People v. Odell

Filed 6/13/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PEOPLE, B319448
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA114654
v.
ORDER MODIFYING
JERAMY LEE ODELL, OPINION AND DENYING
PETITION FOR
Defendant and Appellant. REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
IT IS ORDERED the opinion in the above-entitled matter
filed on June 5, 2023, be modified in the following four ways:
1. On page 16, in the second full paragraph, the third
sentence, “Provocation is a theory about an intentional
killing,” shall be omitted.
2. On page 16, in the second full paragraph, the fourth
sentence, “That theory would be that Odell intended to
kill Johnson when passion overwhelmed Odell’s reason,”
shall be replaced with the following sentence:
That theory would be that Odell killed Johnson when
passion overwhelmed Odell’s reason.
3. On page 16, in the second full paragraph, the last
sentence, “The shooting was a mistake, according to
defense counsel, and not an intentional and passionate
act,” shall be replaced with the following sentence:
The shooting was a mistake, according to defense
counsel, and not the result of passion.
4. On page 16, in the last paragraph, the first sentence,
“Odell’s defense of an unintentional killing was Odell’s
best trial theory,” shall be replaced with the following
sentence:
Odell’s defense of an accidental killing was Odell’s
best trial theory.
The petition for rehearing filed by Appellant Jeramy Lee
Odell is denied.
There is no change in the judgment.
____________________________________________________________
STRATTON, P. J. WILEY, J. VIRAMONTES, J.
2
Filed 6/5/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319448
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA114654
v.
JERAMY LEE ODELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James D. Otto, Judge. Affirmed with
instructions.
Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________
We reject Jeramy Odell’s claim that the Second
Amendment invalidates the statute barring felons from
possessing guns. We affirm Odell’s conviction for murdering
Myron Johnson, and we order corrections to the minute order and
abstract of judgment. Undesignated citations are to the Penal
Code.
I
A motel’s outdoor video system recorded nearly all of the
events surrounding Johnson’s death. Witness testimony
supplemented the videos.
At 3 a.m., Odell and Shalisha White arrived at the two-
story motel, arguing as they approached the exterior check-in
window. Video showed Odell hitting White’s head. They checked
in, went to a second-floor room, and headed back to the parking
lot.
On the way back to the parking lot, Odell and White kept
arguing but paused on the way, lingering by Johnson’s second-
floor room at the top of the stairwell above the check-in
window. Then they walked to their car and continued arguing.
Annoyed by the noise, Johnson left his room, came to the second-
floor railing, and yelled at the couple to be quiet. Odell yelled
back it was not Johnson’s business.
The night manager came out and told Johnson to return to
his room.
Johnson was six feet two inches, about 235 pounds, and 41
years old. Odell’s driver’s license listed him as six feet tall, 175
pounds, and 29 years of age.
2
Johnson did not return to his room. Instead he descended
the stairs and crossed the parking lot to where Odell was
standing by White’s car.
Johnson swiftly moved toward Odell. A video showed this
aggressive movement. At close range, Johnson quickly swung his
left arm and leg towards Odell, who reacted by crouching and
backing up a step. Both men remained on their feet. In his
closing argument, Odell’s counsel characterized the movement
this way: Johnson ran over and took “a swing” at Odell. “It’s not
clear whether he hit him or not. [Johnson is] standing there in
an aggressive manner.”
After this thrust and parry, Johnson and Odell faced off for
about 20 seconds, apparently exchanging words. Neither made
additional violent or sudden movements.
The manager walked towards the two and again told
Johnson to go to his room.
After about 10 seconds, Johnson obeyed the
manager. Hands in his pockets, he strolled back across the
parking lot towards the stairs leading up to his room.
Very soon, this stairwell would become the killing scene.
We describe the scene, for its layout is germane.
The top of the stairwell was across from the door to
Johnson’s second-floor motel room. Between his door and the
stairs and perpendicular to the stairs was a walkway. Other
rooms had doors on this walkway.
The stairs did not descend from the second floor in one
straight shot but made a 180 degree turn at a landing halfway
down, and then continued to the ground.
Odell would gun down Johnson in this stairwell. How
exactly this happened was a central focus of the trial. A fixed
3
video camera recorded the scene, but the lens captured only a
sliver of the view. The limits on the recorded perspective have
significance for this appeal. In a moment, we will describe this
view, second by second, as it was shown to the jury in Exhibit 20,
which is a black-and-white video in our record.
As can be seen in the screenshot below, the dimensions of
the view in this video are wider horizontally than vertically, and
the format cuts off the view at the top and bottom of the screen.
This screenshot from Exhibit 20 shows Johnson returning to his
room after his confrontation with Odell. Johnson’s shirt is light
across the shoulders and otherwise dark.
As we can see, the view from this camera looks down the
exterior staircase; the camera is mounted opposite the stairwell
entrance and exit, above the walkway on the second floor. The
entrance and exit are open: no doors enclose the stairwell. On
the left side of the image, stairs head up from the ground floor.
The bottom three steps are visible, and then the bottom of the
screen cuts off the view of the stairs to the landing. Immediately
to the right, the staircase continues from the bottom of the screen
to near the top. The stairs take a U-turn at the landing halfway
up, but that landing is outside the frame. We can see only the
top five steps on the right side of the staircase.
4
The video images do not show the landing. This lacuna will
become consequential, because the landing is where Odell soon
would shoot Johnson.
At the top of the frame, the walkway extends along the top
edge of the screen. On the far side of this walkway is the bottom
of the door to Johnson’s room. Johnson had left his door open.
The video in Exhibit 20 began with a static view. There
was no motion and no one was in sight. Then the camera
revealed the final 60 seconds of Johnson’s life.
At the two-second mark on the video, Johnson walked into
the image’s frame at ground level. He was heading for his room
after his parking lot confrontation with Odell.
Johnson sauntered up the stairs, taking about 15 seconds
to reach the second floor. When Johnson got to the walkway at
the top of the screen, the frame dimensions cut off most of his
body. We see only his legs from the knees down.
Johnson went into his room, leaving the door open.
Meanwhile, Odell got a gun from the car. Odell told White,
“Give me the clip.” Odell put the clip in the pistol.
About one minute after the physical interaction with
Johnson, Odell hid the gun under his arm and headed across the
parking lot towards the stairwell.
As Odell approached the stairwell, a witness heard him
say, “You want to act tough? I got you.” Then Odell charged up
the stairs.
In Exhibit 20, Odell entered the frame at the 37-second
mark. Pistol in hand, he ran up the first flight of stairs and
towards the camera. At 42 seconds, he disappeared from view as
he approached the stairwell landing.
5
At 43 seconds, Odell reappeared as he left the landing.
Then he ascended the second flight of stairs, heading away from
the camera. In the following seconds, he continued climbing,
holding the pistol in front of him in his right hand, pointing it at
Johnson’s open door and clutching the banister with his left
hand. Odell wore a jacket with a stripe down the sleeves.
By the 47-second mark, Odell had completed his ascent and
had crossed the walkway towards Johnson’s door. At that point
the video showed him only from the knees down.
At the 48-second mark and over the next two seconds, the
situation developed quickly. Johnson rapidly emerged from his
motel room. He and Odell grappled. Odell kept the pistol in his
right hand, while his left hand grabbed the front of Johnson’s
shirt. Johnson, facing him and to his left, moved towards Odell.
Both men headed in the direction of the stairs.
6
At the 50-second mark, the two men disappeared down the
stairs and out of the frame.
For the next four seconds, there was a motionless image of
the stairwell with no one in sight. Whatever was happening
between Johnson and Odell was off camera on the landing.
Four seconds later, at the 54-second mark, Odell
reappeared in the frame, alone, now running down the stairs to
the ground floor, gun in hand. We see no more of Johnson.
In these four seconds, Odell shot Johnson to death on the
landing. But in these four seconds, what exactly was the
situation, and what, inferentially, was Odell’s mental state? The
video does not show the key seconds when the gun fires.
After Odell and White fled, police arrested them and put
them in separate cells. The empty cell between them concealed a
7
microphone. White told Odell the gun was “under the
hood.” Police found a gun under their car’s hood. Bullets from
the scene matched it.
Prosecutors charged Odell with possession of a firearm by a
felon in violation of section 29800(a)(1) and with the first-degree
murder of Johnson.
At trial, Odell’s counsel requested CALCRIM No. 570 on
heat of passion, No. 580 on voluntary manslaughter as a lesser
included offense, and No. 505 on self-defense.
“Out of an abundance of caution,” the prosecutor said she
did not object to No. 570 about heat of passion. The court replied,
“Okay. That was easy, [defense counsel]. I’ll give it.”
As given, this instruction No. 570 included the following:
“A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because
of a sudden quarrel or in the heat of passion. The defendant
killed someone because of a sudden quarrel or in the heat of
passion if:
1. the defendant was provoked;
2. as a result of the provocation, the defendant acted
rashly and under the influence of intense emotion that
obscured his reasoning or judgment; and
3. 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. . . .
It is not enough that the defendant simply was provoked. The
defendant is not allowed to set up his own standard of conduct.
You must decide whether the defendant was provoked and
whether the provocation was sufficient. In deciding whether the
8
provocation was sufficient, consider whether a person of the
average disposition, in the same situation and knowing the same
facts, would have reacted from passion rather than from
judgment. . . .”
The court also gave CALCRIM No. 522, which stated that
“[p]rovocation may reduce a murder from first degree to second
degree and may reduce a murder to manslaughter. The weight
and significance of the provocation, if any, are for you to decide.
If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime
was first or second degree murder. Also, consider the provocation
in deciding whether the defendant committed murder or
manslaughter.”
The prosecutor objected to CALCRIM No. 580, concerning
involuntary manslaughter, because no evidence showed Odell
actually believed he was in imminent danger of being killed or
suffering great bodily injury. The court agreed.
CALCRIM No. 505 concerned self-defense. The prosecution
objected to Odell’s self-defense theories because she said no
evidence showed Odell believed he was in imminent danger. She
also argued self-defense was inappropriate because Odell created
the situation. The trial court agreed with both points.
Defense counsel claimed video showed Johnson attacking
Odell at the top of the stairs, and argued this was circumstantial
evidence Odell would have been in fear. The prosecutor argued
Odell was the aggressor and had attacked the unarmed Johnson
with a gun, which disqualified him from a self-defense theory.
The trial court did not instruct on self-defense or on
involuntary manslaughter. It did not give CALCRIM Nos. 580 or
505.
9
The parties stipulated to Odell’s two past felony robbery
convictions.
Odell’s defense, as presented in closing argument, was that
the prosecution could not prove beyond a reasonable doubt that
Odell shot Johnson intentionally.
In his closing, Odell’s attorney described the scene shown
in Exhibit 20’s video: “They go down the stairs. You can see it
happens fast. No shots were fired as they’re going down the
stairs. You can see him holding the gun. The other guy is on top
of him. They both end up down on that . . . landing, and that’s
where the shots happen. And the video does not cover that part;
so we don’t know at the end of the day whether he intentionally
shot him or whether the gun went off accidentally during the
struggle.” “You’ve got two men struggling. You don’t know. You
can’t tell. It’s out . . . of the frame. . . . [And] that’s the fatal flaw
in their murder case[:] . . . they cannot show that he intentionally
shot the man.”
Defense counsel did not argue Odell, after provocation and
in the heat of passion, intentionally shot Johnson. Odell’s
attorney argued a contradictory theory: that Odell had “no
motive for him to go and kill the guy.” Counsel rather suggested
Odell sought “to confront him, to brandish the gun to try to scare”
Johnson. “Why would he go up there to kill a man over
something as trivial, knowing that his photo, his identification,
description of the car is in the manager’s office?”
The jury convicted Odell of being a felon in possession of a
gun. The jury also convicted him of second-degree murder,
finding he had personally and intentionally discharged a gun
causing death.
10
II
We affirm the judgment but order sentencing corrections.
A
Odell incorrectly argues the felon-in-possession law violates
the Second Amendment. This law makes it a felony for any
person who has been convicted of a felony to possess any firearm.
(§ 29800(a)(1).) Odell cites New York State Rifle & Pistol
Association Inc. v. Bruen (2022) 142 S.Ct. 2111 (Bruen).
The Second Amendment states, “A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” (U.S.
Const., 2d Amend.)
All constitutional rights have limits. Holmes explained, for
instance, that the “most stringent protection of free speech would
not protect a man in falsely shouting fire in a theatre and causing
a panic.” (Schenck v. United States (1919) 249 U.S. 47, 52.)
Like the First Amendment, the Second Amendment has
boundaries. (Bruen, supra, 142 S.Ct. at p. 2128.) The Second
Amendment right is “not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever
purpose.” (Ibid; id. at p. 2138 [the right has traditionally been
subject to well-defined restrictions].)
This case illustrates one boundary on this right.
The decision in District of Columbia v. Heller (2008) 554
U.S. 570, 592 defined the Second Amendment right and described
limits on it. The court stated nothing in its opinion cast doubt on
longstanding prohibitions on the possession of firearms by felons.
(Id. at pp. 626–627.) These prohibitions were presumptively
lawful. (Id. at p. 627, fn. 26.) Two years later, the Supreme
Court repeated those assurances in McDonald v. City of Chicago,
11
Illinois (2010) 561 U.S. 742, 786. Bruen, supra, 142 S.Ct. at p.
2157, reiterated that Second Amendment rights are limited.
These statements foreclose Odell’s challenge.
These statements are dicta. But they are sensible and
persuasive dicta. People convicted of a felony have demonstrated
a capacity for poor judgment that endangers others. Odell’s
impulsive desire to get back at Johnson, for instance, led to a
swift, deadly, and irrational outcome. Guns are designed to kill
or injure. Modern guns are accomplished pieces of engineering:
they effectively perform their design function. They are easy to
use and can cause damage quickly. People who are not thinking
clearly or who are not in control of their emotions can use them to
potent effect. In a flash, a gun can turn a noise complaint into an
event of death.
It was no accident the Bruen majority repeated the
qualifier “law-abiding” some 13 times. (Bruen, supra, 142 S.Ct.
at pp. 2122, 2125, 2131, 2133, 2134, 2135 n. 8, 2138 & n.9, 2150,
2156.) People who have been convicted of a felony are not “law-
abiding.”
We agree with People v. Alexander (May 11, 2023, E078846)
–––– Cal.App.5th –––– [2023 Cal.App. Lexis 366]). This statute
is constitutional.
B
Odell’s murder conviction is valid because his claims of
instructional error lack merit. His three claims relate to
provocation, self-defense, and involuntary manslaughter.
1
Odell complains the provocation instruction did not instruct
the jury that provocation need not be sufficient to cause an
average person to kill. In particular, he argues that, although
12
the provocation required for the heat-of-passion form of voluntary
manslaughter must be sufficient to cause a person of average
disposition to react rashly, it need not be sufficient to cause such
a person to kill. That is, he claims the trial court set the bar on
provocation too high. This argument fails, however, because the
trial court set the bar just right.
We begin with some basic law.
The doctrine of homicide reduces the offense when a killer
acts in the “heat of passion.” (§ 192, subd. (a).) But what kind of
“passion” suffices, and how much is necessary?
General rules regulate these questions. First, heat of
passion does not require anger or rage. It can be any violent or
intense emotion. (People v. Breverman (1998) 19 Cal.4th 142,
163.) Second, provocation is measured by an objective standard:
the reaction of the average person is the benchmark. Defendants
are not allowed to set up their own standards of conduct. (People
v. Beltran (2013) 56 Cal.4th 935, 938, 942, 950, 954, 957
(Beltran).) Third, the provocation must be enough to induce an
average person to react from passion and not from judgment, but
the provocation need not be so extreme as to prompt an average
person to kill. (Ibid.) The emotional response required, however,
goes far beyond the type of irritation that mundane annoyances
would prompt an average person to feel. (Id. at p. 950.)
Case law has made these abstractions more concrete.
A voluntary manslaughter instruction is unwarranted
where the alleged provocation was no more than taunting words,
a technical battery, a slight touching, or simple assault.
Engaging in a verbal argument with expletives, together with a
“tussle” involving chest scratching and kicking, also does not rise
to the level of provocation necessary to support a voluntary
13
manslaughter instruction. Calling the defendant a motherfucker
and repeatedly asserting that, if defendant had a weapon, he
should take it out and use it, plainly is insufficient to cause an
average person to become so inflamed as to lose reason and
judgment. (People v. Gutierrez (2009) 45 Cal.4th 789, 826-827
(Gutierrez).)
The trial court instructed the jury on these issues using
CALCRIM No. 570. Odell’s counsel requested this instruction.
The Supreme Court approved an earlier version of this
instruction. (Beltran, supra, 56 Cal.4th at pp. 954, fn. 14, 956,
957.) Odell does not claim later revisions of CALCRIM No. 570
departed from the law.
Odell, however, argues the prosecutor misstated this law in
her closing argument. We inspect her relevant words, adding
italics to this excerpt of her closing argument. The prosecutor
told the jury:
“Now, the judge has also given you an instruction on
manslaughter based on heat of passion, and I would like to think
of manslaughter as murder but we’re going to reduce it because
of certain circumstances. So in this case the theory of reducing it
is called heat of passion. Now, I’m sure the defense will get up
and argue a little bit more about this, but there are a few key
things about heat of passion that I want you to think about when
you are evaluating the evidence. First of all, heat of passion, it’s
not enough that the defendant simply [was] provoked. It’s
whether a person of average disposition, our normal, average
person in the same situation, and knowing the same facts, would
have reacted the same way and killed, would have reacted from
the heat of passion and killed. So it’s not just what the defendant
did, but would our person of average disposition respond in the
14
same way in the same situation? The defendant is not allowed to
set up his own standard of conduct. Well, I was provoked;
therefore, it’s manslaughter. So keep those in mind when you are
evaluating the heat of passion.”
The italicized portion of the prosecutor’s argument is
ambiguous. One interpretation is that she was properly
describing valid law: clarifying that provocation must be
objective and not subjective in character. “It’s whether a person of
average disposition, our normal, average person in the same
situation, and knowing the same facts, would have reacted the
same way and killed, would have reacted from the heat of passion
and killed.”
This interpretation would understand the challenged
words, in context, to be explaining the correct standard is the
reaction of “our normal, average person” and that the “defendant
is not allowed to set up his own standard of conduct.” (Accord,
Beltran, supra, 56 Cal.4th at p. 950 [“no defendant may set up his
own standard of conduct and justify or excuse himself because in
fact his passions were aroused, unless further the jury believe
that the facts and circumstances were sufficient to arouse the
passions of the ordinarily reasonable man.”] [omitting quotation
marks and citation].)
So interpreted, this explanation has been the law in
California for over a century. (See People v. Logan (1917) 175
Cal.45, 49 [“no defendant may set up his own standard of
conduct”].)
Odell argues for a contrary interpretation. He maintains
the prosecutor was insisting provocation had to be so great as to
prompt an average person to kill. According to this
interpretation, Odell argues, the prosecutor misstated the law
15
and misled the jury, because Beltran held that provocation need
only induce an average person to react from passion and not from
judgment. Beltran held that provocation need not be so extreme
as to prompt an average person to kill. (Beltran, supra, 56
Cal.4th at pp. 938–939.)
To the extent the prosecutor’s one sentence was
undesirably ambiguous, these few words could not have affected
the trial’s outcome. This is true under any standard of review.
(See Chapman v. California (1967) 386 U.S. 18, 24 [reverse
unless the error is harmless beyond a reasonable doubt]; People v.
Watson (1956) 46 Cal.2d 818, 836 [reverse only when it is
reasonably probable a result more favorable would have been
reached absent the error].) We thus elide the debate between
Courts of Appeal on this standard-of-review issue. (See People v.
Schuller (2021) 72 Cal.App.5th 221, 237–238 [recounting debate],
rev. granted, S272237, January 19, 2022.)
The prosecutor’s sentence about provocation had minimal
impact on the trial result because provocation was mostly
irrelevant in this trial. Provocation was not Odell’s defense in
closing. Provocation is a theory about an intentional killing.
That theory would be that Odell intended to kill Johnson when
passion overwhelmed Odell’s reason. Odell’s attorney, however,
argued a contradictory theory: that Odell unintentionally fired
the gun at Johnson as the result of a violent tussle. The shooting
was a mistake, according to defense counsel, and not an
intentional and passionate act.
Odell’s defense of an unintentional killing was Odell’s best
trial theory. This theory exploited the only weak link in the
prosecution’s video case: the four-second video gap in Exhibit 20.
The motel’s many cameras recorded the other interactions
16
between Johnson and Odell. Significantly, down in the parking
lot, before the shooting, a different camera captured Johnson’s
brief and unsuccessful lunge at Odell, from which Odell emerged
standing and unharmed. That camera also recorded the time
passing after this confrontation, and it showed Johnson walking
away. By showing the minor character of this episode, this video
evidence thus undercut the plausibility of a potential heat-of-
passion defense. By contrast, the missing evidence during the
four seconds of the shooting—when Johnson and Odell moved
down the stairwell and out of the camera frame—created an
opportunity to argue there was no proof beyond a reasonable
doubt that Odell had intended to kill Johnson at all. Odell’s
attorney used this four-second gap as best he could, given the
circumstances of the case. This defense was tactically sound; it
was the most plausible avenue available to the defense. This
defense, however, made the issue of provocation irrelevant.
The evidentiary foundation for the provocation instruction
was marginal at best. Earlier we quoted the Gutierrez case,
which explained that a “tussle” involving chest scratching and
kicking did not rise to the level of provocation necessary to
support a voluntary manslaughter instruction. (Gutierrez ,
supra, 45 Cal.4th at p. 827.) The court agreed to give this
instruction because the prosecutor decided, “out of an abundance
of caution,” not to object to this defense request.
In sum, assuming, for the sake of argument, there was
error by the prosecutor, that error was harmless beyond a
reasonable doubt.
Our resolution of this issue means we need not and do not
reach Odell’s arguments about ineffective assistance of counsel.
17
2
Odell faults the trial court for failing to instruct the jury on
self-defense. The trial court’s refusal to give this instruction was,
however, proper.
A killing in perfect self-defense is justifiable homicide.
Perfect self-defense requires that one must actually and
reasonably believe in the necessity of defending oneself from
imminent danger of death or great bodily injury. Imperfect self-
defense reduces an intentional and unlawful killing to voluntary
manslaughter. Imperfect self-defense occurs when defendants
act in the actual but unreasonable belief they are in imminent
danger of great bodily injury or death. (People v. Thomas (2023)
14 Cal.5th 327, 385–386.) Thus, both theories of self-defense
require your actual belief that you must defend against an
imminent danger.
The trial court rightly declined to instruct on self-defense
because no evidence suggested Odell actually believed he was in
danger. Odell did not testify and so gave no evidence he actually
believed he was in danger of death or injury. The evidence
showed Johnson walked away from Odell in the parking lot
confrontation. Odell then pursued the unarmed man with a
loaded pistol. From the 37-second mark to the 47-second mark of
the video in Exhibit 20, Odell, gun in hand, charged up the stairs
towards Johnson’s room. Johnson is nowhere to be seen until the
point when, for two seconds, the video shows Johnson and Odell
grappling and heading down the staircase. Odell continued to
hold the loaded gun in his right hand while Johnson remained
unarmed. There was no evidence Odell actually believed he was
in danger.
18
Because substantial evidence did not support self-defense
instructions, the trial court properly refused to give them.
3
Odell argues the court should have given an instruction
about involuntary manslaughter. The difference between other
homicide offenses and involuntary manslaughter depends on
whether Odell was aware of the risk to life that his actions
created and consciously disregarded that risk. (See People v.
Thomas (2012) 53 Cal.4th 771, 813–815.) The trial court properly
rejected this instruction because Odell deliberately procured a
gun, loaded it, and sought to confront a large man at close
quarters, pointing the gun at the man as he rushed towards him.
“Such conduct is highly dangerous and exhibits a conscious
disregard for life.” (Id. at p. 815.) No evidence suggested Odell
was unaware of this risk, which proved fatal to Johnson. The
court rightly rejected this instruction because it lacked
evidentiary support.
C
At the March 29, 2022 sentencing hearing, the trial court
awarded Odell 658 days of presentence credit and sentenced him
to 16 months on his felon in possession conviction to run
concurrently with his sentence on the murder count. The minute
order from the hearing states the 16-month sentence is to be
consecutive, and the abstract of judgment fails to state whether it
is concurrent or consecutive. We order the trial court to correct
the minute order and abstract of judgment to reflect that the 16-
month sentence is to run concurrently with the murder charge,
consistent with the trial court’s oral pronouncement at the
hearing. We further order the trial court to correct the abstract
19
of judgment to reflect that Odell is entitled to 659 days of
presentence credit.
DISPOSITION
We order the trial court to correct the minute order and
abstract of judgment to reflect that the 16-month sentence on the
felon in possession charge is to run concurrently with the murder
charge. We further order the trial court to correct the abstract of
judgment to reflect that Odell is entitled to 659 days of
presentence credit. We otherwise affirm the judgment.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
20