Opinion
D072296
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS FRANCIS BURKE IV, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD267616) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed and remanded with directions. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Thomas Francis Burke IV of voluntary manslaughter (Pen. Code, § 192, subd. (a); count 1) as a lesser included offense to murder, and found true an allegation that Burke personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court sentenced Burke to a 16-year prison term, consisting of the midterm of 6 years for manslaughter plus the upper term of 10 years for the firearm enhancement. On appeal, Burke contends the trial court prejudicially erred by admitting what he characterizes as irrelevant and inflammatory evidence of his past text messages to a former girlfriend and other actions concerning her and her then current boyfriend, on the issue of Burke's character or propensity for violence. He further contends the court abused its sentencing discretion in imposing the upper term on the section 12022.5 firearm enhancement based on irrelevant facts—his alcohol use and experience with firearms—that did not render the offense "distinctively worse" than it would have been absent those facts, and that the matter should be remanded for resentencing. We reject these contentions.
Undesignated statutory references are to the Penal Code.
In a supplemental brief, Burke additionally contends that remand for resentencing is necessary for the trial court to exercise its discretion to either strike or dismiss the firearm enhancement under recently-amended section 12022.5, subdivision (c). We hold Burke has a right under that law to be heard and to ask the court to exercise its newly granted discretion. Accordingly, we remand the matter and direct the trial court to conduct a new sentencing hearing so as to exercise its discretion under section 1385. The court shall ensure the abstract of judgment reflects that any firearm enhancement imposed is a violation of section 12022.5, subdivision (a).
FACTUAL AND PROCEDURAL BACKGROUND
Events Leading Up to Robles's Killing
On June 22, 2016, Burke shot and killed Jess Robles, who was at the time dating Burke's then roommate, L.C. L.C. and Burke had met in New Jersey before L.C. moved to San Diego. In early 2016, Burke picked L.C. up when she asked him to come get her after a fight with her current boyfriend, and Burke showed up with a gun in his lap.
Shortly afterwards, L.C. began renting a third-floor room in Burke's condominium. L.C.'s friend, Theresa Davidson, also began renting a room there. Though L.C. and Burke previously had one sexual encounter and "made out" on one or two other occasions, after L.C. became Burke's roommate they would only "hang out every now and then," go to lunch, or spend time with L.C.'s dog. Occasionally, Davidson observed Burke lying on L.C.'s bed, and guessed he was hoping for intimacy. Davidson believed Burke felt L.C.'s male friends were not good enough for her, and that Burke wanted a relationship with L.C.
In May 2016, L.C. began dating Robles, who for about two weeks frequently spent time with L.C. at Burke's house. Days after L.C. and Robles started dating, Burke sent L.C. a text message admitting his attraction for her both sexually and otherwise, and telling her that it bothered him to have men entering his house late at night to go to her room. He asked her to be quiet when men came over, and told her he was available to talk with her that night. The text somewhat surprised L.C., who did not have the same feelings for Burke. Eventually, Burke made clear to L.C. and Davidson that he did not like Robles; he would tell L.C. that Robles was a "party boy" who was "not good" for her, and suggested he exacerbated her alcohol use. He communicated with Davidson that he wanted to tell L.C. that he thought Robles was "creepy, obnoxious, and disrespectful" and Burke did not want him in his house.
On the evening of June 22, 2016, L.C., Robles and a friend of Robles's were eating dinner in a restaurant when L.C. received a text message from Burke, asking if she was "going back to dating that douche all day, every day again." L.C. exchanged text messages with Burke, telling him, among other things, that she and Robles had not been drinking as much. Burke responded in part, "If you want to be with Jess, do it. But I hate him. I hate what you are doing before you met him." When L.C. told Robles about Burke's text, Robles grabbed her phone and texted Burke several times between 10:23 p.m. and 10:30 p.m.: "Fuck you, man." "That's right, bitch. Let's meet up, bro. I got you covered, motherfucker." "Hey, pussy. This is Jess. [L.C.'s] boyfriend. It sounds like you have a lot to say about me behind my back. I hope you can back it up." Burke shared the text messages with Davidson, and also told Davidson he was going to kick L.C. out of his house. He also texted Davidson, "This is serious. He's a creeper." Davidson worried that there would be a fight between Burke and Robles.
Burke's text continued: "How out [sic] met him. What you did with him hours after you met him. What you did with him in my house. What you have done with him for the past month. I said I liked [L.C.'s previous boyfriend] way more than Jess, but I'm not advocating you with [the previous boyfriend] or anyone at all. I told you, you don't have to pick between either one of them. You don't always needs [sic] a guy in your life. You can live on your own."
L.C.'s phone battery died, and they hired a car to take them back to Burke's condominium so L.C. could pack her bags. The driver parked his car outside the condominium. Robles stayed in the car, and L.C. began packing her bags. While waiting for L.C., Robles talked with the driver about his relationship problems, and became anxious and impatient. At 11:04 p.m., Burke texted Davidson to tell her that L.C. was there but was not welcome to stay. As L.C. packed, she heard Burke run down the stairs, then walked to the door of his room and saw a bullet on the ground. L.C. yelled, "What are you doing?" but returned to finish packing as she was intent on leaving the house. L.C. then went downstairs and kneeled down to leash her dog. Robles finally walked up to the condominium door and knocked two or three times. After L.C. heard the knock, she saw Burke "fl[y] down the stairs and open[ ] the door." Seconds later, Burke shot Robles twice, in the chest and throat, killing him. L.C. heard the gunshot and Burke say, "He's dead."
At 11:08 p.m., Burke called Davidson and told her he had shot Robles and was probably going to jail. He went back upstairs and took the magazine from his gun, then jumped off the balcony and fled the scene without the gun or his wallet. Burke threw the magazine in the trash, made multiple calls to a gun rights attorney, and the next morning contacted two coworkers, one of whom told him to go to police. Burke eventually did so, and arranged to turn himself in.
Evidentiary Motions
Before trial, Burke and the People brought evidentiary motions to, respectively, exclude and admit under Evidence Code section 1101 evidence concerning Burke's relationship with a former girlfriend, L.S., including evidence that Burke once told another person that Burke wanted to kill L.S.'s current boyfriend and take his own life due to his and L.S.'s failed relationship. The People sought to admit the evidence on the issues of Burke's motive to kill and intent while killing, as well as to disprove any claim of self-defense. The trial court tentatively excluded the evidence in the People's case-in-chief, but clarified that if it became relevant during the remainder of the case, it could be admitted.
Burke's Trial Testimony
At trial, Burke denied that he desired to have L.C. as his girlfriend, claiming she had issues with drinking and cheating on boyfriends, but admitted he wanted to sleep with her. He testified he did not like Robles because he and L.C. were noisy during the night and early morning, Robles was disrespectful, and he thought Robles was bad for L.C. in that he brought out her bad qualities, including excessive alcohol use. Burke admitted he felt Robles was "[a]ggressive, in your face, intense, [and] argumentative"; he described how Robles at various times called him a "pussy," a "bitch" and a "motherfucker," and how on another occasion Robles said about him: "This motherfucker can't make the rules. I'm going to show him who can make the rules." Burke related that Robles at one point showed him pictures of a revolver and rifle on Robles's phone, which concerned Burke, who was also a gun owner. Robles also showed Burke pictures of bruises and wounds Robles had suffered; according to Burke, Robles talked about being a wrestler and "all this fighting stuff became part of the conversation." Burke denied being a fighter and testified he had never had any fights in his life. According to Burke, toward the end of June, Robles was not welcome in his home and Burke told L.C. so.
Burke described his activities after he left work on the night of Roble's death. He went to a bar, ate food and had two beers, came home and walked the dogs, cleaned his car, and around 9:00 p.m. and 10:00 p.m. sent texts to a friend stating he was "depressed," "pissed," and "drunk." The friend told Burke he should stop self-medicating. Later that night, Burke interpreted Roble's text message, "That's right, bitch. Let's meet up bro," as Robles wanting to fight him. He read the text, "I've got you covered, mother fucker," as Robles was going to "take care" of him and would win the fight. Burke testified that he believed Robles was tougher and stronger than him, and that Robles would have beaten him in a fight in part based on the pictures Burke had seen on Robles's phone, which told Burke that Robles was an "experienced fighter." When asked what he meant when he called Robles a "creeper," Burke testified a creeper was someone who is "threatening, alarming, [and] evasive." He felt Robles was all of these things. According to Burke, Robles's text that concluded, "Hope you can back it up," put Burke on "red alert," so he changed his garage code to prevent L.C. and Robles from being able to enter his home through the garage door. Burke also felt Robles was going to try to come over and "beat me"; based on the text messages and previous interactions with Robles, Burke was afraid of Robles on the night he shot him.
Burke testified that when L.C. entered the house, he began to speak with her about the text messages, then texted Davidson about kicking L.C. out. After he communicated with Davidson, he heard a bang downstairs like the sound of the door opening and hitting the wall, and immediately thought Robles had broken in the door and was coming to hurt him. Burke testified he was scared and panicked; he ran into his room, grabbed his pistol and put a round in its chamber thinking Robles was in his house, he "knew [Robles] would win," and he did not want to be "injured or beat down" in his own home. Burke testified he travelled down the stairs, paused on the second floor to listen, then went to the front door, which he confirmed was shut and locked. He headed back upstairs with the gun in his front pocket, engaged with L.C. to get his key, and followed her back down to the first floor where L.C. was leashing her dog, when he heard a bang on the door, which "flew" open. According to Burke, when he heard the bang, Burke thought that Robles was coming to attack him, and he was afraid. Burke testified that when the door swung open, he saw Robles three feet away with "rage in his eyes," his "face clenched," and his "shoulders tighten[ed] up," with Robles going into a pose like a tackle or "fighter stance" with his hands raised toward Burke. According to Burke, he and Robles locked eyes, and he could tell Robles "was there to damage me or harm me." Burke believed Robles was "going to get the gun and either smash my brains in with it or shoot me and kill me." Burke then pulled out his gun and shot Robles, after which L.C. yelled, "He's dead." Court's Ruling on Prior Act Evidence and Trial Evidence Regarding Burke's Relationship with L.S.
After Burke's testimony, the People moved under Evidence Code section 1103 to admit prior act evidence concerning Burke's relationship with his former girlfriend, L.S., including text messages from Burke to a friend in which Burke referred to fighting with L.S.'s new boyfriend, M.R. The prosecutor argued that Burke's testimony attacked Robles's character and suggested Robles had a character for violence, permitting the People to rebut that evidence with evidence of Burke's character. The People additionally argued Burke's text messages in which he spoke about fighting and killing M.R. should be admitted as inconsistent with Burke's testimony that he was not a fighter. Defense counsel conceded that the impeachment issue was "valid" so long as Burke's statements were carefully broken down but opposed admission of the evidence under Evidence Code section 1103, pointing out he had not asked for an instruction under that statute, and arguing Burke had introduced evidence of Robles's violent character solely to show Burke's state of mind and need to defend himself.
Explaining it had conducted an Evidence Code section 352 analysis, the trial court ruled the defense had offered evidence of Robles's character for violence without requesting a limiting instruction on the issue, opening the door to the evidence concerning L.S. and her current boyfriend. It also ruled Burke's own testimony that he was not a fighter or a violent person warranted admission of the evidence. The court remarked the evidence was "out there to support the idea of [Robles's] stance when the door was opened, to be in the crouching, aggressive manner, and that is a theory of the defense case."
The court's ruling more fully was as follows: "I think that, first of all, you offered it. There was no limiting instruction as to each and every item that you raised. I don't remember where we did the limiting instructions, but it is before the jury, out there, just plain as can be. In addition, I do believe that that evidence has been—at least to date—been out there to support the idea of the victim's stance when the door was opened, to be in the crouching, aggressive manner, and that is a theory of the defense case. So you may be trying to do it one way. [¶] Even before the People had read the secondary cite, it seemed to the court at this point that the defendant's statements and the overall image that he was creating by his testimony, that he wasn't a fighter, you know, he couldn't defend himself, that he wasn't violent—all of those things that were coming out so far I do think triggered the door being opened so that the People can offer these pieces of evidence. [¶] . . . I always think that there's [an Evidence Code section 352] evaluation, and I've done that as well, and I think it's quite relevant in this particular case, more probative than prejudicial in the overall scope of things. [¶] And as far as having to go through and look at each particular statement that the defendant made so far and to parcel out what particular text messages would be appropriate impeachment or a prior inconsistent statement I don't think is necessary. It could be done. I don't think it is necessary at this particular point. [¶] I am ruling on this now before the defendant finishes his testimony so that, frankly, the defense can utilize whatever approach you want to take on direct as well, if you choose to do so, but I do think that—and I've gone through everything that's being offered in Court's Exhibit 13—is admissible."
Following the ruling, defense counsel questioned Burke about his relationship with L.S. Burke admitted that though they had ended their relationship, he was still interested in L.S. in June 2016, spent a lot of time thinking and talking about her, wanted to continue their relationship, and wanted to marry her. Burke testified that L.S.'s new boyfriend M.R. had called him on one occasion but he did not pick up the call, and that was the extent of his communication with M.R.
On cross-examination, Burke admitted that after he and L.S. ended their relationship in about February 2015, he had a friend follow her social media accounts and report back to him, as well as send him pictures of her and M.R. Burke admitted he was obsessed with L.S. He also admitted that after M.R. called him, Burke had another girl call M.R. back, a call that Burke characterized as a "prank." In early June 2016, 18 days before he killed Robles, Burke texted his friend J.C.: "Hate [M.R.] I want to kill him," "So I'll kill him and go to jail," and "Should I kill him?" A few days later, he texted J.C.: "I need to work out in case I fight [M.R.]" and "I didn't want to lose a fight to the little ugly dude," referring to M.R. J.C. texted and asked why he would fight, and he answered it was because M.R. had called him; when J.C. replied that he "shouldn't be violent," Burke responded, "I am." On the day Burke shot Robles, he texted another friend, "I love ex and roommate" and, "I always talk about my loves," referring to L.S. and L.C.
Burke also admitted that while the gun pictures on Robles's phone scared him, he also had pictures of guns on his own phone and owned four firearms: two handguns, a shotgun, and an AR-15 rifle.
People's Rebuttal
In rebuttal, the People presented L.S. and M.R. as witnesses. L.S. testified she had dated Burke in the summer of 2013 and on and off after that, but their relationship ended in early March 2015. After that time, Burke twice left cupcakes on her car while she awaited exam results, and sent her gifts when she finally passed her exams, leading her to ask him via text to stop and tell him it made her concerned and nervous. Burke continued to show up at places he knew L.S. frequented, and she would leave when she saw his car. L.S. began dating M.R. at the end of March 2015. M.R. called Burke's phone at one point after Burke sent L.S. a package; he told the woman who returned M.R.'s call if she spoke with Burke to "please let him know to leave [L.S.] alone."
DISCUSSION
I. Admission of Prior Acts
Burke contends the court prejudicially erred by admitting his text messages to his friend J.C. and the other details relating to his prior dating relationship with L.S. and his attitude toward M.R. Burke argues the evidence violated Evidence Code section 1101, subdivision (b)'s prohibition against admission of character or propensity evidence and did not fall within any of the permitted uses of such evidence. According to Burke the evidence was also inadmissible under Evidence Code section 1103 since he did not present evidence of Robles's violent character so as to open the door to evidence of his own character or propensity for violence. Burke maintains his testimony did not involve Robles's allegedly violent character or Burke's opinion of it, but consisted only of his personal interactions with Robles for the purpose of establishing Burke's own state of mind and fear as to what Robles might do, establishing his personal need for self-defense and the reasonableness of his decision to exercise that right.
The People respond that the trial court correctly ruled Burke had opened the door to evidence of his own violent character when he testified Robles was a violent, aggressive person and experienced fighter. They maintain the court was not required to accept Burke's claim that he only sought to admit the evidence on his own state of mind or belief in his need to defend himself. A. Legal Principles and Standard of Review
Except for purposes of impeachment (Evid. Code, § 1101, subd. (c)), evidence of a person's character is generally inadmissible when offered to prove his or her conduct on a specific occasion. (Evid. Code, § 1101, subd. (a); People v. Fuiava, (2012) 53 Cal.4th 622, 696.) Evidence Code section 1103, subdivision (a)(1) provides an exception to this general rule and permits the admission of character evidence in a criminal trial when the evidence is offered to prove conduct of the victim in conformity with the victim's character. (See People v. Gutierrez (2009) 45 Cal.4th 789, 827.)
Evidence Code section 1103, subdivision (a) provides in part: "(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by [Evidence Code s]ection 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." Evidence Code section 1103, subdivision (b) permits the People to introduce "evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct)" after the defendant has presented evidence "that the victim had a character for violence or a trait of character tending to show violence."
Evidence Code section 1103, subdivision (b) provides: "In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by [Evidence Code s]ection 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)."
Thus, "if . . . a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently during the events in question, then the prosecution is permitted to introduce evidence demonstrating that . . . the defendant was a violent person, from which the jury might infer it was the defendant who acted violently." (People v. Fuiava, supra, 53 Cal.4th at p. 696; see People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447; People v. Rowland (1968) 262 Cal.App.2d 790, 797 [under section 1103 "it is . . . permissible . . . to prove [a victim's] aggressive and violent character by specific acts of the victim on third persons"].) The victim's character traits "can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence." (People v. Wright (1985) 39 Cal.3d 576, 587.)
We review the trial court's ruling admitting the evidence for abuse of discretion; we do not disturb the ruling "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Under this standard, a discretionary ruling "will not be set aside on appeal so long as there exists, ' " 'a reasonable or even fairly debatable justification, under the law, for the action taken . . . .' " ' " (People v. Clark (2011) 52 Cal.4th 856, 920.) B. The Trial Court Did Not Abuse its Discretion in Admitting the Text Messages and Other Evidence Relating to L.S. and M.R.
We need not address Burke's challenge to the court's admission of the prior act evidence under Evidence Code section 1101, a standard that the trial court did not invoke in its ruling. Rather, we conclude the trial court did not abuse its discretion when it admitted the evidence of Burke's text messages regarding M.R. and actions with respect to L.S. under both Evidence Code section 1103 and also (with respect to the text messages) as impeachment of Burke's testimony that he himself was not a fighter or prone to fighting. Though Burke maintains he did not open the door to such rebuttal evidence, the record unquestionably shows Burke offered his opinion that Robles was an "aggressive" and "threatening" person; an experienced fighter who had previously suffered injuries consistent with fights, which the jury was entitled to view as evidence that Robles acted in such manner on the night of his death.
We thus reject Burke's characterization of his own testimony as not involving Robles's violent character or reputation, or Burke's opinion thereof. And as the People point out, the trial court was not required to accept Burke's argument that his testimony was for the purpose of establishing his own state of mind and fear. (See People v. Clark (1982) 130 Cal.App.3d 371, 384, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.) Burke concedes this point, but nevertheless repeats his argument on appeal that the evidence in this case merely consisted of his own personal interactions with Robles, and pertained "solely" to his reason to fear him and his concern that Robles could harm or kill him. Burke maintains that the People cannot point to any evidence presented by him showing that Robles acted violently when he came to Burke's front door on the night of his death, or to show Robles's conduct on that occasion "at all," and thus the necessary predicate for the application of Evidence Code section 1103 is absent. Burke argues: "[A]lthough a court need not accept a defendant's subjective description of his or her intent in introducing evidence regarding the victim, it may not simply admit such evidence where both the intent and the objective effect of such evidence establishes it was not introduced for the purpose required under the statute." (Emphasis omitted.)
The latter argument borders on the frivolous, as Burke plainly testified that as he and Robles faced each other at the front door and locked eyes, Robles had "rage in his eyes," his "face [was] clenched," and his "shoulders [were] tighten[ed] up," with Robles going into a pose like a tackle or "fighter stance" with his hands raised toward Burke. Burke agreed with the prosecutor's characterization of Robles as in an "attack position" at that moment. The objective import of such testimony to the jury would be that Robles was prepared to act in a violent manner at Burke's front door after, as Burke claimed, Robles threw it open. We see no difference in Burke's testimony about Robles's behavior at the time of the shooting and that of the defendant in People v. Clark, supra, 130 Cal.App.3d 371, in which the defendant testified the victim was "in a violent rage" and approached the defendant "in a speedy and furious manner so that he was justified in reacting with deadly force." (Clark, at p. 383.) Burke's effort to distinguish Clark is therefore unavailing. As in Clark, regardless of Burke's asserted purpose or intent in testifying about Robles, "[t]he evidence introduced [by him] was directly probative of the victim's character for violent behavior on the fatal day" and "neither the court nor the prosecution was required to accept defendant's representation that he intended only to prove his personal knowledge of the victim." (Ibid.; see also People v. Walton (1996) 42 Cal.App.4th 1004, 1013-1015 [quoting Clark], overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
Nor was the court's admission of the other evidence relating to Burke's relationship with L.S. an abuse of discretion. Burke had testified he was not a fighter and had never been in a fight in his life, suggesting he was not a violent person, but Burke's text messages to J.C. contradicted this testimony, showing Burke was willing to fight M.R. and even contemplating killing him out of his hatred. The trial court could reasonably conclude that the text messages, sent approximately a month before Robles's killing, were relevant and admissible on the issue of Burke's credibility. (Evid. Code, § 780, subd. (h); People v. Boyette (2002) 29 Cal.4th 381, 414 [a witness's credibility may be challenged with evidence of prior statements by the witness that are inconsistent with his or her testimony at trial].)
As for the remaining information about Burke's relationship with L.S., Burke's counsel introduced evidence pertaining to that background in the defense case, questioning Burke about his continued interest in L.S. and his telephone contact with M.R. Burke's testimony suggested his interactions were innocuous, prompting the People in a sidebar to ask to explore more of the relationship to counter Burke's characterization of it and how it ended. In that sidebar, defense counsel reiterated Burke's testimony that M.R. had called him once but he did not answer, then stated: "With regards to the rest of the [L.S.] relationship, I think [the prosecutor is] entitled to at least talk about portions of it. The question is how much." The court eventually ruled that the relationship with L.S. could be explored. Though defense counsel during another sidebar argued that L.S.'s testimony about Burke bringing her gifts after their break-up should be excluded under Evidence Code section 352 and did not qualify for admission under Evidence Code section 1101, he thereafter did not object to any of the rebuttal testimony elicited by the People from L.S. or M.R. Any error in admission of the evidence was either invited by defense counsel (as to those portions to which counsel either elicited himself or stated could be addressed by the People; see People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 ["doctrine of invited error applies to estop a party from asserting an error when 'his own conduct induces the commission of error' "]), or forfeited (to the extent counsel failed to object to the elicited testimony). Otherwise, the background evidence of Burke's relationship with L.S. tended to rebut Burke's testimony that he was only merely interested in continuing a relationship with L.S., and demonstrated the extent of his continued but unwanted insertion of himself in L.S.'s life.
Burke nevertheless argues admission of such evidence was inherently prejudicial, pointing to the prosecutor's arguments about his obsession with L.S. and statements to the jury that Burke acted out of jealousy. Burke also points to a jury question, which he argues shows the jurors focused on his intent and state of mind, and which he argues is an indication he would have received a lesser conviction or outright acquittal had the L.S./M.R. evidence not been admitted. We do not see the jury's question—which simply asked for a definition of criminal negligence for involuntary manslaughter—as an indication that the jury was unduly focused on the L.S./M.R. evidence or otherwise confused or hesitant about reaching a verdict. We cannot agree that L.S. or M.R.'s testimony about Burke's past behavior was so much more inflammatory than the evidence relating to L.C. and Robles as to render it reasonably probable the jury would have reached a different result had that evidence been omitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The jury's question reads: "On page #13 of the jury instructions 'criminal negligence' is defined under possession of firearm/brandishing of firearm. [¶] Is this the same definition for criminal negligence under 580. Involuntary manslaughter on page 12 & 13[?] [¶] If not, please provide a definition[.]"
II. Court's Sentencing Discretion as to the Section 12022 .5 Firearm Enhancement
A. Background
Before Burke's sentencing hearing, the People submitted a statement in aggravation under the California Rules of Court (rule references are to the California Rules of Court) before Burke's sentencing hearing. In it, the People addressed the sentencing objectives at issue under rule 4.410; they argued Burke was a danger to society (rule 4.410(a)(1)) as he had turned to the use of a firearm in two emotionally volatile situations, and had engaged in reckless and dangerous firearm-related behavior when he communicated to others a wish to kill himself and M.R. It argued that the manner in which Robles was killed and Burke's untruthful account of it, which differed from all other percipient witness accounts, warranted an upper term sentence (rule 4.410(a)(2)). The People argued Burke had considered killing for some time based on his text messages and placement of gun rights lawyer's phone numbers in his phone; that he must be deterred from assaultive and aggressive behavior (rule 4.410(a)(3)) and should be made an example to deter other violent offenders (rule 4.410(a)(4)). The People argued that Burke's actions demonstrated an indifference to human life, and the maximum sentence would ensure Burke would not commit additional acts of violence against others for a long time (rule 4.410(a)(5)). Finally, the People argued Burke's crime involved great bodily injury and death (rule 4.421(a)(1)), as well as a conscious and deliberate choice to kill on Burke's part, which should be punished with the most severe term. Pointing out Burke used a semiautomatic firearm to kill Robles (rule 4.421(a)(2)), the People urged the court to look to the factors used in section 12022.53, under which mere use of a firearm permitted a 10-year enhancement, and a person engaging in such use causing death was subject to an indeterminate 25-year-to-life enhancement. They argued Burke's conduct should result in the greatest punishment available: the upper 10-year term.
Burke submitted a statement in mitigation in which he asked to be granted formal probation or alternatively be referred for a diagnostic evaluation of his "mental health issues." In part, Burke asserted he had been armed with a lawfully obtained and possessed firearm, and was "convicted of overreacting to a nonexistent threat and demonstrated scattered thinking and panic both before and after the crime." Burke argued numerous mitigating factors—including his lack of any prior record—applied, which outweighed any aggravating factors.
The probation officer observed that while Burke had no criminal history, "his unjustified behavior resulted in the loss of life, which greatly outweighed any other mitigating factors, as to the [voluntary manslaughter] count and [firearm use] allegation." The probation officer thus recommended that Burke be sentenced to the upper terms for both his conviction and the enhancement.
In sentencing Burke, the trial court acknowledged it had read the probation officer's report, the People's statement in aggravation, and Burke's statement in mitigation. It observed that alcohol played a "huge part" in the situation, that Burke had been drinking a lot on the evening of Robles's death, and that, as Burke's counsel confirmed in a sidebar conference, Burke also had a low-level mental health issue involving depression for which he had taken medication. The court felt Burke, who was a trained and practicing pharmacist, knew better than to use alcohol while suffering from depression and took a risk in that way, and also knew better than to possess guns while having depressive symptoms and using alcohol. The court observed that Burke spoke of being violent and of killing M.R., brought a gun to pick up L.C., and also talked "vividly" on several occasions about killing himself, yet continued to keep his guns and consume alcohol. The court noted that Burke did not express any consideration of his intoxication during his testimony, but tried to explain away his text about being "drunk" on the night he killed Robles as "just the way that people talk."
With regard to circumstances in aggravation, the court expressly declined to use the fact Burke was armed or used a weapon at the time of the offense as an aggravating factor with regard to voluntary manslaughter. It noted that "to open the door and shoot just like that, that does have a degree of callousness in it and cruelty." As for Robles being a particularly vulnerable victim, the court stated, "[I]f the door is opened, you have somebody just standing there, then that victim being shot, that carries a weight with it." The court felt that because Burke had previously spoken of violent conduct, whether he posed a serious danger to society was "a factor relating to him." After considering and weighing all mitigating and aggravating factors, the court imposed the six-year midterm for Burke's voluntary manslaughter conviction.
The court said in part: "Circumstances in aggravation. The crime involved great violence, great bodily harm, or other acts high degree of cruelty, viciousness, or callousness. Voluntary manslaughter because it involves a death in and of itself encompasses that but to open the door and shoot just like that, that does have a degree of callousness in it and cruelty. The fact that [Burke] was armed, used a weapon at the time of the commission of the offense, I'm not going to use because I have the gun allegation separate, and I'm not going to use that."
As to the firearm enhancement allegation, the court then said: "However, as to the 12022.5 allegation, I do believe it is the 10 years." It remarked that the section 12022.53 criteria was a "good guideline" it could use. The court said, "I think, frankly, in this particular defendant's case he has had—he knew better. He had the background he knew he shouldn't have the gun. He shouldn't be drinking. The combination came together. I think that should be the upper term of 10 years. [¶] It's the judgment and sentence of this court that you will be imprisoned in the state prison for men for a period of 16 years." B. Contentions
Burke contends that the court abused its discretion by imposing the upper 10-year term on his section 12022.5, subdivision (a) enhancement for personal use of a firearm. Specifically, he maintains the court improperly relied on irrelevant facts, including his alcohol use and knowledge and experience with firearms, that did not render the offense " 'distinctively worse' " than it would have been absent such facts as is required to constitute an aggravating factor. He argues imposition of the upper term "violated basic principles of sentencing, as well as analogous case law, and constituted an abuse of the trial court's sentencing discretion . . . ." The People respond that the court properly relied on Burke's voluntary alcohol consumption in combination with his depression and suicidal or homicidal ideations as aggravating factors because they contributed to Burke's decision to own a gun and shoot Robles. They maintain the court could use the fact Burke discharged the gun and caused Robles's death as an aggravating factor because his actions exceeded the minimum conduct—personal use—necessary to sustain the firearm enhancement. C. Imposition of Upper 10-Year Term
The People also make a cursory argument that Burke forfeited the contention by failing to argue below that the court improperly relied on these factors in aggravation. We are unconvinced. It is settled that a party who fails to object to the sentence may not raise claims relating to a court's failure to properly make discretionary sentencing choices or articulate its supporting reasons, including cases in which the stated reasons do not apply or where the court double-counts a factor. (People v. Scott (1994) 9 Cal.4th 331, 353.) But Scott requires that there be "a meaningful opportunity to object," which "can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Id. at p. 356; People v. Gonzalez (2003) 31 Cal.4th 745, 752 [Scott applies when the court " 'clearly apprise[s]' the parties 'of the sentence the court intends to impose and the reasons that support any discretionary choices' [citation], and gives the parties a chance to seek 'clarification or change' [citation] by objecting to errors in the sentence . . . . [¶] It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable"]; see also People v. Sperling (2017) 12 Cal.App.5th 1094, 1101.) Here, the court did not announce its tentative sentencing decision before counsel argued their respective points, and it immediately pronounced sentence after imposing the 10-year term for the firearm enhancement, leaving counsel no opportunity to inject additional objections. (Compare, Sperling, at pp. 1101-1102 [meaningful opportunity to object given and Scott forfeiture rule applied when after pronouncing sentence, court asked, " 'Is there any other record either of you would like me to make,' " after which appellant's counsel remained silent].)
Section 12022.5, subdivision (a) provides, in part: "[A]ny person who personally uses a firearm in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years . . . ." The California Rules of Court provide that in sentencing, "[c]ircumstances in aggravation include factors relating to the crime and factors relating to the defendant," and these factors including whether the crime involved "great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;" whether "defendant was armed with or used a weapon at the time of the commission of the crime," whether "[t]he victim was particularly vulnerable," and whether defendant "has engaged in violent conduct that indicates a serious danger to society." (Rule 4.421(a)(1)-(3), (b)(1).)
When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term under section 1170, subdivision (b), rests within the sound discretion of the trial court. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The court must state the reasons for its sentence choice on the record at the time of sentencing (§ 1170, subd. (c)), and we review its sentencing decision for abuse of discretion. (Sandoval, at p. 847.) "[S]entencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Ibid.) An abuse of sentencing discretion occurs when the court "relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.) "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a . . . court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; see rules 4.408(a), 4.420(b).)
And, only one aggravating circumstance is necessary to support imposition of an upper term. (People v. Black (2007) 41 Cal.4th 799, 813 ["existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term"].) "An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.' " (Id. at p. 817; People v. Moreno (1982) 128 Cal.App.3d 103, 110 ["The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary"].)
There is no basis to disturb imposition of the upper 10-year term for the section 12022.5 firearm use enhancement as an abuse of discretion. There is no merit to Burke's claim that in imposing the enhancement the court relied on his "knowledge, experience or background" with regard to firearms. As the People point out, the court specifically disclaimed reliance on the mere fact of gun ownership, but instead focused on Burke's conduct in owning and using a gun while depressed and inebriated.
On this issue, the court said: "[Burke] knew that his possession of the guns and his depressive symptoms were problematic. He kept the guns and kept drinking. This isn't about the right to have a gun in your home. [¶] People have the right to have a gun in their home, and it's not about protecting yourself in the home because you do have a right to protect yourself in your home. But when you have a right there's also a responsibility and when you are in a situation where you're going to pick up a gun to use it, you will have a responsibility to also assess your level of judgment. . . . Mr. Burke didn't [exercise that responsibility]. He picked up his gun. If, in fact, he was in fear—and I think at this point in light of the jury's verdict I'm going to give him credit that he had some fear—then his attempt to protect himself with the gun when he's been drinking was not accepting the responsibility you have when you have the right to have the gun."
Burke asserts that both the fact his use of a firearm resulted in Robles's death, as well as the fact his drinking may have been responsible, "was subsumed by the jury's voluntary manslaughter [verdict] . . . ." The apparent suggestion is that the court made an improper dual use of facts; that it used an element of the crime as a factor in aggravation. (See rule 4.420(d) ["A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term"]; see People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Castorena (1996) 51 Cal.App.4th 558, 562.) But the court did not impose an upper term on the voluntary manslaughter verdict, nor did it rely on Burke's mere firearm use, or an inherent feature of such use (cf. People v. Lincoln (2007) 157 Cal.App.4th 196, 203-204), to impose the upper term on the enhancement. It found aggravating Burke's decision to own and use guns at the same time he was voluntarily consuming alcohol and suffering from a compromised mental state. "[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.] Stated another way, rule [4.420(d)] does not preclude a court from using facts to aggravate a sentence when those facts establish elements not required for the underlying crime." (Castorena, at p. 562.) Burke's voluntary use of alcohol while in a depressed state is not an element of either voluntary manslaughter or the gun use allegation. Rather, the circumstance was properly viewed as a factor in aggravation, as it made Burke's gun use—his act in opening the door and immediately firing multiple shots at Robles who he knew was on the other side—distinctively worse than ordinary. (Accord, People v. Vacca (1995) 38 Cal.App.4th 804, 808 ["Here, appellant's voluntary consumption of alcohol and drugs contributed to his engaging in the outrageously dangerous conduct of firing two shots in a residential area, one of which was aimed at [a law enforcement officer]"], disapproved on another ground in People v. Ledesma (1997) 16 Cal.4th 90, 101, fn. 5.) This case is unlike People v. Rodriguez (1993) 21 Cal.App.4th 232, in which the Court of Appeal remanded for resentencing on a gun use enhancement where the trial court imposed an aggravated term because the " 'gun misfired and [defendant] had to re-rack.' " (Id. at p. 241.) The Court of Appeal held the act of re-racking the pistol to correct a misfire did not make the use of a firearm worse than ordinary, as "the act was nothing more than preparatory to carrying out the intent to shoot, not an aggravating factor." (Id. at pp. 241-242.) The same reasoning cannot apply to Burke's act in using a gun while under the influence of alcohol and suffering from depression.
Nor did the trial court engage in any other improper dual use of factors in sentencing Burke; it did not impose the upper term on Burke's voluntary manslaughter conviction, and it in any event expressly declined to rely on Burke's use of a firearm in sentencing Burke on that offense, thus it did not violate section 1170, subdivision (b)'s proscription against dual use. (§ 1170, subd. (b) ["[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed"]; see People v. Moberly, supra, 176 Cal.App.4th at p. 1197.)
Finally, even if we were to conclude the trial court somehow erred by citing Burke's decision to use a gun while inebriated and depressed as an aggravating factor, Burke would not be able to demonstrate prejudice. The trial court relied on other aggravating circumstances: the callousness and cruelty of Burke's act in shooting; Robles's vulnerability as a victim given that he merely stood at the door, alone and unarmed, at the time Burke shot him; and Burke's violent conduct posing a threat to society. Thus, if the court had not relied on the challenged aggravating factors, we conclude it would have imposed the upper term based on one or more of those other factors. Under these circumstances, "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the [presumed] error." (People v. Avalos (1984) 37 Cal.3d 216, 233; see also People v. Osband, supra, 13 Cal.4th at pp. 728-729.) D. Remand for Resentencing and Exercise of Court's Discretion to Stay or Dismiss the Section 12202.5 Firearm Enhancement
After completion of briefing in this matter, Burke sought to file a supplemental brief concerning the impact of Senate Bill No. 620. We granted the request. The Attorney General has filed a responsive brief.
Before the enactment of Senate Bill No. 620, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) prohibited the trial court from striking the sentence enhancement allegations or findings for personal use of a firearm contained in those statutes. The new legislation deletes that prohibition, and now permits the court to strike or dismiss the enhancement as follows: "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." (§§ 12022.5, subd. (c).) The parties agree the amendment went into effect January 1, 2018.
The statutes previously provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
Burke now urges remand for resentencing so that the court may exercise its discretion to strike or dismiss the firearm enhancement under section 12022.5, subdivision (c). He argues that because his judgment is not yet final, this court must apply the amendment retroactively under In re Estrada (1965) 63 Cal.2d 740, People v. Francis (1969) 71 Cal.2d 66, and the equal protection clauses of the state and federal constitutions. Estrada recognized the general rule that changes in the law apply prospectively, but created an exception for cases not yet final at the time a new law that mitigates punishment for a specific criminal offense takes effect. Estrada held that in the absence of a statutory "saving clause" precluding this retroactive application, it is presumed the Legislature intended any change in the penal law that mitigates punishment to "apply to every case to which it constitutionally could apply," including cases not yet final at the time the law becomes effective. (Id. at p. 745.) The law at issue in Estrada reduced the maximum prison term for the specific crime for which the defendant had pleaded guilty. (Id. at pp. 754-744.) Francis applied the same rule to a change in the law that gave the trial court discretion to sentence the defendant to a misdemeanor rather than a felony. (Francis, supra, 710 Cal. 2d at p. 76.)
Though they point out People v. Francis, supra, 71 Cal.2d 66 is possibly at odds with the more recent decision by the California Supreme Court in People v. Conley (2016) 63 Cal.4th 646, the People concede Francis controls, and requires that the amendment be applied to nonfinal judgments such as Burke's. The People nonetheless argue that Burke's claim is unripe because the statute is not operative until January 1, 2018. They additionally argue no purpose would be served by Burke's requested remand because the trial court's remarks at sentencing, and its imposition of the upper 10-year term for the firearm use enhancement, make clear it would not have lessened Burke's sentence by striking the enhancement even if it had discretion to do so.
In making this argument, the People rely on People v. Gutierrez (1996) 48 Cal.App.4th 1894. There, the trial court imposed a high term for a robbery, doubled under the "Three Strikes" law, and also imposed two discretionary one-year enhancements for prior convictions. (Id. at p. 1896.) During the pendency of the defendant's appeal, the California Supreme Court decided that judges had discretion to strike in the furtherance of justice prior felony convictions under the Three Strikes law, and made its holding expressly retroactive. (Ibid., citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In view of Romero, the Court of Appeal in Gutierrez stated that "[r]econsideration of sentencing is required under Romero where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Ibid.) But in Gutierrez, the trial court's remarks showed it had already exercised its discretion to decline to strike the conviction: " '[T]his is a situation where I do agree with [the prosecutor], there really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.' " (Ibid.) --------
We decide this appeal after January 1, 2018, thus, the People no longer have a ripeness claim. We accept the People's concession and assume, without deciding, that the amendment of section 12022.5, subdivision (c) applies to defendants whose convictions are not yet final and would apply to Burke's conviction. As for the People's argument that no purpose would be served by a remand, we cannot agree. Burke has a right to be heard under the new scheme, and is "entitled to a sentencing decision made in the exercise of the 'informed discretion' of the court." (People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) Because we accept the concession that Burke is entitled to retroactive application of Senate Bill No. 620, remand for resentencing is appropriate. (Ibid.) The matter is remanded to the trial court to conduct a new sentencing hearing for the limited purpose of allowing the court to exercise its discretion under section 1385 and to decide whether to strike the section 12022.5 firearm enhancement, or to again impose the enhancement term.
III. Correction of the Abstract of Judgment
The People correctly point out that the abstract of judgment erroneously lists the firearm enhancement tied to count 1 as a violation of section 12022.53, subdivision (d), rather than a violation of section 12022.5, subdivision (a). On remand, the court shall ensure the abstract of judgment correctly reflects that any such enhancement is imposed under section 12022.5, subdivision (a).
DISPOSITION
The matter is remanded for resentencing for the limited purpose of allowing the superior court to consider whether the section 12022.5, subdivision (a) enhancement should be stricken under section 1385. The court shall ensure the abstract of judgment correctly reflects that any such enhancement is imposed under section 12022.5, subdivision (a). In all other respects, the judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. AARON, J.