Opinion
C083222
11-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JACOB ANTHONY WILCOXEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04160)
On the evening of June 15, 2014, the victim's wife, J.S., went into one of her foster daughter's bedrooms and discovered the 16-year-old defendant in bed with her foster daughter, E.P. J.S. called out to the victim, who came into the room and began to press defendant for information such as who he was and where he lived. He also asked defendant if he wanted to be arrested and go to jail. J.S. left the room when the victim asked her to retrieve his handcuffs, and very soon thereafter, J.S. and E.P. heard several gunshots. Defendant fled. The victim, having sustained four gunshot wounds, two of which were lethal, died shortly after being transported to the hospital.
A jury found defendant guilty of murder in the first degree (Pen. Code, §§ 187, subd. (a), 189, subd. (a)), and found that defendant personally used a firearm causing the victim's death (§ 12022.53, subd. (d)). The trial court sentenced defendant to 25 years to life on the murder count, and to a consecutive term of 25 years to life for the firearm enhancement.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, defendant asserts that: (1) he is entitled to a remand for a transfer hearing pursuant to Proposition 57, the "Public Safety and Rehabilitation Act of 2016" (Proposition 57) and Welfare and Institutions Code section 707, subdivision (a); (2) the trial court prejudicially erred in discharging Juror No. 3; and (3) the trial court erred in failing to either (a) grant him a new trial on count one, (b) enter a judgment of acquittal on count one, or (c) reduce that conviction to second degree murder, because there was insufficient evidence of premeditation and deliberation and the sentence for first degree murder constituted cruel or unusual punishment in violation of article I, section 17, of the California Constitution. In supplemental briefing, defendant asserts (4) that, following the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018 (Senate Bill 620), the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the section 12022.53, subdivision (d), firearm enhancement.
We conclude the trial court erred in failing to modify the verdict because there was insufficient evidence of premeditation and deliberation and thus the evidence was insufficient to support the conviction for first degree murder. However, the evidence is sufficient to support a conviction for second degree murder and we shall modify the judgment accordingly.
We conditionally reverse the judgment as modified and remand the matter to the juvenile court with direction to conduct a transfer hearing. If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to criminal court, the judgment as modified shall be reinstated and the criminal court is then directed to: (1) consider whether to exercise its discretion to strike the section 12022.53, subdivision (d), firearm enhancement, and (2) resentence defendant. If, however, the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, defendant's criminal conviction as modified and enhancement shall be deemed to be juvenile adjudications, and the juvenile court shall: (1) consider whether to exercise its discretion to strike the firearm enhancement, and (2) conduct a dispositional hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with the murder of the victim (§ 187, subd. (a); count one), and personally discharged a firearm causing the victim's death within the meaning of section 12022.53, subdivision (d).
The People's Case-in-chief
J.S. and the victim lived in a single-family home. They were foster parents, and at the time of the shooting, they were fostering two girls, E.M. (16 years old) and E.P. (14 years old), and two younger boys.
J.S. testified that, earlier on the day of the shooting, they had all returned home from a camping trip. They ate and, at approximately 7:00 p.m., prepared to go to bed.
E.P. testified that, earlier, she and E.M. had agreed on a plan to sneak two boys into the house that evening. One of the boys was E.M.'s boyfriend, and the other was defendant. E.P. went to speak to J.S. and the victim in their bedroom to distract them while E.M. let the boys in. E.P. then went to E.M.'s room where E.M. was with the boys. E.M. and her boyfriend stayed in E.M.'s room, and E.P. went to her room with defendant and closed the door. E.P. turned on the television, and she and defendant got into bed together.
E.P. knew E.M.'s boyfriend as "Nito." It is undisputed that Juan Mendoza was E.M.'s boyfriend who went with defendant to the victim's house on the night of the shooting.
E.P. knew defendant by his nickname, "Taz."
J.S., in her bedroom watching a movie with the victim, realized that E.P. had changed clothes. Earlier, E.P. had been in casual clothes, but she had changed into dressier clothes and had done her hair and makeup. J.S. thought this was unusual because it was close to 8:00 p.m. J.S. told the victim she thought they should perform a bed check in case E.P. "might not be there, or going out, or something unusual was going to happen."
J.S. went to E.P.'s room, knocked on the door, and opened it. J.S. saw that there was someone in bed with E.P. E.P. tried to cover the person. J.S. saw defendant in bed with E.P., saw a condom on the bed, and called out for the victim. Both defendant and E.P. were clothed. E.P. ran out of her bedroom and went to tell E.M. that she had been caught.
At trial, J.S. testified that she did not remember the condom. In a statement to detectives, she said she saw a condom on the corner of the bed and threw it at E.P.
The victim came into E.P.'s room and began to ask defendant who he was, where he lived, and similar questions. Defendant got out of bed and stood up. The victim asked for a pen and paper, so J.S. left the room and returned with a pencil and paper. The victim continued to ask defendant questions and recorded his answers on the paper. The victim ordered defendant to sit down, which he did. Among the other questions the victim asked was "do you want to go to jail?" and "you want me to arrest you, I'll arrest you?" Defendant and the victim were within a couple of feet of each other. The victim's tone was "harsh" and "direct." According to J.S., the victim "went into . . . his training as an officer in questioning" defendant. When defendant stood up, the victim ordered defendant to "sit back down." J.S. testified that defendant was nervous, fidgeting, not standing still, and was "moving around a bit." J.S. also testified that defendant was having trouble processing and answering the victim's questions. J.S. testified that the victim was not angry, although he was not pleased, and he was not yelling but his voice was loud. However, she acknowledged that she had told a police officer that the victim was "yelling" at defendant.
The victim had been a Marine, a police officer, and was currently a licensed security guard.
J.S. testified that the victim did not touch defendant, and she did not see the victim hit, slap, or grab defendant or hold defendant's shirt or throw him down. Nor did J.S. hear any physical struggle or objects being knocked over in the room.
The victim told J.S. to go get his handcuffs, but according to J.S., did not mention his gun. J.S. left the room to retrieve the handcuffs from the master bedroom.
J.S. heard gunshots. She testified that she heard the shots only "a few seconds" after she left the victim, and that she had only taken "three or four steps." J.S. then heard the victim yell, "[H]e shot me." J.S. went back to E.P.'s room and found the victim on the floor with blood coming from the area near the victim's left ribs.
E.P. testified that after J.S. discovered her in the bed with defendant, she left the room to warn E.M. E.P. heard the victim say he was going to arrest defendant. According to E.P., the victim was "furious" and he yelled at defendant. She heard the victim direct J.S. to get his handcuffs, but did not hear him tell her to get his gun. After she heard the victim ask for his handcuffs, E.P. heard defendant tell the victim not to touch him. E.P. then heard three gunshots. Defendant said he was sorry and ran out of the room. E.P. fell to her knees in the hallway near her doorway and froze.
At one point, E.P. testified that she saw defendant "pull out his gun and shoot" the victim. E.P. acknowledged that, on the night of the shooting, she told detectives that she only heard the shooting, and did not see it. At trial she testified that she actually saw defendant shoot the victim. However, she subsequently testified on cross-examination that she was confused and did not remember seeing defendant shoot the victim. She testified: "[I]n my mind I remember him getting shot and him pulling out the gun and shooting him. But now that I think about it, how could of I had done that and seen it? [¶] I don't know, I'm -- I'm confused, I'm sorry. I'm -- I don't even know the story right now. I don't even know . . . if I'm telling the truth, cause I don't know." She then broke down in tears and the trial court recessed for the day. When cross-examination resumed, E.P. testified that she never saw anyone with a gun during the entire incident, and that she did not see defendant shoot the victim, she only heard the shots fired. E.P. testified that she told officers that she had not seen defendant with a gun and did not know that he had a gun.
J.S. did not see any other male with defendant that night. J.S. called 911. On the 911 call, J.S. told the dispatcher that the shooter was 16 years old, and stated: "I have his information. My husband was questioning him and he shot him."
Before he was transported to the hospital, the victim told a detective at the scene that he had confronted a male who tried to leave. The victim explained that he told his wife to get his handcuffs so he could handcuff the male and call the police. The male then "turned, fired three or four rounds."
Sergeant Tony Turnbull was a detective at the time of the shooting. He testified that, in an interview with J.S., she had told him that the victim was yelling at the boy. J.S. indicated that, at some point, the boy "was getting fidgety." J.S. characterized the victim's conduct as " 'interrogat[ing]' " the boy, and she also told Turnbull that the boy was stuttering and having trouble answering questions and processing. J.S. told Turnbull that the victim told her to get his handcuffs and that he was going to arrest the boy. She went towards the bedroom to retrieve the handcuffs and she then heard three gunshots. J.S. heard the victim say, "[T]he mother fucker shot me. Call 9-1-1."
J.S. testified that the victim had guns, all of which were legal and registered. When she first spoke with detectives, J.S. thought that all of the victim's guns were in a safe in the house.
Sergeant Kenneth Clark ran a records check and discovered that five guns were registered to the victim. Clark and Turnbull met with J.S. at her house and looked in the gun safe in the master bedroom, which had been locked. Clark "found some rifles, a shotgun, and two semiautomatic handguns." There were three handguns registered to the victim that Clark did not find in this inventory, including a Ruger .357-caliber revolver.
A couple of weeks after the shooting, J.S. found one of the victim's guns in their camper, and she notified the police. Detective Zachary Rose went back to the victim's home to retrieve the gun, a Ruger .357-caliber revolver. According to J.S., all of the victim's guns, including the one found in the camper, were turned over to the police.
Juan Mendoza initially testified at trial that he did not recognize defendant. Asked if he knew defendant, Mendoza responded, "Not really." Mendoza testified that E.M. was his girlfriend in June 2014. He acknowledged that, at some point in June 2014, he went to E.M.'s house with another male and snuck into the house. However, Mendoza testified that he did not remember who the other male was who went with him. Asked when the last time was that he talked to defendant on the phone, Mendoza responded that he did not recall. Mendoza testified that defendant had not called him from jail. Asked if he ever talked to defendant and his mother on a phone call from jail, Mendoza responded: "Not that I remember, no." Mendoza also testified that he did not remember talking to defendant about this case or Mendoza's testimony.
Mendoza did recall being in E.M.'s house when someone was shot. Mendoza had been in E.M.'s room watching a movie with her. Mendoza heard an argument taking place in another room. He heard an older man saying, "[G]et my handcuffs and my gun. What are you doing in here?" Mendoza testified he heard "a lot of commotion" and "ruckus." He then "heard three gunshots, and that was it." Asked to describe the ruckus, Mendoza testified that "[i]t was, like, tumbling, like tumbling . . . like somebody was wrestling or something." Mendoza testified that he did not know the name of the person with him in the house, stating that he "only met the person twice."
The prosecution played for the jury a recording of an interview between Turnbull, another detective, and Mendoza. Mendoza told Turnbull that E.M. asked him to come over, and he asked if he could bring his friend Taz. E.M. said he could because she had a sister. Once E.M. let them into the house, Mendoza went into her room and defendant "went to go do his own thing." Then Mendoza heard someone say, " 'Get on the floor,' " and then he heard, "[B]abe, get my gun . . . get my handcuffs." Mendoza heard gunshots. Mendoza then left the house. He saw defendant run away, but Mendoza went in a different direction on his own. Turnbull asked Mendoza if he had seen defendant with a gun, and Mendoza replied that he had seen defendant with a "little ugly little black gun," which Mendoza thought was a revolver. However, Mendoza told Turnbull that he did not see defendant with that gun on the day of the shooting. He told Turnbull that he saw defendant with the gun "like [a] couple days before that," and that "[h]e always just had it on [sic] his pocket." Asked on cross-examination whether he was being honest when he was interviewed by the detectives, or what he was "trying to do," Mendoza responded: "I was being honest. I was telling them everything -- how I meant it."
Two days after the shooting, police obtained an arrest warrant for defendant, and, later that day, Turnbull interviewed defendant after he was arrested. A recording of the interview was played for the jury. In the interview, when asked what happened, defendant responded that he had been in bed with a female when "the father came in. You know, he was pretty mad I was in the bed with his daughter." According to defendant, the victim grabbed him by his shirt, lifted him off the bed and put him on the floor, and told J.S. to get his handcuffs and his gun. Defendant stated that he did not remember what happened after that; he stated that he "kinda blacked out." He continued: "I don't know how I got the gun. But, you know, we were wrestlin' around or whatever, and I ended up shooting." Defendant then stated that he ran off in fear for his life. Defendant denied that he had a gun on him. Asked where the gun came from, defendant stated: "I don't know. That's what I say, he said - told his wife to go get the handcuffs and the gun. So she brought the gun or whatever, and he had it. I don't know. We were - I don't know. I blacked out. Somehow I got the gun." Pressed on how he "got the gun," defendant responded, "Like we were wrestling around or somethin'. He tried to throw me on the floor. And I don't know." Turnbull told defendant that he thought defendant knew how the gun actually got to the scene, and that it did not come from the victim, and defendant told Turnbull, "That's all I have to say." Defendant subsequently stated, "It's self defense."
The victim was five feet nine inches tall and weighed 237 pounds. Defendant was five feet seven inches tall and weighed 110 pounds. J.S. described defendant as "bony."
Turnbull testified that, between May 19 and June 18, 2014, there were approximately 47 calls between defendant's and Mendoza's cell phones.
A recorded three-way jailhouse call between defendant, who was in custody, his mother, and Mendoza was played for the jury. After Mendoza told defendant that one named person "kind of fucked [another named person] up" in connection with an unrelated case, defendant told Mendoza: "Yeah, bitch, you fucked me up, too." Mendoza responded: "I know, Blood. My bad on that." Defendant's mother told defendant on the phone, "[L]et him know that you have court Friday, the 9th, this Friday, and if he can show up just in case they wanna question, that'd be the end of it, you know what I mean?" Defendant confirmed with Mendoza that Mendoza heard what defendant's mother said. Mendoza subsequently told defendant, "I'll go . . . on Friday and we'll do what we gotta do." Apparently addressing defendant's mother, Mendoza then said, "I'm gonna talk to you in person, 'cause I don't wanna say too much over the phone, 'cause--- [¶] . . . [¶] ---you know . . . just more charges." Mendoza then said: "You know I gotcha my nigga. You know I'll say what I gotta say whatever just to get you outta this predicament." He subsequently stated: "I'm gonna talk to your mom—I'm gonna talk to your mom about shit that . . . to make it look worse . . . ." He later said, "I'm gonna go with . . . , so as far as . . . the court or whatever, I'll, you feel me, I'll do whatever is good for Jacob." Subsequently, Mendoza asked defendant what he had been up to, and defendant responded, "just been doing . . . been trying to make my mentor and shit." Defendant then told Mendoza, "Just doing - doing what I gotta do, you feel me, to make me look good in court."
Mendoza acknowledged at trial that it was his voice on the recording of the jailhouse call, and that he was talking to defendant. Mendoza also acknowledged that he knew defendant. He testified that he said earlier that he did not know defendant because he did not recognize defendant at that point. Mendoza testified that, in saying that he would "say whatever you gotta say to get . . . defendant out of this predicament," he did not mean that he would lie for defendant.
In a jailhouse call with an unidentified male, which was recorded and the recording played for the jury, defendant said that Mendoza "fucked [him] up" by saying something "in the paperwork." When asked what Mendoza said, defendant responded: "He told them I had a gun a couple days prior to the incident . . . ."
Detective Rose testified that he understood "paperwork" in this context to mean a police report. Rose also testified that it was common for inmates to pass on information they get from police reports, including witness statements, so that people outside can talk to witnesses, intimidate them, and/or stop them from testifying.
Philip Hess, a criminalist at the Sacramento County District Attorney's Laboratory of Forensic Services, testified as an expert in the science of firearms and tool mark identification. Hess examined two bullets recovered during the autopsy of the victim. Hess characterized one bullet he analyzed as a "nominal .38 caliber bullet." That class of bullet includes ".38 special, .357 magnum, nine millimeter Luger, .380 auto, nine millimeter macro, just to list the more common ones." The bullet was a hollow-point bullet, and had a cannelure, or indentation around the circumference of the bullet, indicative of a revolver style bullet. Based on the weight of the bullet, Hess concluded that it was most similar to a .38 special bullet. A second bullet recovered during the autopsy was also a nominal .38-caliber bullet, but this bullet was a full-metal-jacketed bullet. Based on its weight, Hess concluded that this bullet was more similar to a .357 bullet. Hess testified that both of the bullets could have been fired from a .38-caliber revolver or from a .357. Hess also examined two bullets recovered from the crime scene. One bullet was recovered from a closet door. The other bullet was found under a carpet. These bullets were full-metal-jacketed bullets and were similar to the .357 full-metal-jacketed bullet recovered from the victim's body. Hess testified that the three full-metal-jacketed bullets and the hollow-point bullet could be fired from the same gun. Of all four bullets, Hess testified: "All of their class characteristics are the same, they're the same caliber, they have the same number of lands and grooves, and the widths of the land and groove impressions are all the same." Hess testified that, if the bullets were fired from the same gun, all of these characteristics "would have to agree, but that's not to say for sure that they are fired from the same firearm."
Hess also examined a .357 Ruger magnum revolver for this case. Hess performed test-firing analysis and concluded that the Ruger could not have fired the bullets he examined.
The gun J.S. found in the camper a couple of weeks after the shooting which Detective Rose collected was a Ruger .357-caliber revolver.
Hess examined a photograph of two people, one holding a handgun. Based on his examination and research, Hess concluded that a gun being held by an individual wearing a red shirt depicted in a photograph, People's exhibit 39, matched every characteristic of a Smith and Wesson .38-caliber Airweight revolver, and he could not find any other firearm that matched the characteristics of the gun in the photograph. The Smith and Wesson .38-caliber Airweight revolver is a lightweight revolver without a hammer which is designed for concealed-carry purposes. Hess opined that the Smith and Wesson .38-caliber Airweight revolver could fire the four bullets he examined for this case.
Detective Rose testified that photographs of defendant appeared on a cell phone he examined, which belonged to a third party. One photograph, People's exhibit 39, depicted defendant and Mendoza. In the photograph, Mendoza was wearing a black shirt.
Dr. Mark Super performed the autopsy on the victim and testified as an expert in the field of forensic pathology. Super testified that the victim died of multiple gunshot wounds. The victim sustained a gunshot wound to the left abdomen caused by a bullet which traveled from the victim's front to his back, and also traveled in a downward direction. The bullet entered at the abdomen, perforated several loops of small bowel, and came to rest in the soft tissue of the victim's right buttock. This wound was "probably survivable with major surgery, but certainly you could die from a wound like that." Super could not say where the shooter was and how the shooter was positioned relative to the victim.
The victim sustained a gunshot wound to the left side of the chest or flank. The entrance wound was unusual in that it did not leave a round or ovular hole, but instead left an irregularly shaped hole. This led Super to believe that something had caused the bullet to change its orientation. Super theorized that the bullet could have "hit the person more on its side or it, in itself, may have been somewhat deformed when it struck him," and that perhaps there was an "interposed target" meaning "[s]omething is in between that gun and him." Shown a photograph of a dresser with a spot or light marking on it, and asked, "if the bullet struck and skipped off that dresser, is that the type of impact that could cause the defamation [sic] to that bullet . . . ," Super responded, "Yes, and it would cause the unusual entrance hole, absolutely." The bullet that caused this wound traveled across the victim's body from left to right, breaking a rib, perforating the victim's spleen and left kidney, striking the liver, and coming to rest in the victim's right flank. This bullet traveled in a slightly downward path. Super could not offer an opinion on the distance between the wound and the muzzle of the gun that caused it. This gunshot wound on its own would have been fatal in a matter of minutes.
The victim sustained a third gunshot wound to the lateral surface of his upper left arm. The bullet that caused this "through-and-through" wound traveled through the soft tissue of the victim's arm. The victim sustained a fourth gunshot wound, another "through-and-through" wound, to the upper anterior left thigh. The bullet that caused this wound missed the large blood vessels in that part of the victim's body and the wound would have been survivable on its own.
Super testified that none of the gunshot wounds appeared to be contact wounds, meaning gunshot wounds from a gun touching the victim. There was no embedded gunpowder or a muzzle imprint. In addition to these four gunshot wounds, the victim sustained a gunshot graze wound to the left side of his chest, which could have been caused by the bullet which caused the gunshot wound to the victim's arm. In addition to the wounds caused by bullets, the victim had a bruise on the back of his left hand near his wrist and minor abrasions to the right elbow and forearm, and minor abrasions to the left knee, all of which he sustained at approximately the same time as when he was shot.
The prosecutor presented Super with a hypothetical scenario in which the shooter was on the floor on his back, the victim was on top of the shooter gripping the shooter with both hands on his shirt and slamming the shooter on the ground, and the shooter wrested a gun away from the victim and shot the victim four times. The prosecutor then asked Super whether the gunshot wounds were consistent with this hypothetical scenario, and Super responded, "[N]ot in my opinion." He continued: "Two of the wounds don't look like they would be afflicted [sic] in that scenario, especially the one on the arm. [¶] The one on the left arm, his arm -- the gun somehow has to get way over to the guy's -- to the victim's side and then -- and away from the skin when the trigger is pulled. [¶] In that scenario, that doesn't seem to make any sense, same with the one in the chest. You'd have to somehow come around to the man's side. That doesn't seem to make sense. [¶] The other two, I guess it's possible. Again, the graze wound wouldn't make sense in that direction either."
The prosecutor then presented Super with another hypothetical situation, asking him to assume that the shooter and the victim were both standing, facing each other in close proximity, the shooter pulled out a gun and began firing, and the victim began to move away, turned, and fell. The prosecutor asked whether the gunshot wounds were consistent with this scenario, and Super responded, "Yes."
On cross-examination, Super acknowledged that one way a gunshot wound could result in a downward trajectory is if the victim was bent over. Super also acknowledged on cross-examination that one way the gunshot wounds to the victim could have been inflicted was if "the shooter [was] on the ground for some of the shots, and they'd be coming up for some of them . . . ."
Defense Evidence
Jason Fries, chief executive officer of a forensic technology company, testified as an expert in the field of forensic ballistics analysis. Fries reviewed the autopsy report and photographs, including photographs of the crime scene, as well as statements made by defendant, the victim, J.S., and E.P. Using the information gleaned from these sources, particularly the autopsy and photographs, and three-dimensional modeling technology, Fries opined that the victim's four gunshot wounds were consistent with having been inflicted while defendant was on the ground rather than standing. On cross-examination, Fries characterized his testimony as being that "all the evidence suggests that the person was on the ground," and further testified that "our analysis showed that the shooter was on the ground, but we can't get anymore [sic] detailed than that." Fries also testified on cross-examination that it was not his testimony that his conclusions as to the positioning of the shooter and the victim were the only possible positions they could have been in or that his interpretation was the only possible situation which would result in the wounds sustained by the victim. Fries testified: "I'm not going to tell you this is the only possible scenario . . . it is not the only possible scenario." However, according to Fries, the scenario where the victim and the shooter were standing and the shooter pulled out a gun and started shooting while the victim was turning away "did not work" in Fries's three-dimensional modeling experiments.
Fries testified that he had done work for the Attorney General's office and prosecutor's offices in San Francisco, Los Angeles, and Yolo counties as well as for multiple public defender's offices.
Prosecution's Rebuttal Evidence
Sergeant Steve Harding testified as an expert in the field of firearms, ballistics, and trajectories. Harding opined that the handgun held by an individual in a photograph, People's exhibit 39, was a .38-caliber Smith & Wesson Airweight Model 638.
Presented with a diagram depicting the shooter on his back on the ground and the victim coming at him, and asked if that was the only positioning consistent with the evidence in this case, Harding testified that it was not. According to Harding, there were other positions that would result in the trajectories based on the victim's wound paths. Harding testified that he thought there could be many possible positions the shooter and the victim could have been in that would have been consistent with the victim's wounds. Harding testified that, in his opinion, the victim and the shooter both could have been standing. On redirect, Harding testified that the gunshot wounds were consistent with a scenario where defendant and the victim were standing, the victim was "in a stance preparing to search and detain . . . defendant," and defendant pulled a gun from his pocket, fired a shot quickly, and then fired three additional shots. Harding also acknowledged that another possible explanation for the gunshot wounds was that the defendant was on the ground and the victim came towards him during the shooting.
The prosecution recalled Dr. Super in rebuttal. With regard to the gunshot wound caused by the bullet which entered the victim's abdomen and came to rest in the victim's right buttock, Super testified that nothing about the angle of the gunshot wound indicated that the victim must have been "coming over the defendant in an aggressive manner," and the wound was consistent with defendant being in a standing position. Of the gunshot wound to the victim's thigh, Super testified that the bullet wound path was consistent with a scenario where defendant was seated, the victim was standing, and defendant pulled a gun and shot the victim. However, Super again testified that it was impossible to tell the positions of defendant and the victim during the shooting. Super also testified that the gunshot wound marked by the atypical entrance wound could not possibly have occurred in the manner depicted in Fries's diagram because the bullet that caused the wound had to have struck something else first, and, in the diagram, the bullet was fired directly into the victim's chest.
Verdict and Sentencing
The jury found defendant guilty of murder in the first degree (§§ 187, subd. (a), 189, subd. (a)) and found true the firearm enhancement allegation (§ 12022.53, subd. (d)). The trial court sentenced defendant to 25 years to life on the murder count, and an additional 25 years to life on the firearm enhancement for an aggregate term of 50 years to life.
DISCUSSION
I. Proposition 57
A. Proposition 57 and Defendant's Contentions
Following amendments to Welfare and Institutions Code sections 602 and 707 in 1999 and 2000, in certain circumstances, "prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara).) This was the case here. However, on November 8, 2016, after defendant filed his notice of appeal, the electorate passed Proposition 57, which took effect the following day. (Cal. Const., former art. II, § 10, subd. (a).) Proposition 57 essentially restored the procedure to what it had been prior to the 1999 and 2000 amendments. (Lara, at p. 305.) "Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated." (People v. Vela (2018) 21 Cal.App.5th 1099, 1103 (Vela), citing Welf. & Inst. Code, § 707, subd. (a)(1).)
Defendant asserts that Proposition 57 applies retroactively to his case and the judgment should be conditionally reversed and remanded to a juvenile court to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. We agree.
B. Retroactivity
In Lara, our high court held: "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada's inference of retroactivity applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.) Accordingly, Proposition 57 applies to defendant's case.
In re Estrada (1965) 63 Cal.2d 740 (Estrada).
C. Remedy
The procedural posture of the Lara case was not the same as the instant case. In Lara, the prosecutor had direct-filed charges in adult criminal court, but the minor had not been tried at the time Proposition 57 took effect. (Lara, supra, 4 Cal.5th at p. 304.) Here, defendant had been tried, convicted, sentenced, and he had appealed before Proposition 57 took effect. However, in Lara, our high court endorsed a remedy for such circumstances.
In the prior iteration of the Vela decision considered by our high court in Lara, the Court of Appeal, Fourth Appellate District, Division Three, employed a remedy for cases pending on appeal. Our high court endorsed that remedy in Lara. (Lara, supra, 4 Cal.5th at pp. 309-310, 313.) Having previously granted review in Vela, our high court subsequently transferred Vela back to the Court of Appeal with direction to vacate its prior decision and reconsider the cause in light of Senate Bill No. 620. In the resulting decision on transfer (Vela, supra, 21 Cal.App.5th 1099), the Court of Appeal employed the same Proposition 57 remedy which it had employed in its prior decision and which our high court endorsed in Lara. (Vela, at pp. 1112-1113.)
People v. Vela (2018) 11 Cal.App.5th 68, transferred and vacated February 28, 2018, S242298.
Senate Bill No. 620 is discussed in part IV. of the Discussion, post.
In Vela, the defendant had been charged in adult criminal court, tried, convicted, and sentenced prior to the enactment of Proposition 57. (Vela, supra, 21 Cal.App.5th at p. 1102.) The Vela court concluded that Proposition 57 applied retroactively to the defendant's case under the rule in Estrada. (Vela, at pp. 1104-1112.) Regarding the remedy fashioned in the earlier Vela decision, our high court in Lara wrote: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' [Citation.] Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances . . ." [citation],' the court ordered a limited remand. [Citation.] [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at pp. 309-310.)
Having been endorsed by our high court (Lara, supra, 4 Cal.5th at p. 313), we apply the Vela remedy here. Accordingly, we shall conditionally reverse the judgment and remand to juvenile court for a transfer hearing pursuant to Welfare and Institutions Code section 707, subdivision (a). If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, the modified judgment of conviction of murder in the second degree (see part III., post) shall be reinstated as of that date. If the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, defendant's criminal conviction, as modified, and the enhancement finding shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing.
II. Dismissal of Juror No. 3
A. Additional Background
The jury began its deliberations at 11:44 a.m. on August 16, 2016. Deliberations recessed for the day at 11:51 a.m. with deliberations scheduled to resume the next day at 9:00 a.m. The jury resumed deliberations the morning of August 17, 2016, as scheduled, and, no verdict having been reached, recessed for the day at 12:01 p.m. with deliberations scheduled to resume the following morning. At 9:00 a.m. on August 18, 2016, the jury resumed deliberations and at 11:10 a.m. requested readback of J.S.'s testimony and an EMT's testimony concerning his conversation with the victim, which was provided at 11:30 a.m. At 2:00 p.m., the jury submitted a note to the court indicating that the jurors had reached a verdict. Up until this time, the jury had been deliberating for somewhere between five to eight hours, depending on how much time was consumed for readbacks and breaks.
The record does not indicate what time the readback was concluded on August 18, what time the jury resumed its deliberations, or whether there was a recess for lunch or any other breaks. In any event, given the nature of the readback, it seems clear that the total deliberation time was substantially less than eight hours.
The clerk read the verdict, stating that the jury found defendant guilty of murder in the first degree and found true the firearm enhancement allegation. At the request of defense counsel, the trial court had the clerk poll the jurors. Juror Nos. 1 and 2 indicated that the verdict and finding reflected their true and correct verdicts. When asked if the verdict and true finding reflected her true and correct verdict, Juror No. 3 responded, "No." The trial court asked Juror No. 3 if the verdict, as returned and signed by the foreperson, reflected her verdict, and Juror No. 3 shook her head indicating that it did not. Concluding that the jury had not reached a unanimous verdict, and after conferring with counsel, the trial court instructed the jurors to resume deliberations. However, before the jury left the courtroom, Juror No. 3 asked, "[C]an I have an alternate to fill in for me and be excused?" The court responded, "Well, I don't know what the basis for that is, ma'am. I can consider, certainly, if there is some concern about your ability to continue to perform your duties. [¶] You're crying right now. I obviously need to address and be made aware of any concerns. So if you have something you want me to consider, yes, I will hear from you in this matter." The trial court again conferred with counsel, and then asked Juror No. 3 if she felt comfortable discussing the matter in front of the other jurors. Juror No. 3 indicated that she would feel more comfortable discussing the matter out of the presence of the other jurors. The rest of the jury, including the alternate, exited the courtroom, and the trial court then had the following discussion with Juror No. 3:
"THE COURT: All right. And, ma'am, as I stated, I don't know what -- the basis of the concerns. [¶] So if you want to, just tell me in your own words, and we can go from there.
"JUROR NUMBER THREE: Well, after evaluating and deliberating, I came to my -- I would say my final decision was -- I have a doubt in this. [¶] There's a doubt for me.
"THE COURT: So [Juror No. 3], I want to tell you something, I don't want to inquire into your thought process or your deliberation or your vote or how you voted --
"JUROR NUMBER THREE: Okay.
"THE COURT: -- on any -- of the count, not any of the counts, but on any of the findings. [¶] What I really just want to know, a little bit about the process. You're saying that you'd like to be excused from further deliberations?
"JUROR NUMBER THREE: Yes.
"THE COURT: And, candidly, you're one of the jurors
"JUROR NUMBER THREE: Right.
"THE COURT: -- here having heard the evidence, so I need to make sure I understand what the basis would be for your request. [¶] So is there some concern about your ability to continue to serve as a juror? I'm just not sure
"JUROR NUMBER THREE: Yes, my decision is final that I can't continue based on the matter of how much more are we going to continue to deliberate? [¶] My thoughts is [sic] gonna be the same, that there is a doubt.
"THE COURT: So [Juror No. 3], in this matter, there are a number of instructions. There were a number of witnesses. There are a number of verdict forms offered to the jury for their consideration. [¶] And what I would propose to do is have the jury go back and deliberate. And that is not to suggest that anyone has to change their mind or take a particular position. [¶] But it's pretty early on, and in this situation I would have the jury deliberate further. And that would mean that it would be important for you to engage in interaction with the other jurors. [¶] So I guess I'm just not sure if I'm hearing that you would just refuse to participate or feel like you're just not going to participate even if ordered to do so? [¶] What are you telling me specifically?
"JUROR NUMBER THREE: That my decision has been -- remains the same, and it's going to be the same even if we go back in there and deliberate. [¶] That's why I need to be excused. I'm asking to be excused, because it's not going to change.
"THE COURT: So even if I order you to consider -- not to change your decision, because that would not ever be the case --
"JUROR NUMBER THREE: Right.
"THE COURT: -- but I order you to go back into court, or the deliberation room, as with all the other jurors, into the deliberation room to discuss and evaluate the case and to listen further and to evaluate the evidence, you would not do so?
"JUROR NUMBER THREE: I can. But again, my decision is going to remain the same.
"THE COURT: And is that because you closed your mind to considering what the other evidence is and the jurors have had to say?
"JUROR NUMBER THREE: No, that has nothing to do with it. We have been over that already.
"THE COURT: All right. So if I send you back in, you will go in with the other jurors and deliberate for as long as that process takes?
"JUROR NUMBER THREE: Yes.
"THE COURT: Will you continue to talk with the other jurors about your views?
"JUROR NUMBER THREE: Yes, and I have.
"THE COURT: Okay. And will you listen to what they have to say with an open mind, as well?
"JUROR NUMBER THREE: I have listened, and I have, yes, and I will. [¶] I would like to add to that, this has been a -- very emotional for me, as well, and I've been getting really sick behind it, too, and that's why I don't feel like I can continue on as being a juror.
"THE COURT: I feel very difficult asking you personal questions, as I've said. [¶] When you're talking about sick, I know when you were here a little earlier a few minutes ago, I could see you were visibly upset and crying. [¶] Now you're a little more calm.
"JUROR NUMBER THREE: Uh-huh (Affirmative.)
"THE COURT: Can you describe what you're telling me in terms of sick? [¶] Are you talking, like, emotionally you're too sick to go on, physically?
"JUROR NUMBER THREE: Both emotionally, and I've been vomiting, you know, the whole morning.
"THE COURT: I'm not trying to put any words in your mouth, because you're just telling me how you feel and what your ability to serve is. [¶] Your mind set is a willingness to physically be in the room and to talk with other jurors, but you're anticipating that this process is making you physically ill?
"JUROR NUMBER THREE: Yes, it has been, yes.
"THE COURT: Are you conveying to me a concern that you may become more physically ill if subjected to this process?
"JUROR NUMBER THREE: That is correct.
"THE COURT: So is it the physical, emotional, slash, physical effects on you that are the basis of your request?
"JUROR NUMBER THREE: Correct.
"THE COURT: And, again, I'm not trying to put words in your mouth, but you tell me if there is something -- anything else in terms of that, that I should be aware of. [¶] In other words, I'm just trying to open -- ask an open-ended question, because I just want to hear in your own words about your emotional and physical state and ability to serve.
"JUROR NUMBER THREE: I've been sick the last couple of days, but it got worse today when we came to a final verdict and I wasn't okay with that. [¶] But listening to being open-minded, we came to that conclusion. But I'm becoming more ill, so that's why I'm asking to be excused.
"THE COURT: So are you telling me you think you're too ill to continue?
"JUROR NUMBER THREE: Correct.
"THE COURT: I've tried to give you a chance to give me as much information so I had a good picture of sort of where you stand and what -- the issues that you have. [¶] And what I'd like to do is I'm going to take a moment to have counsel approach sidebar so we can kind of look at the picture of the concerns that you've raised. [¶] As I said, with all due respect, I want to make sure that you just tell me in your own words. I'm not trying to tell you how you should feel. [¶] And you feel that you have told me that?
"JUROR NUMBER THREE: Yes."
After consulting with counsel, the trial court's exchange with Juror No. 3 continued:
"THE COURT: All right. Juror [No. 3], I just, as I said, I want to take great care to really understand what your concern is and what the situation is, because I have, of course, any concerns as they relate to you and your well-being. [¶] I can tell you looked pretty piqued just from your body language and the distress in your voice and the way you conveyed your concerns. [¶] So coming back to it, if I'm hearing you correctly, you're asking to be excused?
"JUROR NUMBER THREE: Yes.
"THE COURT: And that's because this process is making you just too sick to proceed?
"JUROR NUMBER THREE: Too sick.
"THE COURT: Too sick?
"JUROR NUMBER THREE: Yes.
"THE COURT: You have no doubt that you're too sick to go forward?
"JUROR NUMBER THREE: I can't go forward."
The court then asked Juror No. 3, "If I sent you home today, do you think that would help you feel better tomorrow, to come back tomorrow and start all over again?" Juror No. 3 responded: "Your Honor, I haven't felt good all week." The trial court asked, "[I]s the answer no?" and Juror No. 3 responded, "Correct."
The trial court then discussed the matter further with the prosecutor and defense counsel outside of the presence of Juror No. 3. The court stated, "[M]y initial inclination at the outset, further exploration and questioning and observations of Juror [No. 3], have brought me to a potentially very different conclusion." The trial court asked defense counsel, "[Y]ou have a concern or objection if the Court were to order her -- to excuse her and discharge her from the jury in this matter?"
Defense counsel responded that she would object, and continued: "My objection is that she indicated early on that she had a doubt and that it was firm in her mind after evaluating the evidence. And she said she did talk with the other jurors. She did consider. [¶] She spent this time while they were in the deliberative process deliberating with the other jurors, but she came to the conclusion that she has a doubt and she indicated, really, no matter how much more she deliberated, she has this doubt. [¶] She did say she would go back in. She would continue to talk, but she confirmed that she does have a doubt as to whether or not the people have proven the case. [¶] She then -- sort of the second half, then, went on to say, I'd like to be removed because I'm feeling sick. And I think that's just dangerous to do right now. [¶] I think she has firmly stated she has a doubt. And in light of that, I would ask the Court to declare that this is a hung jury and -- as opposed to releasing her under these circumstances, because it certainly sends the clear message, you either, you know, go along with the majority, or you're off the jury. [¶] Now, even though it's at her request, they don't know that. And so it appears to the alternate coming in, you go along with the group, or you're kicked off. [¶] And I think she has stated unequivocally, that she has a doubt, in which case the jury is not unanimous, and it is hung."
In response, the prosecutor emphasized that it had been a three-week trial, and that the jurors had deliberated a relatively short period of time given the length of trial. The prosecutor continued: "And for them to come in with a verdict that they did, is one thing. But if they have come back after this short time of deliberation and simply said, we cannot agree and we didn't know what anybody's position was or what the split was, I believe that the Court would have sent the jury back to continue deliberating after such a short period of deliberation. [¶] And at that point, had this same juror said, I am too sick to proceed, I do not want to go back in there, I've been sick all week and it's getting worse and I cannot continue, then she would have been released."
Defense counsel replied: "[H]ere's why this is qualitatively different: If a jury had been out for the length of time this jury has been out deliberating and, you know, let's not forget it's not just a counting up of hours but they have been out for three days, and by that I mean since the case was submitted to them, so there has been a fair amount of time for settling of kind of emotions in the sense of the facts. [¶] And if a juror -- a jury came in and said, we're hung, the Court would inquire, would further deliberations help? [¶] And if one of the jurors, such as this juror said, no, they won't help, I am firm in my conviction, it's not that I have a close[d] mind, I've discussed it, we've had full deliberation and I -- that's my verdict, I don't know that the jury -- the Court would have excused or ordered them back out to deliberate but may well have taken it as a hung jury, because that's why that question is asked, would further deliberations help? [¶] And if people say, no, it won't, often that is the conclusion of the -- of the case. [¶] So I would submit under these circumstances, she has made it very clear she has deliberated. Even under these conditions, she's still willing to keep an open mind, but she is settled in her verdict. [¶] And that's what she's supposed to do, stay -- stay true to her feelings and verdict regarding the case."
The court took a recess to consider the parties' arguments. Thereafter, the trial court rendered its ruling:
"Juror [No. 3] has related concerns to the Court, and I have endeavored to try to understand, not only the words, but the meaning and give her a full chance to express the nature of her concerns. [¶] While it's regrettable that she relayed some concerns about her doubts about the verdict in this matter, it's clear she didn't, and wasn't, prepared to agree to the verdict that was rendered here in open court. [¶] I should place on the record that that information initially that the juror did not agree with the verdict being returned in court, would have, based on the amount of time this jury has been deliberating, the nature of the case, the amount of testimony and tapes and evidence involved, I would have not endeavored to make any inquiry at that point. [¶] In essence, there wouldn't have been much need to make an inquiry, in the Court's view. I would have, in fact, was ready to direct them to go back to deliberate further. [¶] I should note that when we talk about the amount of days, the court clerk record should likely reflect, but I will state that this jury has kept limited hours each day. [¶] Because we are past the overall deadline, I have allowed them to set their schedule in accordance with some conflicts that individual jurors have had. [¶] And that's resulted in them really only getting a morning session for both the two days that they have been deliberating. [¶] So essentially they have not really deliberated even two full days if we were to break out the hours of time that they had been deliberating. [¶] So while that can be sufficient under the circumstances of the range of discussion, I would have sent this jury back to deliberate. [¶] What evolved, however, with Juror [No. 3] was a different picture. It's a picture of a woman who was visibly upset. Her emotional tenor wavered somewhat here in court. [¶] At some points, she was crying. At some point, she calmed down. She did look pretty piqued, and her body language reflected someone who was turned to her side as if she was either physically or emotionally uncomfortable to be here. [¶] I did my best to make her feel comfortable and open to relate whatever her concerns were, and ultimately, her request. [¶] And it was her request that she be excused after relating that initially she would have been willing to go back in the jury room representing that she felt like she wasn't going to change her mind. [¶] My point to her wasn't that she needed to change her mind, but that there was a deliberative process that I could send them back out to perform. [¶] She initially indicated a willingness to do that, to go back, but pretty much almost immediately related to the Court concerns about several days of vomiting, being upset, her emotional and physical distress, and it appears in relation to being involved in the case. [¶] So the Penal Code does set forth a procedure, and it is the Court's evaluation based on the unique circumstances of each case, goes without saying that this is a pretty unique presentation of circumstances. [¶] I have presided over a number of trials and had interactions with jurors with a number of issues. And in the Court's view, this juror has, without question, communicated to the Court an unequivocal request, not for a break, not for a time out, but to be excused because she, in her statement to the Court, is too ill or would be too ill and distressed to continue to proceed in the manner that would be required and certainly up to the standards required by law. [¶] So I do find that her failure to perform her duties, and that there is good cause to grant her request to be excused from this case, based on the circumstances of this case. [¶] That leaves us in a position where we have one alternate. So there is no suspense there. We do have the alternate present. [¶] So I would be prepared to call Juror [No. 3] in and advise her that I am excusing her and then to have the jury step in and explain to them what has happened and instruct them pursuant to [CALCRIM] regarding the substitution of an alternate juror, indicate that their verdict that was returned is void and there is no verdict before the Court. [¶] We will give them all the verdict forms and send them out to deliberate again." Defense counsel sought, and was given, clarification that the court would instruct the jurors to begin deliberations anew.
The trial court then discharged Juror No. 3, substituted the alternate juror onto the panel, and instructed the jury accordingly, including that the jurors must "begin your deliberations all over again."
Defendant filed a motion for a mistrial following the discharge of Juror No. 3. Among other things, defendant asserted that, once the jury was hung and it was clear that further deliberations would not result in a change in voting, the trial court was required to declare a mistrial.
In opposition, the prosecution asserted that, at the time when the issue arose as to Juror No. 3, the verdict was incomplete, and that the trial court properly had the jury resume deliberations. The prosecution further asserted that the trial court acted within its discretion in discharging Juror No. 3 and substituting an alternate juror for her.
In oral argument before the trial court, defense counsel asserted that the entire jury should have been polled when the issue with Juror No. 3 arose. Counsel further asserted that the way the process with Juror No. 3 was conducted, and the fact that she was removed from the jury, could have left the jurors with the impression that "that's what happens to jurors who hold that opinion is that they are removed." Counsel asserted that this was prejudicial, and the defense could not overcome that prejudice. Counsel further argued that, in light of the fact that the issue arose on a Thursday and the jury was not scheduled to deliberate on Friday, the trial court should have halted deliberations and assessed Juror No. 3's condition and mindset on the following Monday, after a three-day break. Counsel argued that Juror No. 3 had indicated that she was willing and able to return to deliberations. Counsel maintained that Juror No. 3 "was removed before remedies were really exhausted with her." Counsel also expressed skepticism as to whether the jurors, who had apparently reached a guilty verdict, could possibly set that verdict aside and commence deliberations anew. Counsel asserted that the jury was a hung jury.
The prosecution disagreed that the entire jury should have been polled when it became clear that the verdict forms did not represent Juror No. 3's verdict. The prosecutor asserted that the proper procedure in such a case is to direct the jury to resume deliberations. The prosecutor further argued that the jury was perfectly capable of following the trial court's instructions to disregard all prior deliberations and start all over again.
The trial court denied defendant's motion for a mistrial. It further concluded that there had been good cause to believe that Juror No. 3 was unable to fulfill her duties as a juror, and good cause existed to grant her request to be excused. The trial court disagreed with the defense that it was compelled to continue polling the jury after the issue with Juror No. 3 came to light. The trial court noted that, pursuant to section 1163, it was required to send the jury back to continue its deliberations after Juror No. 3 indicated the announced verdict was not her verdict. The trial court further concluded that the doubts expressed by Juror No. 3 concerning her verdict did not indicate that the jury was deadlocked. As the trial court noted, Juror No. 3 never indicated the nature of her doubt, and her doubt could have related to whether the killing was justifiable homicide based on self-defense or some lesser homicide offense instead of first degree murder. In any event, after mentioning her doubt, Juror No. 3 expressed an inability to continue because she was sick, and, according to the trial court's self-assessment, it had made a thorough inquiry.
Section 1163 provides: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation." (Italics added.)
The trial court further described its observations of Juror No. 3's demeanor during its inquiry. The court stated: "As this process was going on I watched her, as we all did, made observations about her demeanor in court; the fact that her initial request, when she made it to be excused, she was crying and tearful; that at some point she calmed down a little bit for some of the Court's questions; that she appeared somewhat pale and at times her body language indicated, conservatively I'd say, discomfort. She was somewhat, to describe it a little bit, curled up and turned in her seat away from the courtroom itself, more toward what would be the front of the courtroom, but twisted in the chair, not fully bent over, but definitely not in a seated and upright position facing outward as you would typically see jurors if they were comfortable." The court noted that it had offered a break and she said she had been sick for days and was too sick to continue. The court went on to say: "We're all pretty experienced in this room and we know that we ask a lot of our jurors. We see them come into court and contribute their time and their attention and efforts, and sometimes it's quite a challenging task that we put before them to decide. It certainly is difficult and it often can be stressful. . . . [W]hat I've learned is while it's rare, there are times when the demands of this job, the gravity of the issues that they're deciding, are simply too much for the individual's emotional or mental disposition. And in certain circumstances their reaction to the stress can infect their reasoning, their decision making, and in this case physical health. Juror [No.] 3 displayed that for whatever reason her emotional distress was so great that it affected her mental state as well as her physical health. [¶] As I've related she was crying, she was at times pale, she was at times a little bent over, she was certainly very upset and agitated, and insistent ultimately that she was too sick to continue her duties. [¶] Service as a juror should not imperil a juror's emotional health, and it should not cause undue mental distress, nor should it jeopardize the physical well-being. And very importantly, conversely, the verdict that's reached by a jury in any case, and certainly a case -- the stakes involved in this case, should be based on the unanimous agreement of 12 fully participating healthy jurors who are emotionally stable and not distracted or influenced by emotional anguish, disturbance, or physical symptoms."
After the trial court discharged Juror No. 3 and substituted the alternate juror onto the panel, the jury deliberated for less than a half an hour and then recessed. Four days later, on the morning of August 22, 2016, the jury resumed deliberations. At 9:41 a.m., the jury requested a readback of a portion of the testimony of J.S. and the testimony of the detective who took the statement from the victim at the scene. A court reporter provided the requested readback between 10:50 a.m. and 11:30 a.m. The jurors recessed for lunch and returned at 1:30 p.m. At 1:46 p.m., the jury notified the trial court that it had reached its verdict, finding defendant guilty of murder in the first degree and finding the firearm enhancement allegation true. The trial court had the clerk poll the jurors, each of whom indicated that the verdict as read represented their true and correct verdicts.
Defendant subsequently filed a motion for a new trial. Defendant asserted, among other things, that Juror No. 3 had committed misconduct in stating that the verdict read was her verdict when it was not. Defendant further asserted that a juror cannot properly be replaced once that juror has indicated that he or she has reached a verdict. Additionally, defendant asserted that the trial court failed to inquire as to whether Juror No. 3 had been subjected to improper and/or coercive tactics by other jurors. Defendant also asserted additional unrelated grounds in support of his new trial motion which we will address in part III. of the Discussion, post.
Defendant also moved for disclosure of the jurors' personal identifying information, and the court denied the motion. Defendant does not challenge this ruling on appeal.
During oral argument on the new trial motion, defense counsel asserted that it was inappropriate for the trial court to conduct the colloquy with Juror No. 3, to the extent that it did, in the presence of the alternate juror who would eventually be substituted onto the jury panel because the alternate juror was thus informed that the jury had previously reached a guilty verdict. Defense counsel again asserted that it was unrealistic to expect the jurors who had participated in deliberations, and who had reached a verdict, to discard all that went before and start deliberations anew.
The trial court denied the motion for a new trial. The court concluded that, when Juror No. 3 indicated that the guilty verdict was not her true and correct verdict, it would have been premature to declare a hung jury. Instead, but for the subsequent developments, this would have simply required the jury to resume deliberations. The court then emphasized Juror No. 3's repeated requests to be excused and her professed physical condition. The court concluded that there had been good cause to discharge Juror No. 3, as she was unable and unwilling to perform her duties as a juror.
B. Defendant's Contentions
On appeal, defendant asserts that before deciding to discharge Juror No. 3 for good cause, the trial court should have instructed her to participate in further deliberations "in order to see whether, in the course of such further deliberations, she manifested any real physical, emotional or psychological ailment that actually interfered with her ability to serve." According to defendant, "[d]irecting Juror [No.] 3 to resume deliberations with other original jurors, and seeing how the juror actually performed after that directive, would have given the court a reality check on whether the juror was or was not actually unable (or unwilling) to carry ou[t] her duties." Defendant contends that based on the state of the record, there was no demonstrable reality indicating that Juror No. 3 could not perform her duties. Defendant asserts that nothing in the record supports the conclusion that Juror No. 3 refused to participate in deliberations, and, in fact, she indicated her willingness to continue. Defendant asserts that the trial court should have taken a less drastic step than discharge, and further asserts that there was no downside to delaying proceedings until the next court day. Defendant asserts that he was prejudiced by the court's error under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 835-836.
C. Applicable Principles of Law
"An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it." ' " (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty . . . , the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (§ 1089.) "A trial court 'has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve.' " (People v. Bennett (2009) 45 Cal.4th 577, 621.)
We review the trial court's decision of whether to discharge or retain a juror or to take some other action for abuse of discretion. (People v. Harris (2013) 57 Cal.4th 804, 856 (Harris); People v. Alexander (2010) 49 Cal.4th 846, 927 (Alexander).) "Although [an appellate court] reviews for abuse of discretion a court's ruling discharging a juror pursuant to section 1089 [citation], . . . such review involves a 'heightened standard [that] more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.' [Citations.] Specifically, the juror's 'inability to perform' his or her duty 'must appear in the record as a demonstrable reality.' [Citations.] [¶] Under the demonstrable reality standard, a reviewing court's task is more 'than simply determining whether any substantial evidence in the record supports the trial court's decision.' [Citation.] 'A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. . . . [¶] The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' " (People v. Armstrong (2016) 1 Cal.5th 432, 450-451 (Armstrong).) "We defer to the trial court's credibility assessments 'based, as they are, on firsthand observations unavailable to us on appeal.' " (People v. Williams (2015) 61 Cal.4th 1244, 1262 (Williams).)
D. Analysis
During the trial court's conversation with Juror No. 3, she was crying. Outside the presence of the other jurors and the alternate, Juror No. 3 said she had reached her final decision, and she had a doubt. She asked again to be excused, and indicated that she could not continue. She repeated several times that she needed to be excused and that her decision would remain the same. Responding to questioning by the court, she stated that she could return to the deliberation room and discuss the case further, but she also stated that her decision would remain the same.
Juror No. 3 then volunteered that the matter was very emotional, she had been getting "really sick," and that is why she could not proceed. Asked what she meant in saying that she had been getting sick, Juror No. 3 responded that she was sick emotionally, and she had been vomiting the entire morning. Juror No. 3 also stated that she believed that her further participation in the process would make her become more physically ill. The trial court confirmed with Juror No. 3 that the emotional and physical effects on her formed the basis for her request to be excused. Juror No. 3 subsequently clarified that she had been sick for several days, "but it got worse today when we came to a final verdict and I wasn't okay with that. [¶] But listening to being open-minded, we came to that conclusion. But I'm becoming more ill, so that's why I'm asking to be excused." Juror No. 3 stated that she believed that she was too ill to continue. The trial court noted that Juror No. 3 "looked pretty piqued just from [her] body language and the distress in [her] voice and the way [she] conveyed [her] concerns." The trial court once again asked Juror No. 3 if she was asking to be excused, Juror No. 3 responded that she was, and, when asked if that was because she felt too sick to continue, she responded, "Too sick." Asked if she had no doubt that she was too sick to continue, Juror No. 3 responded: "I can't go forward." The court then asked Juror No. 3, "If I sent you home today, do you think that would help you feel better tomorrow, to come back tomorrow and start all over again?" Juror No. 3 responded: "Your Honor, I haven't felt good all week." The trial court asked, "[I]s the answer no?" and Juror No. 3 responded, "Correct."
In explaining the rationale for its discharging Juror No. 3, the trial court first noted that the juror had indicated disagreement with the verdict as read in court, and further stated that, without more, the trial court at this point would have directed the jury to continue deliberations. However, the trial court then noted that Juror No. 3 had been visibly upset and crying and appeared to be physically or emotionally uncomfortable. The court further noted that, while Juror No. 3 initially indicated a willingness to continue deliberating, she then told the court she had been sick for several days, had been vomiting, and was in physical and emotional distress. The trial court stated that the circumstances were unique. The court determined that Juror No. 3 had communicated an unequivocal request, not for a break, but to be excused, and that she was too ill and distressed to continue. Therefore, the trial court stated: "I do find that her failure to perform her duties, and that there is good cause to grant her request to be excused from this case, based on the circumstances of this case."
We conclude that the trial court did not abuse its discretion in discharging Juror No. 3 for the reasons it expressly stated and the evidence upon which it actually relied. Based on Juror No. 3's representations to the trial court, the court determined that Juror No. 3 had become ill, and that there was good cause to believe that she was unable to perform her duties. (§ 1089.) The trial court's assessment of Juror No. 3's credibility, based on firsthand observations, is entitled to deference. (Williams, supra, 61 Cal.4th at p. 1262.) On this record, we conclude that the trial court, as trier of fact, did, in fact, rely on evidence, in the form of Juror No. 3's statements, as well as her appearance and comportment, which supported its conclusion that there was good cause to believe that Juror No. 3 could no longer perform her duties as a sitting juror based on her physical and emotional condition. (See generally Armstrong, supra, 1 Cal.5th at pp. 451-452.) We are confident that the trial court's conclusion is manifestly supported by the evidence on which it actually, and expressly, relied. (Id. at p. 451.) Juror No. 3's inability to perform her duties as a juror appears in the record as a demonstrable reality. (Ibid.)
Under the particular circumstances here, defendant asserts the trial court should have elected to order a recess and determined whether a break of four days found Juror No. 3 in improved condition and able to perform her duties as a juror upon her return. If her condition had not changed, the trial court could have then discharged Juror No. 3 for the same reasons which did lead to her discharge. However, Juror No. 3 told the court that she had been sick a couple of days and it got worse the day she was excused. She had been vomiting "the whole morning." She again told the court she had not felt good all week. She told the court, "I can't go forward."
The court was not required to engage in the experiment defendant suggests of requiring the juror to take a time out and then resume deliberations the following week to see whether she "manifested any real physical, emotional or psychological ailment that actually interfered with her ability to serve" at the expense of the juror's emotional and physical health. Indeed, contrary to defendant's view that Juror No. 3's condition might have improved or stayed the same, her condition could have also deteriorated as it had been trending during the week. Whether to require a sick juror to continue or replace her with an alternate is a matter within the trial court's discretion. (See People v. Duff (2014) 58 Cal.4th 527, 561 [whether to postpone the deliberations to allow a sick juror time to recuperate or replace the juror with an alternate is a matter committed to the trial court's discretion].) Here, the trial court chose to discharge the juror and as a consequence spared Juror No. 3 further emotional anguish and physical illness. On this record, we conclude that this was not an abuse of discretion. (See generally Harris, supra, 57 Cal.4th at p. 856; Alexander, supra, 49 Cal.4th at p. 927.)
III. First Degree Murder Conviction—Substantial Evidence Review
A. Additional Background
In discussing her motion for a mistrial relevant to the discharge of Juror No. 3, defense counsel also moved for a judgment of acquittal, arguing that there was insufficient evidence to support a conviction of first degree murder.
Defense counsel cited section 1118. Section 1118 authorizes the trial court to grant a judgment of acquittal in a nonjury case. Section 1118.1 authorizes the same relief in a jury case. Presumably, defense counsel intended to rely on the latter in this jury trial case.
In his new trial motion, in addition to arguments related to Juror No. 3, defendant asserted that the verdict was contrary to the evidence. As an alternative to a new trial, defendant asserted that the trial court should modify the verdict to a lesser charge of manslaughter. Additionally, defendant asserted that the evidence was legally insufficient to support a conviction of first degree murder. In this regard, defendant asserted that there was no evidence of premeditation and deliberation to support a first degree murder conviction, and specifically addressed evidence of planning, motive, and manner of the killing. Defendant further asserted that there was no evidence of express or implied malice so as to support a conviction of murder in the second degree. According to defendant, the evidence supported, at most, a conviction of voluntary manslaughter. Defendant stated: "The scene alone would have been intimidating to [defendant]. He was a 16 year old boy confronted by an angry man that outweighed him by over 100 pounds. The man was a trained fighter as a Marine and a police officer. Clearly had no time to cool down, and his actions were provoked thereby requiring a voluntary manslaughter charge to go before the jury."
In opposition, the prosecutor argued the following supported a finding of premeditation and deliberation: "(1) . . . [d]efendant brought a loaded firearm to the [victim's] home; (2) he was confronted by the [v]ictim in the bed of the 15-year-old female foster child; (3) he wanted to avoid being detained and/or arrested; (4) he was questioned by the [v]ictim over several minutes regarding his identity and parental information; (5) when it was clear he was going to be detained and/or arrested, instead of waiting for his mother and/or police to be called, he pulled the concealed loaded gun and fired at the [v]ictim at close range; (6) he continued to fire as the [v]ictim turned to escape the gunshots; (7) he fired at the [v]ictim four times, hitting him each time, two of which were in vital areas; and (8) after killing the [v]ictim, he ran away."
In orally arguing the motion, defense counsel asserted that there "was almost no evidence of any premeditation and deliberation." Rather, according to counsel, the shooting occurred as the result of a sudden quarrel. Counsel further argued, "when you factor in that [defendant] is a juvenile, [he's] a 16-year-old, there is simply insufficient evidence for premeditation, deliberation." Defense counsel maintained that the killing was consistent with "no more than a manslaughter, because it is as a result of this sudden interaction, not a planned interaction." Defense counsel requested that, if the court was disinclined to grant a new trial, that it reduce the conviction from murder in the first degree to manslaughter.
Defense counsel did not expressly request the court to modify the verdict to second degree murder. The prosecution submitted the matter based on its opposition briefing.
The trial court stated that it found no basis to grant defendant a new trial or to disturb the jury's findings. The trial court stated: "the evidence did support and bear out the finding that at the time [defendant] was acting, he did have the sufficient opportunity to, and did, in fact, form an intent to kill, a specific intent to kill. [¶] He had an opportunity and did premeditate and deliberate on the decision." The trial court then "incorporate[d] by reference" the "factors" listed by the prosecution in its written opposition. The trial court did not discuss the law concerning the sufficiency of evidence of premeditation and deliberation or how the prosecution's factors applied.
In her sentencing memorandum and statement in mitigation, defense counsel argued that sentencing a juvenile to a period of life imprisonment, even with the possibility of parole, amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution when the crime was committed by a 16-year-old offender. In remarks to the trial court prior to sentencing, counsel asserted that, while "the Eighth Amendment does not require strict proportionality between crime and sentence, [it] forbids extreme sentences that are grossly disproportionate to the crime." No claim was made in the trial court under California's constitutional prohibition against cruel or unusual punishment.
B. Defendant's Contentions
Defendant asserts that the trial court violated his rights as a juvenile under state law and his due process rights under the federal Constitution by denying his motion for a new trial on count one, by declining to acquit him of first degree murder, and by failing to reduce his conviction on count one to second degree murder. According to defendant, the trial evidence showed provoked and rash conduct, where a 16-year-old was trapped by an enraged victim twice defendant's size who was blocking his escape and preparing to handcuff him. Defendant asserts that the trial court should have either granted his new trial motion pursuant to section 1181, or modified his conviction to second degree murder, at most, based on the absence of premeditation and deliberation. With regard to his claim that the trial court should have acquitted him of first degree murder pursuant to section 1118.1, defendant likewise asserts that there was insufficient evidence of premeditation and deliberation. Finally, defendant asserts that, under California's prohibition against cruel or unusual punishment in article I, section 17 of the California Constitution, the sentence imposed was disproportionate to the offense and that the conviction should be reduced to second degree murder and he be resentenced accordingly.
Appropriately, defendant does not renew the contention made in the trial court that count one should have been reduced to voluntary manslaughter.
We conclude that the evidence was insufficient to establish premeditation and deliberation. Accordingly, we modify the judgment to second degree murder.
C. Substantial Evidence Standard, Murder and Premeditation and Deliberation
"It is the prosecution's burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence." ' [Citation.] The substantial evidence test applies both when an appellate court is reviewing on appeal the sufficiency of the evidence to support a conviction and when a trial court is deciding the same issue in the context of a motion for acquittal under . . . section 1118.1 at the close of evidence." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
" 'Murder is the unlawful killing of a human being . . . with malice aforethought.' [Citation.] Malice aforethought may be express or implied." (People v. Elmore (2014) 59 Cal.4th 121, 132.) "A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder." (People v. Beltran (2013) 56 Cal.4th 935, 942.) " 'Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.' " (Ibid.)
"The very definition of 'premeditation' encompasses the idea that a defendant thought about or considered the act beforehand. ' " '[P]remeditation' means thought over in advance," ' and ' " '[d]eliberation' refers to careful weighing of considerations in forming a course of action . . . ." ' [Citations.] 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' " (People v. Pearson (2013) 56 Cal.4th 393, 443 (Pearson), italics added.) " ' " 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 824 (Casares).)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our high court stated: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing -- what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (Anderson, at pp. 26-27.)
As our high court has since cautioned, however, " ' "[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way." [Citation.] In other words, the Anderson guidelines are descriptive, not normative.' " (Casares, supra, 62 Cal.4th at p. 824, italics added, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1081 (Koontz); see People v. Sandoval (2015) 62 Cal.4th 394, 424 (Sandoval).) Put another way, the Anderson guidelines are not exhaustive, and " 'reviewing courts need not accord them any particular weight.' " (Sandoval, at p. 424, quoting People v. Halvorsen (2007) 42 Cal.4th 379, 420.) In addition to referring to planning, motive and manner of killing as guidelines and collectively as a framework, our high court has also characterized those factors for consideration as an " 'aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' " (People v. Brooks (2017) 3 Cal.5th 1, 59 (Brooks), italics added.) The People recognize the Anderson guidelines and argue all three Anderson factors are present here.
D. Analysis
1. Denial of New Trial Motion
A trial court may grant a defendant a new trial "[w]hen the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed." (§ 1181, subd. (6).) " 'Because a ruling on a motion for a new trial rests so completely within the trial court's discretion, we will not disturb it on appeal absent " ' "a manifest and unmistakable abuse of discretion." ' " ' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1247-1248, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Delgado (1993) 5 Cal.4th 312, 328.) " ' "[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." ' " (Delgado, at p. 328.) The " '[t]rial court's factual findings, express or implied, made on a motion for new trial will be upheld if supported by substantial evidence.' " (People v. Cua (2011) 191 Cal.App.4th 582, 609 (Cua), quoting People v. Drake (1992) 6 Cal.App.4th 92, 97 (Drake).)
Defendant's contention that the trial court improperly denied his motion for a new trial is based exclusively on his contention that there was no substantial evidence of premeditation and deliberation so as to sustain a first degree murder conviction. We now look to the evidence of planning, motive, and manner of killing as an aid or as guidelines in assessing the sufficiency of evidence establishing those elements. (Brooks, supra, 3 Cal.5th at p. 59; Sandoval, supra, 62 Cal.4th at p. 424.)
a. Planning Activity
In closing arguments, the prosecution asserted that defendant went to the victim's house armed with a loaded, concealed handgun. The prosecutor further asserted "that a reasonable interpretation of the evidence is that when you are carrying a loaded firearm, you have already thought about using it to kill." The People reprise this argument on appeal.
In conjunction with defendant bringing the gun with him, the People argue on appeal: "[t]here is a strong presumption that [defendant] was likely to be discovered and confronted by an adult." We are unfamiliar with any such presumption in the law. Nor are we aware of any such presumption as a practical matter, whether from the perspective of adults or teenage boys and girls. In any event, this assertion was not developed by the People. We may properly disregard contentions perfunctorily asserted without development (People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5), and we do so here. Instead, we focus on the People's central claim that bringing a weapon is evidence of planning activity.
The evidence very strongly indicates that the victim was not shot with one of his guns, but rather with a gun defendant brought with him on the night of the shooting, and defendant does not argue otherwise on appeal. A photograph, People's exhibit 39, depicted defendant and Mendoza on some occasion before the shooting. Mendoza was wearing a black shirt. Hess testified that, in that photograph, an individual wearing a red shirt (and thus obviously not Mendoza), was holding what appeared to be a Smith & Wesson .38-caliber Airweight revolver, and he could not find any other firearm in the laboratory reference collection that matched the physical characteristics of the gun in the photograph. The Smith & Wesson .38-caliber Airweight revolver is a lightweight revolver without a hammer which is designed for concealed-carry purposes. Hess testified that the Smith & Wesson .38-caliber Airweight revolver could have fired the four bullets he examined for this case, two of which were recovered during the autopsy of the victim, and two of which were recovered from the scene of the shooting.
Additionally, Mendoza told Turnbull that defendant had a "little ugly little black gun," which Mendoza thought was a revolver. While Mendoza told Turnbull that he did not see defendant with that gun on the day of the shooting, he did say that he saw defendant with the gun "like [a] couple days before" the shooting, and that "[h]e always just had it on [sic] his pocket."
However, even assuming defendant killed the victim with a handgun he brought with him to the scene, we conclude that the evidence of planning activity relative to the instant shooting is very weak. While Mendoza's statement to detectives bolsters the theory that defendant had a handgun with him when he snuck into the victim's house, it does not support the premise that defendant had the gun and planned to use it on this victim, or on anyone that particular day. While Mendoza's statements could be characterized as strong evidence that defendant habitually armed himself, or even that he always carried a gun with him, it is not strong evidence that defendant planned to kill the victim or even anticipated the need to overcome resistance during his teenage tryst with E.P. Indeed, the situation appears to have surprised both defendant and E.P. And the evidence indicates defendant was unnerved by the victim's questions prior to directing his wife to get his handcuffs. According to J.S., defendant stuttered and had difficulty processing and answering those questions. The evidence shows that defendant was flustered and distracted by the questions and the circumstances of the moment. These circumstances did not support a finding that defendant engaged in " 'preexisting thought and reflection' " (Pearson, supra, 56 Cal.4th at p. 443) or " ' "careful weighing of considerations" ' " during the confrontation (Casares, supra, 62 Cal.4th at p. 824). Rather, the evidence shows defendant acted on an "unconsidered or rash impulse." (Pearson, at p. 445.)
The People rely on two cases which have held that a defendant's choice to possess a deadly weapon which he or she subsequently employs reasonably suggests that the defendant considered the possibility of murder in advance. These cases, People v. Steele (2002) 27 Cal.4th 1230 (Steele) and People v. Lee (2011) 51 Cal.4th 620 (Lee), are distinguishable from the instant case.
In Steele, supra, 27 Cal.4th 1230, our high court stated: "As to planning, the jury could infer that defendant carried the fatal knife into the victim's home in his pocket, which makes it 'reasonable to infer that he considered the possibility of homicide from the outset.' [Citation.] This inference is much stronger in this case, because defendant had already stabbed another woman to death. When a person stabs a woman to death, then leads another woman into her apartment with a knife in the pocket, the jury can readily infer that the person possessed the knife for the same purpose." (Steele, at p. 1250.)
In Lee, supra, 51 Cal.4th 620, the defendant brought a handgun with him on the night he killed the victim after a "frustrated sexual encounter" with her. (Id. at p. 636.) The evidence was sufficient to establish that the defendant forcibly attempted to rape the victim and killed her when she resisted. (Id. at pp. 635-636.) Considering planning, and citing Steele, our high court stated: "defendant brought a loaded handgun with him on the night [the victim] was killed, indicating he had considered the possibility of a violent encounter. [Citation.] After [another individual] fired a few shots from the gun at [another location], defendant reloaded the gun, supporting an inference that he had brought extra ammunition as well." (Lee, at p. 636.)
We are aware of other cases in which our high court held that a defendant's choice to arm himself prior to the commission of a crime and the subsequent use of that weapon suggests that the defendant considered the possibility of murder in advance. But these cases are distinguishable as well.
In People v. Miranda (1987) 44 Cal.3d 57, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, footnote 4, our high court held that "the fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance." (Miranda, at p. 87.) Miranda involved a defendant who carried a loaded handgun into two separate stores, both of which he attempted to rob, and, in his attempt to rob the second store, he shot one of the two store clerks, killing him. (Id. at pp. 71-72.) The fact that defendant armed himself with a loaded handgun to perpetrate two armed robberies strongly suggest that the defendant anticipated resistance, planned to use the gun to overcome resistance, and that is why he had it.
People v. Alcala (1984) 36 Cal.3d 604, superseded by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911, was cited by our high court in Steele. (Steele, supra, 27 Cal.4th at p. 1246.) In Alcala, the evidence, viewed most favorably to the People, suggested that the defendant met and photographed the victim, came up with a scheme to abduct her, "kept her in his car by force or fear, drove her a considerable distance from urban surroundings to a rural area, then took her on foot away from the road to an even more secluded spot 'where others were unlikely to intrude.' " (Alcala, at p. 626.) The victim was killed and left in a remote mountain ravine, her body " 'all cut up' " and a Kane Kut knife with human blood and a towel with blood stains nearby. (Id. at pp. 614, 626.) Considering premeditation and deliberation, and specifically planning, and concluding that there was substantial evidence of a planned killing, our high court stated: "when one plans a felony against a far weaker victim, takes her by force or fear to an isolated location, and brings along a deadly weapon which he subsequently employs, it is reasonable to infer that he considered the possibility of homicide from the outset." (Id. at pp. 626-627.)
In each of the foregoing cases, including the two upon which the People relied, the evidence strongly supports the premise that the defendant armed himself with a deadly weapon prior to undertaking felonious conduct, such as robbing a convenience store, kidnapping a victim, leading a woman into an apartment after previously killing another woman there, or attempting to forcibly rape his victim, and he contemplated using the deadly weapon in those pursuits to overcome resistance. This formula does not fit the facts of this case, where the defendant always or often carried the handgun for reasons not explored at trial. Defendant, a teenage boy, snuck into the victim's house with a teenage friend, not to kill or rob the victim, but to spend time with E.P., another teenager. Very soon after being interrupted and detained by the victim, the nervous, stuttering and flustered defendant shot the victim.
The trial court seemed to have recognized there was no pre-existing plan to kill at sentencing when, inconsistent with its findings on the new trial motion, the court stated the following in rejecting defendant's mitigation argument: "While the defendant did not plan the crime and I don't find that he did have a pre-existing plan to commit the crime or to commit this offense, by taking a loaded gun into an environment where he knew he was not supposed to be in a circumstance that would create a foreseeable risk that he could be confronted by a responsible adult in the home and therefore it's easily foreseeable that there would be some type of negative confrontation from an authority figure if he were to be discovered in that situation, so I don't accept the argument as true that the victim was the initiator, participant or provoker of the offense in this matter as proffered as a mitigational factor argued by the defense." (Italics added.) Of course, that there was a subjectively foreseeable risk of "some type of negative confrontation" under the circumstances of this teenage tryst does not equate to premeditation and deliberation to kill. We find scant evidence of planning activity in the record before us.
b. Motive
Defendant's motive appears clear. He shot the victim to get away and avoid being detained or arrested and avoid the consequences of being caught in the victim's foster daughter's bed. However, the record does not establish that this motive was formed before sneaking into the victim's house, or in deciding to arm himself with a loaded handgun. Rather, this motive arose moments after the victim surprised and confronted him. Defendant shot the victim mere seconds after the victim told J.S. to get his handcuffs and she left the room to do so. Of course, " 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " (Koontz, supra, 27 Cal.4th at p. 1080.) However, we conclude that the evidence of motive here strongly supports the conclusion that the shooting was the product of an unconsidered or rash impulse rather than " 'the result of preexisting thought and reflection.' " (Pearson, supra, 56 Cal.4th at p. 443.) Within the context of an analysis of premeditation and deliberation, we conclude that the evidence of motive here, like the evidence of planning, is not strong.
c. Manner of Killing
No one actually saw the shooting, and the position of the victim relative to defendant was hotly contested during the trial. The prosecution's own pathologist testified that it was impossible to tell the positions of defendant and the victim during the shooting. However, it is undisputed that defendant shot the victim four times from relatively close range with a firearm that shot "nominal .38 caliber bullets." The victim sustained gunshot wounds to the abdomen, the left side of his chest or flank, his upper left arm, and his upper left thigh. Two of the wounds were individually potentially fatal. This evidence—"firing a shot at a vital area of the body at close range"—can be evidence of intent to kill relevant to the manner of killing in considering premeditation and deliberation. (Koontz, supra, 27 Cal.4th at p. 1082.)
However, it seems undisputed that one of the two potentially fatal wounds was the result of a ricochet. Thus, at least three shots appear not to have been aimed at a vital area, even though this shooting took place in a small area at a range the People describe on appeal as "point blank." No shots were fired at more lethal areas such as the head or heart. We conclude that the evidence of the manner of killing here is weak as it relates to premeditation and deliberation.
d. Summary
In denying defendant's motion for a new trial, the trial court concluded that defendant "had an opportunity and did premeditate and deliberate on the decision." (Italics added.) We conclude that the trial court's factual findings in this regard are not supported by substantial evidence. (See generally Cua, supra, 191 Cal.App.4th at p. 609; Drake, supra, 6 Cal.App.4th at p. 97 ["trial court's factual findings, express or implied, made on a motion for new trial will be upheld if supported by substantial evidence"].)
With regard to the Anderson factors we use as an aid or as guidelines to assist us in our analysis (Brooks, supra, 3 Cal.5th at p. 59; Sandoval, supra, 62 Cal.4th at p. 424), we conclude that there was little to no evidence of planning, and the evidence of motive did not demonstrate a preexisting motive from which one could conclude the decision to kill was made after a careful weighing of the considerations rather than unconsidered or rash impulse. As for manner of killing, although one shot was fired at a vital area of the victim's body, the evidence demonstrates that the other shots were not. Moreover, given the close range, it appears targeting more vital areas of the body would not have been difficult.
In light of the entire record, we conclude that substantial evidence does not support the conclusion that this was a premeditated and deliberate killing. Thus, we conclude that the trial court's denial of defendant's new trial motion was an abuse of discretion.
We further conclude that the trial court should have modified the verdict to second degree murder for this rash and impulsive murder. (See generally § 1181, subd. (6).) Defendant, discovered in E.P.'s bed, was confronted by the victim, who sought to detain him. Faced with the possibility of being handcuffed by the victim, defendant pulled a handgun and shot at the victim, killing him. We conclude that the evidence was legally sufficient to support a conviction of murder in the second degree. "We must, in the absence of substantial evidence to support the verdict of first degree murder, reduce the conviction to second degree murder." (Anderson, supra, 70 Cal.2d at p. 23; see § 1181, subd. (6) [power to reduce a verdict to a lesser degree of the crime rather than ordering a new trial extends to reviewing court].)
In light of our conclusion that the trial court erred in not modifying the judgment of conviction to second degree murder based on insufficiency of the evidence of premeditation and deliberation, we need not address defendant's alternative arguments that the trial court erred in denying his motion for judgment of acquittal on first degree murder and that the 25-years-to-life sentence for first degree murder amounts to cruel or unusual punishment under California's constitution. --------
2. Conclusion
We shall reduce defendant's conviction on count one from murder in the first degree to murder in the second degree and remand the matter to the trial court for further proceedings described, ante and post.
IV. Senate Bill No. 620
While this case was pending on appeal, the Governor signed Senate Bill 620. Following the enactment of Senate Bill 620, section 12022.53 now includes language stating: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Current § 12022.53, subd. (h).) Prior to the enactment of Senate Bill 620, courts did not have discretion to strike or dismiss these enhancements. The former language of these sections explicitly provided that the courts "shall not strike" enhancement allegations under those sections. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
We granted defendant's request for supplemental briefing on the impact of Senate Bill 620. Defendant asserts that his case must be remanded to the trial court to permit the court to exercise its newly authorized discretion to strike the section 12022.53, subdivision (d), firearm enhancement. Defendant asserts that the amendment which now grants sentencing courts the discretion to strike or dismiss section 12022.53 firearm enhancements applies retroactively to his case under the rule in Estrada, supra, 63 Cal.2d 740.
The People concede that the amendments to section 12022.53 should be afforded retroactive application to nonfinal judgments. However, the People assert that remanding for resentencing in this case would serve no purpose. Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), the People argue that the trial court's remarks at sentencing indicate that, even if it had the discretion to strike the firearm enhancement at sentencing, it would not have done so based on defendant and the circumstances of the crime. In Gutierrez, the Court of Appeal considered whether it should remand to allow the trial court to decide whether it would dismiss a strike conviction under section 1385 in a second-strike case following our high court's decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (Gutierrez, at pp. 1895-1896.) There was no other reason to order a remand. The Gutierrez court concluded that, under the circumstances of the case, "no purpose would be served in remanding for reconsideration." (Gutierrez, at p. 1896.)
We accept the People's concession concerning retroactivity and conclude that the effects of Senate Bill 620 do indeed apply retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.) However, we need not consider the People's futility argument under Gutierrez because this matter must be remanded for other purposes related to Proposition 57 and to resentence defendant if defendant is transferred back to the criminal court. Consequently, the juvenile court (if the case is not transferred to criminal court) or the trial court (if the case is transferred to criminal court) can consider whether to strike or dismiss the firearm enhancement pursuant to its new authority at the dispositional hearing or at resentencing, respectively. (Current § 12022.53, subd. (h) [the authority to dismiss the enhancement pursuant to § 1385 "applies to any resentencing that may occur pursuant to any other law"].)
DISPOSITION
We modify the judgment as to count one to a conviction of murder in the second degree. We conditionally reverse the judgment and remand the matter to the juvenile court with direction to conduct a transfer hearing.
If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, the modified judgment of conviction of murder in the second degree shall be reinstated as of that date and affirmed as modified. In that event, the criminal court is then directed to resentence defendant, including considering whether to exercise its discretion to strike or dismiss the section 12022.53, subdivision (d), firearm enhancement. The trial court shall then modify the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
If the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, defendant's criminal conviction, as modified to murder in the second degree and the firearm enhancement finding shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing, including considering whether to exercise its discretion to strike or dismiss the section 12022.53, subdivision (d), firearm enhancement.
s/ MURRAY, J. We concur: s/BUTZ, Acting P. J. s/RENNER, J.