Opinion
D069632
01-05-2018
THE PEOPLE, Plaintiff and Respondent, v. JULIE HARPER, Defendant and Appellant.
George L. Schraer for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN308840) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed in part, reversed in part, and remanded with directions to conduct a new sentencing hearing. George L. Schraer for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Julie Harper was charged with the murder (Pen. Code § 187, subd. (a)) of her husband, Jason Harper, and with allegations that she personally discharged a firearm (§ 12022.5, subd. (a)) and that the discharge of the firearm resulted in Jason's death (§ 12022.53, subd. (d)). Julie's first trial resulted in the jury finding her not guilty of first degree murder and deadlocked on the lessor included offenses of second degree murder and manslaughter. As a result, the trial court declared a mistrial. Julie was tried a second time and convicted of second degree murder. The second jury also found true both firearm allegations. Julie was sentenced to 40 years to life, consisting of 15 years to life for murder and 25 years to life for violation of section 12022.53, subdivision (d).
Undesignated statutory references are to the Penal Code.
We use the Harpers' first names only to avoid confusion, and intend no disrespect.
Julie challenges her conviction on five grounds. She asserts that (1) the trial court erred by denying her motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) because the prosecutor removed male jurors in violation of Julie's right to a jury drawn from a representative cross section of the community; (2) the trial court erroneously instructed the jury on the lessor included offense of involuntary manslaughter; (3) her trial counsel provided ineffective assistance by failing to object to the prosecutor's statement in his closing argument that implied malice could be found based solely on the accidental discharge of a gun; (4) the trial court erred by failing to instruct the jury that voluntary manslaughter can be based on imperfect self-defense because the defendant used excessive force; and (5) the trial court improperly qualified the prosecution's expert on domestic partner abuse. We reject these contentions and affirm the trial court's rulings with respect to each of these issues.
After oral argument in this case, Julie filed a request to file a supplemental brief to address the passage of Senate Bill 620, which gives the sentencing court discretion under section 1385 to strike the firearm enhancements applied in this case. We granted Julie's request and provided the Attorney General with the opportunity to file a responsive brief, in which he conceded the new law applies. We accept the Attorney General's concession and, accordingly, remand the matter to the trial court for the limited purpose of conducting a new sentencing hearing to exercise its discretion under section 1385 with respect to the firearm enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case
On the morning of Tuesday, August 7, 2012, Jason and Julie argued in the master bedroom of their Carlsbad home while their three children, ages nine, seven and one, watched television downstairs. At that time, Julie and Jason had been married for close to 11 years. The couple's relationship had deteriorated significantly in the years leading up to that day and had become exceptionally tense in the days immediately preceding. Jason had recently discovered Julie had taken $9,000 in credit card advances in his name without his knowledge. The argument that morning ended with Julie shooting and killing Jason with a gun she had hidden under her pillow. After the gun went off sometime before 9:00 a.m., the Harpers' older two children went upstairs to see what had happened. Julie opened the bedroom door slightly and told her nine-year-old son that Jason had fallen off a chair. Julie did not let the children into the room, instead telling them to go back downstairs.
Julie then told the children to get ready and took them to a nearby coffee shop they frequented. After getting coffee and pastries, Julie drove to a neighbor's home and asked if she could leave the children for a playdate. The neighbor was busy and said she could not watch them. Julie also called her younger sister, Amy Killpack, around the same time to see if she could watch the children. Killpack told Julie she was busy until the afternoon, but could watch them after 1:00 p.m. Julie then dropped off her two older children at a play gym where they had been in the past.
Jason's parents, Homer and Lina, resided in Glendale and had recently purchased a home in Carlsbad. The weekend before Jason's death, his parents were in Carlsbad doing repairs on their new home. Jason, Julie and the three children had been at the house for dinner the evening before the shooting. The morning of Jason's death, Homer and Lina expected Jason to come over with the children. When Lina had not heard from Jason by 9:30 a.m., she called his phone and left a message asking if he still needed their help with the kids and if he was okay. At 11:46 a.m., Jason's brother, Brian, who was also visiting and staying at Homer and Lina's house, received a text message from Jason's phone to "tell mom running errands...see her Friday." Brian relayed the message to his parents, and Lina and Homer, assuming everything was fine, drove home to Glendale.
Around noon, Julie returned to her house. She entered the gated community where the house was located through the guest entrance that was controlled by a keypad, rather than use her remote control for the resident entrance. At noon, a neighbor saw Julie "frantically putting things inside" her minivan while it was parked in the driveway of her home. Around 1:00 p.m., Julie arrived at Killpack's house in University City with the three children. Julie left by herself, telling Killpack she needed to run an errand.
Around 3:00 p.m., Julie arrived at her father's real estate office near downtown San Diego. Julie told her father, John Cihak, that Jason was dead and that she had killed Jason in self-defense. Cihak called his personal attorney and told the attorney that he needed to get in touch with criminal defense attorney Paul Pfingst. Cihak's attorney called Pfingst and set up a meeting for 5:30 p.m. Julie remained with Cihak until the two drove to Pfingst's office separately. Julie met with Pfingst and then she and Cihak drove back to Cihak's office for Cihak to get a check for Pfingst's retainer.
Thereafter, Julie and Cihak picked up the children from Killpack's house and returned to Pfingst's office where Pfingst's investigator interviewed the two older children. Julie, Cihak and the children then went to Cihak's house and the children went to bed. Around 11:00 p.m., Pfingst called the Carlsbad Police Department and asked them to check on the welfare of Jason at the Harpers' home. Officers searched the house and discovered Jason's body in the master bedroom. The medical examiner determined Jason was killed by a single gunshot that entered the back left side of his torso and went through his heart.
The following afternoon, the police arrived at Cihak's house and arrested Julie. Julie had no injuries on her body at the time she was taken into custody. Cihak took the children to Rady Children's Hospital and they were taken into protective custody. Police searched Cihak's home twice after Julie's arrest. The second time they discovered a backpack in the attic of Cihak's garage containing jewelry, credit cards, checks, a handgun and passports for Julie and the two older children. In addition, Cihak testified that before the police found the backpack he had removed over $30,000 in cash and given it to Pfingst at Pfingst's direction.
The prosecution put on several relatives and friends of the Harpers who testified that they never saw any sign of physical abuse or unexplained injuries on Julie's body, and that Julie never reported any abuse or acted afraid of Jason. The Harpers' two older children both testified that they had never seen Jason hit Julie, but that they had seen Julie strike Jason. The children did testify that their parents argued and that during arguments Jason used explicit language. Killpack testified that the month before Jason's death, Julie told her that Jason was physically abusing her, specifically that Jason had grabbed and twisted Julie's wrists and that it was extremely painful because of Julie's arthritic condition. Julie never told Killpack that she had been raped and Killpack never saw any physical injury on Julie. Cihak testified that at one point Julie told him she needed protection from Jason and that things were bad between them, but that Julie did not explain in any further detail. B. The Defense Case
Julie took the stand in her own defense. She portrayed Jason as an abusive and controlling husband. She told the jury that his abusive behavior had begun in 2009. She stated that at that time, Jason would yell and scream at her in front of their children, criticize her weight and call her derogatory, explicit names. She also testified that she was suffering from severe pain from multiple, diagnosed inflammatory conditions related to rheumatoid arthritis, and that Jason was unsympathetic to her physical limitations. She alleged that over the years, Jason, a high school math teacher, had taken thousands of dollars from the couples' joint banking accounts and transferred it to accounts in his name only without her consent. She also testified that beginning in 2009 or 2010 Jason allowed her only $200 a month for all of her personal expenses and their children's expenses.
Julie told the jury that Jason raped her for the first time in January 2010 after Jason became upset about Julie spending money on the children and on her medical care. Julie testified that from that incident to Jason's death, he raped her approximately 30 times. Julie stated she kept a day planner in which she made notations of when she and Jason had sex and testified that some of the entries for sex were actually a code to herself to document rape. Julie also testified that she sent some of the planner entries to her former fiancé during this time frame.
On November 4, 2011, after an argument in front of the children that Julie described as particularly angry, the Harpers' oldest child called the police. The police came to the house and Jason left for a few hours to cool down. No charges were pressed. Julie described the incident as a turning point in her marriage, and testified that after that day both she and Jason separately consulted attorneys about divorce. Julie described continued strife between them, but also explained that she attempted to reconcile the relationship in the spring of 2012. When Julie's attorney asked her why she stayed in the marriage despite what Julie described as almost constant abuse, she stated she had difficulty leaving because of her Catholic faith and her desire to keep the family together for the children. Because of her significant medical expenses, she also feared losing her health insurance.
On August 2, 2012, Julie filed for divorce. She testified that she did not report the abuse and rape she allegedly suffered because she feared Jason would lose his teaching job, which was the family's only source of regular income. Julie testified that the day after filing for divorce, she took a gun she kept in a safe in the house and hid it under her pillow. She stated she was afraid Jason would react violently to being served with the divorce papers. The month before, Julie had packed what she described as a "getaway bag" (the backpack later found by San Diego police in her father's house) in case she felt she could not safely stay in the family's home.
Julie testified that on the evening before Jason's death, after the couple had put the kids to bed, they argued about their marriage and finances. Julie stated that she was awoken the next morning by Jason throwing things on top of her and screaming about finding his computer, which Julie had moved. According to Julie, Jason then angrily left the house and returned shortly after. When he returned, Julie admitted she had hidden Jason's computer under the bed and then told Jason she had filed for divorce. Julie testified Jason became "livid" and started shaking her and ripping off her clothes. Julie said she believed Jason was going to rape her and grabbed her gun from under her pillow and pointed it at him. Julie testified Jason then yelled "I'm going to kill you, you fucking bitch" and came after her. Julie told the jury the gun went off accidently and she ran into the bathroom to hide.
Julie saw that Jason was on the ground, and eventually went to check on him. She realized he was dead and covered him with a blanket. When the older children knocked on the bedroom door, she told them Jason had fallen off a chair. Julie's testimony of the rest of the day corroborated the testimony of the prosecution's witnesses. She testified that after her meeting with Pfingst she buried the gun she used to shoot Jason near her father's office. She said when she was released from custody, she went to find the gun and it was no longer there. On cross-examination, the prosecutor questioned Julie about the nature of her relationship with her former fiancé whom she had sent her planner entries to and whom she had kept in contact with throughout her marriage. Julie admitted that 17 days after she was taken into custody, she wrote to her ex-fiancé from jail and referred to him as the love of her life.
Julie's defense team also presented the testimony of two experts, a forensic criminologist who testified about accidental discharge of firearms in stressful situations and a psychologist specializing in intimate partner abuse. The psychologist, Dr. Mindy Mechanic, testified about the difficulty women who are being abused by their husbands face in leaving the relationship. Dr. Mechanic also testified about the stigma attached to telling other people about abuse that is occurring in a romantic relationship. Dr. Mechanic opined that Julie was abused by Jason, and that her behavior was consistent with that shown in research concerning victims of domestic violence. C. The Prosecution's Rebuttal
The prosecution offered the testimony of Dr. Daniel Martell, a forensic psychologist, to rebut Dr. Mechanic's testimony. Dr. Martell testified he had received training on domestic violence and had worked on over 1,000 cases that involved domestic violence in some respect. After the court qualified Dr. Martell as an expert on domestic abuse over the defense's objection, he gave his opinion that Julie's documentation of her behavior in her journal, which reflected a desire for more intimacy and sex with Jason, was the opposite of the behavior expected for someone who is being violently raped. He also noted that after Julie alleged the abuse began, she did things to antagonize Jason, a behavior contrary to that expected from a domestic violence victim who would want to avoid further abuse. D. Verdict and Sentencing
After the conclusion of the trial, the jury found Julie guilty of second degree murder. The jury also found true the allegations that she personally and intentionally discharged a firearm that caused death within the meaning of section 12022.53, subdivision (d) and that she personally used a firearm within the meaning of section 12022.5, subdivision (a). The trial court sentenced Julie to 40 years to life, consisting of 15 years to life for murder and 25 years to life for the more serious firearm allegation.
DISCUSSION
Julie challenges the judgment on five grounds. She contends (1) the trial court erred by denying her Wheeler/Batson motion violating her right to a jury drawn from a representative cross section of the community; (2) the trial court prejudicially erred in its instructions to the jury on the lessor included offense of involuntary manslaughter; (3) Julie's trial counsel provided ineffective assistance by failing to object to the prosecutor's statement in his closing argument that the accidental discharge of a gun alone could be sufficient evidence of implied malice; (4) the trial court erred by failing to instruct the jury that voluntary manslaughter can be based on imperfect self-defense because the defendant used excessive force; and (5) the trial court improperly qualified Dr. Martell as an expert on domestic partner abuse.
I
Batson/Wheeler Motion
Julie first contends that the prosecutor improperly removed men from the jury because women were more likely to favor the prosecution's theory of the case. She asserts that four of the prosecutor's challenges to male jurors were motivated by this discriminatory purpose. The Attorney General responds that the prosecutor offered gender-neutral justifications for its preemptory challenges each time Julie's attorney asserted a prima facie case of discriminatory purpose, and substantial evidence supports the trial court's conclusion that the prosecutor's challenges were not biased. A. Relevant Background
During voir dire, the prosecutor exercised his first three preemptory challenges against men. The defense then used a preemptory challenge to excuse a woman, and the prosecutor used its fourth preemptory challenge to excuse another man. Julie's counsel then made its first motion under Batson and Wheeler, asserting the prosecution was systematically excusing jurors on the basis of their gender because posttrial questioning of the jury in Julie's earlier trial revealed male jurors were more likely to view Julie's actions as self-defense. In response, the court noted that the jury as currently constituted had seven women and five men and that it did not find there had been a systematic exclusion of men. The court stated it would not require the prosecution to present its reasons for excluding male jurors, but at the prosecutor's request allowed him to provide his rationale for the exclusion of each male juror.
The prosecutor explained he dismissed the first male juror, J.L., because he had been late and was young and had little life experience. The prosecutor explained he had dismissed the second male juror, J.Z., because he had quarreled with the prosecutor on the concept of circumstantial evidence. As to the third male juror, E.A., the prosecutor stated the man had been late, had a brother in prison, and as a TSA screener was not accustomed to decisionmaking in his job. The prosecutor explained that he dismissed the fourth male juror, S.E., because he was a professor of psychology and might not accept the testimony of the expert witnesses.
When voir dire resumed, the defense exercised its third preemptory challenge on a woman, the prosecutor exercised his fifth challenge on a woman, and the defense exercised its fourth challenge on a woman. The prosecution then exercised its sixth challenge to excuse another man, W.B., and the defense renewed its Batson/Wheeler motion. The court noted the current composition of the jury, four men and eight women, and that the defense had excused three women, then stated it found the defense had established a prima facie case of systematic exclusion of men based on their gender. The court indicated the prosecutor had justified its exclusion of the first four men, then asked for the justification for W.B. The prosecutor explained that W.B. was a "larger individual" that appeared to show signs of alcoholism or drug use, was disheveled in his appearance and sweating profusely, had rotting teeth, and also had worn the same pants for several days in a row. The prosecutor also stated that W.B. would not be favorable to the prosecution because he was a retired letter carrier.
The court accepted the prosecutor's justification for J.L., J.Z., E.A. and S.E. as gender-neutral, but challenged several of the prosecutor's justifications for excusing W.B. The court stated it was extremely hot in the courtroom and many of the people were sweating and wearing casual clothes because of the time of year. The court did not notice W.B. had rotting teeth or see signs of alcohol or drug abuse. The court concluded, however, that the prosecution's nongender related justifications were sufficient to show it was not systematically excluding jurors on the basis of gender.
The trial court then stated its understanding that there were "five people who voted not guilty" at the prior trial and "all were men." The prosecutor objected to the defense's characterization of the vote at the earlier trial, and stated it was not clear from his communications with the prior jury that men had generally favored the defense more than woman, and that it had been difficult to determine what the final vote had been. Julie's attorney then argued vehemently that it was clear that men on the prior jury had sided with the defense and that the district attorney's strategy was to put as few men on the jury as possible. The court repeated its ruling that it was denying the defense motion, but stated it would continue to monitor the issue.
Jury selection resumed and the defense excused its fifth female juror and the prosecution used its seventh challenge to excuse another man, M.S. The defense again renewed its motion and the court again found a prima facie showing that the prosecution was systematically excusing men from the jury, and required the prosecutor to justify his exclusion of M.S. The prosecutor stated that while at first he wanted M.S. to remain on the jury, once M.S., without any prompting, "quarreled" with defense counsel "about the language of the presumption of innocence," he became concerned about M.S. "being so technical." The court noted that the quarrel with defense counsel seemed to favor the prosecution, and that it had asked M.S. a follow-up question because it anticipated the defense might challenge the juror for cause. The prosecutor responded that because the crimes at issue were complicated and potentially involved jury instructions for second degree murder, implied and express malice, and voluntary and involuntary manslaughter, he did not "want a juror on there who is going to quarrel with every single definition."
The court gave the members of the jury pool a questionnaire and later asked them to answer questions about the form during the voir dire process. Question No. 14 asked the potential jurors if they could be fair and impartial and follow the law as stated by the court. In response to this question, M.S., a retired program management engineer, told the attorneys he could be fair and impartial but he had a problem with the concept of presumed innocence. He said he did not presume that the defendant was innocent, but instead viewed her as "neither innocent or guilty." M.S. then stated he understood the burden was on the prosecution to prove the defendant's guilt, and that the defendant was not required to prove anything, but continued to assert that he did not presume the defendant was innocent but instead would let "the evidence speak[] for itself" and didn't "preconceive something to be good or bad." He called himself a "fence sitter" and "neither one way nor the other." M.S. continued to press his point through several rounds of questioning with Julie's attorney, who sought to make sure the juror would presume Julie's innocence and place the burden of proof on the People. At the end of the defense voir dire of the jury pool, the court again explained the presumption of innocence and specifically asked M.S. if he could follow the law. M.S. responded he could.
After argument by Julie's defense counsel, the court denied the motion. However, the court noted that it would not characterize M.S.'s interaction with the defense counsel as a quarrel, but rather a discussion about the law. The court stated that there were "justifiable reasons to excuse some of the other" men, but that it was "finding the justifications to be less compelling" as the process continued and that "the ice is about as thin as it can get right now." The court then noted its difficulty with the decision, that it believed the decision was "a close call," and that it thought " a reviewing court [might] disagree with [its] ruling . . . " The defense then exercised its sixth challenge against a female juror. No further challenges were made and the trial court empaneled the jury. B. Legal Standard
Under Wheeler, " 'the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.' " (People v. Catlin (2001) 26 Cal.4th 81, 116.) As held by the United States Supreme Court in Batson, this practice also violates " 'the defendant's right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.' " (Ibid.) "Whether a Wheeler or a Batson claim . . . is raised, 'the defendant need not be a member of the group in question in order to complain.' " (Id. at pp. 116-117.)
In ruling on a motion challenging the exercise of peremptory strikes as improperly biased, "the trial court follows a three-step procedure. 'First, the [challenging party] must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the [other party] to explain adequately the . . . exclusion" by offering permissible [gender]-neutral justifications for the strikes. [Citations.] Third, "[i]f a [gender]-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination." [Citation.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 904.) A prima facie case is established "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California (2005) 545 U.S. 162, 170.) "The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant]." (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
"We review the trial court's ruling on the question of purposeful . . . discrimination for substantial evidence. [Citation.]." (People v. Avila (2006) 38 Cal.4th 491, 541 (Avila).) A litigant's justification for a peremptory challenge need not rise to the level of a challenge for cause, and even a trivial reason or hunch, if genuine and neutral, will suffice. (Lenix, supra, 44 Cal.4th at p. 613.) "It is presumed that [counsel] uses peremptory challenges in a constitutional manner, and we give deference to the court's ability to distinguish 'bona fide reasons from sham excuses.' [Citation.] As long as the court makes 'a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' [Citation.] (Avila, at p. 541.) C. Analysis
Julie challenges the denial of the motion with respect to four of the prospective male jurors: M.S., W.B., S.E. and J.Z. Julie asserts the trial court properly rejected several of the prosecutor's stated reasons for dismissing M.S. and argues that insufficient evidence supports the prosecutor's remaining rationales. As discussed, the prosecution's justification for excusing M.S. was that he had been antagonistic with Julie's attorney during voir dire and without any prompting had questioned the presumption of innocence. This led the prosecutor to think that M.S., an engineer by training, might derail deliberations by taking an overly technical view of the complicated legal questions the jury would be expected to tackle at the end of the trial. On appeal, the Attorney General expands on this argument, also asserting that because M.S. described himself as a fence sitter he might have also remained "overly neutral" and unwilling to take a position.
"A tendency toward equivocation is seldom the first quality sought in a prospective juror by the party bearing the burden of proof." (People v. Lancaster (2007) 41 Cal.4th 50, 76.) As the prosecutor stated during jury selection, the crimes at issue were complicated and involved jury instructions for second degree murder, implied and direct malice, and voluntary and involuntary manslaughter. We agree with the trial court that the prosecution's desire not to have a juror "who is going to quarrel with every single definition" was a gender-neutral rationale for excusing M.S., and the statements made by M.S. during voir dire supported the trial court's determination on this point.
Julie next challenges the prosecution's dismissal of W.B. from the jury. W.B. had delivered mail in Palm Desert for 30 years before retiring in San Diego County. The prosecutor's stated reasoning for excusing W.B. was that he was overweight and had a slovenly appearance, and also showed signs of having a substance abuse problem. The prosecutor also based his decision on the fact that W.B. was a postal worker. In denying the defense's motion with respect to W.B., the court noted it had been very hot in the courtroom and that other venire persons were also sweating and wearing casual clothing. The court also noted that it did not notice anything about W.B. that suggested substance abuse. The court, however, accepted the prosecution's justification. Because the court disagreed with the prosecution's argument concerning W.B.'s appearance, we agree with Julie that the only remaining proffered justifications for this court to consider are W.B.'s weight and his former job as a postal worker. We agree with the Attorney General, however, that these rationales were neutral and nondiscriminatory, and formed an appropriate basis for the prosecution's excusal of W.B. and the trial court's conclusion that the excusal was not improperly biased. (See People v. Lomax (2010) 49 Cal.4th 530, 575 ["a slovenly appearance can reveal characteristics that are legitimately undesirable to the prosecution"].)
S.E. was a psychology professor at Mira Costa College and had previously worked as a child abuse investigator in Orange County where he had been involved in the removal of children from their parents' homes because of domestic violence. S.E. did not have any formal psychology training in the field of domestic violence. The prosecutor's justification for dismissing S.E. was that as a professor in the field of psychology he would be less inclined to accept the opinions of the experts in the case and was likely to be liberal in a case with issues of domestic violence. The court accepted these reasons and denied the defense motion with respect to S.E.
On appeal, Julie contends that because S.E. taught psychology in the fields of research, statistics and human sexuality, and had no clinical training in the fields of the experts in the case, the prosecutor's rational was pretextual. Julie also points to another juror, a woman, with a background in psychology who was not excused. These arguments are not well taken. First, a potential juror's "educational background, interest, and experience in the field of psychology" may be a "neutral reason justifying his excusal." (People v. DeHoyos (2013) 57 Cal.4th 79, 110.) The fact that S.E.'s field of study was not identical to that of the experts does not show the prosecution's justification was pretextual. As the Attorney General points out, S.E.'s profession and training "gave him uncommonly specialized knowledge" and this rationale for excusing him from the jury was gender-neutral.
The comparison with the female juror that was not excused by the prosecution also does not persuade us that the prosecutor's justification was pretextual. That juror worked in marketing and design for a commercial real estate firm. She stated she spent five years as a university student, which included some time studying computer information systems, social and cultural history, and psychology, but she never completed a degree in any field. She also stated that she had worked in real estate for her entire career. There is no evidence that this female juror had the same kind of specialized knowledge that E.S., a professor in the field of psychology, had.
Lastly, Julie asserts that the prosecution's excusal of J.Z. was improperly based on his gender. J.Z. was an engineer who worked on autonomous vehicles for the military. J.Z. stated he was married, and his wife home-schooled their children. During questioning by the prosecution, J.Z. raised concern with the concept of circumstantial evidence and said he was not sure he would feel comfortable convicting the defendant solely based on circumstantial evidence. J.Z. stated he understood that everything is probabilistic and it would not be 100 percent either way, but the "probability would have to be very high in order to convict somebody of this type of thing." He also stated he was surprised that the law makes no distinction between direct and circumstantial evidence and that he would "be interested to learn exactly what the law says on that."
When asked to provide his justification for excusing J.Z., the prosecutor explained that J.Z. was a "science-heavy person who quarreled with [him] on the concept of circumstantial evidence" and that he had concerns about J.Z.'s use of common sense. The court accepted this justification, agreeing that J.Z. "was going to have some difficultly with circumstantial evidence." As the trial court concluded, this was a gender-neutral reason for dismissing J.Z. and the evidence supported that determination. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1106-1107 [prosecutor's peremptory challenge of juror who might be reluctant to convict based on circumstantial evidence was not improper].)
Julie argues on appeal that because J.Z. later stated he would follow the law, his prior statements about circumstantial evidence are not relevant. She also points to another male juror who was not dismissed, but who also questioned the concept of circumstantial evidence. These arguments do not persuade us that the excusal of J.Z. was improper. The fact that J.Z. later indicated willingness to follow the law did not negate the comments that caused the prosecutor's concern. Additionally, the other juror who expressed confusion over the concept of circumstantial evidence and remained on the jury was also male. This fact runs contrary to Julie's argument that the prosecution systematically discriminated against male jurors.
In sum, we reject Julie's assertion that there was not sufficient evidence to support the trial court's finding that that the prosecution was not systematically discriminating against men. It is not our role to reassess the trial court's " ' "good faith by conducting [our] own comparative juror analysis. Such an approach would undermine the trial court's credibility determinations and would discount ' "the variety of [subjective] factors and considerations," ' including "prospective jurors" body language or manner of answering questions," which legitimately inform a trial lawyer's decision to exercise peremptory challenges. [Citations.]' [Citation.]" (People v. Arias (1996) 13 Cal.4th 92, 136.) The trial court engaged in a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered by the prosecution and found the articulated gender-neutral reasons to be credible. Those " 'conclusions are entitled to deference on appeal.' " (Ibid.)
II
Involuntary Manslaughter Jury Instruction
Julie next asserts the court erred when it instructed the jury: "If all of you agree that the defendant is not guilty of second degree murder and not guilty of voluntary manslaughter, but all of you agree that the defendant is guilty of involuntary manslaughter, complete and sign the [verdict] forms for not guilty of second degree murder, not guilty of voluntary manslaughter, and complete and sign the form for guilty of involuntary manslaughter."
She argues this instruction constituted reversible error because it suggested that Julie could only be found guilty of involuntary manslaughter if the jury first concluded she was not guilty of voluntary manslaughter. She also asserts this error violated her due process rights under the United States Constitution and, thus, requires reversal unless the People prove beyond a reasonable doubt that the error was harmless. The Attorney General concedes that "the court did instruct the jurors in a manner that could have led them to believe that involuntary manslaughter was a lessor included offense of voluntary manslaughter," but contends the error is harmless. The Attorney General argues that because the jury convicted Julie of second degree murder and found true the allegation that she intended to discharge the firearm, the jury expressly found that Julie acted with malice. We agree. A. Relevant Background
The standard version of the instruction at issue, CALCRIM No. 642, states that when, as here, the defendant is charged with second degree murder, and both voluntary and involuntary manslaughter are possible lessor included offenses, the court should instruct the jury that "3. If all of you agree that the defendant is not guilty of second degree murder complete and sign the form for not guilty of second degree murder. [¶] 4. If all of you agree on a verdict of guilty or not guilty of voluntary manslaughter or involuntary manslaughter, complete and sign the appropriate verdict form for each charge on which you agree. Do not complete or sign any other verdict forms [for that count]. You may not find the defendant guilty of both voluntary and involuntary manslaughter [as to any count]. [¶] 5. If you cannot reach agreement as to voluntary manslaughter or involuntary manslaughter, inform me of your disagreement. Do not complete or sign any verdict form for any charge on which you cannot reach agreement."
At the instruction conference, the trial court pointed out the deficiency in the instruction patterned after CALCRIM No. 642. The court noted that the instruction needed to be modified to cover "every possible outcome." At a subsequent conference, the court indicated its approval of all of the proposed jury instructions, except No. 642, which it stated was deficient because it "lump[ed] both involuntary manslaughter . . . and voluntary manslaughter into the same paragraph." The court subsequently indicated it had rewritten the instruction and would distribute it to counsel for their review. Despite these comments, however, the trial court gave the instruction without making the modifications it had noted were necessary. After properly instructing the jury on second degree murder, voluntary manslaughter (including heat of passion and imperfect self-defense) and involuntary manslaughter, the court told the jury it could not "accept a guilty verdict of involuntary manslaughter unless you find her not guilty of second-degree murder and voluntary manslaughter."
The court then told the jurors to write down "642" and that they should look carefully at the instruction while completing the verdict forms. The court read the instruction, which included the deviation from the pattern instruction, stating "If all of you agree that the defendant is not guilty of second-degree murder and not guilty of voluntary manslaughter, but all of you agree that the defendant is guilty of involuntary manslaughter, complete and sign the forms for not guilty of second-degree murder, not guilty of voluntary manslaughter, and complete and sign the form for guilty of involuntary manslaughter." The instruction did not include the circumstance of the jury finding Julie not guilty of second degree murder and not guilty of involuntary manslaughter, but guilty of voluntary manslaughter. B. Homicide Principals
First degree murder is an unlawful killing with malice aforethought, premeditation and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation. (Ibid.) Malice may be express (intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). (Ibid.) Even when a defendant has the intent to kill or conscious disregard for life, a homicide may be further reduced to voluntary manslaughter in limited, explicitly defined circumstances that are viewed as negating malice. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye); People v. Lasko (2000) 23 Cal.4th 101, 107-109.)
For voluntary manslaughter, malice is deemed to be negated by only either the defendant's (1) heat of passion arising from provocation that would cause a reasonable person to react with deadly passion, or (2) unreasonable but good faith belief in the need to act in self-defense (imperfect self-defense). (Moye, supra, 47 Cal.4th at p. 549) Under these two limited circumstances, malice is negated even though the lethal act was committed with the intent to kill or conscious disregard for life that otherwise establishes malice. (See People v. Bryant (2013) 56 Cal.4th 959, 968 (Bryant); People v. Rios (2000) 23 Cal.4th 450, 460-461, 467.)
Heat of passion for voluntary manslaughter has both a subjective and objective component: (1) The defendant must have killed while actually in the heat of passion induced by the provocation, and (2) the provocative conduct must be such that a reasonable person would have reacted in the heat of passion. (Moye, supra, 47 Cal.4th at pp. 549-550.) If the provocation would not cause an average person to react in the heat of passion, but it precluded the defendant from subjectively deliberating and premeditating, the crime is second degree murder. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296; People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
Finally, an unlawful homicide without intent to kill and without conscious disregard for life is involuntary manslaughter. (People v. Butler (2010) 187 Cal.App.4th 998, 1006 (Butler).) Involuntary manslaughter can arise from a lawful act, a misdemeanor, or a noninherently dangerous felony committed with criminal negligence; i.e., aggravated, reckless conduct that creates a foreseeable high risk of death. (Id. at pp. 1006, 1008; see Bryant, supra, 56 Cal.4th at p. 974 (conc. opn. of Kennard, J.).)
"[I]n order to convict a person of voluntary manslaughter, the jury must find that the killing was intended and was unlawful in that it was neither justifiable, that is, did not constitute lawful defense of self, others, or property, prevention of a felony, or preservation of the peace (§ 197 . . . ); nor excusable, that is, the killing did not result from a lawful act done by lawful means with ordinary caution and a lawful intent, and did not result from accident and misfortune under very specific circumstances, including that no dangerous weapon was used (§ 195 . . . )." (People v. Orr (1994) 22 Cal.App.4th 780, 784 (Orr).)
In order to convict a person of involuntary manslaughter, the jury must find that the killing was unlawful in that it occurred in the commission of an ordinarily lawful act which inherently involved a high degree of risk of death or great bodily harm and was accomplished in a criminally negligent manner. "The definition of unlawful as an element of involuntary manslaughter differs significantly from that of voluntary manslaughter and requires the trier of fact to make substantially different findings." (Orr, supra, 22 Cal.App.4th at p. 784.) Therefore, "[v]oluntary manslaughter can be committed without committing involuntary manslaughter, and thus the latter is not a lesser included offense of voluntary manslaughter." (Ibid.) "While both voluntary and involuntary manslaughter are lesser included offenses of murder, it does not follow that involuntary manslaughter is a lesser included offense of voluntary manslaughter. They are merely siblings who have a common parent." (Id. at pp. 784-785.) C. Analysis
As stated, the Attorney General concedes there was instructional error. The instruction, and the trial court's comments before giving that instruction, incorrectly suggested to the jury that it was required to determine whether Julie was guilty of voluntary manslaughter before considering whether she was guilty of involuntary manslaughter. Julie asserts the error lightened the prosecutor's burden of proof by allowing the jury to reach the issue of criminal negligence only if it first rejected a finding of malice based on the existence of heat of passion or imperfect self-defense. She further contends this error violated her constitutional due process rights, requiring us to review the error under the rigorous standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). Under Chapman, the verdict must be reversed unless the beneficiary of the error proves "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id. at p. 24.)
The Attorney General responds that the error did not lessen its burden of proof (and, therefore, was not of constitutional dimension) because the jury was properly instructed on the element of malice, which was required to find Julie guilty of second degree murder. According to the Attorney General, whether the jury concluded Julie "acted with express or implied malice, either finding ruled out the possibility of" manslaughter. Put another way, the jury explicitly rejected a finding of the reduced level of culpability needed for either voluntary or involuntary manslaughter by concluding Julie possessed the malice required for second degree murder.
The Attorney General argues further that the jury also rejected a theory of implied malice and concluded Julie acted with express malice by finding true the firearm enhancement allegation that Julie "intended to discharge the firearm" when she shot Jason. The Attorney General asserts "the jury was given the option of finding that appellant acted with express malice when she shot and killed Jason, or that she had acted with implied malice by merely pointing the gun at Jason." It chose the former, rejecting Julie's defense that the gun accidentally discharged.
We agree with the Attorney General that the jury's decision to convict Julie of second degree murder by finding she acted with either express or implied intent foreclosed the possibility that Julie might have been found guilty of involuntary manslaughter, even if the erroneous jury instruction had not been given. "Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. [Citations.] Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved." (Butler, supra, 187 Cal.App.4th at pp. 1008-1009, italics added.) Involuntary manslaughter, in contrast, requires a showing that "the defendant had a subjective, good[-]faith belief that his or her actions posed no risk," but a "reasonable person would have been aware of the risk." (Ibid.) Said another way, "involuntary manslaughter culpability based on criminal negligence is warranted if the defendant's belief was objectively unreasonable." (Id. at p. 1009.)
The jury concluded that Julie either expressly intended to kill Jason when she fired the gun, or she impliedly intended to kill because she committed an act, the natural and probable consequences of which were dangerous to human life, and that she knew her act was dangerous to human life and acted deliberately. Either of these findings precluded the jury from also concluding that Julie had a subjective, good-faith belief that her actions posed no risk to Jason's life.
Contrary to Julie's assertion, the jury's rejection of her voluntary manslaughter defense (that she acted in imperfect self-defense or in the heat of passion) does not show that the jury failed to consider that Julie was criminally negligent. Rather, the jury's conclusion that she acted with express or implied intent necessarily meant that the jury also concluded she subjectively did not lack intent—the state of mind required to find she was guilty only of involuntary manslaughter. For this reason, the court's erroneous instruction was harmless under any possible standard of review. There is no reasonable likelihood that the jury would have reached a different verdict, finding Julie not guilty of second degree murder and instead guilty of involuntary manslaughter, absent the error.
III
Ineffective Assistance of Counsel for Failure to Object to Closing Statement
Julie next contends that her trial counsel provided ineffective assistance by failing to object to the prosecutor's improper suggestion in his closing argument that the accidental discharge of a gun is sufficient to demonstrate implied malice. The Attorney General responds that the prosecutor's argument was not improper because he correctly asserted that pointing a loaded weapon at another person, which then accidently discharges, may support a finding of implied malice. The Attorney General also argues that even if the prosecutor's statements were improper, Julie's defense counsel's tactical decision not to object to the closing statement did not constitute ineffective assistance of counsel. We agree. A. Relevant Background
The thrust of the prosecutor's closing argument was that Julie intentionally shot her husband and was guilty of second degree murder on a theory of express malice. The prosecutor also argued that, even if the jury did not conclude that Julie intentionally fired the gun at Jason, she was still guilty of second degree murder under a theory of implied malice if she pointed the loaded gun at Jason and then unintentionally or accidentally fired the gun. The prosecutor explained to the jury that it could find Julie acted with implied malice in this circumstance if it believed she "intentionally committed an act, the natural and probable consequences of which are dangerous to human life." The prosecutor asserted that either Julie intentionally killed Jason "by pulling the trigger of the gun or she accidentally killed while point[ing] a loaded handgun at another human being."
The prosecutor contrasted this explanation of implied malice with an example of the state of mind required for involuntary manslaughter. The prosecutor explained that if Julie were simply "brandishing" the gun, "defined as simply showing or displaying a gun in a rude or angry manner . . . and if someone were to accidently be killed in that circumstance, it would be an involuntary manslaughter." Julie's defense attorney did not object to any of these explanations. B. Legal Standards
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216, 218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 698.)
In addition,"[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation."].) " '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . . .' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' [citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 675.) C. Analysis
Julie has not shown that her defense attorney's failure to object constituted ineffective assistance of counsel. First, as stated, the decision as to whether to object to statements in closing arguments is a highly tactical one. Julie's attorney may have determined that arguing the issue, as he did, would be more effective than objecting. Second, and more importantly, the prosecutor's description of malice was not improper. Malice, as set forth above, may be express or implied. (§ 188.) As the prosecution explained during his closing argument, and as the jury was instructed, "malice is implied when the killing resulted from an intentional act, the natural consequences of which are dangerous to human life, performed with knowledge of and conscious disregard for the danger to human life." (People v. Thomas (2012) 53 Cal.4th 771, 814 (Thomas.) "An unintentional shooting resulting from the brandishing of a weapon can be murder if the jury concludes that the act was dangerous to human life and the defendant acted in conscious disregard of life. (People v. Benitez (1992) 4 Cal.4th 91, 108-109; see also In re Russell H. (1987) 196 Cal.App.3d 916, 920-921 [substantial evidence supported juvenile court's finding of second degree implied malice murder where the minor pointed a loaded gun at the victim and threatened to shoot him, and the gun went off when a third party attempted to take it away].)" (Thomas, at pp. 814-815.)
Julie relies on a list of cases to argue that a homicide cannot amount to second degree murder if it "results from the accidental or negligent discharge of a firearm." None of these cases, however, contain such a holding, and none involve a murder conviction that was reversed because the defendant's act of brandishing a weapon was found insufficient to show implied malice. (See People v. Clark (1982) 130 Cal.App.3d 371, 375 [defendant convicted of involuntary manslaughter after shooting the victim during an argument; whether the defendant's actions could show implied malice not at issue]; People v. Carmen (1951) 36 Cal.2d 768, 772 [Supreme Court reversed conviction for first degree murder where court failed to instruct on involuntary manslaughter; the court noted that there was a "contention that the evidence was insufficient to support the conviction of first degree murder" but that it was "clearly ample."]; People v. Southack (1952) 39 Cal.2d 578, 584 [accidental discharge of weapon supported the defendant's conviction for voluntary manslaughter; no discussion of implied malice or whether defendant's conduct could support a higher level of culpability]; People v. Velez (1983) 144 Cal.App.3d 558, 562 [accidental discharge of weapon resulted in conviction for involuntary manslaughter; no discussion of implied malice or whether defendant's actions could support higher level of culpability]; People v. Ramirez (1979) 91 Cal.App.3d 132, 135 [same]; People v. Walls (1966) 239 Cal.App.2d 543, 544 [same]; People v. Freudenberg (1953) 121 Cal.App.2d 564, 571, 574 [same].)
The evidence before the jury showed Julie had owned a gun since she was a college student. In addition to the gun she used to shoot Jason, she also owned two other guns. Julie also testified she kept the guns hidden away from her children. Julie removed the gun from her safe because she feared Jason, and she pointed the gun at Jason because she wanted to stop him from assaulting her. This evidence showed Julie understood the risks associated with firearms and disregarded those risks when she pointed the loaded gun at Jason. Simply put, even if the discharge of the weapon was not purposeful, Julie's actions before the weapon was fired were dangerous to human life and showed a conscious disregard of that life. (Thomas, supra, 53 Cal.4th at pp. 814-815.) The prosecutor's explanation of this standard was accurate and the failure of Julie's defense counsel to object did not constitute ineffective assistance of counsel.
IV
Failure to Instruct Jury on Voluntary Manslaughter and Excessive Force
Julie next contends that the court should have provided an additional clarifying instruction on voluntary manslaughter under an imperfect self-defense theory. Specifically, she argues that "when a defendant's beliefs are reasonable but she uses excessive force, her act constitutes voluntary manslaughter under the theory of imperfect self-defense, and the court erred when it failed so to instruct the jury." A. Relevant Background
The court instructed the jury on self-defense using CALCRIM No. 505. The instruction stated: "The defendant is not guilty of murder or manslaughter if she was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that she was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped, maimed, or robbed; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." The instruction also provided "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified."
The court further instructed the jury on the imperfect self-defense theory of voluntary manslaughter using CALCRIM No. 571, stating: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because she acted in imperfect self-defense. . . . The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that she was in imminent danger of being killed, raped, or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable." B. Legal Standard
The instruction went on, stating also: "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] If you find that Jason Harper threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant's beliefs. [¶] If you find that the defendant knew that Jason Harper had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs. [¶] If you find that the defendant received a threat from someone else that she reasonably associated with Jason Harper you may consider that threat in evaluating the defendant's beliefs. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder."
Generally, a trial court has a sua sponte duty to instruct on legal principles that are closely and openly connected to the facts and necessary to the jury's understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) But a court "has no duty to give clarifying or amplifying instructions absent a request." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.) We independently review the correctness and adequacy of the trial court's instructions, examining whether the court " 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) " ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
"Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. (§ 192; . . . Thomas, [supra,] 53 Cal.4th [at p.] 813.) Section 192 establishes three kinds of manslaughter: voluntary, involuntary, and vehicular. Only voluntary manslaughter is at issue here. Punishment is mitigated for this offense, which the law deems less blameworthy than murder because of the attendant circumstances and their impact on the defendant's mental state. Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense. [Citations.] Heat of passion is recognized by statute as a mitigating factor. (§ 192, subd. (a).) Unreasonable self-defense is founded on both statute and the common law." (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).)
"Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury, is a complete justification, and such a killing is not a crime." (Elmore, supra, 59 Cal.4th at pp. 133-134.) "A killing committed when that belief is unreasonable is not justifiable. Nevertheless, 'one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.' " (Id. at p. 134.) Thus, as the trial court instructed, the elements of voluntary manslaughter based on imperfect self-defense are: (1) The defendant believed she was in imminent danger of being killed or suffering great bodily injury; (2) the defendant believed the use of deadly force was necessary to defend against the danger; and (3) one, or both, of those beliefs was unreasonable. (CALCRIM No. 571.) C. Analysis
Julie argues that the court's instructions were deficient because they did not also include a third theory of imperfect self-defense—"use of force that is unreasonable and therefore excessive." As an initial matter, Julie's trial counsel did not request clarification of the trial court's instructions on this point. Because this purported error was not challenged, the issue is forfeited on appeal. (People v. Souza (2012) 54 Cal.4th 90, 120.)
Even had Julie preserved this issue, however, her theory is merely another way to state that she honestly believed deadly force was necessary to repel the danger, but that she was objectively unreasonable in that belief. As the Attorney General asserts, when the jury deliberated on whether Julie unreasonably believed she needed to use deadly force, it necessarily considered whether the force she used was excessive. Julie's theory that if she honestly and reasonably believed in the need for some deadly force, "but used force greater than what was reasonably necessary," is encompassed by the instructions the jury received. No further clarification was required by the law.
V
Qualification of the Prosecution's Expert on Domestic Partner Abuse
Julie contends the court improperly qualified Dr. Martell as an expert on the subject of domestic partner abuse. She argues Dr. Martell should not have been qualified because he is a "forensic psychologist who had not treated domestic violence victims for more than 30 years, who had done no research in the area, whose recent experience was with those who are facing charges for inflicting abuse," and who was not sufficiently familiar with the behaviors of abuse victims. These arguments are not well-taken. The trial court properly qualified Dr. Martell as an expert on domestic abuse.
Evidence Code section 720, subdivision (a), establishes the qualifications of an expert: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." The key in allowing opinion testimony is proper foundation and relevance to the subject matter to which the testimony relates: "Once qualified, an expert may give an opinion '[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness . . .' " (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1117.) " ' "Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 322.)
In addition, "[t]he trial court has considerable latitude in deciding whether a person has sufficient knowledge, skill, experience, training or education to qualify as an expert. [Citation.] On appeal, this determination will not be upset absent a manifest abuse of discretion." (People v. Denney (1984) 152 Cal.App.3d 530, 546-547.) This court "must uphold the ruling unless ' " ' "the evidence shows that a witness clearly lacks qualification as an expert . . . ." ' " ' " (People v. Dowl (2013) 57 Cal.4th 1079, 1089.)
Dr. Martell's expertise in the subject of domestic violence was not as extensive as that of the defense's expert, Dr. Mechanic. Contrary to Julie's assertions, however, this fact does not lead to the conclusion that he was not properly qualified to provide opinions on Julie's behavior. Dr. Martell completed his undergraduate studies in, and earned both master's and doctorate degrees, psychology. He also had extensive experience in the subject of abuse, which included working as a forensic psychologist in nearly a thousand cases involving domestic violence. Dr. Martell testified that he had reviewed academic literature on domestic violence throughout his career, was familiar with the research conducted by Dr. Mechanic, and had also reviewed literature in the specific field of marital rape. He also completed state mandated training in the areas of domestic violence and sexual abuse. Dr. Martell testified that he understood "the kinds of symptoms that victims of domestic violence and sexual abuse tend to exhibit" and was "good at looking for evidence of those symptoms in people clinically."
Julie argues Dr. Martell was not qualified to testify about her behavior because his experience was focused on those who inflict abuse, and not those who are abused. Although the trial court must "carefully distinguish[] and limit[]" the field of expertise at issue (People v. Singleton (2010) 182 Cal.App.4th 1, 21), we agree with the Attorney General that Julie's definition is too narrow. Dr. Martell's experience dealing with hundreds of perpetrators of domestic violence necessarily exposed him to the victims of that abuse, and he had extensive professional training related to the subject. We cannot say that Dr. Martell clearly lacked expertise in the area of domestic violence. The trial court's qualification of him as an expert, therefore, fell within its broad discretion.
VI
Senate Bill 620
After oral argument was set in this matter, Julie submitted a request to file a supplemental brief concerning the impact of Senate Bill 620. We granted the request and allowed the Attorney General to file a responsive brief.
Prior to the enactment of Senate Bill 620, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) precluded the superior court from striking the firearm enhancements contained in those statutes. The new legislation, which took effect on January 1, 2018, gives the sentencing court discretion to strike section 12022.5 and 12022.53 firearm enhancements pursuant to section 1385. Senate Bill 620 deletes the prohibition on striking the enhancements and in its place adds the following language: "The court may, in the interest of justice pursuant to Section 1385 and at the time sentencing, strike or dismiss an enhancement otherwise imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1-2.)
Each statute previously stated: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (§ 12022.5, subd. (c); § 12022.53, subd. (h).)
Julie asserts that because her judgment is not yet final, the new law should be applied retroactively to this case under In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66. Estrada recognized the general rule that changes in the law apply prospectively, but created an exception for cases not yet final at the time a new law that mitigates punishment for a specific criminal offense takes effect. Estrada held that in the absence of a statutory "saving clause" precluding this retroactive application, it is presumed the Legislature intended any change in the penal law that mitigates punishment to "apply to every case to which it constitutionally could apply," including cases not yet final at the time the law becomes effective. (Id. at p. 745.) The law at issue in Estrada reduced the maximum prison term for the specific crime for which the defendant had pleaded guilty. (Id. at pp. 743-744.) Francis applied the same rule to a change in the law that gave the trial court discretion to sentence the defendant to a misdemeanor rather than a felony. (Francis, at p. 76.)
The application of the Estrada exception to prospective application of new criminal laws is arguably inapplicable to the changes made by Senate Bill 620. (See e.g., People v. Brown (2012) 54 Cal.4th 314, 324-325 [holding Estrada exception to prospective application inapplicable to statute increasing amount of available good conduct credit because the statute does not mitigate punishment for a specific criminal offense]; People v. Conley (2016) 63 Cal.4th 646, 658-659 [holding statutory language in Proposition 36 providing procedures to seek relief under the new law equivalent to a savings clause precluding retroactive application under Estrada]; People v. Brewer (2017) 17 Cal.App.5th 471, 476-477 [holding Proposition 57, which precludes prosecutor from filing charges against juveniles directly in criminal court, does not fall under the Estrada exception].) However, the People concede that Estrada's rule of retroactive application to non-final judgments should be applied in this case. In the interests of judicial economy, we accept the concession.
The Attorney General also contends that despite this concession, remand is unnecessary because the record shows that even if the trial court had discretion to strike the enhancements it would not have exercised that discretion in this case. As the People explain in their supplemental brief, at the sentencing hearing the court made clear it did not find Julie credible and found her testimony to be self-serving and false. The court also found Julie was "a danger to society" and did not hesitate in imposing the maximum sentence of 40 years to life. Because of these statements, the Attorney General argues no purpose would be served by remanding the case to the trial court to permit Julie to bring a motion to strike the enhancement under the newly changed law.
We disagree. Julie "was entitled to a sentencing decision made in the exercise of the 'informed discretion' of the court." (People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) Because we accept the concession that Julie was entitled to retroactive application of Senate Bill 620, remand for resentencing is appropriate. (Ibid.) The matter is remanded to the trial court to conduct a new sentencing hearing for the limited purpose of allowing the court to exercise its discretion under section 1385 to decide whether to strike the firearm enhancements, or to again impose the enhancement term.
While the appeal was pending in People v. Gutierrez (1996) 48 Cal.App.4th 1894, which the Attorney General relies on to assert that remand here is unnecessary, the Supreme Court held that trial courts could exercise discretion to strike three strikes prior convictions. (Id. at p. 1896.) Unlike this case, in concluding remand was not warranted, the Gutierrez court noted that the trial court had already exercised similar discretion to decline to strike two one-year enhancements for prior convictions. (Ibid.)
DISPOSITION
The cause is remanded for resentencing to allow the superior court to consider whether the enhancements under sections 12022.5, subdivision (a) and 12022.53, subdivision (d) should be stricken under section 1385. In all other respects, the judgment is affirmed.
O'ROURKE, J. I CONCUR: NARES, Acting P. J. I CONCUR WITH THE OPINION EXCEPT AS TO PART VI, AS TO WHICH I CONCUR IN THE RESULT: HALLER, J.