which had a phone number ending in
5402.
4 M.A. was also a reluctant witness who appeared in custody after
being arrested for refusing to comply with a prosecution subpoena.
3
A search of the phone, which included Ward’s social media accounts,
connected Ward to the scene and to a firearm capable of shooting the caliber
of ammunition found at the scene. Using the call detail records and
specialized location records for the 5402 number, police were able to establish
“with a high degree of confidence” that on the day of the murder, July 24,
2021, the phone was “near the intersection of 23rd Ave, and Foothill Blvd.” in
Oakland “at 9:21:02 a.m.” Additionally, between August 8, 2021, and August
9, 2021, internet searches for “Oakland homicide,” “homicide,” “murders in
Oakland,” “1600 block of 23rd Avenue,” “Oakland surveillance cameras,”
“new leads on Oakland homicides,” and “new homicide leads in Oakland,
California” were conducted on the phone.
White testified that he knew Ward through friends but did not “have a
personal relationship with him.” He denied having any problems with Ward,
and he denied killing him.
White testified that he had picked up the Mercedes from his cousin
shortly before being pulled over and arrested on August 10, 2021. White said
the Motorola cell phone was in the Mercedes when he picked it up. His
statement to the police that he did not know the passcode to the phone was
truthful; he claimed that someone had changed the passcode since the last
time he used the phone.
Verdict and Sentencing
The jury found White guilty on all counts. The jury found true the
special circumstances and special allegations alleged in connection with the
murder charge in count 1. As to count 2, which charged White with shooting
from a motor vehicle, the jury found true the allegations that White
personally caused great bodily injury (§ 12022.7, subd. (a)), personally and
4
intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and
personally used a firearm (§ 12022.5, subd. (a)).
On October 13, 2022, the trial court sentenced White to life without the
possibility of parole, plus additional terms for the other offenses and the
enhancements, some of which were stayed.
DISCUSSION
I.
The Trial Court Did Not Err in Denying the Motion to Traverse the
Search Warrants for the Call Detail Records and Contents of the
Motorola Cell Phone
White contends that the trial court erred in denying his motion to
suppress the call detail records and contents of the Motorola cell phone. He
argues that “several pieces of important information were deliberately left
out of the affidavits to the warrant applications,” and this information “would
have seriously called into question the magistrate’s finding of probable
cause.” We disagree.
A. Additional Background
Motion to Traverse Search Warrants
White moved to quash the search warrants on the ground that each
warrant was so devoid of probable cause that no reasonable officer would
have relied upon it. (United States v. Leon (1984) 468 U.S. 897, 923.) He also
argued that the court should traverse the warrants and suppress the call
detail records and evidence downloaded from the Motorola cell phone based
on Investigator Jaeger’s intentional or reckless omission of two material facts
from the affidavits which supported the warrants. (Franks v. Delaware
(1978) 438 U.S. 154, 155–156.)
White asserted, first, that Jaeger failed to disclose that on August 5,
2021, he had obtained call detail records for two other cell phone numbers
5
believed to be associated with White—one ending in 3264 and the other
ending in 8227—which established that neither cell phone was in Oakland at
the time of the homicide. He argued that the evidence concerning the
location of the other cell phone numbers was potentially exculpatory and
should have been presented to the magistrate. Second, White alleged that
Jaeger knew that White’s girlfriend had corroborated White’s alibi for the
date of the homicide, yet he failed to include this clearly exculpatory
information in either affidavit submitted to the magistrate. White argued
pursuant to Franks v. Delaware, supra, 438 U.S. at pages 155–156, that (1)
Jaeger’s omission of these material facts was the result of a deliberate or
reckless regard for the truth; and (2) if the omitted information had been
included in the affidavits, the magistrate would not have found either search
warrant application supported by probable cause.
The trial court summarily denied White’s motion to quash on August
19, 2022; this ruling is not challenged on appeal. The court indicated that it
“want[ed] to hear from Officer Jaeger,” and therefore proceeded to an
evidentiary hearing on the traversal motion on August 22.
Investigator Jaeger testified at the hearing that he searched the TLO
database5 on August 4, 2021 for information about White, who was then a
person of interest in the homicide investigation. Jaeger discovered four
5 A “TLO search” relies on “a database that’s used by law enforcement
which pulls records from areas such as utility bills and other third parties
where users provide addresses, or phone numbers, or personal information.”
A TLO search is unable to determine when an individual lived at an address
or used a particular phone number, simply that an address or phone number
is associated with a person.
6
phone numbers associated with White.6 He ruled out two of the numbers
immediately; one was to a landline and the other was associated with a
person unrelated to the case. The third number ending in 8227, was
associated with White’s mother. The fourth number, ending in 3264, was a
T-Mobile cell phone which did not list any subscriber information. Jaeger
wrote search warrants to obtain the call detail records for the 8227 and 3264
numbers on August 4 because he then believed that White possibly used one
or both of those phone numbers.
Jaeger obtained the call detail records for the 8227 and 3264 numbers
on August 5. After reviewing the records for the 3264 number, he decided
they were irrelevant to the investigation because this phone number was
used infrequently in July 2021, and not at all on July 24, 2021. The parties
stipulated to the admission of the call detail records for the 8227 number.
Jaeger was able to determine from these records that the 8227 number was
in the area of Dahlia Court in Fairfield around the time of the homicide.
White’s mother lived at or near Dahlia Court, and Jaeger was aware that
White had used his mother’s address. Jaeger cross-referenced the call detail
records with other information he had learned during the investigation. The
call detail records put the 8227 number in Fairfield on July 24, 2021, whereas
a witness had seen White in Oakland later that day. Based on this
information, Jaeger believed that the 8227 number probably belonged to
White’s mother.
When White was arrested on August 10, 2021, he had a Motorola G-
Play cell phone in his hand, with a number ending in 5402. Jaeger concluded
6 Jaeger testified that after obtaining possible phone numbers from a
TLO search, the next step is to use Zendesk or other databases to try to
connect the phone number to the suspect.
7
that none of the call detail records he received on August 5, 2021 were
significant because it was unlikely that White was using any of those
numbers at the time of the homicide.
Jaeger spoke by telephone with White’s girlfriend on the evening of
White’s arrest. She confirmed that White had the phone number ending in
5402 on July 24, 2021, and had been using the number “for a long time.”
White’s girlfriend also told Jaeger that White drove the Mecedes in July
2021, and sometimes drove her vehicle, which was a black sedan. White’s
girlfriend said she was with White on the day of the murder, although “[s]he
was pretty vague.” She said they spent the night together on July 23, 2021,
and drove to Oakland together the next day around noon. Jaeger admitted
that he did not include any “discussion at all about her whereabouts with
Mr. White on the day of the homicide” in his affidavit.
When asked why he omitted White and his girlfriend’s alibi statements
from his search warrant affidavits, Jaeger answered: “I think I was just
trying to limit it. I wasn’t trying to leave exculpatory information out. I
think if I were to reread it I would have added [it] in and said I spoke to him.
I think the records would help me prove or disprove that fact.” Jaeger
admitted he did not have an excuse for failing to add the alibi information to
his affidavit prior to seeking the second warrant in January 2022: “I don’t
have a great excuse for it, Your Honor. I was just asking for an extension. I
was not thinking about adding the continuation of my investigation with all
the extra information . . . I had obtained in that time.”
Trial Court Ruling
After considering the evidence and arguments presented by counsel,
the court found that Investigator Jaeger had not been intentionally deceptive,
nor had he acted with reckless disregard for the truth in preparing his
8
August 11, 2021 affidavit. The court noted it was “curious” that Jaeger
included some, but not all, of his conversation with White and White’s
girlfriend in his affidavit, but the court recognized that Jaeger had included
“a lot of other stuff that’s exculpatory.” The court further determined that
even if the entirety of the statements by White and his girlfriend had been
included in the affidavit, there was sufficient probable cause to grant the
warrant for the call detail records.
As to the January 25, 2022 renewal of the search warrant for the
contents of the Motorola cell phone, the court found that it was “certainly
sloppy and I would think also reckless to not four months later review your
document that you’re going to submit to me or one of my colleagues and
continue to make sure to be accurate and complete.” Even though the court
found that the “preparation of [the renewal affidavit] was reckless,” it did not
“think that the substance of the conversation ultimately would have made
any difference in my colleague signing the warrant.” The court also ruled
that discovery of the call detail records and contents of the cell phone were
inevitable after the Motorola cell phone was located on White’s person during
his arrest.
B. Applicable Law
“A defendant has a limited right to challenge the veracity of statements
contained in an affidavit of probable cause made in support of the issuance of
a search warrant. The trial court must conduct an evidentiary hearing only if
a defendant makes a substantial showing that (1) the affidavit contains
statements that are deliberately false or were made in reckless disregard of
the truth, and (2) the affidavit’s remaining contents, after the false
statements are excised, are insufficient to support a finding of probable
cause. Innocent or negligent misrepresentations will not support a motion to
9
traverse. [Citations.] A defendant who challenges a search warrant based on
omissions in the affidavit bears the burden of showing an intentional or
reckless omission of material information that, when added to the affidavit,
renders it insufficient to support a finding of probable cause. [Citations.] In
either setting, the defendant must make his showing by a preponderance of
the evidence, and the affidavit is presumed valid.” (People v. Scott (2011)
52 Cal.4th 452, 484.)
“[A] claim that material facts were omitted from an affidavit differs
from a claim that the affidavit contains falsehoods: ‘Though similar for many
purposes, omissions and misstatements analytically are distinct in important
ways. Every falsehood makes an affidavit inaccurate, but not all omissions
do so. An affidavit need not disclose every imaginable fact however
irrelevant. It need only furnish the magistrate with information, favorable
and adverse, sufficient to permit a reasonable, common sense determination
whether circumstances which justify a search are probably present.
[Citations.]’ ‘[A]n affiant’s duty of disclosure extends only to “material” or
“relevant” adverse facts.’ [Citation.] ‘[F]acts are “material” and hence must
be disclosed if their omission would make the affidavit substantially
misleading. On review under section 1538.5, facts must be deemed material
for this purpose, if, because of their inherent probative force, there is a
substantial possibility they would have altered a reasonable magistrate’s
probable cause determination.’ ” (People v. Sandoval (2015) 62 Cal.4th 394,
409–410 (Sandoval).)
“In reviewing a trial court’s ruling on a motion to suppress evidence, we
defer to that court’s factual findings, express or implied, if they are supported
by substantial evidence. [Citation.] We exercise our independent judgment
in determining whether, on the facts presented, the search or seizure was
10
reasonable under the Fourth Amendment.” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 592.) “Because courts accord a preference to searches and
seizures conducted pursuant to a search warrant, ‘in a doubtful or marginal
case a search under a warrant may be sustainable where without one it
would fall.’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 133.)
An appellate court “ ‘ “ ‘ordinarily looks only at the evidence supporting
the successful party and disregards the contrary showing.’ [Citation.]” ’ ”
[¶] . . . . In the case where the trier of fact has expressly or implicitly
concluded that the party with the burden of proof did not carry the burden
and that party appeals, it is misleading to characterize the failure-of-proof
issue as whether substantial evidence supports the judgment . . . . [¶] Thus,
where the issue on appeal turns on a failure of proof at trial, the question for
a reviewing court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517,
1528, disapproved on other grounds in Conservatorship of O.B. (2020) 9
Cal.5th 989, 1010, fn. 7.) This is an exceedingly difficult burden to meet.
(See Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734.)
C. Analysis
It is the exclusive province of the trial judge to determine the
credibility of a witness and the truth or falsity of facts on which that
determination depends. (People v. Jones (1990) 51 Cal.3d 294, 314.) Here,
the court credited Jaeger’s explanation that he inadvertently omitted the
information regarding White’s alibi from his August 11, 2021 affidavit. It
noted that Jaeger had included “a lot of other stuff that’s exculpatory” in his
affidavit. The court also implicitly accepted Jaeger’s opinion that the call
detail records for the 3264 and 8227 numbers were not relevant to the
11
homicide investigation because it was unlikely White was using either
number on July 24, 2021.
White challenges the trial court’s factual findings by arguing that
Jaeger’s omissions were “one-sided,” and “too numerous and serious to be
attributable to negligence.” This argument neither acknowledges the
deference we must accord the trial court’s factual findings (People v. Jones,
supra, 51 Cal.3d at p. 314), nor explains how the evidence presented at the
hearing compels a finding in his favor as a matter of law (In re I.W., supra,
180 Cal.App.4th at p. 1528). Accordingly, we disregard White’s conclusory
claim of error and accept the trial court’s finding—which is supported by
substantial evidence in the record—that Jaeger’s omissions were inadvertent,
or, at most, negligent. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [“When a
point is asserted without argument and authority for the proposition, ‘it is
deemed to be without foundation and requires no discussion by the reviewing
court’ ”].)
Turning to the January 25, 2022 affidavit requesting to renew the
search warrant for the contents of the Motorola cell phone, the trial court
found that Jaeger’s failure to update his affidavit to ensure it was still
accurate and complete was “reckless.” Accordingly, we exercise our
independent judgment to determine if the omission of the information
regarding the 8227 and 3264 numbers and White’s alibi was substantially
misleading, and if its inclusion would render the affidavit insufficient to
support the magistrate’s finding of probable cause. (Sandoval, supra, 62
Cal.4th at p. 410.)
“In determining whether a search warrant is supported by probable
cause, we consider ‘whether, given all the circumstances set forth in the
affidavit . . . there is a fair probability that contraband or evidence of a crime
12
will be found in a particular place.’ ” (People v. Beck and Cruz, supra, 8
Cal.5th at p. 592; Illinois v. Gates (1993) 462 U.S. 213, 238.) “[S]ufficient
probability, not certainty, is the touchstone for reasonableness under the
Fourth Amendment.” (Maryland v. Garrison (1987) 480 U.S. 79, 87.)
Here, the call detail records for the 8227 and 3264 numbers were
immaterial to the decision whether Jaeger’s affidavit established probable
cause to search the contents of the Motorola cell phone. The January 25,
2022 affidavit informed the magistrate that the phone to be searched was
located in White’s hand when he was arrested on August 10, 2021. Although
the phone was locked, Jaeger had observed a text from White’s girlfriend on
the screen. White’s girlfriend confirmed in a telephone interview
immediately after White’s arrest that White used the 5402 number on July
24, 2021, and had been using it for a long time. The trial court correctly
observed that the discovery of the contents of the Motorola cell phone was
“inevitable” following White’s arrest.
The call detail records for the phone numbers Jaeger obtained through
the TLO search do not alter the conclusion that probable cause existed to
search the contents of the Motorola cell phone. The 3264 number showed no
activity on July 24, 2021, which was inconsistent with White’s girlfriend’s
statement that White texted her on the day of the murder. The 8227 number
registered to White’s mother was in Fairfield on July 24, 2021, which is
where White’s mother resided. Providing information about these phones,
neither of which was strongly associated with White, would not have altered
the magistrate’s determination that the affidavit established probable cause
to search the phone police found in White’s possession.
As Jaeger conceded, he didn’t “have a great excuse” for failing to
include White’s girlfriend’s confirmation of White’s alibi for the date of the
13
murder in his January 25, 2022 request to renew the warrants for the
contents of the Motorola cell phone. Nevertheless, even when the alibi
information is included, the affidavit established probable cause to search the
contents of the phone. The affidavit discussed White’s substantial ties to the
Mercedes which had been described by eyewitnesses to the homicide and
depicted in the surveillance video. The license plate on the Mercedes had
been read by a license plate reader near Pinole within minutes of the
shooting. White had the Motorola cell phone in his hand when he was pulled
over on August 10, 2021, while driving the Mercedes. White’s efforts to
distance himself from the Mercedes and the Motorola cell phone were
unconvincing. The magistrate reviewing the January 25, 2022 application
was informed that a search warrant for the contents of the Motorola cell
phone had previously been authorized, but that the 120-day time period in
which to download the data had elapsed. Thus, even if the magistrate had
been informed that White’s girlfriend had confirmed his alibi for the date of
the murder, this fact would not have undermined the magistrate’s finding of
probable cause given the substantial weight of the other information in the
affidavit supporting the requested search. (See, e.g., Sandoval, supra, 62
Cal.4th at pp. 410–411 [omission of information that police had obtained a
warrant to search a different suspect’s home on theory that officer was
murdered in retaliation for shooting a gang member was immaterial to
probable cause to search defendant’s home. “During the investigation of a
crime, police often will pursue theories that do not turn out to be true”].)
Accordingly, the court did not err in denying the motion to traverse the
warrants.
14
II.
The Trial Court Was Not Required to Instruct on Voluntary
Manslaughter
White claims the trial court erroneously failed to instruct the jury on
voluntary manslaughter as a lesser included offense to murder because the
evidence showed the shooter had an honest but unreasonable belief in the
need to act in self-defense. Again, we disagree.
A. Additional Background
At a jury instruction conference, defense counsel asked the court to
consider instructing the jury on voluntary manslaughter as a lesser included
charge to murder. Counsel argued that R.J.’s testimony about the brief
conversation he overheard between Ward and the shooter provided “a factual
basis for the request.” R.J. testified that as Ward walked toward the street,
he said to the person in the Mercedes, “You a hard man to catch up with.” A
man’s voice responded, “Why are you patting your pockets?” Ward answered,
“My phone,” or “I’m looking for my phone.” Defense counsel argued that the
jury should be instructed on the theory of imperfect self-defense, stating, “I
believe that’s an argument that can be made independent of whether we
decide or we know who did the actually [sic] shooting.”
The trial court declined to instruct on voluntary manslaughter. It
found that R.J.’s testimony did not establish “substantial evidence upon
which a jury could reasonably alight in finding that whoever was the shooter
here acted with actual but unreasonable self-defense. There just wasn’t
enough evidence to suggest that.”
B. Applicable Law and Standard of Review
“ ‘ “[I]t is the ‘court’s duty to instruct the jury not only on the crime
with which the defendant is charged, but also on any lesser offense that is
both included in the offense charged and shown by the evidence to have been
15
committed.’ [Citation.]” [Citations.]’ [Citation.] ‘Speculation is an
insufficient basis upon which to require the giving of an instruction on a
lesser offense.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 718.) “A trial
court must instruct a jury on lesser included offenses when the evidence
raises questions regarding whether every element of a charged offense is
present. [Citation.] No instruction on lesser included offenses is required if
there is no evidence that there was any offense less than that charged.
Instructing the jury on a lesser included offense is not required when the
evidence supporting such an instruction is weak, but ‘ “ ‘whenever evidence
that the defendant is guilty only of the lesser offense is “substantial enough
to merit consideration” by the jury,’ ” ’ such an instruction is required.
[Citation.] Whether the evidence is substantial is tested by considering
whether a jury would conclude the lesser but not the greater offense was
committed.” (People v. Vargas (2020) 9 Cal.5th 793, 827.) “[W]e 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.)
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187.) “Under the doctrine of imperfect self-defense,
however, ‘[i]f a person kills . . . in the unreasonable but good faith belief in
having to act in self-defense, the belief negates what would otherwise be
malice, and that person is guilty of voluntary manslaughter . . . not murder.’
[Citation.] A defendant charged with murder is entitled to an instruction on
imperfect self-defense when there is substantial evidence to support the
theory.” (People v. Schuller (2023) 15 Cal.5th 237, 243.) Evidence “is
substantial enough to merit consideration by the jury” if “a reasonable jury
could find [it] persuasive.” (People v. Halvorsen (2007) 42 Cal.4th 379, 414.)
16
C. Analysis
Under an imperfect self-defense theory, the defendant “ ‘must actually
believe in the need to defend himself against imminent peril to life or great
bodily injury. To require instruction on [this] theory, there must be evidence
from which the jury could find that [the defendant] actually had such a
belief.’ ” (People v. Oropeza (2007) 151 Cal.App.4th 73, 82.) “ ‘[S]ubstantial
evidence of a defendant’s state of mind may be found in the testimony of
witnesses other than a defendant.’ ” (Ibid.) It is irrelevant that the
defendant may have denied involvement in the crime or that a voluntary
manslaughter instruction may be contrary to the defendant’s own testimony.
(People v. Elize (1999) 71 Cal.App.4th 605, 615.)
Here, other than the ambiguous statement, “Why are you patting your
pockets?” White points to no evidence that Ward posed a risk of imminent
peril to him. White presented no evidence that he had ever perceived Ward
as a threat. No evidence established that Ward was generally known to be
armed, or that he was armed on July 24, 2021. To the contrary, R.J. testified
he had never known Ward to be armed, and only Ward’s cell phone was
recovered at the scene of the homicide. (See, e.g., People v. Simon (2016)
1 Cal.5th 98, 134 [voluntary manslaughter instruction properly denied where
record devoid of evidence tending to show defendant’s subjective fear of
victim].) Because there was no substantial evidence supporting defendant’s
imperfect self-defense theory, the trial court properly declined to instruct on
voluntary manslaughter. (People v. Schuller, supra, 15 Cal.5th at p. 243.) By
reason of this holding, we do not reach White’s argument that the trial court’s
failure to instruct on this theory amounts to constitutional error which must
be reversed unless harmless beyond a reasonable doubt. (Ibid.)
17
III.
Remand is Required to Amend the Sentencing Minute Order and
Abstract of Judgment
Finally, the record reveals significant discrepancies between the court’s
oral pronouncement of sentence and the clerk’s minute order and abstract of
judgment.
At the sentencing hearing, the court sentenced White as to count 1 to
life without the possibility of parole for special circumstances murder, with a
consecutive term of 25 years to life for the personal discharge of a firearm
causing death. (§§ 190.2, subd. (a)(1); 12022.53, subd. (d).) The court also
imposed and stayed the following enhancements: 20 years for intentionally
and personally discharging a firearm (§ 12022.53, subd. (c)); 10 years for
personally using a firearm (id., subd. (b)); and an aggravated term of 10 years
for personal use of an assault weapon (§ 12202.5).
As to count 2, the court imposed and stayed a seven-year aggravated
term (§ 26100, subd. (c)), enhanced by a 25-year-to-life gun-use enhancement
(§ 12022.53, subd. (d).)
As to count 3, the court imposed a three-year upper term (§ 29820,
subd. (b)) to be served concurrently with count 1. Similarly, as to count 4, the
court imposed a three-year upper term (§ 29820, subd. (b)), but ordered it to
be served consecutively to count 1.
As to count 5, the misdemeanor violation (§ 25850, subd. (a)), the court
imposed and stayed a one-year term in county jail.
The Attorney General properly points out that as to count 1, the
abstract of judgment fails to list the 25-year-to-life section 12022.53,
subdivision (d) enhancement. We note that the abstract of judgment also
omits the additional enhancements associated with count 1; specifically, the
following imposed and stayed enhancements were omitted from the abstract
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of judgment: 20 years for intentionally and personally discharging a firearm
(§ 12022.53, subd. (c)); 10 years for personally using a firearm (id., subd. (b));
and an aggravated term of 10 years for personal use of an assault weapon
(§ 12202.5).
The October 13, 2022 sentencing minute order fails to list any of the
enhancements associated with counts 1 and 2. The minute order also
erroneously reflects count 3 is to run concurrent to count 4 and count 4 is to
run consecutive to count 5, the misdemeanor offense. The minute order also
fails to note that the one-year county jail term associated with count 5 is
stayed.
“Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral
pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380,
385.) Accordingly, we remand for the limited purpose of correcting these
clerical errors in the sentencing minute order and the abstract of judgment.
(People v. Mitchell (2001) 26 Cal.4th 181, 185, 188.)
DISPOSITION
The matter is remanded to the trial court with directions to conform
the sentencing minute order and abstract of judgment with the oral
pronouncement of sentence and to forward a certified copy of the abstract of
judgment to the California Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
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_________________________
Mayfield, J.*
We concur:
_________________________
Stewart, P. J.
_________________________
Richman, J.
People v. White (A166488)
* Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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