Opinion
H042811
09-10-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1359060, C1361057)
Defendant Richard Cortez was convicted by a jury of attempted murder (Pen. Code, §§ 664, 187). The jury also found true the allegations that he personally used a deadly weapon during the commission of the crime (§ 12022, subd. (b)(1)) and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to a total term of 41 years to life under the Three Strikes law.
Unspecified statutory references are to the Penal Code.
On appeal, defendant argues: (1) the trial court erroneously admitted evidence of his proficiency with knives and evidence that he was involved in a prior uncharged stabbing incident, (2) the trial court's answers to two jury questions were erroneous and prejudicial, (3) the cumulative effect of the trial court's errors prejudiced him, and (4) he is entitled to a remand for resentencing in light of Senate Bill No. 1393. As we explain, we reject defendant's claims of prejudicial error. However, we agree that remand is appropriate so that the trial court may exercise its discretion as to whether to strike defendant's prior serious felony convictions under Senate Bill No. 1393. We reverse the judgment.
BACKGROUND
1. The Information
On December 18, 2014, a consolidated information was filed charging defendant with attempted murder (§§ 664, 187). It was alleged that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). It was also alleged that defendant had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)).
2. The Trial
a. The Crime
On June 2, 2013, Steven Enriquez was unemployed and living in a pool shed in the back of an apartment complex. Enriquez was friends with defendant. Approximately 40 years ago, Enriquez served with defendant in the army for almost a decade. After they left the service, Enriquez kept in close contact with defendant and spoke to him frequently.
That evening, Enriquez went to sleep at approximately 8:00 p.m. He was alone in the pool shed with his dog. He was awakened by the sound of a knock on the door. Enriquez asked who was at the door, and defendant answered, "It's me, Richard." Enriquez recognized defendant's voice and opened the door. Enriquez asked defendant what he was doing at the pool shed so late at night. In response, defendant "poked" Enriquez in the stomach and asked him, "What did you say to my girlfriend?" Enriquez responded, "Richard, what's wrong with you?" Defendant jabbed at Enriquez again. Enriquez grabbed defendant's hand and realized that he was bleeding. Enriquez recalled that defendant stabbed him five times, including on his shoulder blade. It was too dark for Enriquez to see the weapon that defendant used.
Enriquez tried to leave, but defendant's girlfriend was blocking the door. Enriquez forced his way out, and defendant managed to stab him another time in the back. As Enriquez stepped outside the shed, he realized there was a third person standing nearby. Enriquez recognized the third person but could not remember his name. Enriquez ran from the pool shed to his friends' apartment, which was nearby. His friends called the police. Enriquez was hospitalized for four days.
Enriquez recalled that he spoke with defendant's girlfriend several times before defendant attacked him. The first time, he spoke with defendant's girlfriend after he tried to call defendant and defendant's girlfriend answered. Defendant's girlfriend refused to give the phone to defendant. Defendant's girlfriend told Enriquez that she did not want him to talk to defendant anymore. Enriquez tried calling defendant again and ended up speaking with defendant's girlfriend a second time. Enriquez explained to the girlfriend that he wanted to talk to defendant. Defendant's girlfriend became upset, and Enriquez ended the call.
Enriquez previously told officers that he was trying to call defendant's son's girlfriend.
Enriquez testified that defendant had previously bragged to him about his proficiency with stabbing weapons. During trial, the prosecution asked Enriquez if he recalled hearing defendant "talk[] about using any sort of stabbing weapons." Enriquez answered, "Yes." When asked if this was something that defendant would have said to him directly or if it was something that he overheard when he was "hanging out with [defendant] and other people," Enriquez answered, "Hanging around." The prosecution then followed up by asking Enriquez, "What was the type of weapon that he bragged about using when you were hanging around with him?" Enriquez responded, "A shank, knife, blade." Enriquez could not recall telling officers about defendant's proficiency with knives during previous interviews.
b. Bystander Testimony
A neighbor that lived on the same street as Enriquez testified during the trial. The neighbor recalled that just after midnight on the night of the stabbing, he heard three people, two men and one woman, speaking outside on the street. The neighbor identified defendant as one of the men that he saw that night. The neighbor heard defendant tell his companions, "hurry up, . . . take care of that." Afterwards, the neighbor saw defendant, who was holding a baseball bat, and the two other individuals that were accompanying him go inside an apartment complex. Approximately two minutes later, defendant and his companions left the apartment complex, went inside a car, and drove off. The neighbor did not notice any blood on the three individuals. The police arrived shortly thereafter.
c. The Police Investigation
San Jose Police Department Officer Andrew Watson responded to the scene of the crime. He spoke to Enriquez, who told him that defendant had left the apartment complex by car.
San Jose Police Department Officer Gustavo Perez interviewed Enriquez at the hospital the night of the crime. The interview was recorded, and a portion of the audio was played for the jury. During the interview with Officer Perez, Enriquez said that defendant stopped and "took off" after the stabbing, and defendant's girlfriend said, "Let's go. Let's go that's enough." Enriquez said that he knew that defendant had some sort of blade or knife, and he knew that defendant "did somebody else like that a long time and I remember [sic]." Enriquez opined that defendant was under the influence of drugs when he stabbed him.
San Jose Police Department Officer John Figone was assigned to investigate Enriquez's stabbing. He interviewed Enriquez at the hospital after he reviewed Enriquez's previous interview with Officer Perez. Enriquez told Officer Figone that during the stabbing, defendant's girlfriend shouted, "Get him, Richard! Get him!" He described the item that defendant used during the attack as a silver instrument with a blade on top that was approximately six inches in length. Enriquez told Officer Figone that the calls that he had with defendant's girlfriend took place a few days before he was stabbed.
3. The Verdict and Sentencing
On February 25, 2015, the jury convicted defendant of attempted murder and found true the allegations that he personally used a deadly weapon and personally inflicted great bodily injury. That same day, the trial court held a court trial on defendant's prior conviction allegations and found them all to be true.
On September 11, 2015, the trial court denied defendant's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss one or more of his prior strike convictions. The trial court then sentenced defendant to 27 years to life for the conviction for attempted murder, consecutive to one year for the deadly weapon enhancement, consecutive to three years for the great bodily injury enhancement, and consecutive to 10 years (five years each) for his two prior serious felony convictions. In sum, defendant was sentenced to a total term of 41 years to life in prison.
DISCUSSION
1. Evidentiary Issues
Defendant argues that the trial court erred when it admitted evidence that he previously bragged about being proficient with knives. Defendant further argues that the trial court erroneously admitted evidence that he had stabbed someone in a prior uncharged crime. Finally, he argues that the jury may have inadvertently received evidence tending to show that he had served time in prison.
a. Background
i. Motions in Limine
Before trial, the People filed a motion in limine seeking to introduce evidence of Enriquez's prior conversations with defendant about his proficiency with the type of weapon used in the stabbing. According to the People's motion, Enriquez previously told Officer Figone that defendant had told him that he had used similar weapons when he was in prison. The People argued that this evidence was admissible under Evidence Code section 1101, subdivision (b), because it was relevant to the modus operandi of the crime and to defendant's intent. The defense objected to the admission of this evidence, arguing that it would be more prejudicial than probative under Evidence Code section 352.
After considering the parties' arguments, the trial court made the following ruling: "[S]hould Mr. Enriquez testify and if he, in fact, did make these statements previously to the police officer, then he can testify as to the defendant's previous use of a similar weapon and his proficiency in using that weapon if the defendant told Mr. Enriquez that without indicating that the defendant indicated that his proficiency was gained while in prison."
Before the jury began its deliberations, the trial court instructed the jury that it could only use this evidence for the limited purpose of deciding whether defendant had the intent to kill, and it should not conclude from this evidence that defendant had a bad character or was predisposed to commit a crime.
ii. Unredacted Transcript
Enriquez's interview with Officer Perez was recorded and played for the jury. Copies of the interview transcript were given to the jury before the audio was played. There were some issues with the recording's playback, which caused a brief delay. When the audio finally began playing, defense counsel realized that the jury had been given unredacted transcripts. After realizing this error, the playback of the recording was stopped, and the jury was asked to return the unredacted transcripts. Subsequently, two pages of the transcript, pages 28 and 29, were removed, and the jury was given a redacted copy of the transcript. The unredacted version of the transcript contained the following statement by Enriquez: "Oh, [defendant] has tattoos. He's from pri—he got out—he just uh, got out of prison, so . . . ."
b. Defendant's Proficiency with Weapons
First, defendant argues that the trial court erroneously admitted evidence that he was proficient with weapons similar to the one used in Enriquez's attack. Defendant characterizes the evidence as improper character evidence that was more prejudicial than probative. He further claims that its admission violated his due process rights.
The evidence of defendant's proficiency with weapons was introduced at trial through Enriquez's testimony and the audio recording that was played of Enriquez's hospital interview with Officer Perez. During trial, Enriquez testified that he remembered that defendant had on previous occasions bragged about his skill with stabbing weapons. And during his hospital interview with Officer Perez, Enriquez said that he knew that defendant had some sort of blade or knife, and he knew that defendant "did somebody else like that a long time and I remember [sic]."
Defendant argues that to be admissible to prove intent under Evidence Code section 1101, subdivision (b), prior acts must be "sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or some other material fact." (People v. Leon (2015) 61 Cal.4th 569, 598.) Defendant insists that with respect to his knife skills, no prior act is described with any particularity, and all we know is that defendant previously bragged about being proficient with knives. Thus, defendant argues that it is unclear whether these "prior, unspecified uses of similar weapons were done in the course of nefarious criminal conduct, in self-defense, or as part of some form of mutual combat." Likewise, with respect to the prior uncharged stabbing incident, no details were given about the circumstances of the offense.
Even if we assume this evidence was erroneously admitted, defendant cannot show that there was prejudicial error warranting reversal of his conviction. "Erroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that, absent the error, a result more favorable to the defendant would have been reached." (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008, citing People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Defendant contends Enriquez's interview with Officer Perez painted a different picture of the assault—one in which defendant's intent to kill Enriquez was less than clear. During the interview with Officer Perez, Enriquez said that defendant "poked" him four or five times, and defendant stopped when his girlfriend told him "that's enough." Defendant claims that the fact that defendant ceased his attack and left without further pursuing Enriquez demonstrates that the stabbing was intended to teach Enriquez a lesson, not to kill him.
Defendant also insists that the case was close with respect to his intent, and the jury's questions indicated that it focused on Enriquez's statements to Officer Perez. During deliberations, the jury requested the transcripts and the recording of the interview with Officer Perez. The jury asked the court, "Do we have to have a unanimous vote of not guilty on attempted murder before considering a less[e]r charge?" and "Is there further definition of intent to kill?" The jury also deliberated for a full day before reaching its verdict.
We agree with defendant that the evidence of his intent to kill was disputed. However, the strongest evidence in defendant's favor was Enriquez's competing characterizations of the crime and the fact that defendant did not further pursue Enriquez after he managed to get out of the pool shed. In contrast, defendant's proficiency with knives and the alleged past stabbing incident only weakly supported finding an intent to kill.
Furthermore, the fact that defendant was proficient with knives can support an opposite inference—that defendant did not have an intent to kill because he did not succeed in killing Enriquez despite using a weapon that he was familiar with.
Moreover, the challenged evidence did not occupy a prominent place during trial. The references to defendant's proficiency with knives and the prior stabbing incident were brief and vague, greatly reducing their prejudicial effect. Furthermore, the fact that Enriquez heard defendant brag about his proficiency with knives was not particularly suggestive. The prosecutor recounted defendant's proficiency with knives during his closing argument and during his rebuttal, but he focused mainly on the number of stab wounds suffered by Enriquez as reflecting defendant's intent to kill. Enriquez was stabbed multiple times and suffered wounds to his stomach, where there are a lot of internal organs, and to his back. Additionally, the prosecutor did not mention Enriquez's prior statement implicating defendant in the prior stabbing incident during his closing argument. As a result, we do not believe that had the challenged evidence not been admitted, it is reasonably probable that defendant would have received a more favorable result.
During closing argument, the prosecutor, after arguing that the crime itself demonstrated an intent to kill, made the following statements: "You heard the testimony from Steven Enriquez that [defendant] had previously bragged about his proficiency with stabbing-type weapons . . . . [¶] . . . [¶] Lastly, we know that Steven Enriquez told us he ran because he feared for his life. He had to get out of there to save himself. All that kind of combination, the multiple stab wounds, the stabbing in the back, the fact that it only ended because the victim, Steven Enriquez, managed to force his way out of the room, the fact that [defendant] was signaling his intent beforehand saying hurry up, and the fact that he used a weapon that he had bragged about in the past all show that in this situation his only intent was clear, to kill Steven Enriquez." During rebuttal, the prosecutor again argued that an intent to kill was shown, arguing, "And as I explained earlier in my initial closing arguments, the number of stab wounds, the repeated attacks toward Steven Enriquez, the fact that he was stabbed in the back as he was trying to escape, the fact that the initial stab wound was right to the midsection where there's a lot of internal organs, and the statement, hurry up and take care of that, the previous experience of [defendant] with the weapons involved."
We also find no merit in defendant's claim that the admission of the allegedly erroneous evidence violated his due process rights. "Ordinarily, even erroneous admission of evidence does not offend due process unless it is so prejudicial as to render the proceeding fundamentally unfair." (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042.)
In support of his due process claim, defendant analogizes his case to McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378. There, the Ninth Circuit found the erroneous admission of evidence that painted the defendant, accused of killing his mother with a knife, as "a young man with a fascination with knives and with a commando lifestyle" violated due process. (Id. at p. 1385.) In its decision, the Ninth Circuit observed that the evidence was not relevant to the questions before the jury and served only to prey upon the jury's emotions. (Ibid.) Furthermore, the rest of the evidence against the defendant was purely circumstantial. (Ibid.) McKinney does not aid defendant. At most, the prosecution in this case briefly referred to defendant's proficiency with knives, and Enriquez summarily alluded to a previous incident where defendant had stabbed someone. The prosecution did not attempt to inflame the jury's passions by overemphasizing defendant's knife combat skills.
In Correll v. Stewart (9th Cir. 1998) 137 F.3d 1404, the Ninth Circuit noted that the prosecutor in McKinney engaged in extensive questioning about the defendant's fascination with knives and the commando lifestyle that occupied over 60 pages of the trial transcript. (Id. at p. 1417.)
Likewise, the brief mention of the prior uncharged stabbing incident did not render defendant's entire trial fundamentally unfair in violation of due process. The prior uncharged stabbing incident was not emphasized by the prosecutor during trial. And, as we have determined, the admission of the evidence was not prejudicial.
In sum, defendant does not meet his burden to show that the erroneous admission of the evidence deprived him of his due process rights.
In his opening brief, defendant argues that in the event that we find that his counsel's failure to renew the objections below, his trial counsel rendered ineffective assistance of counsel. Since we reach the merits of defendant's arguments, we do not address his claim of ineffective assistance of counsel.
c. Defendant's Prior Incarceration
Defendant also argues that it is possible that jurors may have read pages 28 and 29 of the unredacted transcript of Enriquez's interview with Officer Perez that referenced defendant's prior incarceration. As explained, the unredacted transcript was given in error, and the jury was asked to return the unredacted transcripts and was subsequently given redacted copies. Defendant acknowledges that there is no express indication that jurors read the unredacted pages in question, but he claims it is not unreasonable to presume that some jurors did in fact do so, causing him further prejudice.
We reject defendant's claim of prejudice, which is based solely on his speculation that jurors may have read pages 28 and 29 of the unredacted transcript. Moreover, the jury in this case was instructed that evidence included the sworn testimony of witnesses, the exhibits that were admitted into evidence, and anything else that the trial court told the jury to consider as evidence. In this case, the unredacted transcript was not admitted into evidence. Only the audio of the interview, which did not contain the offending material, was admitted into evidence. We presume the jury followed the instructions to disregard any materials not admitted into evidence. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Thus, even if we assume that some jury members read pages 28 and 29 of the unredacted transcript, the error was harmless under any standard.
2. Responses to Jury Questions
Defendant argues that the trial court committed error under People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman) when it instructed the jury that it could not consider lesser included offenses before reaching a unanimous verdict on the greater offense of attempted murder. Defendant also argues that the trial court committed error under People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee) when it reinstructed the jury with CALCRIM No. 600 after the jury asked if there was a further definition of an intent to kill.
a. Background
Before it began its deliberations, the jury was instructed on the elements of attempted murder and several lesser included offenses, including attempted voluntary manslaughter, assault with a deadly weapon, and assault. The jury was also instructed with CALCRIM No. 3517, which states: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime."
After the jury retired for deliberations, the trial court told the parties that it would proceed with the following procedure should the jury ask any questions: "[W]e'll set up a conference call. And I'll relate to you what the [jury] question may be and then, assuming we're able to arrive at an answer to the question during the conference call, I would request your stipulation that I can just go ahead and supply that as an answer to the jury without having to reconvene court." All of the parties stipulated to this procedure.
During deliberations, the jury sent a note to the trial court asking the following two questions: "1. Do we have to have a unanimous vote of not guilty on attempted murder before considering a less[e]r charge?" and "2. Is there further definition of intent to kill?"
The trial court's response to the two questions were as follows: "1. Yes" and "2. Not other than what is contained in instruction number 600." CALCRIM No. 600 instructs the jury on the elements of attempted murder, including the element that the defendant must have "intended to kill that [victim]." CALCRIM No. 600 does not define an "intent to kill."
b. Forfeiture
Preliminarily, the People argue that defendant forfeited his arguments on appeal because the parties stipulated to a process where defense counsel agreed to participate in discussions with the trial court over any jury questions, and there is no indication that defense counsel objected to the trial court's answers. (People v. Ross (2007) 155 Cal.App.4th 1033, 1048 [defendant may forfeit objection to trial court's response to jury instruction by consent, invitation, or tacit approval].)
Defendant argues that he did not forfeit his claims by failing to object below, and we agree. Defendant claims that the trial court's responses affected his substantial rights, so we must examine the merits of his claim. (People v. Olivas (2016) 248 Cal.App.4th 758, 772 (Olivas) [considering instructional error argument despite failure to object below]; People v. Ngo (2014) 225 Cal.App.4th 126, 149 [to determine if instructional error affected the substantial rights of a defendant requires an examination of the merits of the claim]; § 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."].)
c. Kurtzman Error
First, defendant argues that the trial court's response to the first jury inquiry was erroneous because a trial court cannot tell a jury that it cannot discuss or consider a lesser included offense until it has unanimously agreed that the defendant is not guilty of the greater offense. We agree that the trial court committed Kurtzman error.
We review claims of instructional error de novo, including claims of Kurtzman error. (See People v. Waidla (2000) 22 Cal.4th 690, 733 (Waidla); Olivas, supra, 248 Cal.App.4th at pp. 772-773.) If a challenged instruction is ambiguous, we determine whether there is a " 'reasonable likelihood that the jury construed or applied the challenged instructions in a manner' contrary to law." (Olivas, supra, at p. 772.)
In Kurtzman, supra, 46 Cal.3d 322, the California Supreme Court held that trial courts are authorized to instruct a jury "that [it] may not return a verdict on the [uncharged] lesser offense unless it has agreed beyond a reasonable doubt that [the] defendant is not guilty of the greater crime charged, but [the trial court] should not be [permitted] to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense." (Id. at p. 329.) "Kurtzman thus affirmed the validity of an 'acquittal-first' rule—that the jury may not return a verdict on a lesser offense unless it first finds a defendant not guilty of the greater offense—but rejected a strict acquittal-first rule, applied in some states, 'under which the jury must acquit of the greater offense before even considering lesser included offenses.' " (Olivas, supra, 248 Cal.App.4th at p. 773.)
In Kurtzman, the defendant was convicted of second degree murder. (Kurtzman, supra, 46 Cal.3d at pp. 327-328.) During deliberations, the jury asked the trial court if it could find the defendant guilty of manslaughter without unanimously finding him not guilty of second degree murder. (Id. at p. 328.) The trial court responded, " 'No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.' " (Ibid.) Kurtzman held that this answer was erroneous, because the trial could not "instruct[] the jury not to 'deliberate on' or 'consider' voluntary manslaughter unless and until it had unanimously agreed on second degree murder." (Id. at p. 335.)
Here, the jury asked the trial court if it had to have a unanimous vote of not guilty of attempted murder before it could "consider" the lesser charge. (Italics added.) The trial court answered yes. We acknowledge that the jury's question and the trial court's answer are somewhat ambiguous. It is not unreasonable to interpret the jury's question as asking if it could return a verdict on a lesser charge without reaching a verdict on the greater offense. Under this interpretation, the trial court's answer would not amount to Kurtzman error. However, an equally reasonable interpretation is that the jury was asking if it could deliberate on a lesser included offense before returning a verdict on the greater offense. Under this interpretation, the trial court's answer was erroneous. Accordingly, this is a situation where "there is a reasonable likelihood the jury here construed or applied the trial court's response in a manner contrary to Kurtzman." (Olivas, supra, 248 Cal.App.4th at p. 774.) As a result, the trial court committed Kurtzman error.
Nonetheless, reversal is required only if defendant demonstrates he was prejudiced by the trial court's error. That is, defendant must meet his burden to show that there is a reasonable probability that he would have received a more favorable result absent the error. (Kurtzman, supra, 46 Cal.3d at p. 335 [applying Watson standard of review]; Olivas, supra, 248 Cal.App.4th at p. 776 [same].)
The California Supreme Court has noted that there is an "inherent difficulty in demonstrating prejudice" from a Kurtzman error. (People v. Fields (1996) 13 Cal.4th 289, 309, fn. 7.) The Supreme Court has also observed that "it will likely be a matter of pure conjecture whether the instruction had any effect, whom it affected, and what the effect was." (People v. Berryman (1993) 6 Cal.4th 1048, 1077-1078, fn. 7, overruled on other grounds as stated in People v. Hill (1998) 17 Cal.4th 800, 823.)
One of the rare cases where a reviewing court has found Kurtzman error to be prejudicial is this court's decision in Olivas. In Olivas, this court determined that the trial court committed Kurtzman error when it answered " 'no' " in response to the jury's question about whether it was able to consider a forcible lewd act count if it was hung on the more severe aggravated sexual assault count. (Olivas, supra, 248 Cal.App.4th at p. 774.) This court found the Kurtzman error to be prejudicial when the evidence of the defendant's guilt was "somewhat ambiguous" and contained "discrepancies," the jury indicated that it was hung on one of the counts for some time, and the record did not demonstrate that the jury considered the alternate counts. (Id. at p. 776.) We further determined that even though the trial court instructed the jury with CALCRIM No. 3518, which states that it is up to the jury to decide the order in which to consider each crime and the relevant evidence, the instruction could not "by itself undo the harm caused by the court's subsequent incorrect response to the jury's question during deliberations." (Id. at p. 777.)
We find Olivas to be distinguishable. Here, there is no indication that the jury was hung on the count of attempted murder. Furthermore, although defendant's intent to kill was disputed and there was contrary evidence on this element of the offense, the evidence in this case was not as ambiguous or as filled with discrepancies as the evidence in Olivas. For example, in Olivas, the victim made several conflicting statements at trial regarding the severity of the defendant's misconduct, including changing her testimony about whether a certain act of oral copulation occurred on a specific date. (Olivas, supra, 248 Cal.App.4th at p. 776.) Here, Enriquez's testimony at trial differed somewhat from the statements he gave during his prior interviews, but he did not offer conflicting statements about what had transpired. His trial testimony may have omitted some of the details that were contained in his hospital interview, but he did not specifically disavow making those prior statements during trial.
Moreover, the jury in this case was instructed with CALCRIM No. 3517, which, like CALCRIM No. 3518, states that it is up to the jury to decide the order in which to consider each crime and the evidence. This court concluded in Olivas that CALCRIM No. 3518 was not sufficient by itself to cure the harm caused by the trial court's erroneous response to the jury. (Olivas, supra, 248 Cal.App.4th at p. 777.) We did not, however, conclude that CALCRIM No. 3518 had no ameliorative effect at all. And in defendant's case, we believe that CALCRIM No. 3517's language greatly reduced the potential for prejudice.
For these reasons, we conclude that defendant fails to demonstrate that he would have received a more favorable result absent the error, and reversal is not required.
d. Beardslee Error
Next, defendant argues that the trial court's response to the jury's second question was erroneous because the court should have done more than to refer to CALCRIM No. 600. Defendant argues that the trial court should have also referred the jury to CALCRIM No. 252, the instruction on the union of act and specific intent, and CALCRIM No. 225, the instruction on the use of circumstantial evidence to determine intent or mental state, as well as the instructions on the lesser included offenses. We disagree that the trial court's response to the jury was erroneous.
By statute, courts are required to instruct "on any point of law arising in the case" on request by a deliberating jury. (§ 1138.) Since the trial court has the discretion under section 1138 to further instruct the jury, we review any claimed error under section 1138 for an abuse of discretion. (Waidla, supra, 22 Cal.4th at pp. 745-746.)
Under section 1138, "[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply." (Beardslee, supra, 53 Cal.3d at p. 97.) "A jury's request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue? Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion? If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept?" (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.)
However, "[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (Beardslee, supra, 53 Cal.3d at p. 97.)
In Beardslee, the jury asked about the definition of premeditation and deliberation, and the trial court responded that it would not explain any of the instructions. (Beardslee, supra, 53 Cal.3d at p. 96.) The California Supreme Court determined that this response was erroneous, observing that the trial court "must do more than figuratively throw up its hands and tell the jury it cannot help. [The trial court] must at least consider how it can best aid the jury." (Id. at p. 97.) In other words, the court "should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Ibid.)
Beardslee does not support defendant's claim of error. Here, the trial court did not simply refuse to answer any questions posed by the jury. The jury asked if there was a further definition of an intent to kill. The trial court responded that there was no further definition beyond what was set forth under CALCRIM No. 600, the jury instruction that sets forth the elements of attempted murder, including the requirement that the defendant intended to kill. The jury's question did not reflect that it was confused about what constitutes an "intent to kill" as stated in the jury instruction; the jury merely asked if there was a further definition. Thus, the trial court could have reasonably concluded that referring the jury back to CALCRIM No. 600 was appropriate and reasonable under the circumstances. CALCRIM No. 600 does not contain a legal definition of an intent to kill, but the jury was also instructed with CALCRIM No. 200, which states that unless otherwise defined, words and phrases "are to be applied using their ordinary, everyday meanings."
The jury's questions—first, whether it could consider a lesser included offense, and second, whether there is a further definition of an intent to kill—suggests that the jury was struggling with whether defendant had the requisite mental state for attempted murder and whether he was guilty instead of a lesser included offense. Defendant, however, does not assert that the original instructions were incomplete. He merely argues that he believes that the trial court should have been more thorough in its response and should have referenced CALCRIM Nos. 252, 225, and the instructions defining the lesser included offenses, in addition to CALCRIM No. 600. All of these instructions were already provided to the jury. As a result, we find that the trial court did not abuse its discretion when it answered the jury's inquiry.
3. Cumulative Error
Next, defendant argues that the cumulative effect of the multiple trial court errors violates due process and requires reversal of his conviction. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Poletti (2015) 240 Cal.App.4th 1191, 1217.)
To the extent that we have found error, we have concluded that the errors are individually harmless. Even considering the errors in aggregate, defendant has not been deprived of a fair trial. As a result, we reject defendant's claim of cumulative error.
4. Retroactivity of Senate Bill No. 1393
In 2015, the trial court imposed two five-year sentences for defendant's prior serious felony convictions under section 667, subdivision (a). While his appeal was pending, the Legislature passed Senate Bill No. 1393, effective January 1, 2019, which amended section 1385 to give trial courts the discretion to dismiss prior serious felony conviction enhancements imposed under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1, 2.) Senate Bill No. 1393 retroactively applies to defendants whose sentences were not yet final when it came into effect. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Thus, defendant argues that remand is necessary so that the trial court may exercise its discretion to strike one or more of his prior felony convictions.
Generally, "when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general rule is that "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.) There is an exception to this rule, however, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so,' " in which case, " 'remand would be an idle act and is not required.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
In People v. McDaniels (2018) 22 Cal.App.5th 420, the appellate court addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of Senate Bill [No.] 620." (Id. at p. 425.) Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, which dealt with reconsidering Three Strikes sentencing in light of Romero, McDaniels determined that a "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, supra, at p. 425.) McDaniels concluded that the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (Id. at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.) Likewise, in People v. Almanza (2018) 24 Cal.App.5th 1104, the appellate court remanded the matter for resentencing because the court's imposition of consecutive sentences was not a clear indication of how the trial court would ultimately rule on remand. (Id. at pp. 1110-1111.)
Senate Bill No. 620 gave trial courts the discretion to strike firearm enhancements. We find that the same standard applies in cases involving Senate Bill No. 1393.
If, however, the record reveals that the trial court would not have stricken the enhancement had it had the discretion to do so, remand is unnecessary. For example, in People v. McVey (2018) 24 Cal.App.5th 405, 419, the appellate court determined that remand was unnecessary based on the "trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement . . . ." And in People v. Jones (2019) 32 Cal.App.5th 267, the appellate court determined that remand was unnecessary after observing that the trial court denied the defendant's new trial motion and commented during sentencing that it had " 'great satisfaction in imposing the very lengthy sentence here today.' " (Id. at p. 274.)
The People argue that the trial court's denial of defendant's Romero motion clearly indicates that the court would not exercise its discretion to strike defendant's prior serious felony convictions. In making its determination on defendant's Romero motion, the trial court observed that the current offense was serious, and had Enriquez not forced himself out of the apartment, he may have been killed. The trial court commented, "I think that this shows that whenever [defendant] is made angry for any particular reason, he reacts in a violent and vicious manner." Furthermore, the trial court stated that the "violence and viciousness and seriousness of the crime and [defendant's] fleeing to avoid detection" all "indicate . . . that it justifies the aggravated term in this matter." The court then consecutively imposed the sentences for the enhancements in the case.
We conclude that the trial court's decision on defendant's Romero motion does not conclusively indicate that it would not have stricken defendant's prior serious felony convictions had it had the discretion to do so. The trial court's decision on defendant's Romero motion was focused on whether defendant fell outside the purview of the Three Strikes law, which requires a different analysis. (See People v. Williams (1998) 17 Cal.4th 148, 161 [describing factors court must consider when deciding whether defendant falls outside spirit of Three Strikes law].) Although the trial court stated that it believed the "aggravated term" under the Three Strikes law was justified, it did not make statements that indicated that it intended to impose the maximum sentence permissible under the law.
Accordingly, remand is appropriate in this case to allow the trial court to exercise its discretion as to whether to strike defendant's prior serious felony convictions.
DISPOSITION
The judgment is reversed, and the matter is remanded to the superior court with directions to resentence Cortez in light of Penal Code sections 667, subdivision (a) and 1385, subdivision (b) as amended by Senate Bill No. 1393.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P. J. /s/_________
Elia, J.