People v. Jackson CA3

Filed 4/5/23 P. v. Jackson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C095988
Plaintiff and Respondent, (Super. Ct. No. 19FE020421)
v.
STEPHEN RENEE JACKSON,
Defendant and Appellant.
Defendant Stephen Renee Jackson broke through a car window to stab his ex-
partner’s lover to death. He claimed this was done in self-defense when the victim
threatened him with a firearm. The jury rejected that claim, found him guilty of first
degree murder, and the court imposed a sentence of 26 years to life, which included a
one-year enhancement for committing the offense with a deadly weapon. On appeal, he
claims the trial court prevented him from presenting his defense when it excluded
evidence that the victim did not lawfully register his firearm. He also claims that the
court erred in modifying the self-defense jury instruction. Finally, he claims the court
abused its discretion in refusing to strike the deadly weapon enhancement. We affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with first degree murder (Pen. Code, § 187,
subd. (a)(1))1 and personal use of a deadly weapon (a knife) (§ 12022, subd. (b)(1))
following an incident involving defendant’s ex-partner, Cherron Tuoto.
A. Prosecution’s Case
Tuoto and defendant were a couple for nearly 15 years and had two children
together, M.J. and K.J. Tuoto worked with the decedent, Jai-Tu Keys, and they became
lovers in 2012. Tuoto’s relationship with Keys overlapped her relationship with
defendant. Defendant often accused Tuoto of infidelity with Keys; she lied and denied
the affair. In 2016, defendant and Tuoto argued over a text message she received from
Keys. Tuoto moved out and continued her relationship with Keys.
Tuoto and defendant agreed on a co-parenting plan where M.J. lived with
defendant and K.J. lived with Tuoto. They saw each other most evenings for dinner at
defendant’s house. Defendant and Tuoto also continued to have a sexual relationship.
However, their relationship was “tough.” Over the next few years, both defendant and
Tuoto were romantically involved with other people, although Tuoto would not admit
that to defendant. They each accused the other of doing more for other romantic partners.
In this context, defendant referenced Keys the most; defendant knew Tuoto still spoke to
Keys.
Not surprisingly, defendant and Keys were not friendly with one another. On one
occasion, when Tuoto asked defendant about a mark or scar on his arm, defendant said he
got it during an altercation with Keys at the 99 Cents store in 2017. During that
altercation, Keys called defendant an “ugly, fat bitch.” Defendant told Tuoto he chased
Keys around the store, and Keys screamed “like a little bitch.” Defendant told Tuoto he
stabbed Keys, and Keys bit him.
1 Undesignated statutory references are to the Penal Code.
2
Tuoto testified some of defendant’s behavior scared her. On at least one occasion,
defendant checked the mileage in Tuoto’s car to see if she had gone home the day before,
as she claimed, and confronted her about a discrepancy. Tuoto also said some of the text
messages defendant sent to her were loving but she considered others to be abusive or
toxic. At one point, Tuoto blocked defendant’s number.
A day or two before the murder, defendant appeared uninvited and after midnight
at Tuoto’s house. He had waited for her to return from a night out. As she parked in
front of her house, defendant drove up next to her. He asked her where she had been and
accused her of being with another “boo,” meaning man. She did not respond. Defendant
said, “I get it,” told her he loved her, and left. She told Keys about the incident.
Keys asked if Tuoto wanted to get a gun. She responded, “yeah, I think so.” He
told her she could get a gun “like his” for $700. He suggested she “go about it legitly,
that way it’s all up-and-up if anything should happen,” which she understood to mean to
buy it from a store and get a license. Keys expressed concern that something was
“wrong” with defendant; perhaps he had a chemical imbalance. Keys texted Tuoto a
photo of a gun that he said would fit in her purse. Two days before the murder, Keys
texted her, “Next time he touches you, you touch him back.” Tuoto admitted she did not
tell anyone else about her troubles with defendant.
The night of the murder, Tuoto and defendant went together to M.J.’s football
game. After returning home from the game, Tuoto declined defendant’s request to come
inside his house. This irritated and angered defendant. Defendant went into the trunk of
Tuoto’s car, purportedly to retrieve some belongings.2 Tuoto left and drove her daughter
home. Then she drove to Keys’ residence.
Tuoto arrived at Keys’ apartment complex around 12:30 a.m. Tuoto’s sister had
purchased $90 worth of marijuana from Keys and, the night of the murder, Tuoto was
2 Sheriff’s deputies subsequently found defendant’s cell phone under items in Tuoto’s
trunk. Live360, an application that provides a service of being able to track phones, had
been installed on the phone the day before the murder.
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there to pay him. According to Tuoto, Keys was not a drug dealer, although she told
defendant he sold marijuana. She also knew Keys had a gun.
Keys met her in the parking lot and got into the passenger seat of her car. While
they were talking, defendant approached them on foot. The street was fairly dark, but
Tuoto could tell it was him as he grew closer. Tuoto froze and she and Keys remained
silent. Defendant walked toward the front passenger side. Tuoto locked the car doors.
Defendant stood beside the passenger side of the car and stared inside. According
to Tuoto, no words were exchanged. Defendant smashed the front passenger window and
reached into the car. Keys leaned over and told Tuoto to drive. While Tuoto drove,
defendant either ran alongside the car or hung onto it for a while but eventually let go.
Keys looked at Tuoto and said, “he got me.” Keys appeared to be badly wounded. His
body swayed, then he stopped moving. Tuoto touched his sweatshirt and realized that he
was bleeding. Tuoto drove Keys to the hospital.
Later, from her car, Tuoto spoke to her son, M.J., on the phone and told him that
defendant had badly hurt Keys. Defendant got on the phone. Tuoto told defendant that
Keys was badly hurt and that she was going to tell the police what he had done.
Defendant asked her not to and urged her to come to his house, so he could clean the car
and replace the window.
Defendant and Tuoto’s son, M.J., testified that the night of the incident, defendant
left the house after they got back from the football game. Defendant claimed he was
going to the gas station. Later, at defendant’s request, M.J. opened the garage door and
saw defendant with a folding knife and blood on his hand. After the phone call with
Tuoto, defendant washed the blood off his hands and showered. Defendant did not have
any visible injuries other than a cut on his index finger.
Keys died from his injuries at 1:32 a.m. The cause of death was a single stab
wound to his heart. Keys also had three stab wounds on his right arm.
B. Defense’s Case
Defendant testified that he loved Tuoto and hoped they would get back together.
He suspected she had cheated on him, including with Keys. Defendant was jealous and
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hurt even though Tuoto never admitted her infidelity. Defendant also described Tuoto as
jealous and angry about his romantic pursuits with other women. Defendant thought
Tuoto was sending mixed messages: she sent defendant both complimentary and
accusatory text messages and spoke to him about moving to Los Angeles together, while
telling other people they were not a couple.
Defendant said he first met Keys when Keys came to defendant’s work and
insulted defendant. Keys called defendant an “ugly fat fuck,” and said he better not catch
defendant “slipping.” Keys threatened him numerous times. In February of 2017, around
Valentine’s Day, Keys saw defendant at the 99 Cents store. Keys purported to be “the
best she [Tuoto] had ever had” and took a swing at defendant. Defendant knocked Keys
to the ground. Keys charged at defendant, with his keys between his knuckles.
Defendant slammed him to the floor. Then Keys grabbed an icepick off a shelf on
another aisle and stabbed defendant in the left bicep. Keys told defendant that he was
lucky that he did not have his “Nina” with him, which defendant explained was slang for
a nine-millimeter handgun.
The same year, Keys also threatened defendant in a grocery store. On a separate
occasion that same year, Tuoto warned defendant not to look out his window (while they
were at his house) or else Keys would “smoke” him. She held up a cell phone,
purportedly showing a text from Keys with that same warning. In 2018, Keys threatened
defendant at a car wash.
Defendant admitted that two nights before the charged offense, he knew that
Tuoto was out for the evening. He suspected she was with Keys. He called Keys and
also drove to Tuoto’s house and waited for her to return. He thought he would be able to
“be done with her” if he caught her with another man. Defendant claimed he never
threatened Keys.
The night of the charged offense, defendant admitted that he tracked Tuoto to
Keys’ residence, using GPS tracking on the phone he had intentionally left in the trunk of
her car earlier that day. After Tuoto took the freeway exit nearest Keys’ home, defendant
went to “catch her in the act.” Defendant approached Tuoto’s car on the driver’s side and
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asked for his cell phone. Keys told Tuoto to run over defendant. Defendant ran in front
of her car to the sidewalk, by the passenger side front bumper.
Keys rolled down the window and spat on defendant. Then Keys reached for his
waist and said, “do you want some of this?” Defendant said he swung and broke the car
window, ducking at the same time. Keys grabbed defendant by his collar and dragged
him down the street while Tuoto drove. Defendant’s legs swayed between the car and the
ground, leaving scuff marks on one shoe. Defendant claimed he was very afraid. He
swung at the window because he was “scared for his life.” Defendant had not intended to
stab Keys, he just wanted Keys to release him. Defendant got free when Tuoto slammed
on the brakes to avoid running into another car. Defendant fell to the ground, and ran
home. Defendant later conducted an online search to find out if any violent crimes were
reported in the area.
C. Rebuttal Evidence
In rebuttal, Tuoto explained that in 2016, defendant read a text on her cell phone
from Keys that said, “gym time.” Defendant believed Keys’ text had a sexual
connotation. He choked Tuoto and chased her out of the house. Then he tried to run over
her with his SUV. She hid in the bushes. He lured her out, saying he just wanted to talk,
and hit her hard on the right side of her face/head, knocking her to the ground. This
incident prompted her to leave.
Tuoto said she suffered a concussion and “saw stars” for a week. For a month,
clear fluid dripped from her nose, and fluid filled in her ear. She still has a lump on the
back of her neck from the incident. Tuoto did not file a police report because she was
afraid of defendant.
D. Jury Instructions and Verdict
The court instructed the jury regarding, inter alia, first degree murder, self-
defense, voluntary manslaughter based on imperfect self-defense, and voluntary
manslaughter based on provocation and heat of passion. The jury found defendant guilty
of first degree murder and found true the allegation he personally used a deadly weapon.
6
On April 1, 2022, the trial court sentenced defendant to 25 years to life for the
murder, plus one year for the weapon enhancement.
DISCUSSION
I
Evidence of an Unregistered Firearm
Defendant contends the trial court abused its discretion and violated his federal
constitutional rights to due process and to present a defense when it excluded
documentary evidence that there was no record of Keys registering his firearm. He
claims this evidence was relevant to explain Tuoto’s testimony about legitimately
purchasing a firearm, show Keys was unconcerned with following the law, and show
Keys kept an illegal firearm that was not traceable and therefore he’d be more likely to
use it against defendant. Defendant also argues that introduction of this evidence was
relevant to the jury’s determination of Tuoto’s credibility. We disagree with defendant’s
contentions.
A. Additional Background
At the close of the evidentiary portion of trial, defense counsel moved the court to
admit a certified copy of Keys’ firearm registration record. The record showed that Keys
did not have a registered firearm. Defense counsel argued the evidence was relevant for
three reasons. First, it explained the text discussion between Tuoto and Keys regarding
her purchase of a firearm. She asked Keys to get her a gun, and he suggested that she
legally purchase a firearm because if she shot defendant, then the gun ownership would
not be an issue. Next, Keys possessed an unregistered firearm, which meant he was
breaking the law. Finally, Keys’ possession of an unregistered firearm meant the firearm
was untraceable and could not be linked to Keys should Keys harm defendant.
According to defendant, the record provided strong evidence of Keys state of mind under
Evidence Code section 1250.
After hearing argument, the trial court excluded the certified record as not relevant
and, even if it had a limited relevance, outweighed by a risk of undue prejudice or
confusion of the issues.
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B. Analysis
Defendant raises both constitutional and statutory arguments against the exclusion
of the firearm registration record. We first address defendant’s statutory arguments. (See
People v. Leonard (1983) 34 Cal.3d 183, 187 [“It is well established that ‘we do not
reach constitutional questions unless absolutely required to do so to dispose of the matter
before us’ ”].)
Evidence is relevant, and therefore generally admissible, if it is “relevant to the
credibility of a witness” or 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; see
also Evid. Code, § 351.) “A trial court has ‘considerable discretion’ in determining the
relevance of evidence. [Citation.] Similarly, the court has broad discretion under
Evidence Code section 352 to exclude even relevant evidence if it determines the
probative value of the evidence is substantially outweighed by its possible prejudicial
effects. [Citation.] An appellate court reviews a court’s rulings regarding relevancy and
admissibility under Evidence Code section 352 for abuse of discretion. [Citation.]”
(People v. Merriman (2014) 60 Cal.4th 1, 74.) A court’s ruling will not be reversed on
such matters unless it is shown “ ‘the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 534.)
Contrary to defendant’s contention, we conclude the evidence was not relevant to
explain or provide context to Tuoto and Keys’ text exchange regarding her purchase of a
firearm. The conversation was self-explanatory; Keys and Tuoto thought she needed a
firearm to protect herself from defendant and that she should go through the legal process
to obtain one. Evidence that Keys did not have a registered firearm was, therefore,
unnecessary to provide clarity to this discussion.
Defendant next argues that evidence that Keys never registered a firearm was
relevant because it “showed that Keys had committed an illegal act with his gun
ownership, and supported the defense theory that Keys was a person unconcerned about
the law.” Since Keys had access to an illegal and untraceable firearm, defendant argues,
8
it could be discarded once used against defendant. Defendant contends these
circumstances demonstrate that his fear of Keys was reasonable, which both undermines
the prosecution’s theory that he planned the murder and supports his own theory of self-
defense. We disagree.
First, we note that evidence that Keys was unconcerned about the law was already
before the jury. Tuoto testified that her sister had purchased marijuana from Keys.
Despite Tuoto’s claim that Keys was not a drug dealer, the jury was free to conclude
otherwise.
Secondly, to properly assess defendant’s claim of self-defense, the jury had to
determine whether defendant honestly and reasonably feared for his life such that his use
of deadly force was justified. (People v. Trevino (1988) 200 Cal.App.3d 874, 879
(Trevino) [self-defense requires only that the killing itself be based solely on a reasonable
and honest belief in the need to defend himself against (the victim’s) threat of imminent
harm].) There was evidence within the record that, if believed by the jury, supported
defendant’s theory.
Specifically, defendant knew Keys sold marijuana and had a firearm and, thus,
was willing to engage in illegal activity. Tuoto warned defendant that Keys would
“smoke” him. Keys also purportedly directly threatened defendant, saying that he wished
he had his gun with him and that he better not catch defendant “slipping.” On the night
of the murder, defendant confronted Keys and Tuoto on a dark street. Defendant
considered himself to be in a vulnerable position, especially when Keys purportedly spat
on him then threatened him by reaching for his waistband and asking if defendant
“want[ed] some of this.” Defendant testified that he feared for his life and, with a knife
in hand, swung to protect himself. According to defendant, Keys still grabbed defendant
by his collar and dragged him down the street as Tuoto drove. Keys’ threats coupled
with references to his firearm, if believed by the jury, could suggest Keys’ willingness to
engage in violent behavior. The fact that Keys did not register this or any other firearm
did not have a tendency to support defendant’s claim of self-defense, especially since
9
there was no evidence in the record that defendant knew whether Keys’ firearm was
registered.
Here, the issue was whether it was honest and reasonable for defendant to believe
he was in imminent danger as a result of Keys’ threatening him with a firearm, not
whether Keys legally possessed a firearm. Because there was no evidence that defendant
knew Keys’ firearm was not registered, this evidence fails to support defendant’s theory
that this fact would have contributed to his fear of Keys. Thus, failing to complete the
administrative task of registering a firearm may show an unwillingness to abide by the
law but is far too attenuated to prove or disprove that Keys was more willing to use the
firearm in an offensive and violent manner toward defendant. As the trial court
concluded, the fact that Keys’ firearm was not registered was not relevant to whether
defendant acted in self-defense.
Nor was the firearm registration record relevant to impeaching Tuoto. First, the
firearm registration record did nothing to rebut Tuoto’s testimony that Keys possessed a
firearm. Second, Tuoto did not indicate any direct knowledge of whether the firearm she
saw in Keys’ possession was legally owned. (See Evid. Code, § 702.) Thus, the
proffered firearm registration record was not relevant for impeachment purposes. (Cf.
People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [because the relevant issue in the case was
whether a witness was actually on the roof at the time of the murder and saw the murder,
whether he had permission to use the roof was not relevant impeachment evidence].)
We therefore conclude that the trial court did not abuse its discretion in excluding
evidence of defendant’s failure to register a firearm.
Additionally, we reject defendant’s contention that the trial court’s ruling deprived
him of his federal constitutional rights to present a defense and to due process.
Defendant forfeited this contention by not raising it below, and it lacks merit in any
event. “ ‘As a general matter, the ordinary rules of evidence do not impermissibly
infringe on the accused’s right to present a defense.’ (People v. Hall (1986) 41 Cal.3d
826, 834.)” (People v. Blacksher (2011) 52 Cal.4th 769, 821.) Defendant was not
precluded from being able to portray his assault on Keys as a panicked attempt to protect
10
himself rather than an act of premeditated murder. Under these circumstances, defendant
fails to persuade us that the court’s ruling prejudiced his ability to defend his case.
II
Self-Defense Instruction
Defendant testified that he stabbed Keys in self-defense. He also testified that he
felt compelled to determine whether Tuoto was seeing other men. During closing
argument, defense counsel argued the killing was justified in self-defense but, in the
alternative, argued that defendant was provoked and acted in the heat of passion. The
jury was instructed on self-defense pursuant to CALCRIM No. 505, voluntary
manslaughter (imperfect self-defense) pursuant to CALCRIM No. 571, and voluntary
manslaughter (heat of passion) pursuant to CALCRIM No. 570. On appeal, defendant
contends the trial court prejudicially erred by modifying CALCRIM No. 505, because it
confused the issues for the jury. We conclude the trial court’s instruction was a correct
statement of the law.
A. Additional Background
After the close of the evidentiary portion of the trial, the prosecutor requested a
modification to CALCRIM No. 505 to add language stating: “Self-defense is not
available when a person does not act out of fear alone, but out of fear and a desire to
harm the attacker.” The prosecutor cited to People v. Nguyen (2015) 61 Cal.4th 1015(Nguyen) as support for his request. Defense counsel objected to the modification but, in
the alternative, argued that any modification “should be more complete.” Defense
counsel argued that, as written, CALCRIM No. 505 sufficiently and completely
instructed the jury on the law regarding self-defense. Defense counsel noted that the
pattern instruction was consistent with the prosecutor’s argument that when defendant
stabbed Keys, he could not be acting on his hatred toward Keys; to qualify as self-
defense, defendant could only be acting out of fear. The defense argued that the modified
language was misleading and had the potential to confuse the jury.
11
The prosecutor responded that the modification was an accurate statement of the
law, not long or confusing, and helpful to the jury. The court stated, “Okay. And that’s
essentially the reasoning that I’m adopting or including that.” The court overruled
defense counsel’s objection to the modification of CALCRIM No. 505 but included
additional language to honor defense counsel’s request for a “more complete” instruction.
The court stated the wording was “not exactly what the defense proposed, but is what,
thus far, I am settling on after reviewing the Nguyen case.” The court noted that the
additional language to be included was “very similar to” that used in Nguyen. The court
granted the request to modify the instruction, noting that a defendant was not precluded
from having other emotions, such as hatred toward the victim, as long as those are not
causal factors in the killing.
CALCRIM No. 505, as modified, set forth as follows with the added portions
italicized for ease of reference:
“The defendant is not guilty of murder 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 defendant and consider what a
12
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 Jaitu Keys threatened or harmed the
defendant in the past, you may consider that information in
deciding whether the defendant's conduct and beliefs were
reasonable.
“Someone who has been threatened or harmed by a
person in the past is justified in acting more quickly or taking
greater self-defense measures against that person.
“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
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.
“A person acting in self-defense is not precluded from
feeling anger or other negative emotions towards the victim
so long as those emotions were not causal factors in the
decision to use deadly force. Self-defense is not available
when a person does not act out of fear alone, but out of fear
and a desire to harm the attacker.
“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.” (Italics added to note
modified language, all others omitted.)
B. Analysis
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d
13524, 531.)” (People v. Breverman (1998) 19 Cal.4th 142, 154, abrogated on another
ground by amendments to § 189.) Defendant objected to the modification, arguing it
unnecessarily modified an already correct statement of law such that it created a danger
the jury would be confused or mislead. This argument is sufficient to preserve his
challenge to the modified instruction as affecting his substantial rights. Accordingly, we
review his claim of legal error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
In so doing, we ascertain the relevant law, determine the meaning of the instructions, and
determine whether the instructions correctly conveyed the law to the jury. (People v.
Kelly (1992) 1 Cal.4th 495, 525.)
In its original form, CALCRIM No. 505 states in part that a defendant is justified
in killing somebody in self-defense if the defendant “believed there was imminent danger
of death or great bodily injury to himself,” and the defendant “acted only because of that
belief.” The instruction is based on sections 197 and 198. Section 197 states a homicide
is justifiable “[w]hen committed in defense of habitation, property, or person, against one
who manifestly intends or endeavors, by violence or surprise, to commit a felony . . . .”
Section 198 adds “the circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of such fears alone.”
This plain language clearly dictates that, for a homicide to be justified, objectively
reasonable fear must be a defendant’s sole motive for killing. Indeed, California
authority dating back more than a century establishes that self-defense is available only to
those who kill solely out of a reasonable fear of great bodily injury or death. (See People
v. Ye Park (1882) 62 Cal. 204, 207-208 [self-defense instruction requiring acquittal if the
defendant acted on the basis of reasonable fears held properly refused, because “ ‘the
party killing must have acted under the influence of such fears alone’ ”]; People v.
Hecker (1895) 109 Cal. 451, 463 [conduct of person acting in self-defense “must not be
in revenge” and must be “in good faith to the sole end of winning his safety and securing
his life”], superseded by statute on other grounds as stated in People v. Hardin (2000)
14
85 Cal.App.4th 625, 633-634; People v. Levitt (1984) 156 Cal.App.3d 500, 509 [“if the
degree of force used was influenced by any motivations aside from a belief in the
necessity to act in self-defense, then manslaughter was an appropriate verdict” for a
defendant who killed wife’s paramour], disapproved on other grounds in People v.
Johnson (2016) 62 Cal.4th 600, 649, fn. 6; People v. Vernon (1925) 71 Cal.App. 628, 629
[upholding modification to requested instruction that limited self-defense to killing under
the influence of fear “ ‘alone’ ”].)
Defendant agrees CALCRIM No. 505 correctly states the law on the theory of
self-defense and section 198, as it requires the jury to find that the defendant reasonably
believed he or she was in imminent danger of harm and must have acted on that fear.
However, he contends the modifications “added unnecessary elements that likely
confused and misled the jury as to what it must find for self-defense to apply.” He claims
that by telling the jury that the defendant cannot act out of fear and a desire to harm the
attacker, it required the jury to parse the facts too finely, likely leading to confusion. He
argues this undermined his defense where the jury was also asked to determine whether
defendant acted upon provocation in the heat of passion. The latter theory would involve
intense emotions—including anger or hatred—that cause a person to act without due
deliberation and reflection. Because there was a question of whether defendant was
motivated to stab Keys based solely on fear or a combination of motives, defendant
argues the modified language could have prompted the jury to use an alternate theory to
reject his self-defense claim. To avoid this, defendant argues, the jury should have been
instructed with the standard pattern instruction CALCRIM No. 505.
In Trevino, supra, 200 Cal.App.3d at pages 878-879, the appellate court rejected
the defendant’s argument that, when the circumstances of the case suggest mixed motives
for the killing, the jury should not be instructed that self-defense only applies when the
defendant is motivated by fear alone. The Trevino court explained the law does not
preclude self-defense merely because “a person . . . feels anger or even hatred toward the
15
person killed.” (Id. at p. 879.) “The party killing is not precluded from feeling anger or
other emotions save and except fear; however, those other emotions cannot be causal
factors in his decision to use deadly force. If they are, the homicide cannot be justified
on a theory of self-defense. But if the only causation of the killing was the reasonable
fear that there was imminent danger of death or great bodily injury, then the use of deadly
force in self-defense is proper, regardless of what other emotions the party who kills may
have been feeling but not acting upon.” (Ibid.; see also People v. Shade (1986)
185 Cal.App.3d 711, 716 [rejecting the argument that the jury was not properly instructed
when it was told the killer must have acted out of fear alone for self-defense to apply].)
More recently, our Supreme Court drew this same distinction between actions and
emotions when it held a defendant is not entitled to assert self-defense if “he did not act
on the basis of fear alone but also on a desire to kill his rival.” (Nguyen, supra,
61 Cal.4th at p. 1044.) In Nguyen, the defendant shot and killed a rival gang member
who, carrying a firearm, approached the car the defendant was driving. (Id. at p. 1043.)
The defendant contended that the evidence established self-defense as a matter of law.
(Id. at p. 1042.) The trial court instructed the jury with CALJIC No. 5.12, a prior version
of the instruction regarding justifiable homicide in self-defense. (Nguyen, at p. 1043.)
Our Supreme Court quoted sections 197 and 198, and cited Trevino’s holding that “ ‘an
instruction which states that the party killing must act under the influence of such fears
alone, is a correct statement of the law.’ ” (Nguyen, at p. 1045, quoting Trevino, supra,
200 Cal.App.3d at p. 879.) The court recognized: “Trevino clarified that this rule does
not ‘imply that a person who feels anger or even hatred toward the person killed, may
never justifiably use deadly force in self-defense,’ ” only “ ‘that the party killing act out
of fear alone.’ ” (Nguyen, at p. 1045.) The court concluded that “it was for the jury to
decide whether [the] defendant acted out of fear alone when he shot and killed [the
victim].” (Ibid.)
16
We recognize that the Nguyen court remarked on an issue that was not before it:
“We note that defendant did not argue . . . that the jury should have been instructed that
acting based on mixed motives is permissible so long as reasonable fear was the but-for
cause of his decision to kill. We therefore have no occasion to consider whether such a
rule would be consistent with section 198 as interpreted in Trevino or other cases.”
(Nguyen, supra, 61 Cal.4th at p. 1046.) Yet the reasoning in Nguyen and Trevino leads
us to conclude that the modified language is consistent with the law.
Section 198 requires self-defense to be based on a reasonable fear alone. (Nguyen,
supra, 61 Cal.4th at pp. 1044-1045; Trevino, supra, 200 Cal.App.3d at p. 879.) The
modified language told the jury how to determine whether self-defense applied to a case
where defendant harbored multiple emotions. It does not preclude a defendant from
harboring anger or hatred of the victim for self-defense to apply, so long as the defendant
does not act on those emotions in using deadly force. (See Nguyen, at p. 1044 [holding
self-defense is not available to a defendant who does not “act on the basis of fear alone
but also on a desire to kill his rival”].) As the court recognized in Trevino, the instruction
given here did not inform the jury that it had to reject self-defense if defendant harbored
feelings other than fear. Rather, the instruction required that defendant’s fear for his life
be reasonable and caused the killing.
Defendant also fails to convince us that the modified self-defense instruction
confused and misled the jury in regard to the voluntary manslaughter instructions. The
jury was instructed on voluntary manslaughter with imperfect self-defense. “The
subjective elements of self-defense and imperfect self-defense are identical. Under each
theory, the appellant must actually believe in the need to defend himself against imminent
peril to life or great bodily injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256,
1262.) “If the trier of fact finds the requisite belief in the need to defend against
imminent peril, the choice between self-defense and imperfect self-defense properly turns
upon the trier of fact’s evaluation of the reasonableness of appellant’s belief.” (Ibid.)
17
Because the modified language in CALCRIM No. 505 does not pertain to the
reasonableness of defendant’s belief regarding imminent danger, the additional language
did not confuse the issue related to imperfect self-defense.
The jury was also instructed on voluntary manslaughter based on heat of passion.
In determining whether defendant committed voluntary manslaughter under a heat of
passion theory, the jury had to determine defendant was provoked and, as a result, “acted
rashly and under the influence of intense emotion that obscured his reasoning or
judgment,” and that the “provocation would have caused a person of average disposition
to act rashly and without due deliberation, that is, from passion rather than from
judgment.” (CALCRIM No. 570.) Unlike in self-defense, any violent or intense emotion
that causes a person to act without due deliberation and reflection can motivate acts in the
heat of passion. The modified language in the self-defense instruction refers only to the
emotion that motivates the killing, it does not reference acting without deliberation or
reflection. Thus, the modified instruction did not confuse the issues between self-defense
and voluntary manslaughter based on heat of passion.
Because we conclude that the challenged instruction was a correct statement of
law, we reject defendant’s arguments that giving the instruction affected his substantial
rights.
III
Weapon Enhancement
Defendant argues the trial court abused its discretion in denying his request to
strike the one-year weapon enhancement. The People disagree, arguing there are several
factors that support the trial court’s decision to impose the year-long enhancement.
A. Additional Background
At the sentencing hearing, defense counsel asked the trial court to strike the one-
year weapon enhancement. He argued the following reasons justified striking it: “One is
[defendant’s] age. The fact that he is in his mid 50s. Also the fact that before this
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incident occurred, he was a family man. He was taking care of his children. He was
working. And he lived a crimeless life. There were really -- there was no criminal
history for [defendant] before this incident occurred.” The court declined the request,
stating “So I’m going to impose the sentence which is consistent with the maximum
sentence that I can impose under the law. [Defendant], you are committed to state prison
for an indeterminate term of 25 years to life. And based on your conviction under
12022(b) for the deadly weapon enhancement, I am going to impose an additional one-
year determinate term consecutive to that, for a total of 26 years to life. [¶] I have
considered the request made by [defense counsel], and I’m declining to strike that
enhancement.”
B. Analysis
We review a trial court’s order denying a motion to dismiss a sentence
enhancement under section 1385 for abuse of discretion. (People v. Carmony (2004)
33 Cal.4th 367, 373-374.) A trial court may abuse its discretion where “its decision is so
irrational or arbitrary that no reasonable person could agree with it,” “where the trial
court was not ‘aware of its discretion’ ” to dismiss a sentencing allegation under section
1385, or “where the court considered impermissible factors in declining to dismiss.” (Id.
at pp. 377, 378.)
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 721, § 1) amended section 13853 “to specify factors that the trial court must consider
when deciding whether to strike enhancements from a defendant’s sentence in the interest
of justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674.) As amended, section 1385,
subdivision (c) now provides in relevant part:
3 We note that a subsequent enactment, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
(Stats. 2022, ch. 58, § 15), which took effect on June 30, 2022, made technical,
nonsubstantive changes to section 1385 that do not affect the issues on appeal.
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“(1) Notwithstanding any other law, the court shall
dismiss an enhancement if it is in the furtherance of justice to
do so, except if dismissal of that enhancement is prohibited
by any initiative statute.
“(2) In exercising its discretion under this subdivision,
the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating
circumstances in subparagraphs (A) to (I) are present. Proof
of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the
court finds that dismissal of the enhancement would endanger
public safety. ‘Endanger public safety’ means there is a
likelihood that the dismissal of the enhancement would result
in physical injury or other serious danger to others.
“(A) Application of the enhancement would result in a
discriminatory racial impact as described in paragraph (4) of
subdivision (a) of Section 745.” (§ 1385, subd. (c)(1)-
(2)(A).)
Initially, we note that defendant was sentenced after the effective date of Senate
Bill No. 81; it is indisputable the amended law applied to defendant at sentencing.
Defendant argues that under the amended statute, the mitigating circumstance present in
this case was under section 1385, subdivision (c)(2)(A): application of the enhancement
would result in a discriminatory racial impact. At sentencing, however, he did not assert
that mitigating circumstance existed or offer any evidence to prove it. It was his duty to
do so under the statute in order to trigger the court’s obligation to consider it. (§ 1385,
subd. (c)(2).) By failing to raise the issue during sentencing, we conclude he has
forfeited this issue. (See People v. Scott (1994) 9 Cal.4th 331, 353 [the appellant
forfeited his sentencing claims because he did not object at the time of sentencing];
People v. Sperling (2017) 12 Cal.App.5th 1094, 1100 [forfeiture applies to failing to
argue mitigating factors].)
We acknowledge the circumstances listed in paragraph (2) are not exclusive
(§ 1385, subd. (c)(4)), and the specification of mandatory factors did not displace the trial
court’s obligation to exercise discretion in assessing whether dismissal is in the
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furtherance of justice. (§ 1385, subd. (c)(1)-(2).) The statute requires that when a court
dismisses an enhancement, “[t]he reasons for the dismissal shall be stated orally on the
record. The court shall also set forth the reasons in an order entered upon the minutes if
requested by either party.” (§ 1385, subd. (a).)
Defendant notes that when the court denied defendant’s motion to strike the
enhancement, it did not state any reasons for the denial. Rather, the court simply stated it
had considered the motion to strike the enhancement and denied it. Defendant now
claims that, whatever factors the court relied upon, it abused its discretion. We decline
defendant’s implicit invitation to speculate as to the trial court’s reasoning. Because the
statute only requires the court to state the reasons for dismissing an enhancement to be
placed on the record, it was defendant’s obligation to request a clarification of the court’s
ruling in order to challenge the basis for that ruling on appeal. “A defendant, or his or her
counsel, must object at the time of sentencing if the trial court does not state any reasons
or a sufficient number of reasons for a sentencing choice or double-counts a particular
sentencing factor, and, if there is no objection, any error is deemed waived and cannot be
challenged for the first time on appeal.” (People v. Ortiz (2012) 208 Cal.App.4th 1354,
1371, citing People v. Scott, supra, 9 Cal.4th 331.) Here, defendant did not request a
clarification or inquire into the reasons for the court’s sentencing choice and the issue
cannot be raised on appeal. Moreover, under the facts of this case including where the
trial court considered the factors in mitigation raised by defendant, we cannot say the trial
court’s “decision is so irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
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DISPOSITION
The judgment is affirmed.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HULL, J.
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