People v. Boyd CA3 ( 2022 )

Filed 8/23/22 P. v. Boyd CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C093382
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20190001382)
v.
ASHIRON BOYD,
Defendant and Appellant.
After the victim, Frank Baker, attacked defendant Ashiron Boyd with a pipe,
defendant beat him badly, leaving Baker’s skull severely fractured in multiple places.
Baker died from the injuries. A jury found defendant guilty of voluntary manslaughter,
as a lesser included offense of murder, and assault with a deadly weapon with a great
bodily injury enhancement. The trial court sentenced defendant to an upper term of 11
years in prison. Defendant appeals the convictions, contending the trial court erred by:
(1) excluding expert testimony on the effects of chronic stress on brain function and
1
development; and (2) refusing to instruct the jury on justifiable homicide in defense of
home. We conclude any error was harmless and affirm the convictions.
During the pendency of this appeal, the Governor signed Senate Bill No. 567
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3; Senate Bill 567),1 amending Penal
Code section 1170.2 As relevant here, the amendments to section 1170 limit the trial
court’s discretion to impose the greater term (§ 1170, subd. (b)(1) & (2)) and mandate
imposition of the lower term in certain circumstances, including where the offender is
under 26 years old at the time of the offense or has experienced physical, psychological,
or childhood trauma contributing to the commission of the offense (§ 1170, subd. (b)(6)).
These amendments apply retroactively to nonfinal judgments. (People v. Flores (2022)
73 Cal.App.5th 1032, 1039 (Flores).) Accordingly, we vacate the sentence and remand
for resentencing.
I. BACKGROUND
In January 2019, defendant and Baker were both living on the street. Defendant
had been living on the street for approximately two years. During that period, he had
been robbed multiple times and involved in numerous fights. Although defendant and
Baker had not previously fought with each other, defendant had seen Baker hit people
with a “billy club” twice in the past. In 2015, Baker was convicted of assault with a
deadly weapon, a barbell, with a great bodily injury enhancement, and in 2010 he was
convicted of a misdemeanor battery.
One night, defendant and other people were setting up to spend the night in front
of the Human Services Agency building in Stockton. Defendant had stayed at the Human
Services Agency building alcove for the previous few nights. Baker and defendant were
1 Senate Bill 567 was enacted after Assembly Bill No. 124 and incorporated Assembly
Bill No. 124’s amendments to section 1170. (Stats. 2021, ch. 731, § 3(c).)
2 Undesignated statutory references are to the Penal Code.
2
each in the alcove of the building and had a conversation about making a trade for
defendant’s sleeping bag and exchanging defendant’s sandwich for some of Baker’s
marijuana. At various points Baker left the alcove and returned to it.3
On Baker’s final return to the alcove, defendant was standing in the alcove,
slouched over with his hands on his upper thighs, when Baker assaulted defendant by
swinging a pipe at him. The two men struggled for the pipe and fell to the ground. They
continued to struggle, with both men holding the pipe, and Baker continued to try to hit
defendant with the pipe. As the men stood facing each other, each holding the pipe,
defendant testified Baker said he wanted to, and could, kill defendant. Defendant was
afraid and was trying to defend himself. Baker told defendant if he let go of the pipe,
Baker would continue to hit him. There was another man nearby who Baker kept telling
to help him, but that man refused to get involved. Defendant testified he was becoming
more and more paranoid as the fight continued, because no one was trying to help him.
He felt unsafe and that, if he did not get the “upper hand” in the fight, he might end up
murdered.
Defendant hit Baker several times in the head and grabbed him. Baker continued
to hold onto the pipe and defendant punched him. Baker fell to the ground and defendant
kicked him in the head. Defendant moved away from Baker. Baker was laying partially
on the sidewalk with his head in the gutter, motionless. After approximately 15 to 30
3 The assault and homicide were captured on the security cameras of the Human
Services Agency building. The videos, People’s Exhibits 88 and 89, were played for the
jury, and testified to by witnesses. In addition, in ruling on defendant’s motion for
acquittal (§ 1118.1) and during the instruction conference, the trial court summarized the
videos. Both rulings were based on the court’s review of the videos. The copies of the
videos provided to this court show some of the incident, but as it continues, and the actual
homicide occurs, Baker and defendant are out of the frame. As the court’s summaries of
the videos were not objected to, and are consistent with the descriptions by the parties
and testimony, we utilize these summaries in our description of the videos.
3
seconds, defendant went back to Baker, who was still laying motionless on the ground,
and hit him in the head with the pipe six times. Baker sustained critical injuries.
When law enforcement arrived, Baker was lying on the sidewalk, his head on the
street in a pool of blood. He had visible skull fractures and brain matter was coming out
of his head. When he arrived at the hospital, he had a large open injury to his head, he
was bleeding, and his brain was visible. Baker underwent surgery and died 41 days later.
The pathologist concluded during the fight, Baker’s brain was lacerated and portions
were missing. Injuries of this sort could have only been caused by an extreme level of
force. Baker could not have survived these injuries. He died from blunt trauma to the
head.
At the scene, there were blood stains and brain matter on the sidewalk. A black
metal pipe, approximately three feet long, was found in bushes near the freeway. It
appeared to have blood and hair on it. The DNA on the pipe matched Baker.
During the fight, defendant was wearing a light grey sweatshirt. When first
stopped by a law enforcement officer, he was wearing a black sweatshirt. Defendant
denied seeing or hearing anything involving Baker. He claimed he had been at a friend ’s
house. Later, upon seeing the surveillance images, an officer recognized defendant and
arrested him.
At the station, after waiving his Miranda4 rights, defendant gave a statement. He
stated he was homeless and did not have a particular place he normally stayed. He told
the officers Baker had assaulted him with a pipe and was trying to beat him up. After
they struggled over the pipe, defendant “[b]eat his head in with the pipe.” Defendant said
he hit Baker until Baker stopped moving. He indicated during the period when he had
walked away from Baker, he was thinking he had to defend himself, and a “voice” asked
4 Miranda v. Arizona (1966) 384 U.S. 436.
4
if Baker was going to kill him. He thought Satan had told him Baker was going to get
back up. Satan also told him to put the pipe in the bushes. He had no option other than
to run away. Defendant had taken off the grey sweatshirt he was wearing during the fight
and put it by the bus station.
The jury found defendant not guilty of murder (§ 187, subd. (a)), guilty of
voluntary manslaughter (§ 192, subd. (a)), as a lesser included offense of first degree
murder, and guilty of assault with a deadly weapon (§ 245, subd. (a)(1)), with a great
bodily injury enhancement (§ 12022.7, subd. (a)). The trial court sentenced defendant to
upper terms on both the manslaughter and assault with a deadly weapon convictions, with
the latter stayed under section 654.
II. DISCUSSION
A. Expert Testimony
Defendant contends the trial court prejudicially erred in excluding the testimony of
Dr. Sapolsky, a neuroendocrinologist, regarding how chronic stress affects brain function
and development, and decisionmaking under stress. Specifically, defendant argues the
testimony was relevant to his claim of reasonable self-defense and his state of mind at
various points in the fight. The People respond the trial court properly excluded the
evidence as improper diminished capacity evidence; the evidence was speculative; and
the evidence was irrelevant to the reasonableness of defendant’s belief in the need for
self-defense. We conclude any error in excluding the evidence was harmless.
1. Additional Background
The People made an in limine motion to exclude the testimony of Dr. Robert
Sapolsky on the subject of diminished capacity. Defense counsel responded that Dr.
Sapolsky’s testimony about how the brain functions under stress and extreme adversity
was relevant to defendant’s claim of self-defense. The court made clear diminished
capacity testimony would not be allowed, but deferred ruling on the motion.
5
Defendant testified he had been homeless for approximately two years and subject
to various incidents of violence during that time. He also testified he had not lived with
his mother since he was two or three years old, and had been placed in foster care.
After the prosecution’s case-in-chief and defendant’s testimony, the court held an
Evidence Code section 402 hearing regarding Dr. Sapolsky’s proposed evidence. Dr.
Sapolsky is an expert in neuroendocrinology, specifically how stress affects brain
function and development.5
Dr. Sapolsky testified there are three different levels of what occurs in the brain
during decisionmaking: (1) conventional decisionmaking, which is average individuals
under average circumstances; (2) impaired decisionmaking under stress; and (3) impaired
decisionmaking under stress, where the individual has lifetime experiences of severe
adversity and chronic psychosocial stress. Stress influences everyone’s behavior,
judgment, and executive control. Stress can include: psychological factors, such as lack
of control, predictability, or social support; and physical stressors, such as life threatening
situations or extreme deprivation. A person trying to make a decision in a stressful
situation, as opposed to in their regular state of mind, has an impaired ability to stop their
actions and reason; emotions tend to overwhelm cognition; emotions centered in fear,
aggression, and anxiety dominate decisionmaking; and one falls into a habitual reflex
response, rather than a reflective response.
Severe, chronic psychosocial stress effectively leaves scars on the brain that affect
decisionmaking, and a history of stressful adversity further impairs decisionmaking.
Sustained stress causes atrophy of the parts of the brain responsible for impulse control
and emotional regulation. A variety of stressors, including childhood adversity, familial
instability, witnessing abuse, and economic vulnerability can also impact brain
5 There is no challenge to Dr. Sapolsky’s qualifications as an expert. In fact, the court
explicitly found he was an expert in his field.
6
development, biasing the person toward making more emotion driven decisions in critical
stressful moments.
Early experiences, including severe stress, change how the brain develops and
how it is constructed forever. Significant stress from early adversity slows development
of the frontal cortex, the cognitive portion of the brain, and increases the size and
excitability of the amygdala, the fear and aggression portion of the brain. Early
adversity, teaches the brain to expect more adversity, perceive threat everywhere, and
have difficulty detecting safety signals. Such early adverse experiences can include
unstable family situations, witnessing abuse, being the victim of abuse, and having a
family member who is incarcerated or substance dependent. Relatedly, these adverse
experiences also include placement in a foster home and the circumstances which lead to
such a placement. A two-year period of exposure to violence due to homelessness would
also likely dramatically impair impulse control, as that type of stress strengthens the
amygdala and atrophies the frontal cortex. When a person with such adverse experiences
and psychosocial stressors is in a life threatening situation, it would be “virtually
impossible” for that person to rationally evaluate whether the threat has ended. The
combination of a period of homelessness and adverse childhood experiences would likely
significantly increase the impairment of brain function.
Defense counsel argued the evidence was highly relevant to how a person deals
with stress when they are in a life-threatening situation, such as being attacked by a
person wielding a pipe, and how the brain reacts makes it much more difficult to reason;
it was not diminished capacity evidence. The People argued the evidence was invading
the province of the jury and that the evidence was not necessary as reactions to stress are
within the common understanding of jurors.
The trial court found Dr. Sapolsky’s testimony would have been about diminished
capacity, specifically that if a person has been exposed to violence while being homeless,
and in a foster home because of an unstable family life, that person’s ability to control his
7
actions is affected and it is impossible for that person to know a threat has ended. In
effect, the court concluded, this would essentially become a new defense for people
without housing. The court concluded the issues in the case did not require a great deal
of expertise. There was no evidence defendant had a mental disease or defect, and Dr.
Sapolsky had not treated or examined defendant. Nor was there evidence that defendant
had experienced exposure to violence that would affect his brain function. Finding there
was no evidence of mental disease or defect, and that the proffered evidence was
effectively diminished capacity evidence, the trial court sustained the People’s objection
to the testimony.
2. Admissibility
All relevant evidence is admissible, unless specifically excluded by statute. (Evid.
Code, § 351.) Evidence is relevant if it has “any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (Evid. Code,
§ 210.) Expert opinion testimony is admissible only if the subject matter of the testimony
is “sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.” (Evid. Code, § 801, subd. (a).) “The trial court has broad discretion in
deciding whether to admit or exclude expert testimony [citation], and its decision as to
whether expert testimony meets the standard for admissibility is subject to review for
abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426.)
Initially, we disagree with the trial court’s conclusion that the entirety of Dr.
Sapolsky’s evidence was diminished capacity evidence. Diminished capacity evidence is
evidence that a defendant’s mental impairment negates the capacity to form a particular
mental state required for the commission of the crime charged. Such evidence is not
admissible. (§§ 25, subd. (a), 28, subd. (a).) In addition, an expert may not testify that
based on a defendant’s mental impairment he did not have the required mental states for
the crimes charged. That question is reserved for the jury. (§ 29.) But these sections do
not preclude all expert testimony about a mental condition a defendant may have, or how
8
that condition affected him at the time of the offense; in fact, they “ ‘leave an expert
considerable latitude to express an opinion on defendant’s mental condition at the time of
the offense, within the confines, of course, of its twin prohibitions: no testimony on the
defendant’s capacity to have, or actually having, the intent required to commit the
charged crime.’ (People v. Cortes (2011) 192 Cal.App.4th 873, 910 [(Cortes)], citing
People v. Coddington [(2000)] 23 Cal.4th [529,] 583.)” (People v. Pearson (2013) 56
Cal.4th 393, 451 (Pearson).) An expert can provide a general description of a condition,
or the effect of stress on a defendant’s perceptions, because such a description does not
go to defendant’s mental state at the time of the events but, rather, gives jurors an abstract
description that they can consider when deciding the ultimate issue of whether defendant
had the required mental state for murder. (Pearson, supra, at pp. 451-452; People v. Vu
(1991) 227 Cal.App.3d 810, 814-185 (Vu).)
Dr. Sapolsky’s testimony was not offered to show defendant did not, and could
not, form the necessary mental state when he killed Baker. Indeed, Dr. Sapolsky did not
offer an opinion on defendant’s mental capacity or condition at all. Nor did he offer any
opinion on defendant’s capacity to form a specific mental state or whether defendant had
actually formed the specific mental intent. Dr. Sapolsky’s proffered testimony covered
two areas: (1) the general effects of stress creating impaired decisionmaking; and (2) the
effect of chronic stress on brain function and development, and the corresponding effect
on decisionmaking and threat perception. This testimony properly related to general
mental condition and function, and did not express an opinion on defendant’s criminal
intent when he beat Baker. (Pearson, supra, 56 Cal.4th at p. 451.) Such evidence is not
precluded by sections 25, 28, or 29. (Cortes, supra, 192 Cal.App.4th at pp. 909-912.) To
the extent portions of Dr. Sapolsky’s testimony crossed the line into defendant’s capacity
to accurately evaluate the threat he faced from Baker, such as Dr. Sapolsky’s conclusion
that a person with similar exposure to violence and adversity would find it “virtually
impossible” to rationally evaluate whether the threat has ended, the court could have
9
excluded that testimony while admitting the other relevant portions of Dr. Sapolsky’s
testimony. (Id. at pp. 909-910.)
The People make no argument on appeal that this evidence is not the proper
subject of expert testimony. The science of brain function and development are matters
sufficiently beyond common experience to which expert testimony would assist the trier
of fact. Having concluded this evidence was not improper diminished capacity evidence
and was the proper subject of expert testimony, the remaining question then becomes
whether or not the evidence was relevant.
At the time of the trial court’s decision, both traditional and imperfect self-defense
were at issue. Both traditional and imperfect self-defense require a defendant act with the
actual belief that they need to defend themselves from imminent danger to life. (People
v. Humphrey (1996) 13 Cal.4th 1073, 1084 (Humphrey).) Expert testimony is relevant to
demonstrate a defendant’s actual perception of a threat of imminent harm. (Id. at
p. 1082.) Evidence that would assist the jury in making this evaluation from defendant’s
perspective is relevant evidence. (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 745
(Sotelo-Urena); Vu, supra, 227 Cal.App.3d at p. 814.) Because defendant's actual belief
as to the need to use deadly force was at issue, the jury was required to evaluate that
belief from defendant’s perspective. (CALCRIM Nos. 505, 571.) Dr. Sapolsky’s
testimony was relevant to the evaluation of defendant’s actual perception of imminent
threat and corresponding need to use deadly force. (Vu, supra, at p. 814.)
Dr. Sapolsky should have been permitted to testify generally about the effects of
stress on decisionmaking and the effects of chronic psychosocial stress and childhood
adversity on brain function and development. He also should have been permitted to
testify that a person with a history of chronic homelessness and associated exposure to
violence, combined with specific adverse childhood experiences, could have altered brain
function and development, and could tend to misperceive threat and react impulsively
under certain particular circumstances. Such testimony would be factual testimony
10
properly related to defendant’s general mental condition, and not an expression of
opinion on defendant’s criminal intent. (See People v. Nunn (1996) 50 Cal.App.4th
1357, 1365; Cortes, supra, 192 Cal.App.4th at pp. 910-911; Pearson, supra, 56 Cal.4th at
p. 451; Vu, supra, 227 Cal.App.3d at p. 814.)
3. Prejudice
We conclude, however, any error in excluding all of Dr. Sapolsky’s testimony was
harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant was not convicted
of murder; he was convicted of voluntary manslaughter. Thus, to be prejudicial under
Watson, the excluded evidence would have had to be relevant to the objectively
reasonable requirement of traditional self-defense; that is, what would a reasonable
person with defendant’s knowledge believe in the situation? (Humphrey, supra, 13
Cal.4th at p. 1087.)
The reasonable person standard takes into account what would appear necessary to
a reasonable person in defendant’s position, considering all the facts and circumstances
known to defendant. (Humphrey, supra, 13 Cal.4th at pp. 1082-1083.) This includes
facts and circumstances that create a heightened sensitivity and increased ability to
accurately predict impending violence, such as intimate partner battering (id. at pp. 1083-
1086 [defendant’s intimate knowledge of, and experiences with, the batterer may make
them better able to predict whether force is reasonably necessary]) and chronic
homelessness (Sotelo-Urena, supra, 4 Cal.App.5th at pp. 746-751 [chronically homeless
people are subjected to violent crime at significantly higher rate than the general
population which affects their knowledge about the need to use lethal force]). But, the
reasonable person standard does not take into account circumstances that increase a
person’s propensity to misperceive threats of violence. (People v. Brady (2018) 22
Cal.App.5th 1008, 1014-1017 (Brady); Humphrey, supra, at p. 1083; Sotelo-Urena,
supra, at p. 751.) The standard does not ask how a reasonable person with defendant’s
particular background, stress experiences, and brain function abnormalities, which led
11
him to misinterpret and overreact to events, would have acted in the situation. (People v.
Steele (2002) 27 Cal.4th 1230, 1254-1255 (Steele).) “ ‘The issue is not whether
defendant, or a person like him, had reasonable grounds for believing he was in danger.’
(People v. Jefferson (2004) 119 Cal.App.4th 508, 519.) It is instead ‘whether a person of
ordinary and normal mental and physical capacity would have believed he was in
imminent danger of bodily injury under the known circumstances.’ (Id. at p. 520.)”
(Brady, supra, at pp. 1014-1015.)
A brief portion of Dr. Sapolsky’s testimony generally explained the effect of
stress, and a stressful situation, on an average person’s decisionmaking abilities. This
testimony was relevant to how a reasonable person would have responded to Baker’s
assault. However, we find the error in excluding this evidence was harmless. Dr.
Sapolsky’s proffered testimony indicated an average person under acute physical stress,
such as being chased by a lion, would not be able to stop and reason and instead would
act reflexively. But, defendant did stop. After Baker fell to the ground, he stopped
hitting and kicking Baker and moved away from him. And, the video indicates his
decision to repeatedly hit Baker with the pipe, came after a period of reflection. When
defendant made the decision to hit Baker repeatedly with the pipe, the imminent threat of
injury posed by Baker’s assault had ended. We do not find it reasonably probable on
these facts that the jury would have found a reasonable person in defendant’s position
would have found it necessary to hit Baker six times in the head with a pipe while he lay
motionless on the ground. Accordingly, the error in excluding this testimony was not
prejudicial.
Dr. Sapolsky’s testimony also offered possible explanations for defendant’s
misperception of events, the degree of threat he faced, his reactions to those events, and
his inability to accurately perceive when the threat had stopped. This testimony was
relevant to defendant’s subjective beliefs, not his objective beliefs. Dr. Sapolsky’s
proffered testimony did not suggest that defendant had accurately perceived the threat he
12
faced and reacted in accordance with that accurate perception. The type of evidence
offered here, that uses a defendant’s personal history to explain an overreaction to
misperceived threats or an inability to control one’s actions, does not go to the objective
element of a self-defense claim. Rather, the evidence goes to defendant’s subjective
beliefs; that is, defendant actually perceives threat, but that perception is not reasonable.
(Steele, supra, 27 Cal.4th at pp. 1254-1255; Brady, supra, 22 Cal.App.5th at p. 1018;
Jefferson, supra, 119 Cal.App.4th at pp. 519-520.) In acquitting defendant of murder, but
convicting him of manslaughter, the jury necessarily accepted defendant’s testimony of
his subjective beliefs of danger or provocation, but concluded those beliefs were not
objectively reasonable. (Vu, supra, 227 Cal.App.3d at pp. 814-815; Steele, supra, at
pp. 1252-1253 [heat of passion has both objective and subjective component].) Because
the excluded evidence did not go to the objective component of self-defense, it is not
reasonably probable that the jury would have acquitted defendant of voluntary
manslaughter if the evidence had been admitted. Accordingly, the error in excluding Dr.
Sapolsky’s testimony was not prejudicial.
B. Jury Instruction - Defense of Home
Defendant next contends the trial court committed prejudicial error by refusing to
instruct the jury with the requested instruction on justifiable homicide in defense of the
home, CALCRIM No. 506. The People argue there was insufficient evidence to justify
giving the instruction, as defendant was attacked on public property. The People also
argue any error was harmless. We need not address whether the alcove of the Human
Services Agency building qualified as a residence for purposes of giving CALCRIM
No. 506, as we find any error harmless.
13
1. Additional Background
The parties and court agreed the court would instruct the jury with justifiable
homicide in self-defense, CALCRIM No. 505.6 That instruction provides a homicide is
6 CALCRIM No. 505 as given provides: “The defendant is not guilty of (murder/ [or]
manslaughter) if (he) was justified in (killing) someone in (self-defense). The defendant
acted in lawful (self-defense) if:
“1. The defendant reasonably believed that (he) was in imminent danger of being
killed or suffering great bodily injury;
“2. The defendant reasonably believed that the immediate use of deadly force was
necessary to defend against that danger;
“AND
“3. The defendant used no more force than was reasonably necessary to defend
against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm
is believed to be. The defendant must have believed there was imminent danger of death
or great bodily injury to (himself). Defendant’s belief must have been reasonable and
(he) must have acted only because of that belief. The defendant is only entitled to use
that amount of force that a reasonable person would believe is necessary in the same
situation. If the defendant used more force than was reasonable, the killing was not
justified.
“When deciding whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defend ant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.
“[If you find that Frank Baker threatened or harmed [others] in the past, you may
consider that information in deciding whether the defendant’s conduct and beliefs were
reasonable.]
“[If you find that the defendant knew that Frank Baker had threatened or harmed
others in the past, you may consider that information in deciding whether the defendant’s
conduct and beliefs were reasonable.]
“[A defendant is not required to retreat. He is entitled to stand his ground and
defend himself and, if reasonably necessary, to pursue an assailant until the danger of
(death or great bodily injury) has passed. This is so even if safety could have been
achieved by retreating.]
“[Great bodily injury means significant or substantial physical injury. It is an
injury that is greater than minor or moderate harm.]
14
justified if defendant: reasonably believes he is defending himself from imminent threat
of being killed or suffering great bodily injury; reasonably believes the use of deadly
force is necessary; and uses no more force than necessary.
Defense counsel requested the trial court also instruct the jury with CALCRIM
No. 506, justifiable homicide in defense of residence.7 That instruction provides a
“The People have the burden of proving beyond a reasonable doubt that the killing
was not justified. If the People have not met this burden, you must find the defendant not
guilty of (murder/ [or] manslaughter).”
7 CALCRIM No. 506: “The defendant is not guilty of (murder/ [or]
manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she)
(killed/attempted to kill) to defend (himself/herself) [or any other person] in the
defendant's home. Such (a/an) [attempted] killing is justified, and therefore not unlawful,
if:
“1. The defendant reasonably believed that (he/she) was defending a home against
, who (intended to or tried to commit / [or] violently[[,] [or] riotously[,]/ [or] tumultuously] tried to enter that
home intending to commit an act of violence against someone inside);
“2. The defendant reasonably believed that the danger was imminent;
“3. The defendant reasonably believed that the use of deadly force was necessary
to defend against the danger;
“AND
“4. The defendant used no more force than was reasonably necessary to defend
against the danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm
is believed to be. The defendant must have believed there was imminent danger of
violence to (himself/herself/ [or] someone else). Defendant’s belief must have been
reasonable and (he/she) must have acted only because of that belief. The defendant is
only entitled to use that amount of force that a reasonable person would believe is
necessary in the same situation. If the defendant used more force than was reasonable,
then the [attempted] killing was not justified.
“When deciding whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.
“[A defendant is not required to retreat. He or she is entitled to stand his or her
ground and defend himself or herself and, if reasonably necessary, to pursue an assailant
15
homicide is justified if a defendant: reasonably believes they are defending themselves or
another person in defendant’s home against a person intending to trying to commit a
“forcible or atrocious” crime or to violently enter the home to commit an act of violence
against someone inside the home; reasonably believes the danger is imminent; reasonably
believes the use of deadly force is necessary; and uses no more force than necessary.
The trial court asked for authority that the alcove of the Human Services Agency
building qualified as a residence, and defense counsel could not provide any. However,
defense counsel argued it should qualify as defendant “was going to reside” there that
night and had “resided” there previous nights.
At the instruction conference, defense counsel again argued defendant had been
living at the entrance of the Human Services Agency building for a number of nights, his
sleeping bag was out, he was standing in front of it when he was attacked by Baker, and
he was planning to sleep there. Considering defendant’s circumstances, he argued the
instruction was appropriate.
The court noted there were no family members involved in this assault and it was
giving the instruction that defendant had no duty to retreat. The court also noted, if the
alcove was a home for defendant, it was one for Baker as well. The court opined if
defendant had been protecting his family against a forcible or atrocious crime, he would
be entitled to the instruction. The court concluded in this case, there was minimal
difference between this instruction and the standard self-defense instruction.
Accordingly, the court denied the request to give the instruction.
until the danger of (death/bodily injury/ ) has
passed. This is so even if safety could have been achieved by retreating.]
“The People have the burden of proving beyond a reasonable doubt that the
[attempted] killing was not justified. If the People have not met this burden, you must
find the defendant not guilty of [attempted] (murder/ [or] manslaughter).”
16
2. Analysis
“In a criminal case, a trial court must instruct on the general principles of law
relevant to the issues raised by the evidence.” (People v. Earp (1999) 20 Cal.4th 826,
885.) “Included within this duty is the ‘. . . obligation to instruct on defenses, . . . and on
the relationship of these defenses to the elements of the charged offense . . .’ where ‘. . . it
appears that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense.’ ” (People v. Stewart (1976) 16 Cal.3d 133, 140.) A trial
court’s failure to instruct on potential defenses is not prejudicial if the jury necessarily
resolved the factual issue adversely to the defendant under other instructions. (People v.
Sedeno (1974) 10 Cal.3d 703, 720-721, disapproved on other grounds in People v.
Breverman (1998) 19 Cal.4th 142, 163, fn.10; Stewart, supra, at p. 141.)
The trial court instructed the jury that the homicide was justified if defendant
reasonably believed he was defending himself from imminent threat of being killed or
suffering great bodily injury and acted reasonably in responding to that threat with deadly
force. In convicting him of voluntary manslaughter, the jury necessarily rejected that
claim of reasonableness of both perception and action. That is precisely the factual issue
the jury would have resolved in determining whether the homicide was justified in
defense of defendant’s home. To the extent there are differences in the two instructions,
defendant makes no argument those differences were relevant to the jury’s determination
in this case and identifies no factual issue that was not resolved by the self-defense
instruction. There is no evidence defendant sought to defend someone other than himself
or that he was defending himself from any threat other than that of being killed or
sustaining great bodily injury.8 Under the facts of this case, defendant suffered no
prejudice by the refusal to instruct on justifiable homicide in defense of home.
8A forcible or atrocious crime, as indicated in CALCRIM No. 506 is a crime such as
murder, mayhem, rape, and robbery. (People v. Ceballos (1974) 12 Cal.3d 470, 478.)
17
C. Senate Bill 567 Amendments to Section 11709
While this appeal was pending, Senate Bill 567’s amendments to section 1170
became effective. As amended, section 1170, subdivision (b) permits imposition of an
upper term sentence “only when there are circumstances in aggravation of the crime that
justify” the upper term and only if “the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial
by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) However, “the court
may consider the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a jury.” (Id.,
subd. (b)(3).) Additionally, as relevant here, section 1170, subdivision (b)(6) provides:
“[U]nless the court finds that the aggravating circumstances outweigh the mitigating
circumstances [and] that imposition of the lower term would be contrary to the interests
of justice, the court shall order imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] (A) The person has experienced
psychological, physical, or childhood trauma, including, but not limited to, abuse,
neglect, exploitation, or sexual violence. [¶] (B) The person is a youth, or was a youth as
defined under subdivision (b) of Section 1016.7 at the time of the commission of the
offense.” (See § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any
person under 26 years of age on the date the offense was committed”].)
Language regarding defense of others and threat of forcible or atrocious crime is also part
of the standard CALCRIM No. 505. Without objection, that language was stricken from
the instruction given.
9 We raise this issue on our own as the need for resentencing is clear, and the People
have conceded the issue in similar cases. (See, e.g., Flores, supra, 73 Cal.App.5th at
p. 1039.)
18
Senate Bill 567 “applies retroactively in this case as an ameliorative change in the
law applicable to all nonfinal convictions on appeal.” (Flores, supra, 73 Cal.App.5th at
p. 1039.)
The trial court imposed the upper term on the voluntary manslaughter conviction
and imposed and stayed the upper term on the assault with a deadly weapon and great
bodily injury enhancement. In imposing the upper term, the trial court did not explicitly
indicate any aggravating factors it was relying on, but noted the beating inflicted by
defendant was “vicious” and concluded the upper term was warranted “in light of all the
facts, all the circumstances in this case.” No factor in aggravation supporting the upper
term sentences was stipulated to by defendant or found true beyond a reasonable doubt by
the jury. (§ 1170, subd. (b)(2).) Defendant had no prior record. Further, at the time of
the offense, January 2019, defendant was 25 years old; that is, he was statutorily defined
as a youth.10 (§ 1170, subd. (b)(6)(B).)
Under the circumstances, we will vacate the sentence and remand to allow
compliance with the current requirements of section 1170. (See Flores, supra, 73
Cal.App.5th at p. 1039 [“Undisputedly, defendant was under age 26 when he committed
this crime. Accordingly, we agree with the parties that under section 1170, subdivision
(b), defendant’s six-year midterm sentence must be vacated”].)
10 In addition, the record reflects defendant may also have “experienced psychological,
physical, or childhood trauma including, but not limited to, abuse, neglect, exploitation,
or sexual violence.”
19
III. DISPOSITION
The convictions are affirmed. The sentence is vacated and the matter is remanded
for full resentencing.
/S/
RENNER, J.
We concur:
/S/
HOCH, Acting P. J.
/S/
KRAUSE, J.
20