Opinion
C091548
10-17-2023
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DALE CARMAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. F15-000007
BOULWARE EURIE, J.
Shortly after his ex-girlfriend began sleeping with his brother, defendant William Dale Carman grabbed a gun and drove to his ex-girlfriend's trailer. Officers went to the trailer shortly after and found both defendant and his ex-girlfriend had suffered nonfatal gunshot wounds to the face. They also found a bullet hole in one of the trailer's windows and the ex-girlfriend's recently burned car nearby. A jury later found defendant guilty of, among other things, shooting at an inhabited dwelling, arson, and being a felon in possession of a firearm.
On appeal, defendant raises five categories of arguments. He contends (1) the trial court wrongly admitted statements he made to officers in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), (2) the court violated its sua sponte duty to instruct on imperfect self-defense and transferred intent for the offense of shooting at an inhabited dwelling, (3) the court wrongly characterized evidence about his ex-girlfriend's criminal history as character evidence rather than impeachment evidence, (4) he received ineffective assistance of counsel at sentencing because his counsel failed to file a motion to strike his prior felony conviction, and (5) he is entitled to the benefit of four laws enacted since his sentencing that could reduce his potential sentence.
We reject defendant's claims concerning Miranda, the jury instructions, and his ex-girlfriend's criminal history. But we agree defendant is entitled to a resentencing hearing and, at that time, he can raise the objections he has raised here about the propriety of striking his prior felony conviction and the effect of recent changes in the law.
BACKGROUND
I
Factual Background
In early 2015, officers responded to calls about gunshots in Nevada County and found two people who had been shot in the face: defendant and his ex-girlfriend, A.S. Officers found defendant in a truck with his cousin's husband, Bruce Gilbert. Gilbert had earlier found defendant bleeding at his door and was intending to take defendant to the hospital. Officers found A.S. nearby in a trailer. A.S. lived in the trailer, and defendant's brother-who was then dating A.S.-owned it. A.S.'s car was parked nearby and had been recently burned. On inspecting the trailer, officers found a bullet inside a window frame and a hole in the glass that appeared to be from a bullet. They also found a Sig Sauer pistol with a spent cartridge in the firing chamber about 10 yards from the trailer, another spent cartridge on the ground about five feet from the trailer, and a Smith &Wesson revolver nearby behind a pile of trash.
Officers later learned that before they arrived, Gilbert told defendant's brother that defendant had a gun and was "burning shit down." Officers also learned that defendant had left A.S. a series of text messages and voicemails in the days before the shooting. Three days before the shooting, he texted: "Too bad you did this because I really was your friend. Now, I gotta fuck up my brother." One day before the shooting, he wrote: "You just fucked off the best man that will ever come into your life....You nasty the kind of slut just like my wife, both of you will pay." Also the day before the shooting, he left multiple voicemails with A.S., including one saying, "I fucking hate you," and another saying, "You'll be fucking permanently unavailable." And the day of the shooting, he texted his brother, saying, "You need to say your prayers mother fucker," and, "You are a fucking punk, you help her in any way, your life will never be the same. That's a promise. Don't take her anywhere. I promise I will fuck you up. Whatever happened to bros sticking together? Trust me, that loser ain't worth it. I'm coming there now...."
A.S. did not recall who shot her when later testifying. She said that the day before the shooting (or around then), she and defendant argued and fought, defendant emptied a fire extinguisher into her trailer, and he threatened to burn down her trailer. She added that she left her trailer after he emptied the fire extinguisher and shortly after noticed her car engulfed in flames. She took a Xanax to settle down, fell asleep, and later awoke in a hospital with a gunshot wound to her face. Although A.S. could not recall who shot her, a woman who lived nearby said A.S. identified the shooter before being taken to the hospital. She said, "Dale shot me." A.S. referred to defendant by his middle name, Dale, as did others.
After obtaining a warrant for defendant's arrest, two officers visited defendant at a hospital on January 13, 2015, and recorded their visit, which we will refer to as the January 13 questioning. The officers-Detective Philip Dix and Lieutenant Bill Smethers-wore plain clothes, had their weapons holstered, and never mentioned the arrest warrant. On their arrival, defendant, who was on a respirator at the time, said, "Well you guys are here probably 'cause I got shot in the face." An officer responded, "That's it, man." Defendant then said his brother shot him and added: "I never thought he'd do something like that. But I went out and broke the glass in his trailer because he was with my girlfriend." Defendant afterward, in response to the officers' questions, said he took a Sig Sauer pistol from his sister's house, went to A.S.'s trailer with the gun, and "shot it through the ground and shot through the window out and that was it." His brother then shot him in the face.
Following further questioning, the officers advised defendant of his rights under Miranda, including his right to remain silent and his right to an attorney. The officers believed it "best" to advise defendant of his rights because he had "made some incriminating statements." Defendant, in response, said, "I want an attorney when I get out and then I'll call you." After defendant said this a couple of times, the officers asked for clarification, saying, "[Y]ou keep saying that you'll get one when you get out, all right? Do you wanna talk to me right now?" Defendant said he did. The officers then asked defendant once more about the events surrounding the shooting, but stopped when defendant said he wanted to talk to an attorney. The officers left the hospital at that point. The officers found defendant lucid and generally responsive during their questioning, though defendant later claimed he was heavily drugged at the time and could not recall telling them anything.
Defendant left the hospital three days later after refusing further medical care. He was arrested that day. While an officer transported him to jail, defendant asked if he could "make this whole issue go away" by paying for the damage to A.S.'s car. The officer said he lacked authority to make that decision. Defendant afterward repeatedly asked to speak to Lieutenant Smethers and to be taken home rather than to jail. After the jail refused to book defendant due to his medical condition, the officer brought him to another hospital and told Lieutenant Smethers that defendant wished to speak with him.
Lieutenant Smethers and Detective Dix met with defendant later that day and again recorded their visit, which we will refer to as the January 16 questioning. At the start, the officers reminded defendant that he had asked for an attorney when they last spoke. Defendant responded, "That's 'cause I was feelin' like shit"; "I was feeling better this time ...." The officers stopped him before he went on. They said that because he had previously asked for an attorney, they would read him his rights again. They then advised him under Miranda and asked, "Having these rights in mind, do you wish to talk to us right now?" Defendant said he did. He also confirmed that he had asked to speak to Lieutenant Smethers, saying, "First thing I said I wanna speak to you this morning," and described the officer as "a good man" and said "[they]'ve gone through a lot of shit together."
Defendant then said he "was hoping to just get everybody covered on this shit so everybody was happy" and noted his interest in buying A.S. a new car, working out issues with his brother, and avoiding them spending the rest of their lives in prison. After the officers asked why he mentioned buying A.S. a new car, defendant said he felt more toward her than he realized. And after the officers said, "[D]o you wanna-do you wanna go back and-and kinda go over the," defendant said, "I'll tell you exactly what happened." They then discussed, from defendant's telling, what happened the day of the shooting. During the questioning, defendant denied trying to hurt anyone. But he acknowledged he was jealous that A.S. was sleeping with his brother, said he brought a gun to A.S.'s trailer intending to scare them, said he fired it into the ground and possibly into a trailer window, and admitted he threw a cigarette butt into A.S.'s car to see if it would burn the car.
II
Procedural Background
Defendant was charged with the attempted murder of A.S. (Pen. Code, § 664/187, subd. (a)), the attempted murder of his brother (ibid.), shooting at an inhabited dwelling (§ 246), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), arson (§ 451, subd. (d)), criminal threats against A.S. (§ 422), and attempted criminal threats against his brother (§ 664/422). The charging document alleged, for all counts, that defendant had previously been convicted of a serious or violent offense that qualified as a strike offense (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); for the attempted murder of A.S. and shooting at an inhabited dwelling, that defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); and for the attempted murder of his brother, that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)).
Undesignated statutory references are to the Penal Code.
Before trial, defense counsel moved to suppress defendant's statements made to the officers on January 13 and 16, 2015, arguing that the officers had violated Miranda. A magistrate denied the motion at the preliminary hearing and held defendant to answer on the charges. Defense counsel later renewed his motion to suppress. He also sought to introduce evidence that A.S. faced criminal charges for assaulting her current boyfriend, reasoning that these charges were relevant because they showed A.S.'s propensity for violence.
The trial court granted, in part, defense counsel's renewed motion to suppress. It concluded that defendant had invoked his right to an attorney after the officers first issued Miranda warnings on January 13, 2015, and so it excluded the portion of the January 13 questioning that followed this invocation. But it found defendant's statements before the Miranda warnings admissible because he was not then in custody, and it found defendant's later statements during the January 16 questioning also admissible because defendant reinitiated contact with the officers. The court further agreed defense counsel could ask A.S. whether she was facing charges for purposes of showing her propensity for violence. But it warned that if he did, the prosecution could then offer rebuttal character evidence about defendant. The court added that he could not ask about these charges for impeachment purposes, reasoning that introducing this evidence for impeachment purposes would necessitate an undue consumption of time.
After hearing the parties' evidence and arguments, the jury found defendant guilty of shooting at an inhabited dwelling, arson, being a felon in possession of a firearm, and attempted criminal threats against A.S. (the lesser included offense of criminal threats against A.S.). It found defendant not guilty of the charges of attempted murder of his brother and attempted criminal threats against his brother. It hung 11 to one in favor of not guilty for the charge of attempted murder of A.S., leading the court to declare a mistrial on that charge. The jury found true the allegation that defendant personally discharged a firearm causing great bodily injury when he shot into an inhabited dwelling. Defendant afterward admitted he had a prior strike offense. The trial court sentenced defendant to 25 years to life plus 11 years four months.
Nearly three years after being sentenced, defendant filed an appeal. The trial court struck the appeal as untimely. But after defendant moved for leave to file a late appeal, asserting his defense counsel had promised but failed to file an appeal at the time of sentencing, we granted defendant's request. Defendant then filed his notice of appeal. After delays in preparation of the record as well as multiple requests to continue the briefing schedule by both parties along with a request for supplemental briefing, this case was fully briefed on August 28, 2023.
DISCUSSION
I
Miranda
Defendant first contends the trial court wrongly admitted the statements he made to officers on January 13 and 16, 2015. He reasons that the officers obtained both statements by violating the requirements of Miranda. We disagree.
A. Background Law
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) The Supreme Court in Miranda announced "a constitutional rule" to safeguard this privilege against self-incrimination. (Dickerson v. United States (2000) 530 U.S. 428, 444.) It held that the government may not use in a prosecution any statements "stemming from custodial interrogation" of a suspect unless the government first warns the suspect of the right to remain silent, that any statement may be used as evidence against the suspect, and that the suspect has a right to the presence of a retained or appointed attorney. (Miranda, supra, 384 U.S. at p. 444; see People v. Caro (2019) 7 Cal.5th 463, 491.)
An initial question in applying Miranda is typically whether a custodial interrogation has taken place. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) Under Miranda case law," 'custody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." (Howes v. Fields (2012) 565 U.S. 499, 508-509.) "In determining whether a person is in custody in this sense," courts first consider whether a" 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" (Id. at p. 509.) If the answer is yes, courts then consider "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Ibid.) These are objective considerations based on a review of the totality of the circumstances. (Ibid.; see also People v. Caro, supra, 7 Cal.5th at p. 491.)
Once a suspect has invoked the right to an attorney under Miranda, officers must cease questioning the suspect until the suspect has "an opportunity to confer with the attorney and to have [the attorney] present during any subsequent questioning." (Miranda, supra, 384 U.S. at p. 474.) But officers may resume questioning if the suspect" '(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.'" (Connecticut v. Barrett (1987) 479 U.S. 523, 527.)" 'An accused "initiates"' further communication, when his words or conduct 'can be "fairly said to represent a desire" on his part "to open up a more generalized discussion relating directly or indirectly to the investigation." '" (People v. Molano (2019) 7 Cal.5th 620, 656.)
In reviewing the admissibility of a defendant's statements on appeal," 'we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence.'" (People v. Linton (2013) 56 Cal.4th 1146, 1176-1177.) When, as here, a defendant's statements were made in a tape-recorded interview, the facts surrounding the statements are undisputed to that extent and are subject to our independent review. (Ibid.) The prosecution bears the burden of demonstrating the validity of a defendant's waiver of Miranda rights by a preponderance of the evidence. (Colorado v. Connelly (1986) 479 U.S. 157, 168-169.)
B. January 13 Questioning
Starting with the January 13 questioning, defendant contends the officers should have issued Miranda warnings at the outset of their questioning. He reasons that is so even if he was not in custody at that time, because the officers deliberately attempted to circumvent the Miranda warnings that were required. He adds that, in any event, he was in custody because he was physically unable to leave the hospital, he was a suspect and never told he was free to leave, he had no family or friends present, the officers asked accusatory questions and blocked the door to his room, they eventually issued Miranda warnings at the hospital, and they arrested him three days later when he left the hospital. We reject defendant's arguments.
We first reject defendant's claim that the officers needed to issue Miranda warnings even if he was not in custody. Case precedent is clear that "[a]n officer's obligation to administer Miranda warnings attaches . . . 'only where there has been such a restriction on a person's freedom as to render him "in custody." '" (Stansbury v. California (1994) 511 U.S. 318, 322.) So if defendant was not in custody, then the officers had no need to provide any Miranda warning at all.
We also reject defendant's claim that he was in custody at the start of the January 13 questioning. In evaluating his claim, we begin and end with the question of whether a" 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave'" (Howes v. Fields, supra, 565 U.S. at p. 509)-or if not terminate the interrogation and leave, then at least terminate the interrogation and cause the officers to leave (United States v. Infante (1st Cir. 2012) 701 F.3d 386, 396 ["When an individual is unable to 'leave' the place of the interrogation solely due to circumstances incident to medical treatment, the question is said to be slightly different: whether he or she was at liberty to terminate the interrogation and 'cause the [officers] to leave' "]). Again, this is an objective, totality-of-the-circumstances consideration. Relevant factors include, among others, the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning. (Howes, at p. 509.)
Considering the totality of the circumstances here, we conclude defendant was not in custody at the start of the January 13 questioning. The police, to begin, did not transport defendant to the hospital. He instead appeared to go there voluntarily, heading there first with Gilbert and then, after the arrival of paramedics, in an ambulance. (United States v. Berres (10th Cir. 2015) 777 F.3d 1083, 1092 (Berres) [that the defendant went to the hospital "on his own request" weighed against a finding of custody]; see Yarborough v. Alvarado (2004) 541 U.S. 652, 664 [same when the police did not transport the suspect to the police station or require him to appear at a particular time].) Officers later visited defendant's room in plain clothes with their weapons holstered. (Berres, at p. 1092 [relevant that "[a]ll three officers were in plain clothes, and none had a weapon displayed"].) Defendant was not told he was in custody, threatened with arrest, or told he was a suspect. (Ibid. [relevant that the defendant "was not told he was in custody"].) Nor did the officers state any belief that defendant was culpable in some way. And although defendant may have been restrained because of his physical condition, it was not the officers' doing. (United States v. Jamison (4th Cir. 2007) 509 F.3d 623, 632 (Jamison) [the defendant "was primarily restrained not by the might of the police, but by his self-inflicted gunshot wound, the medical exigencies it created, and the investigation he initiated"].)
The officers' questioning, moreover, does not appear to have been aggressive or threatening-though we acknowledge the evidence before us is limited, as the parties have not provided the audio of the interview. (Berres, supra, 777 F.3d at p. 1092 [relevant that officer "was not aggressive or confrontational during his questioning"].) Nor was their questioning unexpected under the circumstances. Defendant had just been shot in the face, and a reasonable person in this circumstance "would expect to be interviewed even while receiving urgent medical care. Indeed, a reasonable person might complain of police malfeasance had they not immediately investigated the shooting." (Jamison, supra, 509 F.3d at p. 631.) The officers even indicated defendant's injuries were the focus of their questioning. At the start, defendant said, "Well you guys are here probably 'cause I got shot in the face." An officer responded, "That's it, man." The officers proceeded to question defendant about the night of his injuries, but their questioning before providing Miranda warnings does not appear to have lasted long. While we lack the audio of the recorded interview, we have the transcript; and the questioning before the Miranda warnings covers only 10 pages. These are not dense, word-filled pages either. And as the transcript shows, defendant was willing to discuss the details surrounding his injuries-even offering up some details, including that he went to his brother's trailer and "broke the glass in his trailer"-without any prompting from the officers. (See Berres, at p. 1092 [relevant that the defendant "was completely willing to discuss" the focus of the officer's questioning].)
These considerations weigh in favor of a finding that a reasonable person would have felt free to terminate the interrogation and leave-or at least, terminate the interrogation and cause the officers to leave. Some other facts, to be sure, weigh in favor of a contrary finding. The officers' questioning, for instance, was focused on defendant's conduct, not the conduct of the person who allegedly shot him. (Berres, supra, 777 F.3d at p. 1092 ["questioning related to a potential crime committed by [the defendant]" weighs in favor of the finding that he was in custody].) And as defendant notes, the officers never told him that he was free to leave or that he could terminate the questioning. (See Yarborough v. Alvarado, supra, 541 U.S. at p. 665 [the officer not telling the defendant he was free to leave "weigh[ed] in favor of the view that [he] was in custody"].)
But defendant otherwise overstates the facts in favor of a custody finding. He notes that he was physically unable to leave the hospital. But again, even if that is true, it was not because of the officers' conduct; it was instead because of his injuries, which diminishes the weight of this fact. (Jamison, supra, 509 F.3d at p. 629.) Defendant adds that he had no family or friends present. But the officers had nothing to do with that detail either. And so while this consideration is relevant, we find it helps him little. Defendant further claims the officers blocked the door to his room and asked accusatory questions. But he cites nothing in the record to show this. And although, in his reply brief, he claims the officers asked "several leading questions with regard to the most incriminating subjects," he cites in support only questions and comments that the officers made after they issued Miranda warnings-all of which the trial court ultimately excluded.
Defendant's remaining contentions also offer him little support. He notes that he was already a suspect at the time of the questioning. But again, the relevant consideration is an objective one and does not depend on "the subjective views harbored by either the interrogating officers or the person being questioned." (Stansbury v. California, supra, 511 U.S. at p. 323.) Defendant further notes that the officers eventually issued Miranda warnings at the hospital. They did so, according to one of the officers, because defendant had "made some incriminating statements" and they "believed the best thing to do at that point was to . . . read him his rights per Miranda." (Italics added.) But the officers' subjective belief that Miranda warnings were required at that point does not mean these warnings were also required at the start of the interview. Lastly, defendant notes that the officers arrested him days after the questioning when he left the hospital. But we find this consideration sheds little light on what a reasonable person would have felt during the questioning days earlier, particularly as "[t]here is nothing in this case to suggest the officers deliberately delayed making a formal arrest in order to avoid compliance with Miranda." (United States v. Martin (9th Cir. 1985) 781 F.2d 671, 673, fn. omitted.)
In the end, after considering the totality of the circumstances, we are satisfied that this was not a custodial interrogation. We also find ample case authority favoring this conclusion. (See Berres, supra, 777 F.3d at p. 1086 [finding questioning of a defendant at a hospital not custodial in part because the defendant was at the hospital at his own request, was not told he was in custody, and was willing to talk]; Jamison, supra, 509 F.3d at p. 632 [finding questioning of a defendant in an emergency room not custodial in part because he "was primarily restrained not by the might of the police, but by his selfinflicted gunshot wound, the medical exigencies it created, and the investigation he initiated"]; United States v. Martin, supra, 781 F.2d at p. 673 [finding questioning of a defendant at a hospital not custodial in part because no facts "indicate law enforcement officials were in any way involved in [his] hospitalization or did anything to extend [his] hospital stay and treatment"]; People v. Mosley (1999) 73 Cal.App.4th 1081, 1090-1091 [finding questioning of a defendant in an ambulance not custodial in part because "the questioning was not accusatory or threatening, th[e] defendant was not handcuffed, . . . no guns were drawn, and . . . defendant was about to be transported to a hospital and not to a police station or jail"].)
The parties dispute whether we should consider the transcript of the January 13 questioning. The People contend we should not, as the transcript was not before the trial court when it ruled. Defendant argues otherwise, asserting, among other things, that the trial court said it "read the questions and responses" and so indicated it reviewed the transcript. We find it unnecessary to address this dispute, for even assuming we can consider the transcript, as defendant argues, we still find his argument unpersuasive.
C. January 16 Questioning
Turning to the January 16 questioning, defendant contends the officers wrongly questioned him after he requested an attorney on January 13, 2015. He acknowledges that the officers resumed their questioning after he sought to speak with one of them. But in his view, he did not initiate the conversation and, to the extent he did, he did not evidence a desire to engage in a generalized discussion concerning the investigation; he instead demonstrated a desire to discuss only "resolving the matter with restitution." We find differently.
Recall that following his arrest on January 16, 2015, defendant repeatedly told the officer who was transporting him that he wished to speak to Lieutenant Smethers, one of the officers from the January 13 questioning. The transporting officer, consistent with defendant's requests, told Lieutenant Smethers that defendant wished to speak with him. Lieutenant Smethers and Detective Dix met with defendant later that day. The officers immediately reminded defendant that he had previously asked for an attorney, and defendant responded, "That's 'cause I was feelin' like shit"; "I was feeling better this time ...." After being advised again of his Miranda rights, defendant said he wanted to talk with the officers "right now." He afterward noted his interest in buying A.S. a new car, working out issues with his brother, and avoiding them spending the rest of their lives in prison. He added that he felt more toward A.S. than he realized, after an officer asked why he mentioned buying her a new car. And after an officer said, "[D]o you wanna-do you wanna go back and-and kinda go over the," defendant said, "I'll tell you exactly what happened."
Under these circumstances, we conclude that defendant initiated the conversation and evinced a desire to open up a generalized discussion concerning the investigation. He requested to speak to Lieutenant Smethers, placed no explicit or implicit limitation on the subject of their conversation, and he offered to "tell [them] exactly what happened" before the officers asked any generalized question about the investigation. We find no violation of Miranda under these facts. (See Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-1046 (plur. opn. of Rehnquist, J.) [the defendant evinced a desire for a generalized discussion about the investigation when he asked "what was going to happen to him" and said he understood he did not have to talk to the officer]; People v. Mattson (1990) 50 Cal.3d 826, 861-862 [officer could reasonably infer the defendant's desire to speak about the investigation after the defendant asked about his car, since the location of the car was relevant to the charged offenses].)
We find that true even though the record suggests that the officers were intending to ask a generalized question about the investigation before defendant offered to tell them "exactly what happened." According to the transcript (again, we lack the audio), the officers said, "[D]o you wanna-do you wanna go back and-and kinda go over the"-at which point, defendant interrupted and said, "I'll tell you exactly what happened." The officers then continued, saying, "the events that night"-indicating that before defendant interrupted, they had intended to ask him to go over "the events that night." None of this matters if we accept the People's position that defendant had already demonstrated an interest in a generalized discussion about the investigation when he asked to speak to Lieutenant Smethers. But assuming he had not, then with this interruption, defendant "may have saved [the officers] from [themselves]." (People v. Waidla (2000) 22 Cal.4th 690, 732.)
Defendant objects that "the sequence of events" shows that he only wanted to "discuss resolving the matter with restitution." He reasons that he only sought to speak to Lieutenant Smethers after he asked the officer who was transporting him about dropping the charges and the officer said he lacked authority to do so. But the record is not so clear about defendant's intent. Defendant, it is true, asked the transporting officer about the potential for dropping the charges (which the officer said he lacked authority to do) and also repeatedly asked about being dropped off at his home. But it is not clear that these were the specific matters defendant wanted to discuss with Lieutenant Smethers. According to the transporting officer, defendant was "insistent upon talking with Lieutenant Smethers," asking to speak with him seven or eight times; but defendant never mentioned the particular topics he sought to discuss. And although it is plausible he specifically sought to discuss options for having the charges dropped, we are not persuaded that the transporting officer needed to reach this conclusion. (See United States v. Straker (D.C. Cir. 2015) 800 F.3d 570, 624 ["The relevant question is whether a reasonable officer could have understood [the defendant's conduct] as indicating that [he] wanted to talk generally about the investigation," "not whether the initiation of discussion about the investigation is the only possible explanation for [the defendant's conduct]"].)
Nothing in the record, moreover, suggests that the transporting officer relayed anything other than that defendant wanted to speak with Lieutenant Smethers. Nor do we find any other persuasive reason for concluding that Lieutenant Smethers and Detective Dix had reason to suspect that their questioning should be circumscribed. Defendant, we acknowledge, noted at the start of the questioning his interest in buying A.S. a new car, working out the issues with his brother, and avoiding them spending the rest of their lives in prison. But he never suggested that he wanted to discuss those matters only. And again, before being asked any generalized question about the investigation, defendant said, "I'll tell you exactly what happened." This is not a case, as defendant suggests, of a suspect in custody being badgered by police officers "in an effort to wear the suspect down and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance." It is instead a case where a defendant evidenced a desire"' "to open up a more generalized discussion relating directly or indirectly to the investigation." '" (People v. Molano, supra, 7 Cal.5th at p. 656.)
People v. Dingle (1985) 174 Cal.App.3d 21, which defendant relies on, does not favor a contrary conclusion. The defendant there invoked his right to an attorney, and an officer then "deliberately, immediately approached [the defendant] in the interrogation room for the purpose of getting his statement about the crime." (Id. at p. 25.) The defendant eventually confessed. (Id. at p. 26.) Two days later, the defendant requested to speak to the same officer and asked about his sentence if he pled guilty. The officer said the court would decide the sentence. He then asked if the defendant would answer more questions. The defendant agreed and, after being advised of his Miranda rights, "essentially repeat[ed] and expound[ed] upon the details given in the first confession." (Ibid.) Considering these facts, the court found it "clear [the defendant] did not initiate the second interrogation when he asked [the officer] how much time he would get if he pleaded guilty. The second interrogation was suggested by [the officer], undoubtedly because he knew the first confession had been illegally procured." (Id. at p. 28, italics omitted.) These facts are not comparable to those here. Defendant did not ask the officers a targeted question about dropping the charges and then face unrelated questions about the investigation. He instead asked to speak to an officer and then promptly said he would "tell [them] exactly what happened."
Lastly, defendant suggests that the officers induced him to confess with an implied promise of leniency when they "suggest[ed] that [he] will only be there a night." Defendant cites, in support, a part of the transcript where he says, "[Y]ou're not gonna lock me up" "any more than once," and the officers respond, "Yeah, that's right"; "[j]ust one tonight." But rather than offer an implied promise of leniency, the officers simply appeared to note a fact: Defendant would be arrested and locked up only once, not over and over again. Defendant, moreover, had already agreed to tell the officers exactly what happened before this exchange occurred, so his suggestion that this exchange induced him to confess falls flat.
Once more, the parties dispute whether we should consider the transcript of the questioning. The People contend we should not, because the transcript was not before the trial court at the time it ruled. Defendant argues otherwise, stating that the trial court in fact relied on the transcript in its ruling. We again find it unnecessary to address the parties' dispute about the transcript, for even assuming we can consider the transcript, as defendant argues, we still find his argument unpersuasive.
II
Jury Instructions
Defendant next argues the trial court violated its sua sponte duty to provide certain jury instructions for the offense of shooting at an inhabited dwelling. He first contends the court needed to instruct the jury about the doctrine of transferred intent in the context of self-defense. He then asserts the court also needed to instruct the jury about imperfect self-defense. We reject both claims.
A. Imperfect Self-Defense
We consider first defendant's claim based on imperfect (or unreasonable) selfdefense.
"Even absent a request, the trial court must instruct on the general principles of law applicable to the case," which are those principles "that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case." (People v. Young (2005) 34 Cal.4th 1149, 1200.) In defendant's view, unreasonable self-defense is a theory of defense that constitutes one such general principle of law. It is not. Nor is it even a theory of defense at all.
Our Supreme Court has stated that "[u]nreasonable self-defense is 'not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter.'" (People v. Elmore (2014) 59 Cal.4th 121, 134 (Elmore); see also People v. Schuller (2023) 15 Cal.5th 237, 253.) Under this theory," '[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.'" (In re Christian S. (1994) 7 Cal.4th 768, 773.) Having labeled this theory as a shorthand description of a form of voluntary manslaughter, the court has traditionally applied this theory in the homicide context only, even suggesting that it is irrelevant outside this context. (See People v. Minifie (1996) 13 Cal.4th 1055, 1069 ["this case involves an assault, not a homicide, and thus no question of imperfect self-defense is presented"].)
But in one older case, the court endorsed this theory in a nonhomicide case involving an assault under section 4500. (People v. Wells (1949) 33 Cal.2d 330, 343, superseded by statute as stated in People v. Saille (1991) 54 Cal.3d 1103, 1111; see also Elmore, supra, 59 Cal.4th at p. 137 [describing Wells as a case involving unreasonable self-defense].) That statute, however, concerns the only offense other than murder requiring malice aforethought. (§ 4500 [discussing certain assaults "with malice aforethought"].) And as far as we have found, the court has never applied unreasonable self-defense for an offense requiring, as here, malice rather than malice aforethought. (See § 246 [offense of shooting at an inhabited building requires malice].) Nor has it applied the theory for any offense requiring, as here, only a general criminal intent. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [shooting at an inhabited building is a general intent crime].)
Nor has our research shown any published majority opinion in California that has done so. One published opinion, which defendant cites, found that an actual but unreasonable belief in the need for self-defense is inconsistent with the malice required for the general intent crime of mayhem-a conclusion certainly helpful to defendant's position. (People v. McKelvy (1987) 194 Cal.App.3d 694, 702-703.) But that was an opinion of only one justice-a justice who ultimately found that the trial court did not err in failing to instruct sua sponte on unreasonable self-defense. (Id. at p. 706.) The other two justices on the panel concurred in the judgment only. (Id. at p. 708 (conc. opn. of Smith, J.).) As another court has noted, "no other reported decision has followed McKelvy, and its reasoning 'has been uniformly rejected' "-with some courts reasoning that unreasonable self-defense is nothing more than a shorthand description of a form of voluntary manslaughter, and others reasoning that unreasonable self-defense is not inconsistent with the mental state of malice (as opposed to malice aforethought). (People v. Iraheta (2014) 227 Cal.App.4th 611, 621-623.)
Our research, then, shows only one opinion, by only one justice, endorsing the view that an actual but unreasonable belief in the need for self-defense is inconsistent with the mental state of malice, with subsequent published decisions uniformly rejecting the opinion's reasoning. Under these circumstances, we need not decide whether unreasonable self-defense should apply to the facts before us. It is enough that we find this theory is not a principle of law "commonly connected with the facts adduced at trial," and so it is not a theory giving rise to a sua sponte duty to instruct. (People v. Young, supra, 34 Cal.4th at p. 1200.) As our Supreme Court has made clear, a trial court has a sua sponte duty to provide jury instructions on well-established principles of law, but it" 'need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.'" (People v. Flannel (1979) 25 Cal.3d 668, 681-683 [finding no sua sponte duty to instruct on unreasonable self-defense in a homicide case given the undeveloped state of the theory at the time of trial], superseded by statute in part as stated in Elmore, supra, 59 Cal.4th at p. 138; see also People v. Michaels (2002) 28 Cal.4th 486, 529-530 [finding no sua sponte duty to instruct on unreasonable defense of others in a homicide case because that theory was not well-established at the time of trial, having been recognized in only one decision that ultimately found the doctrine inapplicable].)
B. Transferred Intent
We consider next defendant's claim based on the doctrine of transferred intent.
The doctrine of transferred intent is a centuries-old common law doctrine. (People v. Scott (1996) 14 Cal.4th 544, 548.) "In its classic form, [it] applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder." (People v. Bland (2002) 28 Cal.4th 313, 317.) "The transferred intent doctrine does not, however, denote an actual 'transfer' of 'intent' from the intended victim to the unintended victim." (Scott, at p. 551.) Rather, "it connotes a policy"-that a defendant who intends to kill one victim but instead kills a bystander "should be subject to the same criminal liability that would have been imposed had he hit his intended mark." (Ibid.)
Courts have since found similar policy considerations can arise in the context of self-defense. A claim of lawful self-defense arises when the defendant "reasonably believed he [or she] was in imminent danger of violence, reasonably believed the immediate use of force was necessary to defend himself [or herself], and used no more force than was reasonably necessary to defend against the threat." (People v. Hernandez (2011) 51 Cal.4th 733, 747.) But suppose a defendant intends to injure a person who poses an imminent threat but inadvertently injures an innocent bystander instead. Should the defendant be entitled to a claim of self-defense under the doctrine of transferred intent? Several courts have found the answer is yes, concluding that the defendant should not face greater criminal liability simply because a justified act of self-defense inadvertently results in the injury of an innocent bystander. (People v. Mathews (1979) 91 Cal.App.3d 1018, 1023; see People v. Curtis (1994) 30 Cal.App.4th 1337, 1357.)
In this case, the trial court instructed the jury that defendant would not be guilty of shooting at an inhabited dwelling if he acted in self-defense. It explained: "The Defendant is not guilty of th[is] crime[] if he used force against the other person in lawful self-defense. The Defendant acted in lawful self-defense if the Defendant reasonably believed that he was in imminent danger of suffering bodily injury; the Defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and the defendant used no more force that was reasonably necessary to defend against that danger." According to defendant, however, this instruction was flawed without an instruction on transferred intent. He reasons that "[t]he other person in the context of these instructions refers to [his brother], and does not necessarily suggest that it may include bystanders in proximity such as [A.S.]" He adds that the firearm enhancement attached to this offense reinforced this understanding because it informed the jury that it "only had to find that [he] intended to personally discharge a firearm that ca[u]sed great bodily injury to a person."
We find defendant's reliance on the doctrine of transferred intent misplaced. He argues the jury should have been instructed that if he intended to injure or kill one person in lawful self-defense (here, his brother), but inadvertently injured someone else (here, A.S.), then he should be treated as if he injured the intended person. But treating defendant as if he injured his brother rather than A.S. would change nothing, for the identity of the person injured (let alone the fact that a person was injured) is irrelevant to the offense of shooting at an inhabited dwelling. As the trial court explained, the offense of shooting at an inhabited dwelling entails only two elements-"(1) acting willfully and maliciously, and (2) shooting at an inhabited [dwelling]" (People v. Ramirez (2009) 45 Cal.4th 980, 985)-neither of which requires any injury.
We also find the trial court's instructions made clear that defendant would not be guilty if he acted in self-defense, "irrespective of whether he had inadvertently shot an innocent bystander." (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1039.) Nothing in the trial court's instructions suggested that defendant's claim of self-defense would become invalid if a bystander happened to be injured in the shooting. Nor did the prosecution (or anyone else) suggest that defendant's claim of self-defense failed for this type of reason. The prosecution instead argued the claim failed because defendant acted unreasonably, initiated the altercation, and indicated in his prior statements to law enforcement that he was not acting in self-defense.
Defendant resists this conclusion. He states that the jury "apparently" accepted his claim of self-defense against his brother when it acquitted him of the attempted murder of his brother. He then suggests that the jury probably would have accepted his similar claim of self-defense for the offense of shooting at an inhabited dwelling had it been properly instructed. But again, defendant has not shown that the jury was improperly instructed on self-defense. And while he suggests the jury might have misunderstood the self-defense instruction, his argument is based on speculation about the jury's reasons for acquitting him of the attempted murder charge. It would be just as easy to speculate that the jury acquitted him because of insufficient evidence that he even shot at his brother. Defendant, after all, initially claimed that he never shot at anyone, and, as far as we could find, no other witness at trial ever suggested that he shot at his brother. Defendant may speculate differently about the jury's reasoning for its verdicts, but speculation is not ground for concluding that the jury misinterpreted the court's instructions. (See People v. Covarrubias (2016) 1 Cal.5th 838, 905 [" '" 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant'"' "]; People v. Avila (2006) 38 Cal.4th 491, 610 [speculation is not enough to find that the jury failed to follow the trial court's instructions].)
Nor do we find persuasive defendant's related claim that he received ineffective assistance of counsel because his trial counsel never requested an instruction on transferred intent. To support a claim for ineffective assistance of counsel, the defendant must (1) "show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms," and (2) "show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Defendant argues his counsel was deficient under this standard because "the principle of transferred intent . . . was not readily discernible from other instructions given in this case" and so the jury was left without proper instruction. But again, we find the jury instructions already made clear that he would not be guilty if he acted in selfdefense, regardless of whether he inadvertently injured an innocent bystander. Defense counsel perhaps could have sought an instruction to make this point clearer still. But we do not find his failure to do so shows his performance fell below an objective standard of reasonableness.
III
A.S.'s Charges
Defendant next challenges the trial court's ruling concerning the pending criminal charges against A.S. He suggests that the court failed to appreciate that these charges were relevant for impeachment purposes. He then argues the court's exclusion of this evidence violated his constitutional right to confront and cross-examine adverse witnesses. We reject his argument.
Evidence Code section 1101, subdivision (a) generally bars admission of "evidence of a person's character or a trait of his or her character"-including evidence of the person's criminal history-"when offered to prove his or her conduct on a specified occasion." Evidence Code section 1103, however, provides an exception to this rule. It states that evidence of a victim's character or a trait of character is "not made inadmissible by Section 1101" if "[o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (Evid. Code, § 1103, subd. (a)(1).) It adds that should a defendant offer "evidence that the victim had a character for violence or a trait of character tending to show violence," then "evidence of the defendant's character for violence or trait of character for violence . . . is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character." (Id., subd. (b).)
Evidence Code section 352 allows a trial court to exclude evidence even if otherwise admissible under these statutes. It provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court" 'has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects.'" (People v. Jones (2017) 3 Cal.5th 583, 609.) Appellate courts review a court's rulings on admissibility under Evidence Code section 352 for abuse of discretion and" 'will not reverse a court's ruling on such matters unless it is shown" 'the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" '" (Jones, at p. 609.)
The challenged trial court ruling here implicated all three of these statutes. Before trial, defense counsel told the trial court that he understood A.S. was in custody on a charge of assaulting her current boyfriend and said he intended to ask her where she currently resides and whether she was facing criminal charges. He explained that he intended to show with these questions that A.S. has a propensity for violence. The prosecution countered that this evidence should be excluded under Evidence Code section 352.
The trial court granted defense counsel's request in part. It rejected his request to ask A.S. where she currently resides, finding the topic irrelevant. But it agreed he could ask A.S. whether she is facing charges under Evidence Code section 1103, subdivision (a)(1), though it warned that if he did, that would open the door to the prosecution offering rebuttal evidence about defendant's own character under Evidence Code section 1103, subdivision (b). The court added that it thought A.S.'s charges "[are]n't relevant unless [they] come[] in under [Evidence Code section] 1103(a)" to show propensity for violence. It afterward, however, indicated these charges might be relevant for impeachment purposes too. But it said defense counsel could not ask A.S. whether she is "facing felony charges as impeachment because to do so would really be prior testimony of witnesses, a mini trial, undue consumption of time, and it would be excluded under 352 ...." Defense counsel ultimately never asked A.S. about her charges.
Challenging the trial court's decision, defendant contends the court wrongly ruled that admitting the pending charges against A.S. would have opened the door to the prosecution introducing rebuttal character evidence under Evidence Code section 1103. He reasons that these charges were not only relevant as character evidence under Evidence Code section 1103-they were also relevant as impeachment evidence, as a witness facing charges, like A.S., might have an incentive to testify favorably for the prosecution in an effort to obtain leniency. He adds that this is significant because while admission of the charges for propensity purposes under Evidence Code section 1103 would have opened the door to the prosecution presenting rebuttal character evidence, admission of the charges for impeachment purposes would not have had this same effect.
Defendant, however, never grapples with the trial court's actual ruling. The court ultimately appeared to accept that A.S.'s charges would be relevant for impeachment purposes, but again, it found evidence of these charges inadmissible if offered for this purpose "because to do so would really be prior testimony of witnesses, a mini trial, undue consumption of time, and it would be excluded under 352 ...." Although defendant quotes the trial court's language in his discussion of the background, he never explains why the court abused its discretion under Evidence Code section 352-at least not until a cursory discussion in his reply brief. We find he failed to meet his burden on appeal as a result, for we treat arguments raised for the first time in a reply brief as forfeited (People v. Rangel (2016) 62 Cal.4th 1192, 1218) and "[w]e will not disturb a trial court's exercise of discretion under Evidence Code section 352 unless the defendant affirmatively shows that the court exercised its discretion' "in an arbitrary, capricious or patently absurd manner" '" (People v. Escudero (2010) 183 Cal.App.4th 302, 310).
We find defendant's remaining argument on this topic fails for similar reasons. He argues the trial court's ruling violated his constitutional rights under the Sixth and Fourteenth Amendments to confront witnesses and have effective cross-examination. He reasons that "the cross-examination [he] sought could have exposed A.S.'s motivation in testifying favorably for the prosecution"-though he leaves out that, at trial, A.S. never even accused him of shooting her, stating instead that she did not remember the shooting at all.
We reject this argument too. A defendant, to be sure, has a constitutional right to confront adverse witnesses. (U.S. Const., 6th Amend. ["In all criminal prosecutions, the accused shall enjoy the right to . . . to be confronted with the witnesses against him"]; Pointer v. Texas (1965) 380 U.S. 400, 405 [the accused have a right to cross-examine adverse witnesses under the Fourteenth Amendment's due process clause].) But it is not a right without limits. And "notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623.) Defendant never acknowledges this limitation, nor, again, attempts to show that the trial court improperly restricted his questioning of A.S. under Evidence Code section 352. Nor does he acknowledge in this argument that the court never barred him from asking A.S. about the charges; it instead said that if he did, that would open the door to the prosecution presenting rebuttal evidence. Once more, then, we find defendant failed to meet his burden on appeal to show reversible error. (See People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11 ["On appeal, we assume a judgment is correct and the defendant bears the burden of demonstrating otherwise"].)
IV
Sentencing
Lastly, defendant raises several arguments concerning sentencing. He argues he received ineffective assistance of counsel at sentencing because his counsel failed to file a motion to strike his prior felony conviction. He contends the abstract of judgment does not properly reflect the sentenced imposed. And he asserts he is entitled to the benefit of four statutes enacted since his sentencing that could reduce his potential sentence, including statutes (1) allowing a trial court to choose the sentencing law to apply when an act is punishable under different sentencing laws (Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518)), (2) allowing a trial court to dismiss a firearm enhancement in the interest of justice (Senate Bill No. 620 (2017-2018 Reg. Sess.)), (3) allowing a trial court to dismiss a serious felony enhancement in the interest of justice (Senate Bill No. 1393 (2017-2018 Reg. Sess.)), and (4) restricting a trial court's ability to impose the upper term for an offense (Senate Bill No. 567 (2021-2022 Reg. Sess.)). We agree defendant is entitled to a remand for resentencing because of Assembly Bill 518. Because he will be able to raise any additional sentencing claims he may have on remand, we need not address his remaining arguments.
At the time of sentencing, section 654, subdivision (a) stated: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Stats. 1997, ch. 410, § 1.) In this case, the trial court found two offenses resulted from the same "act" for purposes of this statute-the arson and the attempted criminal threats against A.S. It reasoned that the offense of attempted criminal threats was necessarily incidental to the arson offense. And so the court, consistent with section 654 as then written, imposed sentence for the arson offense-the offense carrying the longer potential term of imprisonment-and imposed but stayed sentence for the offense of attempted criminal threats. (Compare § 451, subd. (d) [arson of property] with §§ 422, subd. (a) [criminal threats], 664 [attempt crimes].) But following a recent amendment in Assembly Bill 518, section 654 now allows courts to choose the punishment to impose in these types of cases, stating: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions ...." (Stats. 2021, ch. 441, § 1.)
Defendant contends we should remand to allow the trial court to exercise its newly authorized discretion under section 654. We agree. A new law lessening potential punishment"' "is presumed to apply in all cases not yet reduced to final judgment as of the [law's] effective date" [citation], unless the enacting body "clearly signals its intent to make the [law] prospective, by the inclusion of either an express saving clause or its equivalent." '" (People v. Lara (2019) 6 Cal.5th 1128, 1134; People v. Frahs (2020) 9 Cal.5th 618, 624; see also People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 ["a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
Under this principle, Assembly Bill 518 applies retroactively to all nonfinal cases, including defendant's. (See People v. Mani (2022) 74 Cal.App.5th 343, 379-381 [concluding that Assem. Bill 518 applies retroactively].) And because we cannot predict how the trial court here would have acted had this law been in effect at the time of sentencing, we find (as do the People) that remand is appropriate to allow the trial court to exercise its newly authorized discretion under section 654. On remand, defendant will be entitled to a full resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893.) At resentencing, defendant can raise his remaining arguments concerning the propriety of striking his prior felony conviction and the effect of other recent changes in the law. Because defendant's resentencing will require a new abstract of judgment, we find defendant's objections to the abstract of judgment moot.
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for a full resentencing. The judgment is otherwise affirmed. Following resentencing, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: MAURO, Acting P. J. DUARTE, J.