Opinion
F084433
11-28-2023
THE PEOPLE, Plaintiff and Respondent, v. CHAD LEROI CHANDLER, Defendant and Appellant.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F18908298 Michael G. Idiart, Judge.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, ACTING P. J.
INTRODUCTION
In 2022, a jury convicted appellant Chad Leroi Chandler of second degree murder for the 2018 shooting death of Eric Michael Kahl (Pen. Code, § 187, subd. (a)). The jury found true that appellant intentionally discharged a firearm that caused Kahl's death (§ 12022.53, subd. (d)). The jury found that appellant was legally sane when he committed this murder. Appellant was sentenced to prison for an aggregate term of 40 years to life.
All future statutory references are to the Penal Code.
Appellant contends that the guilt and sanity verdicts must be reversed due to various instructional errors. He also argues that the trial court failed to exercise its sentencing discretion appropriately regarding the firearm enhancement. We affirm.
BACKGROUND
In June 2019, a doubt arose regarding appellant's mental competency to stand trial and criminal proceedings were suspended. In July 2019, the court concluded that appellant was competent and criminal proceedings were reinstated. In 2020, appellant was arraigned following the preliminary hearing, and he entered pleas of not guilty and not guilty by reason of insanity. In 2022, this bifurcated trial occurred regarding appellant's guilt and sanity. (See § 1026, subd. (a).) We summarize the material facts that support appellant's judgment.
I. During the Guilt Phase, the Prosecution Established That Appellant Murdered Kahl.
The prosecution established that appellant shot and killed Eric Kahl in the early evening on April 12, 2018.
A. The shooting.
This shooting occurred just outside appellant's residence. Kahl had been visiting a friend, Jesse Bayless, who lived in a trailer near appellant's home. Just before he was killed, Kahl left Bayless's trailer. Kahl was apparently standing near his truck, which had been parked between appellant's home and Bayless's trailer, when appellant fired at him. Nobody saw the shooting, but multiple witnesses heard the shots. Approximately six shots were fired and Kahl was struck three times. Nobody heard any argument or yelling before the shots rang out. Just after hearing the shots, Bayless looked out of his trailer's window, which faced appellant's home. Bayless saw appellant running away. Appellant ran into his house.
Bayless testified at the preliminary hearing. Prior to trial, Bayless died and his testimony from the preliminary hearing was read to the jury.
Bayless admitted he had ingested methamphetamine the day before this incident, and he further admitted he was likely still under its influence when he saw appellant running from the scene.
Various neighbors rushed to the scene and found Kahl lying lifeless on the ground near his truck. The tailgate of his truck had become dislodged, and it was on the ground near him. A cordless drill was also on the ground about a foot from Kahl's hand.
It was later discovered that a bullet had struck the edge of the tailgate.
One of the jurors wrote a note asking if a witness had heard the drill being used. The witness who saw the drill on the ground denied hearing the drill.
Law enforcement was dispatched at about 7:45 or 7:50 p.m. Officers arrived and rendered first aid. Kahl was transported to a hospital, but he died as a result of the three gunshot wounds. He had been shot once in his face, once in his throat near his Adam's apple, and once to the back of his head behind his right ear.
The sun set that night at about 7:30 p.m.
B. Law enforcement finds evidence connecting appellant to this homicide.
About an hour after responding to the scene, law enforcement was alerted that appellant was a possible suspect in this shooting. Appellant's residence was surrounded and law enforcement forcibly entered it later that night. Nobody was present. A firearm was recovered inside appellant's home. Later testing established that this was the weapon that had fired multiple expended shell casings, which had been recovered outside appellant's home around the murder scene. Appellant's deoxyribonucleic acid was matched to this firearm.
Five bullet strikes were visible to the outer stucco of a neighboring house. Based on photographic evidence, appellant contends, and we agree, that these casings appeared to be about 15-to-20 feet from the back of Kahl's truck.
The jury learned that, sometime after this shooting had occurred, appellant had left his residence unseen by anyone and he had gone to his cousin's home. About three hours after law enforcement had been on scene at the shooting, appellant was driven back to his house, where he met with law enforcement and was taken into custody. Appellant's hands were swabbed that night at about 1:06 a.m., and they tested positive for gunshot residue. Such residue would have typically stayed on appellant's hands only for about four-to-six hours.
C. Appellant built the firearm used to kill Kahl.
The prosecution established that, about a month before this homicide, appellant had purchased parts to make the firearm that was used to kill Kahl. The parts had been purchased through various sources, and appellant built it himself so it was unregistered. On at least one occasion, appellant had ordered a part for a gun, which had been delivered to his residence under his great-uncle's name.
D. Appellant was a recluse who appeared paranoid about his neighbors.
The motive for this killing was unclear. The prosecutor told the jury during closing argument that it was not known why appellant had killed Kahl.
In his opening brief, appellant notes that there was no testimony demonstrating that he had ever met or seen Kahl prior to the fatal night.
During the guilt phase, the jury learned that appellant was a recluse who did not engage socially with his neighbors. He was living alone when this incident occurred. When he spoke to people, appellant exhibited an unusual mannerism in that he always covered his mouth with his hand. An acquaintance described appellant as a germaphobe, and said he would put bags on his hands when grocery shopping.
Appellant lived in a house that belonged to his great-uncle. His great-uncle also owned the adjoining land on which various tenants lived. Bayless was living in his trailer on the property with appellant's permission, but he was not paying any rent. In the weeks prior to this homicide, appellant had expressed displeasure to Bayless that his trailer was parked on the property. Appellant had wanted Bayless to move the trailer, and Bayless testified at the preliminary hearing that he knew he needed to move.
Prior to this homicide, appellant had complained to people that the tenants on his family's property were stealing electricity or water, and the tenants "were always bullying him."
In the days prior to this fatal shooting, neighbors had heard random shots being fired near and around appellant's residence. Some of the neighbors testified that appellant appeared upset in the days leading up to this shooting, and appellant was openly complaining about the people on the property.
In his opening brief, appellant concedes that, at some point before this fatal encounter, he had completed constructing his firearm and "started shooting it in his own house." One of the neighbors described the area as being a bad neighborhood, and it was not uncommon to hear gunfire.
II. During the Sanity Phase, Appellant Failed To Demonstrate He Was Insane When He Killed Kahl.
During the sanity phase, the jury learned that appellant was 39 years old. He had been in special education as a child, and, when he was 17 years old, he became very socially withdrawn after his younger brother was killed. In his teens and 20's he began talking to and answering himself. As an adult, appellant was very secluded and rarely left his house. He appeared paranoid.
Appellant previously lived in Las Vegas, Nevada, where he had a history of psychiatric hospitalizations. It was unclear, however, how many times appellant had been previously hospitalized because he gave a different number to various mental health professionals. On at least two occasions, appellant was suicidal. A medical doctor had previously diagnosed appellant with schizoaffective disorder, major depression, and paranoid personality disorder. The medical doctor had previously noted that appellant was hearing voices and command hallucinations.
Appellant had been prescribed Prozac, an antidepressant, and Zyprexa, an antipsychotic. The prescription for Zyprexa was filled on January 12, 2018, about three months before this homicide occurred. Appellant, however, had stopped taking this medication, which was recovered in his home when law enforcement searched it.
Appellant had previously lived with his mother and his grandmother. During that time he had helped care for his grandmother. According to his mother, appellant had done "everything" for his grandmother, including changing her, feeding her, and helping her get out of bed. "He did everything that a caregiver would do for an elderly parent." Appellant assisted in the care of his grandmother until about 2016, when she was placed in a home.
A. The testimony from the defense's experts.
Appellant called two psychologists, Paula Jean Willis and Richard A. Blak, to testify on his behalf. We summarize the relevant testimony from his experts.
1. The testimony from Willis.
Willis works as a clinical psychologist. She was appointed by the court to evaluate appellant. She interviewed him for almost two hours, and she reviewed his medical records.
Willis opined that, based on a review of his history, appellant had exhibited symptoms consistent with both schizophrenia and schizoaffective disorder. Appellant was fearful of the government, and believed the government could kill him. Appellant told her that he put foil on the back of his house" 'to keep the voices from reading my mind.'" He also told her that he" 'put pots and pans'" in his backpack for protection because he thought someone, like a neighbor, might shoot him. According to Willis, these statements showed appellant's delusional thinking and his paranoia. She believed his paranoia was peaking as the perceived problems with his neighbors unfolded.
Appellant admitted to Willis that he had purchased parts for a gun, but he then claimed it "wasn't his gun." He said he bought parts for a gun to protect himself from the people on his property" 'to keep from being hacked up.'" He claimed that, when he was gone," 'they would come in and take things.'" He tried to stay away from them, but he would" 'catch them watching'" him.
According to Willis, appellant knew he was not supposed to buy or have a gun, but he did it anyway. His mother had taken a gun away from him before. Appellant told Willis he previously had a gun in Las Vegas for protection because he thought the neighbors were threatening him, but his mom made him get rid of it.
Willis explained that appellant had obtained the current gun because he was afraid. According to Willis, appellant had ordered a part for the gun in his uncle's name so he would not be caught. Appellant thought he was in the right to get a gun because he was protecting himself, but he had also tried to hide his actions. Willis opined that appellant had understood right from wrong, but he had also believed it was okay to protect himself. Appellant's reality had been defective and he had been fearful for his life.
Appellant told Willis that he remembered going to his cousin's house on the fatal night, but he was not sure when he went over there. He had smoked some marijuana. He claimed that he had not heard any shots that night, but he had heard shots fired before in the area. He told Willis that he did not shoot anyone. He claimed someone else had put the gun in his residence that law enforcement found.
Willis told the jury that appellant had been responding to his internal stimuli, such as voices and thoughts, and it appeared to her that appellant had been fearful for his own life. She opined that a person with a long history of mental illness and hearing voices would not be sane if he committed murder while hearing voices that his neighbors wanted to harm or kill him, and the person feared for his own life.
2. The testimony from Blak.
Blak is a licensed psychologist. He was hired by the defense to evaluate appellant. He interviewed appellant for about two and a half hours, and he also reviewed medical and law enforcement records pertaining to appellant and this criminal incident.
Blak diagnosed appellant with a combination of schizophrenia and schizoaffective disorder. Blak explained that schizophrenia is a thought disorder associated with delusions, false beliefs and/or auditory or visual hallucinations which are not drug-induced. According to Blak, appellant heard voices and he believed others wanted to harm him.
Appellant admitted to Blak that he knew it was wrong to get a gun, but he had obtained parts for one. Blak testified that appellant obtained the gun for protection based on his delusion that people were wanting to harm him. Blak opined that a person is mentally insane, and his judgment could be impaired from a mental disease, if the person had a long history of mental health issues, he was hearing voices telling him his neighbors wanted to harm him, and he feared for his life. Blak explained that, even with a mental disease, appellant would have been capable of obtaining a firearm over the Internet, but his plan originated from distorted thinking.
B. The prosecution's evidence.
During the sanity phase, the prosecution introduced into evidence a recorded jail call between appellant and his mother from 2019. It was played for the jury. During his recorded conversation with his mother, appellant disclosed to her that he had recently lied to a mental health expert (he did not disclose the name) regarding his competency. Appellant indicated to his mother that he had lied as part of his strategy to create a potential issue for appeal.
On June 16, 2019, a psychiatrist interviewed appellant in jail and subsequently advised the trial court that appellant was mentally competent to stand trial.
The lead detective testified during the sanity phase. He and another detective had interviewed appellant on April 13, 2018, less than 24 hours after the murder. Appellant's rights were read to him, and he seemed to understand those rights. Appellant had agreed to talk. Although appellant covered his mouth when speaking, he did not display any other unusual or irrational behavior. According to the lead detective, appellant had appeared to understand the questions and he responded appropriately. Appellant said he had been home earlier in the day but he went to his cousin's house while it was still daylight. Appellant denied having a gun. He told the detectives that he was schizophrenic.
During his interview with law enforcement, appellant complained to the detectives that his neighbors had been taking or stealing water and electricity. He believed someone had tried to break into his house.
During the sanity phase, the prosecutor called two experts, Tamar Kenworthy and Luis Velosa. We summarize their respective testimony.
1. The testimony from Kenworthy.
Kenworthy is a licensed psychologist. She was appointed by the court to evaluate appellant. They had met for about two hours.
Kenworthy diagnosed appellant with schizoaffective disorder, depressive type. She explained that this is a psychotic illness with a mood component to it. Appellant has shown paranoid ideation, delusional beliefs, and expressed auditory hallucinations, which was consistent with jail records. In jail custody, appellant was on antipsychotic and antidepressant medication.
Appellant told Kenworthy that he had nothing to do with this homicide and he was at his cousin's home. He had no clue who shot the victim. Appellant claimed he could remember nothing about the day in question. As a result, Kenworthy told the jury that she was unable to opine on appellant's sanity at the time this crime occurred. Appellant did not recount the incident so nothing showed that he had blacked out or heard voices.
Appellant admitted purchasing parts for a gun, but claimed he did not know how to assemble it. Appellant said he purchased the gun parts because he had feared for his own safety. He thought his neighbors had wanted to kill him, and they had dug graves for him. Kenworthy believed that this showed appellant's paranoia.
According to Kenworthy, appellant's recorded jail call showed that, at that time, appellant had a strategy in mind regarding how to report certain symptoms to a psychiatrist. This showed his planning regarding how to approach the issue of his competency. Kenworthy opined that, based on appellant's various statements about the gun parts, appellant had known what was illegal and appellant had shown a level of criminal thinking. Appellant's delusional belief could have driven his attempt to get a weapon, which was a goal-oriented behavior.
2. The testimony from Velosa.
Velosa is a medical doctor who practices psychiatry. He was appointed by the court to evaluate appellant, and he twice met with him.
According to Velosa, appellant has never suffered from schizophrenia, and appellant does not show symptoms of a serious psychiatric illness. Although appellant reported hearing voices, Velosa believed those voices did not derive from schizophrenia or a major mental illness. Instead, those were appellant's normal internal thoughts. Velosa explained that appellant had cared for his grandmother for two years, and he would have been unable to do so if he really had schizophrenia.
Appellant denied being involved in this murder and he claimed he had been at his cousin's house. Appellant never told Velosa that he had acted under a delusion. Velosa told the jury that someone who is schizophrenic is unable to create an alibi. According to Velosa, appellant's interview with the detectives demonstrated his rational thinking, and he had not exhibited any sign of a mental illness, such as talking about hearing voices. Velosa explained that a person who is truly insane is unable to give a rational interview less than 24 hours after committing the crime. Fleeing after a crime has nothing to do with a mental illness. Velosa testified that a person with a true psychiatric illness would be unable to research how to build a gun, and he would be unable to build it.
According to Velosa, appellant's recorded jail call showed his cohesion of thought and nothing demonstrated a psychiatric illness. Appellant admitted lying to a psychiatrist while in jail, and appellant exhibited normal criminal thinking.
Velosa diagnosed appellant as suffering from a major depressive disorder and not a psychotic illness. His interactions were normal. Velosa believed it was likely appellant had been placed on Zyprexa as a mood stabilizer, and not as an antipsychotic. Velosa reiterated that appellant's alleged voices were not the product of a psychiatric illness. Velosa noted that appellant had claimed he was not present at the homicide. If he was there, Velosa opined that appellant had understood the nature and quality of his act, and he was able to differentiate right from wrong.
Velosa disagreed with the previous medical doctor's diagnosis of schizophrenia. According to Velosa, appellant was functioning in society, but he had mood swings and was depressed. Appellant was not having hallucinations. Velosa explained that, when not taking medication, schizophrenics never make sense, and that did not describe appellant.
DISCUSSION
I. The Trial Court Did Not Err in Refusing To Instruct the Jury on Voluntary Manslaughter.
During the guilt phase, the trial court denied a defense request to instruct the jury on voluntary manslaughter. According to the court, the defense was taking the position that appellant was not present when this fatal shooting occurred, and no evidence showed that appellant had killed in a heat of passion.
In the present claim, appellant contends that the court erred and denied him due process. According to appellant, substantial evidence established that he shot Kahl based either on an unreasonable belief in the need to defend himself or based on a heat of passion. Appellant seeks reversal of his guilty verdict.
A trial court is obligated to instruct a jury regarding every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Murder is the unlawful killing of a human being with malice aforethought. (People v. Elmore (2014) 59 Cal.4th 121, 132.) A defendant who commits an intentional and unlawful killing, but who lacks malice, is not guilty of murder but, instead, is guilty of voluntary manslaughter. (Id. at p. 133.) Examples of voluntary manslaughter include a defendant killing based on a sudden quarrel or heat of passion, or when a defendant kills in unreasonable self-defense. (Ibid.)
As we explain below, this record does not contain substantial evidence justifying a jury instruction for either heat of passion or unreasonable self-defense.
A. Substantial evidence did not demonstrate heat of passion.
Heat of passion has both an objective and subjective component. (People v. Rountree (2013) 56 Cal.4th 823, 855.) Subjectively, the defendant must actually kill under a heat of passion. Objectively, the circumstances giving rise to the heat of passion must be such that would naturally arouse an ordinarily reasonable person under the given facts and circumstances. (Ibid.)
In an attempt to establish a heat of passion, appellant relies on his general paranoia in the weeks and days leading up to this fatal encounter. Appellant notes that he lived alone, he feared his neighbors, and he felt threatened. Appellant also asserts that this shooting occurred when it was getting dark outside, and Kahl was found with a cordless drill on the ground near his hand. From all this, appellant claims substantial evidence existed from which the trial court was obligated to instruct the jury on voluntary manslaughter based on a heat of passion. We disagree.
Neither the subjective nor the objective criteria are met. Subjectively, appellant never stated, either before or during trial, that he killed Kahl based on his own heat of passion. Objectively, nobody heard any yelling or argument before the shots were fired. Appellant and Kahl did not know each other. No evidence establishes or even rationally suggests that a reasonable person would have been aroused to shoot Kahl under these circumstances.
None of appellant's cited evidence demonstrates that the court erred. There was no evidence that appellant killed Kahl based on a sudden quarrel or heat of passion. Both the subjective and objective requirements are lacking. Thus, the trial court appropriately refused to instruct the jury regarding voluntary manslaughter based on heat of passion, and this claim lacks any merit.
B. Substantial evidence did not demonstrate unreasonable self-defense.
A person who kills in self-defense is justified and no crime has occurred. (People v. Elmore, supra, 59 Cal.4th at pp. 133-134.) For self-defense to apply, however, the defendant must kill based on a reasonable belief deadly force was necessary to avert an imminent threat of death or great bodily injury. (Id. at p. 134.) In contrast, a killing committed when that belief is unreasonable is not justified. (Ibid.) Nevertheless, if a defendant holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, that person does not harbor malice and he commits no greater offense than manslaughter. (Ibid.)
In an attempt to establish unreasonable self-defense, appellant again points to the same evidence summarized above. That is, he lived alone, he was paranoid, his mental state was declining, and he was fearful of his neighbors. Appellant notes that this fatal incident occurred when it was getting dark, and Kahl was found with a cordless drill near his lifeless body. Appellant contends that the placement of the drill "strongly suggests" Kahl was holding the drill when he was shot. Appellant further argues that he must have been panicked when he fired because he discharged multiple imprecise shots. According to appellant, the totality of the evidence was such that the court was obligated to instruct the jury regarding voluntary manslaughter based on unreasonable self-defense. We disagree.
In his briefing, appellant refers to the neighbors as "unwelcome methamphetamine-using squatters" who were living "within feet of his front door."
Nobody heard any yelling or an argument before appellant fired the fatal shots. Appellant shot Kahl three times, and one of the shots was to the back of Kahl's head behind his right ear. These shots were not fired at close range. Based on the photographic evidence, it appears that the shots were fired at a distance of 10 feet or greater. Appellant fled after shooting Kahl and he attempted to create an alibi for himself. Appellant never stated, either before or during trial, that he killed Kahl while believing he needed to protect himself.
Nobody heard Kahl using the drill before the shots were fired. During this fatal incident, the tailgate of Kahl's truck became dislodged, and it fell to the ground. It is very possible the drill fell from the truck when the tailgate became dislodged. As such, based on the totality of the evidence, we reject appellant's assertion that a reasonable inference may be drawn that Kahl was holding the drill when appellant shot him. Although appellant speculates that Kahl might have held the cordless drill when he was shot, such conjecture is not evidence. Speculation does not warrant the giving of an instruction on a lesser included offense. (People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Wilson (1992) 3 Cal.4th 926, 942.) An instruction on a lesser included offense is "required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. [Citation.]" (People v. Hardy (2018) 5 Cal.5th 56, 98.)
The evidence appellant cites does not raise a possibility he killed Kahl stemming from an unreasonable belief he needed to defend himself. The evidence does not show that a reasonable jury could conclude appellant only committed voluntary manslaughter and not murder. The court did not err, and we will affirm the murder conviction.
Because the trial court did not err, we do not address appellant's claims regarding prejudice.
II. Appellant Has Forfeited His Claim That the Trial Court Erred in Failing To Instruct Regarding an Insane Delusion; This Claim Also Fails on Its Merits and Any Presumed Error Is Harmless.
In California, persons who are mentally incapacitated are deemed unable to commit a crime. (§ 26, par. 2.) Mental incapacity is determined by the M'Naghten test for legal insanity. (People v. Powell (2018) 5 Cal.5th 921, 955; see § 25, subd. (b).)" 'Under M'Naghten, insanity is established if the defendant was unable either to understand the nature and quality of the criminal act, or to distinguish right from wrong when the act was committed.'" (People v. Powell, supra, at p. 955, quoting People v. Elmore, supra, 59 Cal.4th at p. 140.)
See M'Naghten's Case (1843) 8 Eng.Rep. 718.
The defendant bears the burden during the sanity phase to prove insanity by a preponderance of the evidence. (§ 25, subd. (b); People v. Powell, supra, 5 Cal.5th at p. 955.) Under the M'Naghten standard, a defendant may suffer from a diagnosable mental illness without being legally insane. (People v. Powell, supra, at p. 955.)
CALCRIM No. 3450 sets forth the elements necessary for a defendant to establish he was insane when he committed the criminal act. In relevant part, this informs a jury that the defendant must prove "it is more likely than not" he was insane when he committed the crime. A defendant is legally insane if (1) he had a mental disease or defect when he committed the crime and (2) because of that disease or defect he was incapable of knowing or understanding the nature and quality of his act or he was incapable of knowing or understanding that his act was morally or legally wrong. (CALCRIM No. 3450.) This instruction has been upheld by appellate courts. (People v. McCarrick (2016) 6 Cal.App.5th 227, 250-252; People v. Thomas (2007) 156 Cal.App.4th 304, 310-311.)
In addition to the well-known rule summarized above to establish insanity, M'Naghten has a lesser known rule that involves delusional beliefs. (See Johnston &Leahey, The Status and Legitimacy of M'Naghten's Insane Delusion Rule (2021) 54 U.C. Davis L.Rev. 1777, 1780.) This alternative approach is known as "the insane delusion rule" and it states that, if a defendant acts under a delusional belief, he can establish legal insanity. For this to apply, however, the defendant's delusion, if true, must justify the commission of the criminal act. (M'Naghten's Case, supra, 8 Eng.Rep. at p. 722; Kassa v. State (Nev. 2021) 485 P.3d 750, 756; see Johnston &Leahey, supra, 54 U.C. Davis L.Rev. at p. 1780.)
CALCRIM No. 3450 does not inform a jury about the insane delusion rule. However, CALJIC does provide such an instruction. Under the CALJIC instruction, a defendant who commits an act that would otherwise be criminal "is not guilty by reason of insanity if the defendant was suffering from an insane delusion, and the facts perceived as real as a product of the delusion would have caused the act to be lawful." (CALJIC No. 4.06.) Specifically for murder, this instruction states that, "if the facts the defendant perceived as a product of the delusion would have justified the exercise of self-defense, or defense of others, the defendant would be not guilty by reason of insanity, if the defendant's acts would have been justified had the perceived facts been real." (Ibid.)
Effective January 1, 2006, the California Judicial Council adopted the California Criminal Jury Instructions (CALCRIM) and it withdrew its endorsement of CALJIC. Use of CALJIC instructions is subject to rule 2.1050(f) of the California Rules of Court. "Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless the judge finds that a different instruction would more accurately state the law and be understood by jurors. Whenever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument." (Cal. Rules of Court, rule 2.1050(f).)
In the present claim, appellant argues the trial court denied him due process in failing to instruct the jury with language similar to CALJIC No. 4.06 during the sanity phase. He contends that an instruction regarding the insane delusion rule was necessary for the jury to evaluate the facts from his perspective. Appellant maintains he was prejudiced, and the jury's sanity finding must be reversed.
We reject appellant's various arguments. This claim is forfeited. In any event, the court did not err in failing to instruct the jury with language taken from CALJIC No. 4.06 and any presumed error is harmless.
A. This claim is forfeited.
Appellant did not ask the trial court to instruct the jury with language taken from CALJIC No. 4.06. Thus, we agree with respondent that appellant has forfeited this claim.
CALCRIM No. 3450 is a correct statement of law regarding the elements necessary to establish insanity. As such, appellant was obligated to request any clarifying or amplifying instruction. His failure to do so bars appellate review of this matter. (See People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Cavitt (2004) 33 Cal.4th 187, 204.)
To overcome forfeiture, appellant asserts that it was futile for him to raise this issue at the sanity phase after the trial court had already refused to instruct the jury on unreasonable self-defense during the guilt phase. We disagree. The futility exception to the forfeiture rule applies in unusual or extreme circumstances. (People v. Lima (2022) 80 Cal.App.5th 468, 479, citing People v. Hill (1998) 17 Cal.4th 800, 821.) No unusual or extreme circumstances occurred in this matter. Appellant was obligated in the sanity phase to request any clarifying or amplifying instructional language that he wanted. His failure to do so results in forfeiture.
Finally, appellant argues that the trial court had a sua sponte obligation to provide the instructional language appearing in CALJIC No. 4.06. In contrast, respondent asserts that this was a pinpoint instruction, which the defense had to request. We agree with respondent and reject appellant's position.
A court must instruct sua sponte on the general principles of law that are closely and openly connected with the facts of the case. (People v. Marquez (1992) 1 Cal.4th 553, 581.) This instructional duty is triggered for defenses that are raised by the evidence, and lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present. (Ibid.) In contrast, a trial court is not obligated to provide a pinpoint instruction unless requested by the defense. (People v. San Nicolas (2004) 34 Cal.4th 614, 669.) A pinpoint instruction relates particular facts to a legal issue in a case, or it pinpoints the crux of a defendant's case. (People v. Ward (2005) 36 Cal.4th 186, 214.) Even when requested, a trial court must only give a pinpoint instruction if it is supported by substantial evidence. (Ibid.)
Here, the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 3450, which provided the elements necessary for appellant to prove his alleged insanity. In contrast, the language in CALJIC No. 4.06 was an additional instruction that pinpointed the crux of appellant's defense. Thus, we agree with respondent that this was a pinpoint instruction, and appellant was obligated to request such language. Appellant's failure to raise this issue below results in forfeiture. As we explain below, however, even if this claim is not deemed forfeited, it nevertheless fails on its merits.
Because we address and reject this claim on the merits and find any presumed error harmless, we need not resolve appellant's alternative claim of ineffective assistance of counsel.
B. The trial court did not err.
A trial court is obligated to instruct a jury regarding every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. (People v. Montoya, supra, 7 Cal.4th at p. 1047.)
To establish that substantial evidence existed for instruction on an insane delusion, appellant points to his general behavior before this crime occurred, and to the opinions of his expert witnesses. He notes he was paranoid that his neighbors were going to harm him, which prompted him to obtain the firearm. He reported to one of his defense experts that he put foil on the back of his house" 'to keep the voices from reading my mind'" and he" 'put pots and pans'" in his backpack for protection because he thought someone, like a neighbor, might shoot him. The defense experts opined that, even though appellant knew it was wrong to obtain a gun, he did so over a paranoid belief he had to protect himself.
Although appellant can point to this general behavior before he killed Kahl, such evidence does not demonstrate or even reasonably suggest that appellant actually killed Kahl over a delusional belief he was facing imminent peril. The defense never provided evidence establishing what appellant actually perceived at the time he killed Kahl. To the contrary, appellant consistently told law enforcement and various mental health professionals that he was not involved in this shooting. In short, no evidence was introduced in either the guilt or sanity phases that demonstrated or even suggested that appellant shot Kahl because of an insane delusion that would have justified the exercise of self-defense if the perceived facts had been real. (See CALJIC No. 4.06.)
Appellant relies on People v. Leeds (2015) 240 Cal.App.4th 822 (Leeds). According to appellant, Leeds establishes that the doctrine of unreasonable self-defense applies in a sanity proceeding.
In Leeds, the defendant was a diagnosed paranoid schizophrenic who killed his father and three other men while in the midst of a paranoid delusion that the victims had conspired to kill him. (Leeds, supra, 240 Cal.App.4th at p. 824.) The defendant entered guilty pleas for the murders but entered a plea of not guilty by reason of insanity. (Ibid.) The defendant claimed that, based on hallucinations and delusions caused by his mental illness, he had believed it was necessary to defend himself by killing the victims before they could kill him. (Ibid.) The Leeds court concluded that instructional error had occurred when the jury was informed that, to rely on self-defense, the defendant's conduct must have been reasonable. (Id. at p. 832.) Such an instruction erroneously prohibited the jury from applying the concept of self-defense in this situation because, without applying the facts as the defendant had perceived them to be, the jury was precluded from evaluating whether his paranoid schizophrenia had rendered him incapable of appreciating the wrongfulness of his actions. (Id. at p. 831.) However, the instructional error was deemed harmless for three of the murders because there was no evidence the defendant had perceived an imminent danger when killing those victims. (Id. at p. 833.) In contrast, the instructional error was found prejudicial for the murder of the defendant's father because the defendant had erroneously believed his father had agreed to kill him, and the defendant had erroneously believed his father had been brandishing a gun when the defendant shot him. (Ibid.) The jury's verdict regarding the defendant's sanity for that particular murder charge was reversed and the matter was remanded for a new sanity trial on that count. (Leeds, supra, 240 Cal.App.4th at p. 837.)
Following publication of the Leeds opinion in 2015, CALJIC added the instructional language that appears in CALJIC No. 4.06 regarding the insane delusion rule. (See Com. to CALJIC No. 4.06.)
Leeds does not assist appellant. Unlike what occurred in Leeds, appellant never provided an explanation regarding why he shot Kahl, and appellant never stated he fired at Kahl based on a delusional belief that he needed to defend himself from perceived imminent peril. Further, nothing in this record reasonably demonstrates that appellant exercised self-defense. To the contrary, appellant told law enforcement that he was not home when this crime occurred, and he denied having a gun. Likewise, appellant told various mental health experts that he had no involvement in this murder. Leeds is inapposite to the present situation and it does not establish error.
Finally, appellant argues that, during the sanity phase, his counsel was apparently trying to establish that he had acted due to an insane delusion. According to appellant, CALCRIM No. 3450 was inadequate for the jury to evaluate properly whether or not he was insane based on a delusion. Appellant contends that, without further instruction, the jury would have been confused how to evaluate his alleged insane delusion. We disagree.
During closing argument in the sanity phase, defense counsel reminded the jury that appellant had armed himself over a paranoid belief that he needed to protect himself. Defense counsel asserted to the jury during the sanity phase that appellant had shot Kahl based on paranoid and disorganized thinking that he had to protect himself.
The California Supreme Court has commented that the insane delusion rule from M'Naghten applies" 'the right/wrong prong'" of the insanity test to an insane delusion in the same manner as it is applied to other forms of insanity. In other words, the delusion results in an inability to appreciate that the act is wrong and the defendant believes he is defending himself. (People v. Elmore, supra, 59 Cal.4th at p. 140; see People v. Skinner (1985) 39 Cal.3d 765, 781, fn. 13.) Our high court has further noted that "[a] claim of unreasonable self-defense based solely on delusion is quintessentially a claim of insanity under the M'Naghten standard of inability to distinguish right from wrong." (People v. Elmore, supra, 59 Cal.4th at p. 140.)
Based on this record, the trial court did not err in failing to instruct the jury with language taken from CALJIC No. 4.06. The jury was properly instructed on the law regarding insanity and it could have concluded from the evidence and defense arguments that appellant was unable either to understand the nature and quality of the criminal act, or to distinguish right from wrong when the act was committed. The jury rejected the defense's position and substantial evidence did not establish that appellant killed Kahl based on an insane delusion resulting in a perceived need to defend himself. The instruction given under CALCRIM No. 3450 adequately encompassed the issue of appellant's alleged insanity. This claim fails on its merits.
C. Any presumed error is harmless.
Appellant contends he was unable to present his defense because the court failed to instruct the jury on the insane delusion rule. He argues that the jury's sanity verdict must be reversed automatically without analyzing prejudice. In the alternative, he maintains that, even if it is not reversible per se, he suffered harm and reversal is required.
We reject appellant's various contentions. Even if the trial court had a sua sponte obligation to instruct the jury with language taken from CALJIC No. 4.06, a position we do not hold, reversal is nevertheless not required. As an initial matter, appellant is incorrect that this alleged instructional error might necessitate automatic reversal. Instead, this is amenable to harmless error review. (See People v. Mil (2012) 53 Cal.4th 400, 413-414 [failure to instruct on one or more elements is mere trial error, which is amenable to harmless error review], citing Arizona v. Fulminante (1991) 499 U.S. 279, 307-308.) This alleged error did not impact the framework within which the sanity phase proceeded, so a structural error is not present requiring reversal per se. (See People v. Aranda (2012) 55 Cal.4th 342, 363-364 [examples of structural error include the denial of counsel or of self-representation, racial discrimination in jury selection, and trial with a biased judge].) Thus, if we presume that instructional error occurred, it is appropriate to analyze alleged prejudice.
This record overwhelmingly demonstrates that any presumed error was harmless. According to the defense experts, appellant obtained a firearm because he had held a delusion that his neighbors wanted to harm him. However, both defense experts told the jury that appellant knew he was not supposed to have a firearm.
The prosecution's first expert, Kenworthy, said it was impossible to give an opinion regarding appellant's sanity because appellant had denied any involvement in this homicide. Because appellant did not recount the fatal incident, there was nothing showing that appellant had blacked out or had heard voices.
The prosecution's other expert, Velosa, opined that appellant was not suffering from schizophrenia, and there were no clear symptoms of a serious psychiatric illness. Appellant had never claimed that he had acted under a delusion when this murder occurred. According to Velosa, someone who is schizophrenic is unable to create an alibi or build a firearm.
The jury learned that appellant had lied to a mental health expert regarding his competency while he was in jail waiting for this trial. Appellant indicated to his mother in a recorded jail call that he had lied as part of his strategy to create a potential issue for appeal. During the sanity phase, appellant was able to present his evidence and position, which the jury rejected. The evidence from the sanity phase overwhelmingly demonstrated that appellant was not insane when this homicide occurred. Prior to this shooting, appellant researched how to build a firearm, and he then acquired the parts for one. On one occasion, appellant hid his actions by purchasing a part for the gun under a different name. He then constructed a working firearm, which he discharged around his property on multiple occasions in the days leading up to this fatal encounter. After shooting Kahl, appellant fled into his home where he left his gun. He attempted to create an alibi by going to his cousin's home. He returned to the scene hours later, and appellant lied to law enforcement about owning a gun.
Based on this record, it is overwhelmingly apparent that, even if appellant had a mental disease or defect when he murdered Kahl, he was capable of knowing or understanding the nature and quality of his act and he was capable of knowing or understanding that his act was wrong. (See CALCRIM No. 3450.) Appellant never claimed that he killed based on a delusion or the perceived need to defend himself. Thus, it is beyond a reasonable doubt that any alleged instructional error was harmless. (See Chapman v. California (1967) 386 U.S. 18, 24.) In other words, no rational juror who made the findings reflected in the sanity verdict and heard the evidence at the sanity phase could have had reasonable doubt regarding the findings necessary to return a sanity verdict absent the alleged instructional error. (See People v. Schuller (2023) 15 Cal.5th 237, 244 [applying this standard for instructional error during guilt phase].) Likewise, it is not reasonably probable appellant would have obtained a more favorable outcome had the alleged instructional error not occurred. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Consequently, prejudice did not occur under any standard and it is not appropriate to reverse the sanity verdict.
III. Appellant Has Forfeited His Claim of Sentencing Error; He Fails To Establish Ineffective Assistance of Counsel; We Decline To Strike His Firearm Enhancement.
The jury found true that appellant intentionally discharged the firearm that killed Kahl (§ 12022.53, subd. (d)). As a result, the trial court enhanced appellant's sentence with a consecutive term of 25 years to life.
Before this sentence was imposed, appellant's trial counsel asked the court to strike the firearm enhancement in the interests of justice. During the sentencing hearing, defense counsel stated his belief that the court was without discretion to impose sentence on the firearm enhancement if the court was not inclined to strike it.
The court declined to strike the firearm enhancement. The court was troubled by the "cold-blooded" nature of this killing. The court also noted that appellant had researched how to build the gun, and appellant had "premeditated" his choice to arm himself. The court recognized that appellant's mental health was a factor in mitigation. However, the court was concerned that appellant had lied to a psychiatrist while in jail in an attempt to impact the issue of his competency. The court stated it believed the jury correctly convicted appellant of second degree murder, and it correctly found true the firearm enhancement. The court recognized it had discretion to strike the enhancement, which it believed was inappropriate.
In the present claim, appellant asserts that the trial court erred in imposing the consecutive 25-year indeterminate sentence for the firearm enhancement. He contends that this enhancement must be reversed. He requests that this court either strike that sentence or remand this matter for resentencing.
Appellant's claim is based on recent changes in relevant sentencing laws. Section 1385 authorizes a trial court to dismiss a firearm enhancement in the interests of justice. (People v. Tirado (2022) 12 Cal.5th 688, 696 (Tirado); see §§ 1385, subd. (a), 12022.53, subd. (h).) In Tirado, our high court recently held that, in certain circumstances, a sentencing court has discretion to strike an aggravated firearm enhancement and, instead, impose a lesser included uncharged firearm enhancement. (Tirado, supra, at p. 692; § 12022.53, subds. (b)-(d).)
Section 12022.53 provides for sentencing enhancements based on a defendant's personal use of a firearm in the commission of certain enumerated felonies. A 10-year enhancement is imposed for the personal use of a firearm (id., subd. (b)); a 20-year enhancement is imposed for the personal and intentional discharge of a firearm (id., subd. (c)); and a 25-year-to-life enhancement is imposed for the personal and intentional discharge of a firearm causing great bodily injury or death (id., subd. (d)).
Tirado was issued on January 20, 2022, a little over four months before appellant's sentencing in this matter occurred. Appellant's trial counsel did not raise Tirado or ask the court to impose a shorter enhancement for the firearm as opposed to outright striking the jury's true finding.
In addition to the change brought about by Tirado, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.). This legislation became effective on January 1, 2022, almost five months before appellant was sentenced in this matter on May 31, 2022. This law reflects a legislative preference for the dismissal of enhancements if certain "mitigating circumstances" exist. (§ 1385, subd. (c)(2).) One such circumstance is if imposing an enhancement "could result in a sentence of over 20 years." (Id., subd. (c)(2)(C).) Under Senate Bill No. 81, sentencing courts must "consider and afford great weight" to mitigating factors, which weigh greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. (§ 1385, subd. (c)(2).) Our high court's opinion in Tirado, which, as previously noted, was issued on January 20, 2022, does not address Senate Bill No. 81, which took effect just a few weeks before its publication.
The appellate districts have subsequently interpreted section 1385 in different ways, creating a split of authority now under review by the California Supreme Court. One view holds the "mandate to 'afford great weight' to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement-with the resultingly shorter sentence- would endanger public safety." (People v. Walker (2022) 86 Cal.App.5th 386, 391, review granted Mar. 22, 2023, S278309.) The opposing view is that enhancements may be imposed without a public safety determination, even if one or more of the mitigating circumstances are established. (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1096-1098, review granted Apr. 12, 2023, S278894.)
In the present matter, the parties disagree how this split of authority should be resolved. Appellant urges us to follow Walker. In contrast, respondent contends that Ortiz is correct.
We need not address this split of authority or resolve the parties' dispute in this regard. Instead, we agree with respondent that appellant has forfeited this claim and appellant does not establish ineffective assistance of counsel. Finally, we also agree with respondent that it is not appropriate for this court to dismiss the firearm enhancement.
A. Appellant has forfeited this claim.
In general, the forfeiture doctrine applies in the context of sentencing. (People v. Trujillo (2015) 60 Cal.4th 850, 856.) Alleged sentencing errors involving a court's discretionary sentencing choices are essentially factual in nature, and distinct from clear legal errors which can be remedied on appeal independent of any factual issues presented by the sentencing record. (Id. at pp. 856-857.)
Forfeiture may occur when a defendant fails to raise an alleged deficiency in how the trial court articulated a discretionary sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 353.) Although a sentencing judge is required to impose sentence in a lawful manner, "counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. (Ibid.)
Here, appellant's trial counsel did not raise Tirado when appellant was sentenced, and the defense did not ask the trial court to impose a shorter sentence instead of outright striking the entire firearm enhancement. Likewise, defense counsel did not ask the court to articulate whether or not appellant posed a risk to public safety.
Appellant now claims the sentencing record is defective because the court failed to properly articulate the reasons supporting its discretionary sentencing choice. This claim, however, is forfeited. Because appellant failed to raise these concerns below when they could have been readily clarified, we decline to review these issues. (See People v. Scott, supra, 9 Cal.4th at p. 353.)
B. Appellant fails to establish ineffective assistance of counsel.
To overcome forfeiture, appellant raises a claim of ineffective assistance of counsel. To prevail, appellant must establish two criteria: (1) his counsel's performance fell below an objective standard of reasonable competence and (2) he was thereby prejudiced. (Stricklandv. Washington (1984) 466 U.S. 668, 687-688.) Appellant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
We will not analyze the first prong of this claim and, instead, we proceed directly to the issue of prejudice. (See In re Fields (1990) 51 Cal.3d 1063, 1079; accord, People v. Mendoza, supra, 24 Cal.4th at p. 164 ["If the defendant fails to show prejudice, a reviewing court may reject the claim without determining the sufficiency of counsel's performance."].) To establish prejudice, it is not sufficient for appellant to show that his counsel's alleged errors may have had some conceivable effect on the outcome; instead, appellant must demonstrate a "reasonable probability" that the result would have been different absent the alleged errors. (People v. Williams (1997) 16 Cal.4th 153, 215; accord, People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
Appellant contends that his trial counsel affirmatively misstated the law when only presenting a binary choice to the court to either impose the aggravated firearm enhancement or strike it outright. According to appellant, a reasonable inference may be drawn that the court was not aware of the scope of its sentencing discretion because the court did not correct defense counsel. Citing his criminal history, appellant argues he would not pose a threat to public safety after he has served his prison sentence for murder. These arguments are unpersuasive.
Contrary to appellant's assertions, this record does not affirmatively demonstrate that the trial court did not understand the scope of its discretion. To the contrary, defense counsel mentioned that imposition of a firearm enhancement would result in a sentence in excess of 20 years. The court considered the defense's position and declined to strike the firearm enhancement. We presume the sentencing judge knew and applied the law correctly. (People v. Braxton (2004) 34 Cal.4th 798, 814; People v. Galvez (2011) 195 Cal.App.4th 1253, 1264.) We also presume that the court properly exercised its sentencing discretion. (People v. Weddington (2016) 246 Cal.App.4th 468, 492.) Nothing affirmatively rebuts these presumptions, and we will not infer a sentencing error if the record does not show one. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
The court imposed a lawful sentence and, in light of the court's comments at sentencing, it is not reasonably likely the judge would have imposed a lesser enhancement for the firearm. The court stated appellant had killed Kahl in cold blood. The court was concerned that appellant had taken steps to acquire a firearm. Although the court noted that appellant's mental health was a mitigating factor, it was nevertheless troubled by the fact appellant had lied to a psychiatrist about his competency. The court stated it believed the jury was correct to find appellant guilty of second degree murder and to find true the firearm enhancement. The court stated it recognized it had discretion to strike the enhancement, but it declined to do so.
Finally, appellant's criminal history does not suggest that the court would impose a reduced sentence. Appellant has only one prior felony conviction on his record, which involved possession of a stolen vehicle in 2001. However, he has a long criminal history. He has two separate misdemeanor convictions for battery, two separate misdemeanor convictions for trespass, approximately three separate misdemeanor convictions for drug-related offenses, a misdemeanor conviction for petit larceny, and a misdemeanor conviction for disorderly conduct. His prior criminal history spans from 2001 until 2014. The present murder occurred in 2018. The totality of appellant's criminal history overwhelmingly demonstrates that he poses a threat to public safety even after he serves his sentence for Kahl's murder.
" 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (§ 1385, subd. (c)(2).)
Based on this record, appellant fails to demonstrate prejudice. It is not reasonably likely appellant's sentence would have been more favorable to him had his counsel raised the issues below which he now advances in this appeal. To the contrary, this record overwhelmingly demonstrates that the court would have imposed the same aggravated firearm enhancement. Consequently, appellant does not establish ineffective assistance of counsel and his arguments are forfeited.
C. We decline to dismiss the firearm enhancement.
Section 1385, subdivision (c)(2), provides that, when exercising its discretion to strike an enhancement, a trial court shall consider and afford great weight to mitigating factors which a defendant has presented. "Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." One of the mitigating circumstances that appears in section 1385 is when application of an enhancement could result in a sentence in excess of 20 years. In that situation, the statute states that the enhancement "shall be dismissed." (§ 1385, subd. (c)(2)(C).)
The mitigating circumstances were listed originally under subdivision (c)(3) of section 1385. (§ 1385, former subd. (c)(3)(A)-(I); Stats. 2021, ch. 721.) Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended the statute to list them under section 1385, subdivision (c)(2). (Stats. 2022, ch. 58, § 15; see People v. Mendoza (2023) 88 Cal.App.5th 287, 291, fn. 1.)
Appellant contends that, because his firearm enhancement resulted in a prison sentence of over 20 years, the trial court was obligated to dismiss the firearm enhancement without any further analysis. He maintains that this court should now dismiss his firearm enhancement and modify his judgment. However, he concedes that "numerous courts" have already rejected his position that dismissal is mandatory. In opposing this claim, respondent notes that every published opinion which has addressed this issue has held that dismissal of an enhancement is not mandatory.
We agree with respondent that appellant's position lacks merit, and we decline to strike the firearm enhancement. Appellate opinions have already held that the statutory language "shall be dismissed" appearing in section 1385, subdivision (c)(2)(C), cannot be read in isolation. Instead, this language must be harmonized with the remaining portions of the statute. (People v. Mendoza, supra, 88 Cal.App.5th at p. 295; People v. Anderson (2023) 88 Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.)
Section 1385, subdivision (c)(2), directs a sentencing court to consider nine mitigating circumstances in determining whether to dismiss an enhancement. (§ 1385, subd. (c)(2)(A)-(I).) However, multiple published opinions have already held that, if a trial court finds that dismissal of the enhancement would endanger public safety, then the court need not consider the listed mitigating circumstances, including whether imposition of the enhancement could result in a prison sentence in excess of 20 years. (People v. Mendoza, supra, 88 Cal.App.5th at p. 296; People v. Lipscomb, supra, 87 Cal.App.5th at p. 18.) Such an interpretation of the statute gives meaning to the language in section 1385, subdivision (c)(2), requiring the court to consider whether dismissal "would endanger public safety," and it avoids rendering that language surplusage. (People v. Mendoza, supra, at p. 296.) Taken together, the statute's language "explicitly and unambiguously establishes" that a trial court has discretion "to dismiss sentencing enhancements; certain circumstances weigh greatly in favor of dismissal; and a finding of danger to public safety can overcome the circumstances in favor of dismissal." (People v. Anderson, supra, 88 Cal.App.5th at p. 239.)
Appellant's contrary interpretation of this statutory language-that a sentencing court must dismiss any enhancement when application of the enhancement could result in a sentence greater than 20 years regardless of whether dismissal would endanger public safety-would lead to an absurd result and it cannot be what the Legislature intended. (See People v. Mendoza, supra, 88 Cal.App.5th at p. 296 [rejecting similar argument].) Consequently, we reject appellant's interpretation of section 1385, subdivision (c)(2)(C). The statutory language does not require a court to dismiss every enhancement resulting in a sentence of greater than 20 years regardless of whether dismissal would endanger public safety.
We have already concluded that appellant has forfeited his arguments that the trial court failed to articulate its discretionary sentencing choice on the record. In any event, this record overwhelmingly establishes that appellant poses a risk to public safety even after he serves his murder sentence. Accordingly, we decline to strike appellant's firearm enhancement on appeal or remand this matter for resentencing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PENA, J. MEEHAN, J.