Opinion
A139735 A140792
04-10-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIE M. CLAY II, Defendant and Appellant.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on April 10, 2018, be modified as follows:
1. On the signature page of the opinion, page 43, the footnote designated by an asterisk should indicate that J. Schulman is "Judge of the Superior Court of California, City and County of San Francisco," so that the corrected text of the footnote reads:
There is no change in the judgment. Dated: __________* Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
/s/_________, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 050910083)
Willie M. Clay II (Clay) killed the man who had killed Clay's teenage son three years earlier. Clay claimed he killed in self-defense because he believed his own life was in danger. Indeed, by many accounts, the man he killed was an extremely violent gang member who had threatened to kill Clay either personally or through a hitman. The trial judge instructed on imperfect self-defense, but not on perfect self-defense, because Clay, without immediate provocation, approached the man from the rear and shot him in the back after lying in wait for him. Then, when the man fell, Clay fired three more bullets into the back of his neck and head. The jury found Clay guilty of first degree special circumstance murder, and he was sentenced to life in prison without possibility of parole, plus 25 years to life imposed consecutively under Penal Code section 12022.53, subdivision (d).
All further statutory references are to the Penal Code unless otherwise indicated.
In addition to claiming he was entitled to self-defense instructions, Clay contends certain video evidence was improperly admitted, the prosecutor was allowed to put on improper and prejudicial rebuttal testimony, his attorney was ineffective for failing to object to prosecutorial misconduct in closing argument, and the prosecutor committed prejudicial error by making improper remarks to the jury panel during voir dire. Clay further alleges cumulative error and insists a parole revocation fine was improperly imposed. In supplemental briefing he contends the case must be remanded to allow the court to exercise its discretion either to impose or to strike an additional term on the firearm discharge enhancement based on a change in the law effective January 1, 2018, making that decision discretionary rather than mandatory. (§ 12022.53, subd. (h).) In a second appeal (A140792), Clay challenges the trial court's order denying contempt sanctions against the prosecutor, who allegedly acted improperly in seeking admission of certain evidence. With the exception of the issues relating to the firearm discharge enhancement and the improper fine, we find Clay's arguments unavailing and affirm the conviction. We vacate the sentence, however, and remand the case for resentencing in accordance with the views expressed in this opinion.
I. BACKGROUND
A. The Prosecution's Case
1. The Killing of Lloyd Gary Townsend
At approximately 5:45 p.m. on April 27, 2009, Lloyd Gary Townsend left a medical appointment in Antioch where he had attended a prenatal ultrasound with his girlfriend, Amber Barbosa, who was seven months pregnant. Townsend had parked his motorcycle at a nearby 7-Eleven. He retrieved his motorcycle and began to pull out of the parking lot.
Clay, who had been hiding behind the 7-Eleven, approached Townsend from the rear and fired three shots at Townsend's back from approximately 12 feet away. Clay then came closer and fired a couple more shots at Townsend's back from about six feet away. Townsend fell off the motorcycle onto his left side. Clay walked around the motorcycle, stood over Townsend's body, put the gun to the back of Townsend's neck, and shot him two or three more times. After killing Townsend, Clay crossed the street through an opening in a hedge that led to a nearby parking lot. He got into a dark BMW and drove away.
Numerous witnesses saw Clay kill Townsend. One witness, Steven Siegfried, who had been driving by, took a picture of Clay and followed him when he drove off. Some of the witnesses called 911. When the police arrived, they unsuccessfully tried to revive Townsend. No weapon was found on or near Townsend's body. An autopsy revealed Townsend had been shot nine times, including three times in the back of the head and neck.
2. Clay's Arrest at Kesha Jones's House
After following the BMW, Siegfried saw it pull into the driveway of a house half a mile away and saw Clay go into the house. Siegfried called 911 and waited for the police to arrive. After they arrived, Clay remained in the house for about an hour, but then came out and surrendered. The house was then searched with the resident's consent. The resident was Kesha Jones, who had known Clay for 27 years and considered him her husband. It appears Clay sometimes stayed at her house and kept a few possessions there.
When Clay first entered the house after shooting Townsend, he told Jones, "I'm going to jail." Clay doused the gun and his hands in bleach, wrapped the gun in a plastic bag, and took a shower. Afterwards he handed the gun in the plastic bag to Jones's 14-year-old daughter and told her to take it over the backyard fence. She did as she was told but was apprehended by the police as she climbed over the fence. As she was being searched, she volunteered, "I have the gun." After the police retrieved the gun, they questioned her, and she explained that Clay was her mother's boyfriend and he had instructed her to take the gun over the back fence.
During the search of the house, a flip video camcorder with recorded videos was found in Clay's gym bag, seized, and the videos were subsequently viewed by the police after a search warrant was obtained. As we shall discuss in more detail, several of those videos were played for the jury over defense objection, and the admission of two of them is challenged on appeal.
3. The Relationship Between Clay and Townsend and the Death of Clay's Son
Clay and Townsend had been friends for many years. For a time, in 2005 and 2006, both worked at Bayside Funding Group (Bayside). Bayside was owned by Barbosa and her then-husband, Phillip Kuspard. Around 2007, Barbosa began a romantic relationship with Townsend, eventually left Kuspard for Townsend, and was pregnant with Townsend's baby when he was killed.
In approximately 2005, Townsend and Clay started a motorcycle club together called "Made Men Motorcycle Club" (Made Men). By late 2005 or 2006, however, Clay and Townsend had a serious falling out, and Clay resigned from the club. The two men also feuded when they worked at Bayside because Townsend expected Clay to give him a cut of Clay's referral fees. There was also friction between them because Townsend had begun dating Tonya French, Clay's longtime girlfriend, who was the mother of two of his children.
Not long after Clay resigned from Made Men, his 19-year-old son, Willie Clay III (Willie), was shot dead on the streets of Oakland, and Clay believed Townsend was responsible. Sometime later Townsend, in fact, admitted to Jones he had killed Willie. After Willie's death, Clay came to believe Townsend also planned to kill him or have him killed.
Because Clay and his son share the same name, we will refer to his son by his first name for the sake of clarity. No disrespect is intended.
A week or two before Townsend's death, Townsend told Jones he was coming to her house to kill Clay. Jones also said the word of mouth in the community was that Townsend had "put some money over on [Clay's] head and had somebody to do the hit." As we shall describe, several other witnesses presented by the defense also testified they had heard Townsend threaten to kill Clay or try to put a hit on him.
Clay's attorney attempted to elicit this testimony on cross-examination of Jones, but on the prosecutor's objection, the court ruled it was beyond the scope of direct. Clay's attorney then made Jones his witness out of order and elicited from her damaging evidence about Townsend's propensity for violence.
4. Clay's Statement to the Police
After his arrest, Clay was interviewed by Antioch police detective Diane Freier at the police station. He initially denied being involved in any shooting. Later, he asked to talk again to Freier and admitted killing Townsend. "I killed that motherfucker 'cause he killed my son" " 'cause I wanted to get out the bike club," and "then he was telling people he was gonna kill me." He described seeing Townsend riding his motorcycle on the street before he parked it in the 7-Eleven parking lot. Clay believed Townsend was going to kill him because "he had got word that I knew he had killed my son." As Clay stepped out from behind the 7-Eleven he believed Townsend looked briefly over in his direction. As Clay shot, Townsend got off his motorcycle, stumbled and fell on his face. Clay then ran up and shot him in the back of the neck. Clay was very distraught when he confessed to Freier. In explaining the killing, he emphasized his fear of Townsend and said he was "more afraid than anything." At one point, however, Clay told Freier "to be honest," he killed Townsend "to seek the revenge" for Willie's murder.
5. The Videos
As noted, several videos retrieved from Jones's house were played for the jury over defense objection at the end of the prosecution's case in chief. The videos were recorded about five weeks before Townsend was killed. One of them, Video No. 36, showed Clay exercising while speaking to another man, who remained unseen on the video. Clay essentially carried on a profanity-laced monologue, saying in part: "Oh yeah, we got air—the air is ho - hot out here man, You know what I'm saying'? But for all the suckas, you know what I'm saying. Yeah. We keep our water pistols, man. Yeah . . . at all times." As he said "water pistols," he pulled a black semi-automatic handgun out from under his white tank top and held it up. He continued to display the gun as he said, "You know, I'm sittin' in the sun. You know I'm sayin', when it's burning up outside, man. You know we might need to cool a mother fucker off, man. Yeah, that's for the suckas that thought they had it fucked up, nigga. Yeah. Fuck you and the horse you rode in on, nigga . . . yeah. Yeah. So guess what? . . . I gun your ass down and knock your ass out." Thus, Clay was shown brandishing a handgun, which he was forbidden by law to possess, and boasting about his intention to commit a violent act.
Video No. 44, also admitted over defense objection, showed Clay talking to the camera in the company of a second man who was scaling a fish. Clay began by announcing they were in Oakland, "where we do what we do." In the background, parked on the street behind Clay, was a dark BMW with distinctive rims, which matched the rims of the car he was driving when he killed Townsend. In the video, Clay called himself "Strategos X." Video No. 44 was not nearly as inflammatory as Video No. 36.
Clay was initially brought to trial in October 2012, but that trial ended in a mistrial due to health issues of his attorney. Before the mistrial was declared, the defense had filed under seal an "Amended Proffer of Defendant Willie Morris Clay II." That proffer was read to the jury as part of defense counsel's opening statement in Clay's second trial on May 20, 2013. Included in the proffer was the representation that Clay would definitely testify at trial and a summary of negative evidence about Townsend that the defense intended to produce and evidence of threats made by Townsend against Clay.
1. Evidence of Townsend's Violent Character
Clay, represented by J. Tony Serra, presented a robust though ultimately unsuccessful defense. Numerous witnesses, including law enforcement authorities, testified for the defense that Townsend was a violent man who usually was armed with one or more handguns. Daniel Vasquez, a 30-year career officer with the Department of Corrections who had been a prison warden, was qualified as an expert in the areas of street gangs, prison gangs and specifically the Black Guerilla Family (BGF). He testified Townsend was a validated member of BGF. Vasquez identified BGF as a violent gang both in the community and in prison that had been in operation since the mid-1960's. The gang sold drugs and carried out homicides and hits. Townsend himself had been a target of a federal task force in Alameda County. He was reputed to be exceedingly dangerous and an active seller and user of drugs.
Russell Giuntini, a longtime prosecutor in Alameda and San Francisco counties, had prosecuted the BGF for years. Giuntini was a member of a joint federal and state task force in the mid-1990's in which Townsend had been the number one target because he had "the greatest reputation for violence" of all the people they investigated and was "violent to legendary proportions." He was also adept at avoiding detection, so Giuntini was able to prosecute him only for a small amount of heroin, and he received a four-year prison sentence in 1997.
Warren King, who was serving a state prison sentence for second degree murder, had known Townsend since King was 12 or 13 years old. King called Townsend "vicious," an "extreme killer," who was "really ruthless," like "a rabid dog," and one of the "most notorious killers" to come out of the East Bay. When King was about 19, Townsend shot him in the leg when Townsend and six or seven others attacked him in a dispute over drug profits. At the time Townsend was carrying two different handguns. King described other shootings committed by Townsend and testified Townsend had worked as an "enforcer" for Felix Mitchell, a notorious Oakland drug lord. Townsend was the "muscle" for Mitchell, meaning he used a gun to do Mitchell's "dirty work." King steered away from Townsend after learning he had no compunction about shooting a child.
Other witnesses confirmed that Townsend had a reputation as a killer and hitman and testified to his specific past acts of violence. For instance, in the early 1990's, Townsend shot and killed a man in an Oakland nightclub whom he recognized as an off-duty police officer. Coworkers at Bayside, Rick and Victoria Atkinson, husband and wife, testified to Townsend's acts of cruelty and violence, including freezer-burning a hole in Victoria's skin, forcing her car off the road with his truck, and pointing a gun at Rick's head in 2006. Townsend regularly carried a gun and frequently bragged about his violent exploits.
2. Townsend's Threats Against Clay
Defense witnesses also confirmed that Townsend had threatened Clay's life on several occasions. After Willie's funeral, Clay told his sister, Maria Clay, that Townsend and his people were going to kill him and might kill her and her kids. Maria moved to Merced because she was scared. In 2007, Victoria Atkinson heard Townsend threaten to kill Clay, saying "it's lights out" for Clay. In 2007 or 2008, Townsend called King and offered him money to "knock somebody down." The "somebody" was Clay, and by "knocking somebody down" Townsend meant he wanted King to kill Clay. King did not carry through with the hit and instead told Clay about the proposition. Clay was stunned.
In 2009, Clay received a text, inferably from Townsend, which read, "Nigga, stop playing with me. When I see you, it's on." Clay's cousin, Myisha Pina Luboviski, had run into Townsend on the street a couple of months before Townsend's death, and Townsend said of Clay, "That nigga ain't cool. When I see him, it's a problem." Luboviski interpreted that to mean Townsend would kill Clay if he saw him again, and she conveyed the threat to Clay's family. Then, just two or three days before Townsend was killed, Townsend offered Rick Atkinson a couple thousand dollars to kill Clay or to tell Townsend where Clay could be found. Rick turned down the money and told Clay about Townsend's offer.
3. Tonya French
Tonya French and Clay had been together as a couple off and on for 15 or 20 years and had two children together. She described the cooling of his relationship with Townsend in 2005 or 2006 when Clay left the Made Men. Clay was devastated by his son's murder; his own demeanor changed dramatically in that he became much more withdrawn. After Willie was killed, Townsend told French, "[Clay] know[s] what I [will] do to him," which French interpreted as a death threat, and Townsend repeated similar words on another occasion a couple of months before his own death. When she told Clay about Townsend's remarks, he looked "spooked."
French testified on cross-examination that after Willie was killed, she went out on a few dates with Townsend. She admitted Clay sent her a text three weeks before Townsend was killed, after she had gone out with Townsend, saying, among other things, "You stupid if you think me and you is going to have a decent conversation about you all being disrespectful to me, bitch. Someone is going to die first!!!!!" French denied the text message was a threat against Townsend. Rather, she said Townsend had threatened Clay, and Clay was frightened. French admitted she called 911 on one occasion in 2008 during a dispute with Clay.
4. Clay's Trial Testimony
Clay, who was 46 years old at the time of trial, met Townsend when he was about 18; Townsend was four years older. Except for Townsend, Clay testified he had never killed anyone. He was never a member of a prison gang or street gang and never participated in Townsend's crimes. Clay had worked as a barber since age 16 and had his own barber shop from 1992 to 1997. In 2005 and 2006 he worked as a loan officer for Barbosa at Platinum Real Estate Company and Kuspard at Bayside. He also sold cocaine from the age of 19 and had a felony conviction in 1999 for using a telecommunication device to facilitate drug trafficking. Since 1986 it had been illegal for him to possess a gun due to a felony conviction. He bought the gun he used to kill Townsend on the street in Oakland.
In 2005, Clay and Townsend formed Made Men. Clay denied the club was involved in criminal activity. There were 15 to 20 members and they rode to a lot of bike events. At the end of 2005, Clay quit the club because he did not like the direction in which it was going. Townsend collected dues from members and Clay thought he should be more "transparent" about how the money was spent. He and Townsend had a heated argument; Clay turned in his Made Men patch and left.
Within hours after Willie's murder, Clay was told a friend of Townsend's had killed Willie, mistaking him for Clay. Clay also heard from someone else that Townsend's killing of Willie was intentional due to the falling out between Clay and Townsend over Made Men. Townsend attended Willie's wake in late January 2006. At the wake, Clay and Townsend had a confrontation and Clay almost slugged Townsend, but he got onto his motorcycle and rode off instead. Clay testified that, at Willie's wake and thereafter, Townsend threatened him several times. Clay believed Townsend was out to kill him. Townsend was bigger than Clay, and Clay knew Townsend was a killer.
After the threats began, Clay took steps to avoid contact with Townsend. He would drive cars Townsend did not know about. He changed residences and warned his sister and her children to leave the area because he felt their lives were in danger. He had sleepless nights and was plagued by recurrent dreams that he and Townsend were having a gun battle and Clay's gun would not fire.
Clay knew Townsend was a member of BGF and knew it was a violent gang. Townsend once told him he had "earned" one of his gang tattoos by stabbing someone in prison on behalf of BGF. Townsend told Clay he had been a hitman for Felix Mitchell and had killed at least one man on Mitchell's behalf. Clay testified about several instances in which Townsend had admitted killing people, including the off-duty police officer about whom his sister had testified. In 1986, Townsend shot a man twice in the head at a car wash and paralyzed him for life. Townsend also told Clay he had tried to kill a drug dealer but accidentally killed another woman instead, and someone else was serving time for the murder. In 1995 or 1996, Townsend bragged to Clay he had committed 30 murders by the age of 28.
Townsend pulled a 12-gauge shotgun on Clay in 2005 when Clay refused to give him a motorcycle that had been left with Clay for safekeeping. In 2006, Clay also saw him point a gun at Rick Atkinson's head. Townsend was always armed with at least one handgun and regularly wore a bullet-proof vest. By April 27, 2009, Clay believed he was going to be killed. He also knew Townsend was capable of having someone else kill him. He had heard from several people, including his sister, his cousin, and King, that his life was in danger, and he knew Townsend had offered Rick Atkinson money to have him killed only three or four days earlier. He felt he was in danger and was in a state of fear.
Clay testified he was out all night the night before the shooting, as it was Jones's birthday. He slept at Jones's house until 3:30 or 4:00 p.m. on April 27, 2009, watched some television, and then drove off to meet an associate around 5:15 p.m. to talk about some videos they were making. On his way back to Jones's house, he saw Townsend on his motorcycle pulling into the 7-Eleven parking lot and immediately became nervous because Townsend was in his and Jones's neighborhood, where Clay had never seen him before. Clay was so nervous he began shaking. When he first saw Townsend, he had no intention of killing him. He parked his car and left the engine running because he intended only to look over the hedge to see if Townsend was meeting someone else in the parking lot. He hid by the 7-Eleven just to find out what Townsend was doing in his neighborhood. Clay admitted he was watching and waiting for Townsend and was trying to keep Townsend from seeing him. When he heard Townsend's Harley start up, he thought, "if he see[s] me, he's going to kill me." By then, he admitted he intended to kill Townsend. He knew Townsend was a successful hitman, and he felt trapped. Calling law enforcement was not an option, he said, and would only have escalated Townsend's attempts to kill him. I thought "he was going to look my way, and I just panicked. . . . I just ran out there and I just shot him."
On cross-examination, the prosecutor elicited from Clay that a friend with whom he co-founded a group called "All Family No Friends" or "Alliance For a New Future" (AFNF), was someone he met in San Quentin who also was involved in Kumi African Nation (Kumi), which Clay identified as a prison gang offshoot of BGF. Even so, Clay denied AFNF was an offshoot of Kumi and denied it was a criminal enterprise. He claimed AFNF was a group devoted to creating unity and promoting education, and which he hoped to turn into a nonprofit corporation. Members were required to study sign language, Swahili, Spanish and Arabic; they were required to read the Bible, the Qur'an and the English dictionary three times each. He spoke out against violence in AFNF's bylaws and wanted to recruit all ages and "different nationalities" into AFNF. The bylaws, which he wrote, proclaimed that AFNF was "NOT A GANG."
Clay further testified on cross-examination, even though Townsend cheated him out of $11,000 in 2005 in connection with their dealings at Bayside, the shooting had nothing to do with that, and it was not committed in revenge for Townsend's involvement in killing Willie.
5. Psychologist's Testimony that Clay Suffered from PTSD
Dr. Marlin Griffith, a licensed psychologist since 1975, was qualified by the court as an expert in forensic psychological evaluations. Dr. Griffith opined that Clay suffered from posttraumatic stress disorder (PTSD) which was in remission. The stress was Willie's murder and the later bullying behavior by Townsend. Clay had recurrent and intrusive distressing thoughts and memories of the events. The trauma arose from the repeated warnings he would be killed—knowing about Townsend's prior murders and violent acts—the "whole conglomeration [of] fear that he had."
C. District Attorney's Rebuttal Case
The prosecution called four rebuttal witnesses: A sheriff's aide at the Contra Costa County detention facility testified that she accepted an incoming FedEx package for Clay in May 2011 at a time when Clay was acting in pro per. The package was marked "legal mail" but it was determined not to be legitimate legal mail and was in violation of the jail's pro per policy. The package contained copies of bylaws for AFNF, which Clay had written in jail. Clay had solicited one of his girlfriends to make copies of the bylaws and to mail them back to him so he could distribute them in jail to recruit new members. He sent out the request as "legal mail," but it did not qualify as such. Clay testified his pro per status was not revoked as a consequence, but he never received the package. The prosecutor attempted to portray AFNF to the jury as an offshoot of Kumi. Her ostensible point in introducing the evidence was to show Clay had broken jail rules, thus casting doubt on his credibility by demonstrating his willingness to engage in falsehood.
Two Contra Costa County sheriff's deputies at the detention facility where Clay was housed testified about a fight nearly two years before trial between black inmates and members of the Sureños, a violent Hispanic gang, with 35 to 40 inmates involved. The deputies did not see Clay fighting, but when one of them interviewed Clay after the fight, he saw what appeared to be bloodstains on Clay's shoes and pants and an abrasion on the knuckle of his right ring finger.
The final witness at trial was Jessica Ferranti, M.D., a psychiatrist at U.C. Davis, who was qualified as an expert in psychiatry. She examined Clay once in October 2011. She did not see any history of mental health services provided by the jail to Clay and did not see the major criteria for PTSD. She disagreed with Dr. Griffith's diagnosis; she believed Clay was not suffering from any major mental disorder at the time of the offense. Her diagnosis for him was antisocial personality disorder.
D. Verdict and Sentence
After deliberating 13 hours over three days, the jury found Clay guilty of first degree murder with the special circumstance of lying in wait. (§§ 187, 190.2, subd. (a)(15); see also § 189.) It further found Clay had personally discharged a firearm resulting in the death of another under section 12022.53, subdivisions (b), (c) and (d). On August 23, 2013, Clay was sentenced to life in prison without possibility of parole for the murder of Townsend, with an additional and consecutive term of 25 years to life for the firearm discharge enhancement.
II. DISCUSSION
A. Self-Defense Instructions
1. The Court's Duty to Instruct
Clay insists he was entitled to jury instructions on self-defense, and particularly CALJIC No. 5.12. Prior to trial, counsel for Clay requested the jury be instructed on self-defense, and specifically requested CALJIC No. 5.12. The district attorney objected to any instruction on justifiable homicide in self-defense.
CALJIC No. 5.12 reads: "The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [¶] 1. That there is imminent danger that the other person will either kill [him] [her] or cause [him] [her] great bodily injury; and [¶] 2. That it is necessary under the circumstances for [him] [her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself] [herself]. [¶] A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one's self from death or great bodily harm."
A trial court is required to give a defendant's requested instruction, including instruction concerning a defense, if, but only if, there is substantial evidence supporting it. (People v. Marshall (1997) 15 Cal.4th 1, 39-40; In re Christian S. (1994) 7 Cal.4th 768, 783; People v. Williams (1992) 4 Cal.4th 354, 361.) Substantial evidence in this context is evidence sufficient to deserve consideration by the jury, that is, evidence from which a jury composed of reasonable people could have concluded that the particular facts underlying the instruction existed. (Williams, at p. 361.)
The trial court here declined to give CALJIC No. 5.12 or any instruction on perfect self-defense "because, in my view, there is not substantial evidence to support a reasonable self-defense case in this circumstance." The court continued: "The question is not whether the killing was understandable in response to the victim's ongoing threats to Mr. Clay. The point is that Mr. Townsend was not doing anything that posed an imminent threat to Mr. Clay at the time of the shooting or on the day of the shooting and, therefore, I don't think the series on self-defense should be given because I don't think there's any factual basis for it."
"On appeal, we independently review the court's refusal to instruct on a defense." (People v. Orlosky (2015) 233 Cal.App.4th 257, 270.) Clay urges us to find the trial court erred because there was substantial evidence to compel the trial court to give a reasonable self-defense instruction. But we are convinced the trial court did not err because a self-defense theory simply was inconsistent with the evidence.
2. The Law of Self-Defense
Reasonable self-defense is a complete justification for homicide and, if believed, results in acquittal. (People v. Elmore (2014) 59 Cal.4th 121, 133-134; § 197, subd. 3; CALJIC Nos. 5.12, 5.14, 5.30.) But that rule applies only when the defendant's belief in the need for self-defense is both subjectively held and objectively reasonable. (Elmore, at pp. 133-134; People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey); People v. Jefferson (2004) 119 Cal.App.4th 508, 518; CALJIC Nos. 5.12, 5.32, 5.51.) When a homicide is committed while acting under an honestly held but objectively unreasonable belief in the need for self-defense—sometimes called "imperfect self-defense"—the crime is voluntary manslaughter. (Elmore, at p. 134; Humphrey, at p. 1082; CALJIC Nos. 5.17, 8.41.) The court here instructed the jury on imperfect self-defense, but refused to instruct on perfect self-defense.
For self-defense to apply, the defendant must actually and reasonably believe the threat of physical harm is "imminent"; indeed, "[i]mminence is a critical component" of a theory of self-defense. (Humphrey, supra, 13 Cal.4th at p. 1094; see also, People v. Hardin (2000) 85 Cal.App.4th 625, 629 (Hardin); People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270 [classic lying-in-wait situation did not warrant self-defense instruction]; People v. De Leon (1992) 10 Cal.App.4th 815, 824-825 [no substantial evidence of either perfect or imperfect self-defense]; CALJIC No. 5.13.) Accordingly, the first aggressor is not entitled to claim self-defense unless he has first endeavored to " 'really and in good faith withdraw from the combat,' " and has also by words or conduct " 'ma[d]e known his intentions to his adversary.' " (People v. Hernandez (2003) 111 Cal.App.4th 582, 588-589; see CALJIC No. 5.54.) And while prior threats by the victim justify a quicker and harsher response by the defendant (People v. Pena (1984) 151 Cal.App.3d 462, 474-477; CALJIC No. 5.50.1), prior threats alone, in the absence of an imminent assault, do not support a claim of self-defense (People v. Minifie (1996) 13 Cal.4th 1055, 1068).
The doctrine of self-defense is also limited to situations in which the defendant acted with a response no greater than necessary to repel the attack, at least according to appearances. (See Hardin, supra, 85 Cal.App.4th at pp. 629-630; People v. Clark (1982) 130 Cal.App.3d 371, 380; CALJIC Nos. 5.52, 5.53, 5.54, 5.55.) Once the victim appears to have been disabled, the attack must stop. (People v. Crandell (1988) 46 Cal.3d 833, 873-874; Hardin, at p. 634, fn. 7; CALJIC No. 5.53.) On appeal, it is ultimately up to this court to determine independently whether the evidence supported a self-defense instruction. (People v. Rodriguez, supra, 53 Cal.App.4th at p. 1270; People v. De Leon, supra, 10 Cal.App.4th at p. 824.)
3. Clay Was Not Entitled to Self-Defense Instructions
The evidence in this case presented a textbook example of when a claim of self-defense is not available. Clay, having seen Townsend and his motorcycle enter the parking lot at 7-Eleven, hid and waited for Townsend to return for his motorcycle. Clay then sneaked up on Townsend from behind, shot him in his back, fired off more shots as he approached closer, continued shooting after Townsend fell off his motorcycle, and delivered the final shots directly into the back of Townsend's neck. This was an ambush, not self-defense. Though Clay's passions may be understandable, the law does not countenance the kind of preemptive strike involved here.
Even if we assume Clay was entitled to self-defense instructions, their omission was harmless. We apply the Watson test of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Villanueva (2008) 169 Cal.App.4th 41, 53 [applying state law standard to court's refusal to give requested self-defense instruction]; People v. Elize (1999) 71 Cal.App.4th 605, 616 [assuming Watson standard applies].) Under that test we ask whether it is reasonably probable an outcome more favorable to the defendant would have been obtained, had the instruction been given. (Watson, at p. 836.)
The jury was instructed on a broad range of options in fixing the degree of Clay's culpability. The judge instructed on first degree murder by lying in wait, premeditated and deliberated first degree murder, second degree murder, mental disease or defect as negating specific intent, voluntary manslaughter by imperfect self-defense, and heat of passion voluntary manslaughter. The jury found Clay guilty of special-circumstance lying-in-wait first degree murder. That verdict was well-supported by the evidence from his own mouth that he saw Townsend pull into the 7-Eleven parking lot, not just that he saw his motorcycle parked there. Townsend attended Barbosa's ultrasound appointment for 15 minutes before returning to his motorcycle. Thus, Clay waited a substantial time in hiding before he actually stepped out to kill Townsend.
The jury rejected claims that Clay acted in imperfect self-defense or in the heat of passion or that PTSD prevented him from forming the specific intent to kill. Having rejected these more plausible explanations of the crime, it is inconceivable the jury would have acquitted Clay based on reasonable self-defense. Indeed, the jury's true finding on the lying-in-wait special circumstance effectively precluded a self-defense theory. Any instructional omission was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); Watson, supra, 46 Cal.2d at p. 836.)
B. Admission of Videos Recovered from Jones's Home
1. Background
The prosecutor moved in limine to introduce six videos found on Clay's flip camcorder. Clay's counsel opposed the motion on the ground that not all originally existing videos were available and that the existing videos were more prejudicial than probative. The court admitted five of the videos in whole or in part pursuant to Evidence Code section 1103, subdivision (b), and excluded one of the videos entirely. Video Nos. 36 and 44 (numbered based on the camera annotation) were deemed admissible, and Clay claims on appeal these two videos (Exhibits 104 and 105) were erroneously admitted because they were irrelevant and more prejudicial than probative, so much so that their admission deprived him of a fair trial and amounted to a federal due process violation.
Despite the court's initial ruling on the videos, Clay's counsel later asked the judge to reconsider his ruling on Video No. 36, the more inflammatory of the two. The prosecutor opposed reconsideration in part because the defense had "put in quite a bit of evidence of the victim's violence already [and therefore,] . . . it is all relevant under the initial proposed theory of [Evidence Code section] 1103 (a) and (b)." The court declined to change its ruling, stating: "I did spend quite a bit of time on these videos . . . , and I did parse out the portions that I thought were relevant and admissible and excluded portions that I thought were either irrelevant or unduly inflammatory. [¶] I gave you my rulings on the portions that I permitted. This one I did authorize admission under 1103(b). [¶] The defense clearly has opened the door to the issue of the victim's character for violence by asking questions, in opening statement, and presenting evidence of Mr. Townsend's tendency toward violence. [¶] When I did make this analysis, I did consider 352, and I found that this is probative of the defendant's character for violence under 1103(b), and that's why I authorized its admission. [¶] I did mention earlier that in researching the issue of the defendant's possession of and brandishing of a firearm in this video, I did find authority for the proposition that under 1103 possession/holding firearms is relevant evidence of a character for violence. And on that basis, I did change my ruling as to the admission of the victim's access to a firearm in the residence he shared with his wife in the safe there. [¶] So my rulings have been consistent on this. I did evaluate 352 in connection with this video, and I do believe the probative value substantially outweighs any prejudice. [¶] Obviously the theory that this is just theater and doesn't actually reflect a character for violence is one you're welcome to argue to the jury, but that's for the jury to determine."
2. Relevance
Relevance is a low threshold: " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Video No. 36 had significant probative value for the prosecution because it showed Clay threatening to "gun your ass down and knock your ass out" a few weeks before he shot and killed Townsend and showed him illegally in possession of a handgun. Although Townsend's name is not mentioned in the video, a juror could reasonably infer (or not infer) the threat was directed at Townsend. There was plenty of evidence to establish Townsend and Clay had a running feud. If the jury inferred Clay was threatening Townsend in the video, it unquestionably had a tendency in reason to influence the fundamental question whether Clay acted instinctively in a state of fear, as he testified, when he gunned down Townsend. That he boasted about wanting to gun someone down just weeks before the actual events was also relevant to the jury's assessment of Clay's credibility in giving his version of the events and his claim of being a peaceable person.
But even if the only legitimate inference to be drawn from the video was that Clay had violent tendencies, this was fair game after Clay's attorney elicited damaging information about Townsend's violent character from Jones prior to the introduction of the videos. Evidence Code section 1103, subdivision (b) expressly allows the prosecution to introduce evidence of a criminal defendant's character for violence if offered after the defense has presented evidence that the victim had a character for violence. By eliciting this testimony, Clay's counsel opened the door for the prosecution to present evidence of Clay's violent character, including by evidence of a specific instance of prior conduct, such as that in Video No. 36. (Evid. Code, §§ 1100, 1103.)
Likewise, Video No. 44 was deemed relevant because it showed Clay in the same frame with the dark BMW ultimately connected to Townsend's death, thereby strengthening the prosecution's case that he had access to the car that a witness saw leaving the scene of Townsend's murder. The BMW in the video had distinctive rims exactly like the ones on the car Clay drove after he killed Townsend. The People claimed Video No. 44 was also relevant because it showed Clay dressed in a white hard hat and orange vest similar to articles of clothing found in the dark BMW parked at Jones's house when it was searched after the shooting. The court found Video No. 44 relevant to identity and relevant to credibility because Clay identified himself in it as "Strategos X"—which corresponded to the name on documents sent into jail improperly using the "legal mail" designation, admitted to show Clay had abused his pro per privileges. The violation of jail mail rules was relevant to show willingness to engage in falsehood.
Clay's attorney conceded in his opening statement that Clay killed Townsend, which Clay contends rendered both videos irrelevant to identity. "If a fact is not genuinely disputed, evidence offered to prove that fact is irrelevant and inadmissible under Evidence Code sections 210 and 350 respectively." (People v. Hall (1980) 28 Cal.3d 143, 152; People v. Bonin (1989) 47 Cal.3d 808, 849 [" '[I]f a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence . . . to prove that element to the jury.' "].) On the other hand, "[a]t least where the defense proposal does not constitute an offer to admit completely an element of a charged crime (see People v. Bonin (1989) 47 Cal.3d 808, 849), the ' "general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness." ' " (People v. Sakarias (2000) 22 Cal.4th 596, 629; accord, People v. Brooks (2017) 3 Cal.5th 1, 38; People v. Scott (2011) 52 Cal.4th 452, 470-471; cf. Estelle v. McGuire (1991) 502 U.S. 62, 69 ["[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense"].)
Even assuming defense counsel could render evidence of identity irrelevant by conceding Clay's identity as the killer in his opening statement, neither video was relevant solely to identity. The crucial point with respect to Video No. 36 is that counsel never conceded Clay's culpable mental state. Video No. 36 was clearly relevant to mens rea and therefore was admissible even in light of Clay's attorney's concession and Clay's ultimate admission. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 471 [gruesome "crime scene photographs were relevant to establish the killer's mental state, an issue that defense counsel did not concede"].) Counsel argued in closing that Clay was guilty at most of voluntary manslaughter based on his honest but unreasonable belief in the need for self-defense, heat of passion, and lack of specific intent in light of his PTSD. The video showed Clay's violent intentions weeks before he killed Townsend, as well as his violent propensities, tough talk, and illegal possession of a handgun, all of which had a potential bearing on the jurors' assessment of his mental state at the time he killed Townsend. Nor did counsel concede Clay had waited and watched for Townsend so as to be convicted of first degree murder for lying in wait. (§ 189.) Instead, counsel argued that Clay had killed in "a panic reaction, an action ultimately to save his own life" because he "felt he was in danger of being killed at any moment." Defense counsel insisted Clay "did not have the requisite state of mind for a murderer." The prosecutor was allowed to introduce Video No. 36 to attempt to negate these suggestions.
Having been denied a perfect self-defense instruction, defense counsel did not argue for acquittal in closing argument, but suggested Clay should be found guilty of manslaughter, not murder.
Video No. 44 was relevant not only to identity, but also to Clay's link to AFNF, as he called himself "Strategos X" in the video, and Strategos X was listed as the "Co-Chief Commander" of AFNF in the materials illegally sent into the jail. Thus, Video No. 44 was also relevant because it linked Clay to the illegal jail mail, which, in turn, called into question his credibility. Hence, both videos were relevant and admissible on issues other than character and other than identity.
Although the video evidence was admitted before Clay testified, it was admitted after defense counsel had promised the jury that Clay would take the stand, and after counsel read Clay's proffer in opening statements. We see no greater likelihood of prejudice than if the videos had been presented in rebuttal.
3. Potential for Prejudice
Clay argues the videos nevertheless were more prejudicial than probative and should have been excluded. Even if prior misconduct evidence is admissible under Evidence Code section 1103, subdivision (b), the trial court retains discretion to exclude such evidence under Evidence Code section 352. (People v. Fuiava (2012) 53 Cal.4th 622, 700.) But in this realm, we accord the trial court great deference. " 'A trial court has "considerable discretion" in determining the relevance of evidence. [Citation.] Similarly, the 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. [Citation.] An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We 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.' [Citation.]" ' " (People v. Jones (2017) 3 Cal.5th 583, 609 (Jones).)
Evidence Code section 352 gives the trial court discretion to exclude relevant evidence only if its probative value is "substantially outweighed" by its prejudicial impact, undue consumption of time, confusion of the issues, or tendency to mislead the jury. (Evid. Code, § 352.) Video No. 36 no doubt had significant potential to damage Clay's defense, but "prejudicial" evidence under Evidence Code section 352 is that which "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (Jones, supra, 3 Cal.5th at p. 610.) "Prejudicial" in that sense "is not synonymous with 'damaging.' " (Ibid.)
Clay contends the evidence had an overpowering prejudicial impact. Clay's concern centers on the videos' creation of the impression that he is a tough-talking gangster willing to use a gun to settle a score. He testified he made Video No. 36 as a form of street theater or "street news," hoping to attract an audience online. He was play-acting and did not intend his tough talk as a real threat to anyone. Whether the videos should have been taken seriously was for the jury to decide; Clay's explanation went to the weight of the evidence, not its admissibility. (See People v. Ochoa (2001) 26 Cal.4th 398, 438 (Ochoa).)
This case is unlike McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, cited by Clay, a pre-AEDPA case in which a prosecutor inserted into the trial damaging and irrelevant evidence about the defendant's knife collection and portrayed him as a commando-style knife aficionado, where the testimony's only connection to the crime was that the victim's throat had been slit and the murder knife had not been found. (Id. at pp. 1381-1382.) The Ninth Circuit found most of the evidence was relevant only to character, and therefore reversed the defendant's conviction. (Id. at p. 1386.) Moreover, in McKinney, there was no suggestion that McKinney had first introduced evidence of the victim's bad character, as Clay did here.
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214.
Video No. 36 was highly probative on the issues of premeditation, deliberation, and imperfect self-defense, all of which were before the jury. The video seriously undercut Clay's theory of defense that his killing of Townsend was the product of sudden fear upon seeing Townsend by the 7-Eleven in his neighborhood. It gave the jury a unique perspective on Clay's unvarnished thoughts about waging violence against his enemies a few weeks before he killed Townsend. The court did not abuse its discretion in admitting the video.
Video No. 44 had far less prejudicial potential than Video No. 36, and its probative value was correspondingly less compelling. It did not involve talk of violence or display of a gun. But its prejudicial impact was even more attenuated than its probative value. The court legitimately deemed the video not substantially more prejudicial than probative. (Evid. Code, § 352.) And even if it was improperly admitted, its capacity for prejudice was so slim in light of all the evidence that we would find its admission harmless under any standard. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)
C. Rebuttal Testimony
As summarized above, the prosecution attempted to rebut Clay's defense by presenting evidence of (1) his having broken the jail's rules regarding legal mail; (2) having engaged in a violent confrontation with a group of Sureños in jail; and (3) a psychiatrist's opinion that Clay suffers from antisocial personality disorder, not PTSD. Clay claims the first two categories of evidence were improperly admitted as rebuttal evidence, and admission of that testimony denied Clay his federal and state constitutional due process right to a fair trial, and were more prejudicial than probative. (Evid. Code, § 352.) The defense moved at trial to exclude the rebuttal evidence.
A trial court's ruling on the admissibility of rebuttal evidence is reviewed for abuse of discretion. (People v. Raley (1992) 2 Cal.4th 870, 912.) "Prosecution rebuttal evidence must tend to disprove a fact of consequence on which the defendant has introduced evidence." (People v. Wallace (2008) 44 Cal.4th 1032, 1088.) "It is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt." (People v. Mayfield (1997) 14 Cal.4th 668, 761.) When the defendant himself has testified, as here, evidence related to his credibility may be presented in rebuttal. (Evid. Code, §§ 785, 786.)
These guidelines were satisfied in this case. Clay's counsel had introduced extensive evidence about Townsend's violent character, which opened the door to rebuttal evidence about Clay's violent tendencies, including by evidence of specific acts of violence. (Evid. Code, § 1103, subd. (b).) The evidence about the fight in the jail fell into that category and was not improper rebuttal.
In addition, when a defendant presents testimony of his good character at trial, the door is then open for the prosecution to impeach or rebut such evidence with bad character evidence. (Evid. Code, § 1102.) Prior to the introduction of the prosecution's rebuttal evidence, Clay denied being a part of any gang and claimed the creation of his group, AFNF, was his way of creating unity and promoting education. Clay claimed he advocated against violence. The trial court permitted the evidence of the illegal attempt to bring AFNF documents into jail to impeach his credibility because it showed his willingness to engage in falsehood. Although the court did not rely on this point, it was also relevant to Clay's gang membership, as the prosecutor urged the jury to draw the inference that AFNF was a gang.
Clay's counsel objected to evidence of his violation of jail mail rules, but the prosecutor contended it was relevant to Clay's truthfulness. We conclude the evidence was properly admitted in rebuttal. "[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony." (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946.) "Unless precluded by statute, any evidence is admissible to attack the credibility of a witness if it has a tendency in reason to disprove the truthfulness of the witness's testimony." (People v. Hawthorne (2009) 46 Cal.4th 67, 99; accord, People v. Humiston (1993) 20 Cal.App.4th 460, 479-480; Evid. Code, §§ 780, 785.)
This ruling was not an abuse of discretion. And even if we were to assume for purposes of argument the rebuttal evidence was improper, we would find its admission harmless. Evidentiary error is subject to the Watson standard of prejudice (Watson, supra, 46 Cal.2d at p. 836) unless it made the trial "fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 436.) In a case where Clay was charged with first degree murder by lying in wait and discharging a firearm, evidence about his possible brief participation in a mass disturbance in jail and mislabeled jail mail fails to show fundamental unfairness, and Clay's claimed error was harmless under the state law standard. (Watson, at p. 436.) The rebuttal evidence was weak at best and is unlikely to have moved any reasonable juror to vote for a verdict reflecting greater culpability than he or she would have voted for in the absence of that evidence.
D. Defense Counsel's Failure to Object to Prosecutor's Closing Argument
1. Background
Next, Clay contends his attorney did not provide him with the counsel guaranteed under the Sixth Amendment because the attorney failed to object to certain remarks made by the prosecutor during closing argument to the jury. He claims the prosecutor improperly appealed to the passions and fears of the jury at three specific points in her closing argument.
First, toward the end of her closing argument, the prosecutor, referring to the homicide, said to the jury: "This is exactly the kind of violence that is plaguing so many areas of our county right now. It's a culture killing, his business. Violence is the commodity of exchange." Shortly afterward the prosecutor continued: "This is one OG [old gangster] killing another OG over a personal beef.. . . That's what this case is, plain and simple. It's not a crazy killing done by someone with mental health problems. It's not. It's exactly the sort of gang style killing that is plaguing all the areas of our county and nearby counties in the Bay Area, Oakland, Richmond, Antioch." Finally, close to the end of her argument, the prosecutor said: "And the minute we start endorsing this kind of violence, you can see kinda what happens. It's like the violence begets violence and then we've got one killer killing another killer and back and forth and back and forth, and at a certain point we, as a community, have to step in and just say, 'No. Stop killing in our streets. Stop endangering our children.' "
Clay contends on appeal this was prosecutorial misconduct. But prosecutorial misconduct cannot be raised on appeal unless defense counsel objected on that basis in the trial court and requested an admonition. (People v. Jackson (2016) 1 Cal.5th 269, 349.) Here, defense counsel, otherwise a vigorous advocate, did neither. For that reason, Clay raises the issue as ineffective assistance of counsel. But before we address ineffective assistance of counsel, we must decide whether the prosecutor said anything that merited a defense objection.
2. Standards Relating to Prosecutorial Misconduct or Prosecutorial Error
Claims of prosecutorial misconduct are subject to differing federal and state standards of review. A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. In other words, the misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial. " 'When a prosecutor's intemperate behavior [or other misconduct] is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated.' " (People v. Jablonski (2006) 37 Cal.4th 774, 835; see People v. Hill (1998) 17 Cal.4th 800, 819 (Hill) [pattern of prosecutorial misconduct so egregious as to infect trial with fundamental unfairness and make conviction a denial of due process].)
"Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury." (Jablonski, supra, 37 Cal.4th at p. 835.) "Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60 Cal.4th 109, 127.) Courts "have generally assumed that prosecutorial misconduct is error of less than constitutional magnitude." (People v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4.) Furthermore, jurors generally understand comments by prosecutors as words of an advocate in an attempt to persuade. (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.) We review the prosecutor's remarks to determine whether there is a reasonable likelihood the jury misconstrued or misapplied them. (Id. at p. 663.) Finally, we must judge the prosecutor's challenged comments in the context of her whole argument, not in isolation. (People v. San Nicolas (2004) 34 Cal.4th 614, 665; People v. Cole (2004) 33 Cal.4th 1158, 1203.)
Counter-balancing the rule against prosecutorial overreaching is the equally well-established idea that the prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom. (People v. Seumanu (2015) 61 Cal.4th 1293, 1330 (Seumanu); People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutor may vigorously argue his or her case " ' " ' "as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom." ' " ' " (People v. Jackson, supra, 1 Cal.5th at p. 349.)
3. The Prosecutor Did Not Commit Misconduct in Closing Argument
We have no quarrel with Clay's recitation that prosecutors must not appeal to the passions or fears of the jury in seeking a conviction. (Seumanu, supra, 61 Cal.4th at p. 1342.) But we disagree that is what happened here. Clay accuses the prosecutor of making an emotional plea to convict him of murder as a means of taking a stand against gang violence in the Bay Area, relying largely on United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252 for the proposition that a prosecutor " 'may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence.' " (Id. at p. 1256; see also United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1440-1443.) California also adheres to this rule. (People v. Redd (2010) 48 Cal.4th 691, 743, fn. 25.)
We are not bound by Ninth Circuit authority. (People v. Bradford (1997) 15 Cal.4th 1229, 1292.)
In Sanchez, the defendant was accused of importation and possession of cocaine, having been arrested at a California port of entry from Mexico after cocaine was found in his car. (United States v. Sanchez, supra, 659 F.3d at p. 1254.) Sanchez made statements as he was arrested indicating he wanted help because of a concern for his family's safety. (Id. at p. 1255.) At trial, he testified he acted under duress because drug traffickers had threatened his family if he did not drive the vehicle, and he did not go to the Mexican police because they "were corrupt and in the pocket of the drug traffickers." (Ibid.) The prosecutor stated in closing argument, "[W]hy don't we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we're at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it.
Because . . . they'll get away with it if they just say their family was threatened. Because they don't trust Mexican police, and they don't think that the U.S. authorities can help them. Why don't we do that?" (Id. at p. 1256.)
The Ninth Circuit concluded the prosecutor's "send a memo" statement was improper because "the prosecutor was encouraging the jury to come to a verdict based not on Sanchez's guilt or innocence, but on the 'potential social ramifications' of the verdict." (Sanchez, supra, 659 F.3d at pp. 1256-1257.) In context, the prosecutor encouraged the jury to convict Sanchez—even if they believed his defense—because acquitting him would encourage others to rely falsely on the same defense. No similar message was conveyed to the jury in this case.
Looking to California law, we note "[i]solated, brief references to retribution or community vengeance . . . , although potentially inflammatory, do not constitute misconduct so long as such arguments do not form the principal basis for advocating" the jury's finding of guilt. (People v. Ghent (1987) 43 Cal.3d 739, 771.) "A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury." (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) When the prosecutor's comments are evidence-based they are generally found not to be misconduct. (See People v. Cornwell (2005) 37 Cal.4th 50, 92-93.)
Second, arguments similar to those made by the prosecutor in this case have been found not to constitute misconduct. In People v. Lang (1989) 49 Cal.3d 991, 1041, the prosecutor told the jury, " 'if you want to have a voice in your community and an effect upon the law in the community, this is your opportunity.' " (Italics omitted.) Our Supreme Court found "[n]o reasonable juror would have construed the remarks as urging the jurors to follow community sentiment rather than their own judgment." (Ibid.) In People v. Wash (1993) 6 Cal.4th 215, 261-262, the court found no prejudicial misconduct where the prosecutor urged the "jury 'to make a statement,' to do 'the right thing,' and to restore 'confidence' in the criminal justice system." (See also People v. Adanandus (2007) 157 Cal.App.4th 496, 511-512 ["restore order"]; People v. Escarcega (1969) 273 Cal.App.2d 853, 862-863 ["permissible to comment on the serious and increasing menace of criminal conduct and the necessity of a strong sense of duty on the part of jurors"].)
The risk presented in Sanchez—that the jury would convict based on extrajudicial considerations—was not present here. The first complained-of comment amounted to little more than the unremarkable observation that gang violence is a big problem in Contra Costa County and surrounding areas. This was fully supported by the testimony of the law enforcement witnesses, and the prosecutor, in any case, was allowed to argue facts in common knowledge. (Hill, supra, 17 Cal.4th at p. 819.)
The second argument referring to Clay as an "OG" (old gangster) was backed up by evidence that Clay had been selling drugs since he was 19 years old, had illegal possession of a weapon when he killed Townsend, and had started a motorcycle club with Townsend (which the prosecutor claimed, and Clay admitted to Freier, had a "criminal element to [it]"). Clay had also organized a group called AFNF that had a paramilitary structure, and which the prosecutor portrayed as a gang. Clay recorded Video No. 36, in which he adopted gangster-style affectations and jive-talked about gunning someone down. Most significantly, on cross-examination the prosecutor asked Clay if he considered himself an "OG," and he said yes, later explaining his answer should not be understood literally. The conclusion that Clay was a gang member, although we find it weak in the context of the whole record, was within the prosecutor's wide discretion in arguing inferences from the evidence in closing argument. (See Seumanu, supra, 61 Cal.4th at p. 1330; People v. Morales, supra, 25 Cal.4th at p. 44.)
The third argument by the prosecutor is the one closest to the "send a memo" argument involved in Sanchez. Recall she argued: "And the minute we start endorsing this kind of violence, you can see kinda what happens. It's like the violence begets violence and then we've got one killer killing another killer and back and forth and back and forth, and at a certain point we, as a community, have to step in and just say, 'No. Stop killing in our streets. Stop endangering our children.' " There can sometimes be a fine line between proper argument and misconduct. (Compare United States v. Solivan (6th Cir. 1991) 937 F.2d 1146, 1150-1155 [prosecutorial error found where prosecutor asked the jury to convict the defendant to "send a message" to other drug dealers] with United States v. Alloway (6th Cir. 1968) 397 F.2d 105, 113 [no misconduct in an armed robbery case where the prosecutor called on the jury to " 'speak out for the community' " and warn other criminals " 'this type of conduct will not be tolerated' "].) In this case, the prosecutor's remarks fell on the lawful side of the line.
To the extent the prosecutor tried to convince the jury this was a typical gang killing, we surmise her attempt was ineffectual. The evidence that Clay was a gang member was weak at best. Instead, the jury most likely understood they were being encouraged not to shy away from a murder verdict, despite any sympathy they might feel for Clay or hatred of Townsend. She urged them to avoid a comparison of Clay's character with Townsend's by emphasizing the negative evidence about Clay, but she did not steer them away from the evidence. Her references to "killing in our streets" and "endangering our children" were rooted in the evidence in that the killing occurred in the driveway of a store parking lot adjacent to a city street during regular business hours. Such a public execution by firearm naturally endangers bystanders, and in the parking lot of a 7-Eleven children could easily be present.
In urging the jurors not to "endors[e]" violence, she was not arguing why they should convict, but more precisely, why they should not acquit or reach a verdict less serious than murder based on sympathy alone. By emphasizing the violent and public nature of the crime, the prosecutor was not suggesting the jury send a message to others, take vengeance on Clay for the wrongdoing of others, use the verdict to solve some unrelated societal problem, or convict Clay because they might (but probably did not) believe he was a gang member. She was arguing that even understandably motivated vigilantism cannot be tolerated any more than a gang-on-gang killing. Such argument was not objectionable.
In any case, Clay has not shown how the remarks, in the context of the prosecutor's argument as a whole, were either deceptive or reprehensible. (People v. Cole, supra, 33 Cal.4th at p. 1203.) Moreover, the trial court pre-instructed the jury at the outset of the trial not to base its decision on passion, prejudice, public opinion or public feeling, and warned that statements of counsel are not evidence. (See CALJIC No. 0.50.) The same advice was repeated in the instructions at the close of the evidence. (CALJIC Nos. 1.00 & 1.02.) The prosecutor's comments did not amount to misconduct. Having found no prosecutorial error, we conclude defense counsel was not ineffective for failing to object. (E.g., People v. Dickey (2005) 35 Cal.4th 884, 915.)
4. Counsel's Failure to Object Was Tactical
But even if the prosecutor's closing remarks may be considered borderline and subject to objection, we find no ineffective assistance of counsel on this record. An attorney's failure to object is presumed to be tactical (Strickland v. Washington (1984) 466 U.S. 668, 689) and will rarely establish ineffective assistance. (People v. Romero and Self (2015) 62 Cal.4th 1, 25 [" 'inherently tactical' "].) In this case it was demonstrably tactical as well.
Defense counsel did not sit by silently and allow the prosecutor to walk on his client. For instance, instead of objecting to the prosecutor's "OG" remark, defense counsel argued forcefully in closing that Clay was not a violent person, basing his argument in the evidence. Defense counsel also rebutted the prosecutor's "endangering our children" remark by pointing out that no children were shown to be in danger in this case.
On a more general level, the record strongly suggests this experienced defense attorney intentionally forfeited any objection that the prosecutor was appealing to the jurors' passions or prejudices in part because of his own plan to make an emotional plea to the jury. Given defense counsel's intention to call upon the jury to exercise mercy, and to rely upon emotion-provoking epithets against Townsend, the failure to object to any of the prosecutor's alleged misconduct shows itself to have been tactical. Had Serra objected to the prosecutor's arguments, it is likely his own passionate closing would have been curtailed. (Cf. Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 317-318 & 322-324 (dis. opn. of Traynor, C.J.) [attorney misconduct even in civil case for counsel to appeal to passions of jury].)
Defense counsel's closing to the jury included the following: "My client did not kill a human being. He killed a human disease." Counsel called Townsend "the most feared human being in Oakland," a "sociological psychopath," and a "sick animal mind," "without conscience, without feeling, without morality," who had "slaughtered" Willie. He called Townsend a "sociopathic murderer, a homicidal killer, a serial killer of a fashion, serial killer for money," a "maniac," a "sick serial murderer," and a "mindless amoral killer." If Clay had not killed Townsend, counsel argued, "it would have been done by others." In contrast, he portrayed Clay as a "hunted animal" who suffered from PTSD, with "no way out," who killed in "an animal instinctual reaction" to Townsend's myriad described past provocations. And he urged the jurors to judge the psychiatric testimony based on which expert spoke from their "heart," not their "head."
Accordingly, counsel's failure to object did not amount to below-standard performance and Clay's ineffective assistance of counsel claim fails. And in any case, the prosecutor's remarks were not so passion-provoking as to establish prejudice under the Strickland standard or any other. (Strickland v. Washington, supra, 466 U.S. at pp. 693-696.)
E. Prosecutor's Statements to Jury Panel in Voir Dire
1. Background
Next, Clay criticizes the prosecutor's conduct during voir dire and claims his conviction must be reversed as a result. The prosecutor commenced her voir dire by discussing with the panel of prospective jurors legal concepts that she deemed to be related to the case and asking general questions about the jurors' understanding of those concepts and ability to abide by them. Clay's trial counsel objected to several of the prosecutor's statements on the grounds she was stating the law, misstating the law, preinstructing the jury, and engaging in argument. The court sustained some of defense counsel's objections and overruled others. The passages of the prosecutor's comments to which defense counsel objected can best be described as attempts to ascertain (1) if the prospective jurors would be able to apply the law of self-defense as given to them; (2) if they could accept circumstantial evidence as proof of intent; (3) if they could afford to Townsend the protection of the law in spite of his criminal history; and (4) whether evidence concerning marital infidelity or a love triangle would cause them to have an emotional reaction. These were not improper subjects of voir dire.
At the end of the prosecutor's voir dire, defense counsel moved for a mistrial, citing her abuse of voir dire by "introduc[tion of] topics of law and dare I say evidence or disguised evidence to in essence give a preview of her perspective of evidence and law which I found to be incomplete and sometimes inaccurate." Defense counsel complained that giving the jurors some insight into a morally controversial topic (Clay's ongoing relations with more than one woman) was a "cheap shot" "irrelevant to this case," interjected to "dirty him up." The district attorney defended her use of voir dire, stating "there is absolutely nothing wrong with the People covering legal principles in their voir dire. And in fact, in . . . this [case] it's essential."
The court denied Clay's motion with the following comments: "I'm going to deny the motion for mistrial. And the reason I will is because, first, I agree that counsel are permitted to inquire of jurors in voir dire whether they are able to follow the law that the Court will be giving them. [¶] For example, Mr. Serra, I assume you would want to know if there was a juror on our panel who said, 'I don't care what the law in self-defense is. I don't think it's ever justified. So I'm not going to apply it.' That would be a fair question on your part. [¶] In addition to the question, you have to articulate the concept of the legal principle so you can ask the juror whether they can follow the legal principle. [¶] I did overrule the objections when I thought the question was—were perhaps designed to elicit that type of information. [¶] I granted or sustained the objection when I felt the questions went beyond that and got into the facts of the case such as whether pointing a gun at somebody is justif[ied]. I sustained the objection to that. [¶] So I sustained a number of objections on that basis, but I did permit inquiry generally to a juror's ability to follow the law or whether a certain topic raises such an emotional response for a juror that they cannot be an objective juror. [¶] And the last point about the infidelity, I did read portions of the motions. I have not read everything, but I did read the portion that related to apparently the defendant's statement that did include the statement as described in the pleading at least that one of the reasons . . . to get revenge from the victim having had an affair with one of his—the mother of his children. [¶] So that's why having know[n] this was an issue in this case, I permitted the inquiry. And I didn't understand [the prosecutor's] response to be as you understood it, Mr. Serra, that she was protecting the defendant. [¶] I think she's concerned about a juror like [a named prospective juror] who might conclude that whatever the law is that it's okay for a man whose loved one has had an affair with another man. It's okay for a man to shoot the man for having an affair with his loved one, because that may be a relevant issue in this case. [¶] So I didn't understand her to be disingenuous. I understood her to be articulating the reason she asked that question. And because of my knowledge that that was at least a potential significant issue in this case, I permitted the question. [¶] So the motion for mistrial is overruled."
2. Standard of Review
In examining the prosecutor's questions and comments during voir dire, this court considers " ' "whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Ayala (2000) 23 Cal.4th 225, 284.) The standards for prosecutorial misconduct have been set forth in section II.D.2, ante. By statute, "[t]he trial court's exercise of its discretion in the manner in which voir dire is conducted . . . shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution." (Code Civ. Proc., § 223.) Given the procedural context, it appears Clay's position on appeal is tantamount to claiming the mistrial motion was improperly denied. So framed, the standard of review is abuse of discretion and the motion "should be granted only when ' "a party's chances of receiving a fair trial have been irreparably damaged." ' " (Ayala, at p. 282.)
3. The Prosecutor's Role in Voir Dire
Clay argues that " 'the examination of prospective jurors should not be used " 'to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.' " ' " (People v. Abilez (2007) 41 Cal.4th 472, 492-493.) Counsel "may not use voir dire for the purpose of instructing, educating, cajoling, or prejudicing the jury. . . ." (People v. Balderas (1985) 41 Cal.3d 144, 182.)
On the other hand, "[t]o facilitate the intelligent exercise of . . . challenges . . . for cause, parties may inform prospective jurors of the general facts of the case." (Ochoa, supra, 26 Cal.4th at p. 431.) Counsel may inquire of prospective jurors on " 'matters concerning which either the local community or the population at large is commonly known to harbor strong feelings' " (Williams, supra, 29 Cal.3d at pp. 408-409), as was the case with Townsend's adulterous relationship with Barbosa and Clay's ongoing relations with multiple women. In our view, the questions asked could be expected to uncover potential reasons to excuse a juror for cause, as well as aiding in the exercise of peremptory challenges. In fact, one of the prospective jurors asked to speak to the judge in chambers in response to this line of inquiry and revealed that, because of an experience he had suffered as a result of infidelity, he would have a difficult time convicting a defendant who sought revenge on a romantic rival in a love triangle. Even if this questioning were deemed relevant only to the exercise of peremptory challenges, we would find it harmless under the standards set forth above.
Ochoa indicated such inquiry was also permitted to inform the exercise of peremptory challenges, but in that respect appears to be in error. (See Fuiava, supra, 53 Cal.4th at p. 654; Code Civ. Proc., § 223.) Although the Supreme Court had earlier held that voir dire was permissible to aid in the intelligent exercise of peremptory challenges, as well as challenges for cause (People v. Williams (1981) 29 Cal.3d 392, 407 (Williams)), that rule was superseded in criminal cases by the passage of Proposition 115 in June 1990, which limited voir dire to questions in aid of challenges for cause. (Fuiava, at p. 654; People v. Noguera (1992) 4 Cal.4th 599, 645-646; People v. Leung (1992) 5 Cal.App.4th 482, 491-494.) Nevertheless, we believe Williams and other pre-Proposition 115 cases retain persuasive value on the points for which they are cited in this opinion.
In addition, the trial court has broad discretion in allowing an attorney during voir dire to explain basic legal concepts underlying the charge for purposes of determining whether jurors can follow the law in that area. "[T]he court must permit questioning about legal doctrines that are material to the trial and controversial in the sense that they are likely to invoke strong feelings and resistance to their application." (People v. Johnson (1989) 47 Cal.3d 1194, 1224-1225; see also, People v. Noguera, supra, 4 Cal.4th at p. 646; People v. Balderas, supra, 41 Cal.3d at p. 183 [courts must allow "reasonable inquiry into specific legal prejudices . . . as the basis for a challenge for cause"].) It stands to reason that in making such inquiries, the attorney may preface his or her questions with a cursory thumbnail recitation of the law about which he or she intends to inquire. "There [is] nothing improper about asking [a juror] to follow the law." (People v. Ochoa (1998) 19 Cal.4th 353, 428.)
4. There Was No Prejudicial Prosecutorial Misconduct in Voir Dire
Clay's opening and reply briefs do not even identify exactly which comments he claims require reversal. For this reason alone, we could deem the issue waived. (Cal. Rules of Court, rule 8.204(a)(1)(C).) " 'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel.' " (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) Where an appellant fails to articulate the factual basis for his legal challenges through pertinent references to the record, the court may deem the issue waived. (Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384.)
Despite this deficiency, we have reviewed the statements to which defense counsel objected in the record of voir dire, and we conclude there was no prejudicial prosecutorial error. The prosecutor's inquiries were intended to shed light on whether the jurors could follow the law despite any sympathy they might feel for Clay, any revulsion they might feel toward Townsend, or any emotions they might feel concerning the lifestyles of either. Defense objections were frequently sustained, so that any subject matter bordering on the forbidden was cut short. We are further convinced the trial judge gave careful consideration to defense counsel's objections and his mistrial motion, and we agree with the court's analysis.
In addition, the jury was fully and properly instructed by the judge, which would have cleared up any possible misimpressions created in voir dire. The court cautioned the jurors not to be influenced by sympathy, passion or prejudice, advised them statements by counsel are not evidence, and told them they must accept and follow the law as explained in the jury instructions, deciding the case based on the evidence presented. We presume jurors follow the trial court's instructions. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) Under any conceivable standard of prejudice, any prosecutorial error in voir dire was harmless. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)
F. Cumulative Error
Having found no error, we also find no cumulative error. Even if we consider assumed error cumulatively, it did not have a prejudicial impact on the verdict. The evidence was unequivocal that Clay killed Townsend. The only question was his state of mind at the time. The jury received evidence suggesting he had good reason to fear Townsend and did fear him. A properly instructed jury nevertheless convicted him of lying-in-wait first degree murder. (§189.) No borderline prosecutorial comments or evidentiary errors compromised the fundamental fairness of Clay's trial. Any claimed errors, singly and cumulatively, were harmless.
G. Parole Revocation Fine Under Section 1202.45
At the sentencing hearing, the trial court imposed and suspended a $280.00 parole revocation restitution fine under section 1202.45. Clay contends that because he was sentenced to life without the possibility of parole (LWOP), the fine should be stricken under People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1185 and People v. Jenkins (2006) 140 Cal.App.4th 805, 819. (See also People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. Battle (2011) 198 Cal.App.4th 50, 58, 63 (Battle).) Though defense counsel did not object to imposition of the fine, that did not constitute a waiver of this issue on appeal. (People v. Smith (2001) 24 Cal.4th 849, 853.)
Section 1202.45, subdivision (a), provides, "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." " 'When there is no parole eligibility, the [parole revocation restitution] fine is clearly not applicable.' [Citations.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184.)
In People v. Oganesyan, supra, 70 Cal.App.4th 1178, the defendant was convicted of two murders, one first degree and one second degree. On the first degree murder, he was sentenced to LWOP due to a multiple-murder special circumstance. On the second degree murder, he was sentenced to 15 years to life. (Id. at pp. 1181, 1184.) The court did not impose a parole revocation restitution fine under section 1202.45, and the Attorney General argued on appeal this was jurisdictional error. (Id. at pp. 1181-1182.) He argued that because there were two sentences, one of which, considered independently, could conceivably result in parole, the trial court was under an obligation to impose the parole revocation restitution fine. (Id. at p. 1181.) In affirming the judgment, the Court of Appeal concluded "the language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed," and given the LWOP component of the "overall sentence," "the sentence does not presently allow for parole and there is no evidence it ever will, [so] no [parole revocation] restitution fine must be imposed." (Id. at p. 1185; see also People v. Jenkins, supra, 140 Cal.App.4th at p. 819 [fine improper where defendant sentenced to LWOP on one offense and 35-to-life on a second offense].)
The Attorney General argues that in People v. Brasure (2008) 42 Cal.4th 1037, the Supreme Court seriously undermined the analysis and holding of Oganesyan. In Brasure, the defendant was found guilty of murder for which he was sentenced to death, as well as offenses for which he received a determinate prison term under section 1170. (Brasure, at p. 1075.) The trial court also imposed but suspended a $10,000 parole revocation fine under section 1202.45. (Ibid.) Brasure argued the fine was unauthorized, but the Supreme Court disagreed. (Ibid.) The court explained: "Section 1202.45 . . . requires assessment of a parole revocation restitution fine '[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.' The fine was therefore required, though by statute and the court's order it was suspended unless and until defendant was released on parole and his parole was revoked. [Citation.]" (Ibid.) Nevertheless, Brasure left the holding of Oganesyan intact, noting it "involv[ed] no determinate term of imprisonment imposed under section 1170, but rather a sentence of life without the possibility of parole for first degree special circumstance murder and an indeterminate life sentence for second degree murder." (Brasure, at p. 1075.) Thus, Brasure distinguished—but did not disapprove—Oganesyan. Brasure further stated: "As in Oganesyan, to be sure, defendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine." (Brasure, at p. 1075.)
After Brasure was decided, the Court of Appeal in Battle, supra, 198 Cal.App.4th at page 58, again considered whether the section 1202.45 parole revocation fine was mandated where the defendant was sentenced to LWOP on one count and an indeterminate term of 25 years to life on another count. The Third Appellate District concluded, "Because Battle's sentence included no period of parole and he was sentenced to no determinate term, it was improper to impose the parole revocation fine." (Battle, at p. 63.) Finally, in People v. McWhorter, supra, 47 Cal.4th 318, the defendant was convicted of two counts of first degree murder and one count of first degree residential robbery. (Id. at p. 324.) Citing Oganesyan, supra, the Supreme Court struck a $200 parole revocation fine without discussing Brasure. (McWhorter, at p. 380.) Because residential robbery carries a determinate term, the Attorney General argues McWhorter is inconsistent with the Supreme Court's own prior decision in Brasure.
The Attorney General advocates looking at each component of the overall sentence separately (as in Brasure) and suggests Battle was incorrectly decided. Brasure's reasoning, he argues, requires imposition of the parole revocation fine in LWOP cases whenever a defendant is also sentenced for a crime other than one for which parole is prohibited, regardless of whether that sentence is determinate or indeterminate. He points out that under section 3000, an indeterminate life term imposed pursuant to section 1170 still includes a period of parole, and under section 1202.45, subdivision (a), every sentence that "includes a period of parole" requires imposition of a parole revocation fine. Under his analysis, no distinction should be made between determinate and indeterminate sentences in this context. The fact remains, however, that Brasure did distinguish between determinate and indeterminate sentences, and Battle merely applied that distinction.
Significantly, Clay's 25-to-life sentence was not imposed for a "public offense" under section 1170 (§ 1170, subd. (a)(3)), but as an enhancement under section 12022.53, subdivision (d). Whatever the merits of the Attorney General's argument when a defendant has been convicted of two separate offenses—one carrying an LWOP sentence and one carrying an indeterminate term—it carries little weight when a defendant's sole determinate or indeterminate sentence was imposed as an enhancement to the LWOP term rather than for a separate offense. In the latter case, there is no future possibility that the life-maximum term will be served independently of the LWOP term, and hence no possibility of parole.
Thus, despite his disagreement with Clay's authorities, the Attorney General concedes the fine should be stricken here because the 25-to-life term was imposed on an enhancement. We conclude we may accept the Attorney General's concession without running afoul of Brasure. Clay was not subject to a fine under section 1202.45 because he did not receive a sentence with a determinate term and his overall sentence did not include a period of parole.
H. Senate Bill No. 620
On October 11, 2017, the California Legislature passed Senate Bill No. 620, which became law on January 1, 2018. As pertinent here, the bill amended subdivision (h) of section 12022.53. That subdivision had previously required the trial court to impose an enhancement of 10, 20 or 25 years to life for discharge of a firearm during an enumerated felony, including murder (§ 12022.53, subds. (b), (c), (d)), resulting in imposition of an additional and consecutive 25 years to life term in Clay's case. (§ 12022.53, subd. (d).) The court was prohibited from striking an allegation or finding under section 12022.53. (Former § 12022.53, subd. (h).) Senate Bill No. 620 changed this by making imposition of the enhancement discretionary. (§ 12022.53, subd. (h).)
In supplemental briefing, filed with permission, Clay contends he is entitled to avail himself of this favorable change in the law because the amendment to section 12022.53 should be deemed retroactive, applicable to all those whose convictions are not yet final on appeal. "[W]here the amendatory statute mitigates punishment and there is no saving clause" the amendatory statute will apply if the defendant's judgment is not yet final. (In re Estrada (1965) 63 Cal.2d 740, 748; accord, People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195; People v. Brown (2012) 54 Cal.4th 314, 323; see also, People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.) No savings clause was included in Senate Bill No. 620. The Attorney General concedes the statutory amendment is retroactive, which accords with the recent decisions in People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 and People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.).
We agree with Clay that the statutory amendment is retroactive. Hence, we must remand the case for a new sentencing hearing in which the court may decide whether to impose or strike the enhancement under section 12022.53.
I. Request for Sanctions in A140792
In a posttrial motion filed in pro per by Clay personally, he sought contempt sanctions against the deputy district attorney. He claimed the prosecutor (1) was unsuccessful in arguing for admission of the videos and AFNF materials at his first trial, in which Judge John Minney declared a mistrial and set aside his prior order excluding those items; (2) renewed her efforts to have the videos and AFNF documents admitted when trial recommenced before Judge John W. Kennedy in May 2013; (3) represented to the court that she would call a gang expert witness and/or present other evidence to substantiate her representation that the videos and AFNF documents were indicative that Clay was an active gang member; (4) after securing admission of the disputed exhibits, failed to present the expert testimony she earlier had promised; and (5) in so doing, committed a willful violation of Code of Civil Procedure section 1209, subdivisions (a)(3), (a)(4) and (a)(8), and should be sanctioned in contempt. When his request was denied, he filed a "motion for appeal" in pro per, treated as a notice of appeal and assigned docket no. A140792 in this court. On his appellate counsel's motion, we ordered that appeal consolidated with Clay's appeal from his conviction (A139735).
Clay actually cited Civil Code section 1209, which does not exist. We believe he intended to cite the Code of Civil Procedure.
In his briefs in the consolidated appeals, Clay's counsel made no argument whatsoever relating to A140792. Consequently, the sanctions issue has been waived. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
III. DISPOSITION
The judgment of conviction is affirmed, as is the posttrial order. The sentence is vacated and the cause is remanded to allow the trial court to exercise its discretion either to strike or impose Clay's firearm discharge enhancement under section 12022.53, subdivisions (b), (c), and (d). Upon resentencing the court shall not impose a parole revocation restitution fine. After resentencing, the trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------