Opinion
B311884
01-03-2023
THE PEOPLE, Plaintiff and Respondent, v. SHANE HARRIS, Defendant and Appellant.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA106458, Richard R. Romero, Judge. Affirmed in part and reversed in part with directions.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Defendant and appellant Shane Harris appeals from a judgment convicting him of murder (Pen. Code, § 187, subd. (a)) and discharging a firearm from a motor vehicle (§ 26100, subd. (c)), both based on Harris's shooting Felipe Balanzar, a fellow member of the Rancho San Pedro gang (the gang). Harris's appeal raises numerous issues.
Unless otherwise indicated, all statutory references are to the Penal Code.
First, Harris argues the court erred in denying his pretrial motion to dismiss the section 186.22, subdivision (b)(1) gang enhancement charge against him. Harris's motion argued there was insufficient evidence presented at the preliminary hearing to justify a trial on the gang enhancement charge. At trial, the jury ultimately found the gang enhancement allegations untrue. But Harris argues that permitting the gang enhancement charge in the first place enabled the prosecution to present gang evidence that was irrelevant to the other charges against him, yet prejudiced the jury's assessment of those charges, and that he is therefore entitled to a new trial. (See People v. Ramirez (2016) 244 Cal.App.4th 800, 813 (Ramirez) [erroneous failure to set aside gang enhancement allegations based on insufficiency of the evidence at preliminary hearing prejudiced jury's assessment of other charges at trial and warranted reversal and new trial].) Citing In re Estrada (1965) 63 Cal.2d 740 (Estrada), Harris further argues that, in reviewing the denial of his pretrial motion to dismiss the section 186.22 enhancement allegations, we must apply the version of section 186.22 that went into effect long after the preliminary hearing, because the judgment ultimately resulting from the criminal proceedings below is not yet final. We conclude that Estrada and its progeny do not support such a result. We further conclude that, under the version of section 186.22 that was in effect at the time the court denied the pretrial motion, the evidence was sufficient to support the allegation.
Second, Harris argues that the gang expert's trial testimony about the intent of a hypothetical shooter under hypothetical circumstances modeled after those supported by the evidence was improper and should have been excluded. We conclude that this testimony did not, as Harris contends, improperly usurp the role of the jury to decide the ultimate issues at trial, and hold there was no abuse of discretion in admitting it.
Third, Harris argues the court prejudicially erred by preventing Harris from offering expert testimony intended to educate the jury about circumstantial factors relevant to the use of self-defense and the use of lethal force in self-defense. Because this testimony was within the common understanding of jurors, it was not proper expert testimony, and the court was within its discretion to exclude it.
Fourth, Harris contends the court improperly denied his request to give a clarifying instruction that the jury could consider any past threats the victim made in assessing Harris's claim that he acted in self-defense. Even assuming this was error, Harris has not shown the requisite level of prejudice therefrom to warrant relief on appeal, because the self-defense instruction given already informed the jury they were to consider all relevant circumstances in assessing self-defense. The evidence showed that Balanzar had threatened Harris just hours before the shooting and during the same social gathering at which Harris shot Balanzar. These threats were thus logically part of the relevant circumstances the jury was already instructed to consider.
Fifth, Harris argues there is insufficient evidence to support his conviction for violating section 26100, subdivision (c), discharging a firearm from a vehicle, because Balanzar was partially in the car when Harris shot him. The statutory language is unambiguous and does not require, as Harris suggests it does, that the victim of such a crime be "fully" outside the car at the time of the shooting. Substantial evidence supports the jury's conviction under section 26100, subdivision (c) as properly interpreted.
Sixth, Harris contends that the trial court should have struck rather than stayed a firearm enhancement under section 12022.53, subdivision (h). We agree and, upon remand, instruct the court to correct the abstract of judgment to reflect that the enhancement is stricken.
Finally, we agree with both parties that Assembly Bill No. 1869 requires that any portion of the $150 attorney fee not collected after July 1, 2021 be vacated.
FACTS AND PROCEEDINGS BELOW
A. Shooting of Balanzar
In the early morning hours of May 9, 2017, Balanzar, a member of the gang, died from a single gunshot wound to his chest in the driveway of a building in San Pedro known as "the Bungalows," a "hangout" for the gang. Undisputed evidence presented at trial reflected the following facts regarding the events of that evening:
Balanzar was at the Bungalows socializing and drinking with friends and fellow members of the gang. Balanzar's blood alcohol level was between .239 and .285, he had methamphetamine and marijuana in his blood, and he was acting intoxicated.
Harris arrived at the Bungalows with L.B., S.T. and V.M. Harris, also known as "Villain," was a member of the gang as well. Harris had just come from the hospital where he had been treated for a gunshot wound received earlier that evening. A photograph found on L.B.'s cell phone showed L.B., S.T. and V.M. in a hospital bathroom with Harris smoking methamphetamine.
After arriving at the Bungalows, Harris sat next to Balanzar. At one point, Harris got up and, unbeknownst to him, a handgun he had been carrying dropped from his person onto the ground. Balanzar picked up the gun. When Harris returned and learned Balanzar had his gun, he asked Balanzar why he had taken it, and the two began to argue and "push[ ]" each other.
L.B. and S.I., another individual socializing at the Bungalows, decided to leave and drive to a bar. They went out to L.B.'s car, which was parked in an alley next to the Bungalows. L.B. sat in the driver's seat, and S.I. sat in the front passenger seat. Harris, S.T., and V.M. climbed in the back seat from the driver's side. Harris had to move a child's car seat to the far right side between him and the door in order for the three to fit. V.M. was partly on Harris's lap and S.T. sat behind L.B.
After Harris, L.B., S.I., V.M., and S.T. were all in the car, Balanzar, appearing intoxicated, emerged from the Bungalows. He came to the driver's side front window and spoke to L.B. before walking around the front of the car to the door of the front passenger seat, where S.I. was seated. S.I.'s door was partially open, and Balanzar reached into the passenger compartment and punched her in the face. As Balanzar continued to reach in and attack S.I., L.B. got out of the car with a drawn handgun. Harris, while still seated in the back seat of the car, shot Balanzar from where he sat in the back seat. Balanzar dropped to the ground. L.B. drove away with S.I., Harris, and S.T. A responding emergency medical technician later pronounced Balanzar dead at the scene.
L.B. drove to the bar as planned, where he, Harris, S.T., and S.I. drank and socialized. Photographs recording their evening show them making hand signs for the gang and two "cliques" thereof.
B. Criminal Charges Against Harris
Based on the shooting and death of Balanzar, the Los Angeles County District Attorney charged Harris with murder (§ 187, subd. (a)) and discharging a firearm from a car at a person who was not an occupant of the car (§ 26100, subd. (c)). The information alleged that during both offenses Harris personally used and fired a firearm causing injury as defined by subdivisions (b) through (d) of section 12022.53 and that he committed each charged offense for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Harris was also charged with having suffered a prior conviction qualifying as a serious or violent felony (§ 667, subd. (a)) and a "strike." (§§ 667, subds. (b)-(i), 1170.12.)
C. Preliminary Hearing
At the preliminary hearing, in support of the gang enhancement allegations, Officer Dante Pagulayan of the Los Angeles Police Department (LAPD) offered expert testimony that Harris, L.B., and Balanzar were members of the gang, which the parties stipulated was a criminal street gang as defined by the relevant statute at that time. Pagulayan testified that the gang claimed the city of San Pedro as its territory.
Pagulayan also testified about gangs more generally, opining that "gangs' main focus is to instill fear and intimidation within the community" and thereby forestall any community members reporting criminal activity by the gang's members. According to Pagulayan's testimony, because of this, when an individual gang member commits a violent crime-even against another member of the same gang-this benefits the member's gang by increasing its reputation for violence and instilling more fear in the community, further insulating its criminal activities.
Relatedly, a gang member committing a violent crime also benefits the individual gang member's status within his or her gang because he or she facilitated a benefit to his or her gang's reputation. Thus, "gang members gain respect . . . through violence," and status in the gang is maintained by having a reputation for being" 'willing to do x, y, and z.'" If a member does not respond to being "disrespected" from a fellow member with a violent retaliation, the member will risk losing status.
Pagulayan also testified about a hypothetical shooting of gang member B by gang member A after the two had been in a dispute minutes earlier in front of fellow gang members about B having taken A's gun, further assuming that gang member A was "throwing" gang signs in a bar shortly after committing the crime. Pagulayan opined that this hypothetical shooting would "benefit the overall gang" for the reasons outlined above, in particular because the hypothetical assumed the shooting "was committed . . . in a residential area" and "[i]f community members catch wind that gang members are willing to commit these violent acts on each other, then they also assume that this can happen to them.... [T]his violent act benefits the [hypothetical] gang because it lets the community know that . . . [the hypothetical gang] [is] dangerous . . . [.] [T]hat is why [gangs] act with impunity, and people within the community are dissuaded from" reporting a gang's crimes to the police. The hypothetical shooting would also benefit the hypothetical shooter's status within his or her gang for the reasons outlined above.
The magistrate at the preliminary hearing concluded that the evidence presented was sufficient to support probable cause for the gang enhancement. The magistrate explained: "I'm satisfied, at least, by a strong suspicion. The fact that he's a gang member. He was carrying a gun as a gang member, that his whole mentality is gang, that he can just think from a gang member's standpoint, 'I can just shoot someone for a slap, and that that was disrespect,' and so when you disrespect the girl[ ] in the front seat[,] . . . the gang member's response was to shoot him, which is a gang thing. And it benefits the gang because even amongst other gang members, you say to other gang members, 'You can't even slap to disrespect,' or 'You can't even punch to disrespect.' "
D. Pretrial Motion to Strike Gang Enhancement Allegations
Prior to trial, Harris unsuccessfully moved to strike the gang enhancement allegation, arguing that the evidence presented to the magistrate at the preliminary hearing was insufficient to support even a reasonable suspicion that the enhancement allegations were true. (§ 995.) Specifically, Harris argued, inter alia, that neither Pagulayan's testimony, nor any other evidence, supported that Harris's conduct was committed with the "specific intent to promote, further, or assist" a gang member's criminal conduct. The court disagreed and denied the motion.
E. Trial
At trial, witness testimony was essentially consistent as to the general sequence of events the night of the shooting, and the jury saw security camera footage that captured the shooting. The dispute at trial therefore revolved not around whether Harris shot Balanzar or what happened on the night Harris did so, but rather around two competing narratives as to why he did so. The prosecution argued that Harris shot Balanzar for being disrespectful to him. The prosecution further argued this motive as gang-related, relying primarily on their gang expert's testimony that the gang expected its members to retaliate harshly and with violence in response to disrespect, and that any violent act by a member of the gang-including against a fellow member of the gang-benefits the gang's criminal enterprises by increasing fear in the community. The defense argued, relying primarily on Harris's testimony, that Harris acted in self-defense; he was weak from being shot earlier that evening, unable to flee, and believed Balanzar was assaulting S.I. in an effort to get to Harris.
1. Gang expert Castruita's testimony
The prosecution's gang expert, LAPD Officer Robert Castruita, testified that Harris, L.B. and Balanzar were members of the Rancho San Pedro gang and about the culture, norms and violent behavior of the gang and its members. His testimony also addressed the same topics Pagulayan had discussed at the preliminary hearing, including a hypothetical shooting modeled after the facts in evidence, and how the shooting in that hypothetical would benefit both the gang and the shooter's status in the gang. Castruita added that the hypothetical shooter and fellow gang members throwing gang signs shortly after the shooting "enhance[d]" his opinion that the shooting benefited the gang, because their doing so was "claiming who did [the crime]" and was intended "to show they are not going to be disrespected."
Castruita also testified that the hypothetical shooter "might . . . [be] motivate[d] . . . to act" and "pull the trigger" because "it will show that he's willing. He is a person to be called by the gang because they know he's willing to pull the trigger." According to Castruita, at the time of the shooting in the hypothetical, the "disrespect that occurred earlier at the party would still be fresh in the person's mind." This was significant to Castruita's opinion in that "it just shows that what was done initially wasn't enough. And therefore, . . . the person that comes around that already committed a violation in the shooter's eyes, continues to act inappropriately according to the shooter's view. Therefore, he really thinks he needs to put him in his place, wants to end it and show him-stop the disrespect." Castruita opined that, because gang members generally gain respect through violence, the fact that the hypothetical victim's disrespect occurred in front of other gang members was particularly important to the shooter's motivation: "[T]he concept of respect and needing discipline bear extra meaning . . . if one is in front of other members of the same gang . . . [¶] . . . [¶] . . . because now you have an audience. Now you have someone who is going to go out and spread the word. If you are disrespected and you don't stand up, you don't act the way the gang expects you to act, with violence, then that information, that word gets out to other gang members. And that member that didn't act the way he was expected to starts losing street credibility, starts losing respect from other gang members.
That's what they don't want. They want to earn and maintain that respect-or gain more respect."
2. Harris's test imony
Harris testified that he had been shot earlier that evening, and therefore had limited use of his arm and felt unable to defend himself. Harris further testified he smoked methamphetamine to relieve the pain of the gunshot wound. He obtained a gun after he left the hospital because he feared he might be targeted.
According to Harris, as he told his friends at the Bungalows about being shot earlier that evening, Balanzar repeatedly poked and grabbed Harris's injured arm. This was very painful for Harris, and Balanzar ignored Harris's demands that Balanzar stop. Balanzar was not acting "normal," and Harris thought Balanzar was trying to provoke him.
Harris "called [Balanzar] out" about taking Harris's gun. Harris saw Balanzar holding the gun with his finger on the trigger. Balanzar initially refused to return the gun and became angry, stating, "fuck [you]" and "fuck [your] girl [V.M.]" Harris was afraid, based on how Balanzar was behaving, that Balanzar might shoot Harris either intentionally or accidentally. After Balanzar returned Harris's gun, Harris told Balanzar to leave. Balanzar left, declaring he would" 'be back.'" At some point, Harris heard Balanzar was outside and wanted to fight Harris.
Harris decided to leave with L.B. and S.I. He got into the rear seat of L.B.'s car. Balanzar came to L.B.'s window and appeared "drunk" and agitated. Balanzar asked, "Where is Villain at?" Harris feared that Balanzar was back to get revenge. Harris told L.B. to drive away, but L.B. would not. Balanzar walked around to the passenger side of the car, and Harris demanded to be let out. The others in the car refused, telling him he was safer inside. A child's car seat to his right prevented him from getting in or out of the rear passenger-side door. Balanzar reached into the front passenger area, "cuss[ing]" and striking S.I. When Balanzar attacked S.I. in the front passenger seat, Harris thought Balanzar was trying to pull her from the car and get to him in the backseat. L.B. got out of the car, and Harris shot at Balanzar's arm "just [to] defuse the situation," and did not realize the shot had hit Balanzar.
S.I. testified Balanzar did not actually pull her out of the car, whereas Harris testified that Balanzar was starting to do so.
Harris never saw Balanzar with a gun, but because Harris had heard Balanzar was still looking to fight Harris even though Balanzar knew Harris was armed, Harris assumed Balanzar had obtained a gun. Harris feared for his life when he fired his gun. As they drove away, Harris did not know he had actually hit Balanzar.
3. Exclusion of self-defense expert testimony
At trial, Harris proposed to call former law enforcement officer Larry Smith as an expert on use of force and factors relevant to self-defense. Harris informed the court that Smith had qualified as an expert in self-defense and police use of force in several prior cases, and would testify in this case based on his review of the police reports and security video from the shooting, the autopsy report, and the preliminary hearing testimony. The defense offered that Smith's testimony would educate the jury about circumstantial factors relevant to the use of self-defense and to the use of lethal force in self-defense. Among the topics of Smith's proposed testimony were: how an aggressor's behavior (including prior threats and concurrent assault) may demonstrate opportunity and intent to inflict death or great bodily injury; the danger associated with an aggressor gaining control of a gun in the possession of the person he is attacking; factors relevant to the victim's perception that an aggressor's conduct is escalating the risk of harm; and factors relevant to a victim's positional disadvantage (including hypothetical prior injury and confinement in a car).
The court did not permit Smith to testify, explaining that "issues [on which Smith would opine] seem . . . to be things that the jurors themselves are well acquaint[ed] with in everyday life." The court characterized Harris's self-defense argument as "strong," but indicated Harris did not "need an expert to explain that to the jury." Further, the court reasoned, the jurors would be instructed in "great detail" to "consider all the circumstances as they were known . . . and appeared to the defendant" in connection with deciding the issue of self-defense.
4. Jury instructions
The court instructed the jurors regarding self-defense using form jury instructions CALCRIM No. 505 and CALCRIM No. 571. These instructions told the jurors to consider "all the circumstances as they were known and appeared to" Harris in determining whether "the defendant actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury" and whether "the immediate use of deadly force was necessary to defend against that danger." They further instructed the jurors that the great bodily injury a defendant feared must be "imminent," "immediate and present" in order to justify the defendant's use of lethal force in defense. CALCRIM No. 571 defined "imminent" for the jurors: "A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with."
Harris requested the court further instruct the jury that: "Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person. If you find that the defendant received a threat from someone else that he reasonably associated with the decedent, you may consider that threat in deciding whether the defendant was justified in acting [in] self-defense or defense of another." The court denied the request, because it ruled that the threats Balanzar had made had not occurred on "a separate occasion" and thus were not "past" threats.
F. Jury Verdict and Motion for New Trial
During deliberations, the jury inquired about whether Harris was "required to meet all [three] criteria of self-defense" described in the instruction in order to merit a self-defense finding. The court answered the jury's question with the following instruction: "The defendant is entitled to a verdict of not guilty of murder or voluntary manslaughter under selfdefense unless the prosecution proves beyond a reasonable doubt, one, the defendant did not reasonably believe he or someone else was in imminent danger of being killed or suffering great bodily injury, or defendant did not reasonably believe that the immediate use of deadly force was necessary to defend against that danger, or the defendant used more force than was reasonably necessary to defend against that danger. [¶] If the prosecution disproves beyond a reasonable doubt at least one of the three criteria in the self-defense instruction, self-defense does not apply." The trial court concluded by urging jurors to read the entire instructions that apply, including the instructions on self-defense and murder.
On December 19, 2019, the jury acquitted Harris of first degree murder and found him guilty of second degree murder and discharging the firearm from a car. The jury found the gun use allegations true and the gang allegations untrue as to both counts. Harris waived a jury trial for the prior strike determination, and the court found he had suffered the alleged prior felony conviction.
The court denied Harris's motion for a new trial.
G. Sentencing
On February 25, 2021, the court and parties agreed that a term of 15 years to life was appropriate. The court sentenced Harris to 15 years to life for the murder and "stayed" the gun use enhancement on that count. The court also stayed the term for discharging a gun from a car and its corresponding gun use enhancement under section 654. The court struck Harris's prior conviction for all purposes in the interest of justice under section 1385.
In addition to statutory minimum fines, the court ordered Harris to reimburse the county for his court-appointed attorney's services in the amount of $150.00. Harris timely appealed the judgment.
DISCUSSION
A. Denial of Motion to Dismiss Gang Enhancement
Harris argues that the court erred in denying his motion to dismiss the gang enhancement charge, that this erroneous denial permitted the jury to hear otherwise inadmissible and prejudicial gang evidence, and that this evidence so affected the jury's assessment of the murder count as to warrant a new trial on that count. We disagree.
At a preliminary hearing, a magistrate determines whether there is "sufficient cause" to believe the defendant is guilty of all offenses and enhancements charged. (§ 871; see § 872, subd. (a).) This is a gateway determination for allowing the prosecution to proceed to trial against the defendant on those allegations. The mechanism for challenging a magistrate's sufficient cause determination is a motion to set aside or dismiss under section 995. Although the denial of a section 995 motion is most appropriately challenged by a petition for writ of prohibition (§ 999a; see Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1006), the issue also may be raised on appeal from a judgment of conviction. (See People v. Mena (2012) 54 Cal.4th 146, 156 ["[e]ven if a writ is not sought, a defendant may still seek review on appeal following the judgment, although the defendant must establish the error was prejudicial"]; see Ramirez, supra, 244 Cal.App.4th at p. 803.)
Harris's section 995 motion challenged the inclusion of the section 186.22, subdivision (b)(1) gang enhancements in the information. Such an enhancement requires "the prosecution . . . [to] prove that the underlying crime was 'committed for the benefit of, at the direction of, or in association with any criminal street gang' (the gang-related prong), 'with the specific intent to promote, further, or assist in any criminal conduct by gang members' (the specific intent prong)." (People v. Rios (2013) 222 Cal.App.4th 542, 564.) Amendments to section 186.22 that took effect on January 1, 2022-specifically, those reflected in Assembly Bill No. 333 (2021-2022 Reg. Sess.)-revised the definition of "criminal street gang" for the purpose of proving a gang enhancement, as well as the definition of the specific intent necessary to prove a gang enhancement. (Stats. 2021, ch. 699, § 3.) Under the law as amended, a defendant must have a specific intent "to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (Ibid., italics added.)
Harris argues that (1) the evidence presented at the preliminary hearing did not provide sufficient cause to charge Harris with the gang enhancement as defined under the amended version of section 186.22, which Harris argues should apply retroactively and govern our analysis on appeal; and (2) even under the previous version of section 186.22, the evidence at the preliminary hearing-in particular, the evidence offered to support the specific intent prong of the gang enhancement-did not provide sufficient cause to justify charging the gang enhancement.
1. Harris's retroactivity argument
We must first decide which version of the gang enhancement statute applies in assessing the sufficiency of the evidence to support the gang enhancement charges at the preliminary hearing. Harris argues that, under Estrada, supra, 63 Cal.2d at pp. 742-744, because his judgment is not yet final (see People v. Vieira (2005) 35 Cal.4th 264, 305-306), the current version of the gang enhancement statute should govern our analysis.
Ameliorative statutory amendments are presumptively applicable to any criminal judgment that has not yet become final in the absence of a clearly expressed contrary legislative intent. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308; Estrada, supra, 63 Cal.2d at pp. 742-744.) An amendment is ameliorative if, inter alia, it narrows the definition of conduct that is deemed punishable. (People v. Lopez (2020) 57 Cal.App.5th 409, 413-415.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Courts have thus consistently concluded that the 2022 amendments to section 186.22 apply to judgments not final on January 1, 2022. (See People v. Sek (2022) 74 Cal.App.5th 657, 667-668; People v. Lopez (2021) 73 Cal.App.5th 327, 346; People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032.) Relying on Estrada, this and other Courts of Appeal have stricken gang enhancements when the evidence presented at trial would not support a true finding under the current version of the law. (See, e.g., Vasquez, supra, 74 Cal.App.5th at p. 1032 .)
But Harris has not cited, nor is this court aware of, any case applying the retroactivity principles of Estrada to conclude that the 2022 amendments to section 186.22 require changes to any portion of a judgment other than a section 186.22 gang enhancement and related true findings. Nor do these retroactivity principles support such a result. "The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not." (People v. Conley (2016) 63 Cal.4th 646, 657; see Estrada, supra, 63 Cal.2d at p. 745.) The "ameliorative change[ ]" (Conley, supra, at p. 657) in the law at issue here is a narrowing of the range of conduct, based on which a gang enhancement can be found true. Put differently, the revised statute prevents a jury from finding a section 186.22, subdivision (b)(1) gang enhancement allegation true based on certain evidence, including the type of reputational benefit evidence presented below. The retroactive application of this benefit to Harris is thus moot, because the jury did not find the gang allegation true. Harris has already obtained the benefit the Legislature chose to confer via the amendments at issue.
The retroactivity required by Estrada and its progeny is entirely a creature of inferred legislative intent. In these cases, the California Supreme Court inferred that when the Legislature determines certain conduct should not be punished, it intends as many defendants as constitutionally possible to avoid the punishment it no longer views as appropriate. (See, e.g., Estrada, supra, 63 Cal.2d at p. 745 ["[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply"].) But Harris's argument requires us to infer far more. It requires us to infer that, by amending a statute regarding gang enhancements, the Legislature intended to provide a basis on which a murder conviction may potentially be overturned. Nothing supports such an inference, nor does such an inference follow from the teaching of Estrada. Harris's reliance on Estrada and its progeny to argue the current version of section 186.22, subdivision (b)(1) render the court's section 995 motion ruling an abuse of discretion is thus without merit.
2. Sufficiency of the evidence at the preliminary hearing to support the gang enhancement charge
We next consider Harris's argument that, even under the version of section 186.22, subdivision (b)(1) that was in effect at the time of the preliminary hearing, the evidence presented did not provide sufficient cause to charge Harris with a gang enhancement. In this context," 'sufficient cause'" equates to" 'reasonable and probable cause'" or "a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (People v. Uhlemann (1973) 9 Cal.3d 662, 666-667.)"' "An information will not be set aside" '" for lack of sufficient cause, and thus a section 995 motion must be denied, as long as"' "there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it."' [Citation.]" (People v. Arjon (2004) 119 Cal.App.4th 185, 193 (Arjon), italics omitted.)
"On appeal following the denial of a section 995 motion, we review the preliminary hearing magistrate's determination directly and disregard the judge's [section] 995 ruling." (Ramirez, supra, 244 Cal.App.4th at p. 813.) We "must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendant[ ] to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt' [citations]." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.)
Harris argues that, at the preliminary hearing, there was "a total absence of evidence to support a necessary element of the [gang enhancement] charged" (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226)-namely, the specific intent prong of the gang enhancement. He argues that the gang expert's testimony did not speak to the specific intent of even a hypothetical shooter. But the gang expert did testify that members of the gang were required to violently retaliate when "disrespected," which benefits the gang by increasing the gang's reputation for violence and dissuading others from reporting its activities. Other evidence at the preliminary hearing supported that Harris was a member of the gang, and that Balanzar had "disrespected" him earlier that evening. Taken together, this evidence provided a "rational ground for assuming the possibility that" Harris specifically intended to benefit the gang's criminal enterprises when he shot Balanzar. (Arjon, supra, 119 Cal.App.4th at p. 193, italics omitted.)
The trial court thus did not err in denying Harris's section 995 motion and permitting the gang enhancement allegations to remain in the criminal information against Harris.
B. Gang Expert Testimony Regarding Intent
Harris next challenges the admission of opinion testimony of Castruita, the prosecution's gang expert, that a hypothetical shooter in a situation modeled after the evening in question "might . . . [be] motivate[d] . . . to act" and "pull the trigger" because "it will show [the gang] that he's willing. He is a person to be called by the gang because they know he's willing to pull the trigger." A trial court's decision to allow an expert to opine on a certain matter is reviewed for abuse of discretion. (People v. Jo (2017) 15 Cal.App.5th 1128, 1177.)
Although expert testimony "in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact" (Evid. Code, § 805), an expert may not tell the jury that the expert believes the defendant is guilty or innocent. (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).) Harris argues Castruita effectively did just that by opining on why Harris shot Balanzar-an issue that is ultimately for the jury to decide. He argues the instant case is like People v. Killebrew (2002) 103 Cal.App.4th 644, in which the Court of Appeal deemed it impermissible for a gang expert to testify that when one gang member in a car possesses a gun, all gang members in the car know about the gun and therefore constructively possess it. (Id. at p. 658.) But the California Supreme Court has rejected reliance on Killebrew as a basis for concluding an expert invades the province of the jury when he opines that a hypothetical individual has a gang-related motive when engaging in hypothetical acts modeled after the evidence presented at trial. (Vang, supra, 52 Cal.4th at p. 1047.) In so doing, the court noted "Killebrew's limited significance. '[Citation] . . . [Citation.] . . . Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. As explained in People v. Gonzalez [(2005) 126 Cal.App.4th] at page 1551, footnote 4, use of hypothetical questions is proper.'" (Vang, supra, 52 Cal.4th at p. 1047, italics omitted.) Here, Castruita opined neither on Harris's guilt, nor his mental state on the night in question. Rather, he" 'merely answered hypothetical questions based on the evidence the prosecution presented, which is a proper way of presenting expert testimony.'" (Ibid.; accord, People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3 [responding to hypothetical questions, expert properly opined that witnesses were intimidated by gang members].) Harris's argument "overlook[s] the critical difference between an expert's expressing an opinion in response to a hypothetical question and the expert's expressing an opinion about the defendants themselves. Killebrew stated that the expert in that case 'simply informed the jury of his belief of the suspects' knowledge and intent on the night in question, issues properly reserved to the trier of fact.' (Killebrew, supra, 103 Cal.App.4th at p. 658.) But, to the extent the testimony responds to hypothetical questions, as in this case . . . such testimony does no such thing. Here, the expert gave the opinion that [a shooting] committed in the manner described in the hypothetical question would be gang[-]related [and what the hypothetical shooter's gang-related motive might be]. The expert did not give an opinion on whether [Harris] did commit [the shooting] in that way, and thus did not give an opinion on how the jury should decide the case." (See Vang, supra, at p. 1049, italics omitted.)
Nor does such testimony invade the province of the jury to decide Harris's guilt simply because it addresses the only issue meaningfully in dispute at trial (Harris's mental state during the shooting). (See Vang, supra, 52 Cal.4th at p. 1049 [noting that it "is merely unfortunate for the defendants, not a reason to exclude probative and permissible expert testimony" regarding gang-related intent that there was little dispute as to the other elements of the crime charged because it was witnessed by a police officer].) Harris's intent may have been the dispositive issue on the murder charge, and Castruita's testimony was highly relevant to intent, but the jury remained free to accept or reject it when assessing the evidence of Harris's mental state. (Id. at pp. 1049-1050 ["[t]he jury still plays a critical role" because, inter alia, "it must decide whether to credit the expert's opinion at all"]; People v. Harris (2000) 83 Cal.App.4th 371, 375 [expert opinion from experienced officers that a defendant intended to sell drugs based on amount was proper because it was ultimately up to the jury to credit or reject such testimony].) Indeed, the court so instructed the jury, and defense counsel urged the jury to disbelieve Castruita's testimony and instead rely on the other evidence suggesting Harris acted in self-defense.
We further disagree the expert testimony here should not have been admitted because the opinion Castruita offered would not assist the jury. The average juror is not as capable as a gang expert to infer from the general violence-based culture of gangs that a shooter under certain circumstances may be motivated by a desire to show the gang he is willing to commit murder. This inference does not so obviously follow from the general gang culture about which Castruita testified that his opinion offering the inference would not assist the jury. The trial court did not abuse its discretion in permitting Castruita's testimony.
C. Exclusion of Self-Defense Expert Testimony
Harris next challenges the court's exclusion of the proposed expert testimony by Smith regarding the "circumstantial factors relevant to the use of self-defense generally and to the use of lethal force in self-defense." Specifically, Harris sought to offer Smith's testimony on how an aggressor's behavior (including prior threats and concurrent assault) may demonstrate opportunity and intent to inflict death or great bodily injury; the danger associated with an aggressor gaining control of a gun in the possession of the person he is attacking; factors relevant to the victim's perception that an aggressor's conduct is escalating the risk of harm; and factors relevant to a victim's positional disadvantage (including hypothetical prior injury and confinement in a car). We review an exclusion of expert testimony for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)
Harris argues the trial court excluded Smith's testimony based on the "unfounded" "assumption that an ordinary person sitting on the jury would be familiar with experiencing an assault threatening imminent great bodily injury." Harris contends that because the average juror is unlikely to have ever been in such a situation, the trial court abused its discretion in concluding that Smith's testimony about how one would typically react would not have assisted the jury. To support this argument, Harris cites cases permitting expert testimony about how an individual might react in a situation the average juror is not likely to have experienced. (See, e.g., People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 745-746; People v. McAlpin (1991) 53 Cal.3d 1289, 1302.) In these cases, however, the reaction about which the expert testified was counterintuitive, such that common sense or a juror's lack of familiarity with the situation might steer him towards misconceptions. For example, "[i]t is reasonable to conclude that on the basis of their intuition alone many jurors would tend to believe that a parent of a molested child, naturally concerned for the welfare of the child and of other children, would promptly report the crime to the authorities." (McAlpin, supra, at p. 1302.) Thus, in McAlpin, the court permitted expert testimony that "it is not at all unusual for a parent to refrain from reporting a known child molestation," as this testimony would give "the jurors information they needed to objectively evaluate [a parent's] credibility" in testifying that her child had been molested, even though the parent had not reported it. (Ibid.) In Sotelo-Urena, supra, a homelessness expert testified regarding how "individuals who are chronically homeless . . . are subjected to a high rate of violence by both housed and homeless individuals, and that the experience of living for years on the streets instills a perpetual fear of violence that would have affected defendant's belief in the need to defend himself with lethal force." (Sotelo-Urena, supra, at pp. 745-746.) Such testimony was admissible in part because it "may have dispelled' "commonly held misconceptions"' or misguided '"' "common sense" conclusions'"' that may have prevented the jury from understanding the circumstances as [the homeless] defendant actually perceived them." (Id. at p. 753.) In People v. Humphrey (1996) 13 Cal.4th 1073, also cited by Harris for this point, expert testimony on intimate partner battering and a victim's reactions to it over time was" 'aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge.'" (Id. at p. 1099.) In another case Harris cites, the Court of Appeal permitted expert testimony that domestic violence victims commonly recant reports of real abuse, because "[w]hen the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume that the victim is an untruthful or unreliable witness" and "that if there really had been abusive behavior, the victim would not be testifying in the defendant's favor." (People v. Brown (2004) 33 Cal.4th 892, 906.) Under such circumstances, the common sense, intuitive reaction of a juror who has not personally experienced domestic violence, or who does not have a more nuanced understanding thereof, may lead the juror to an incorrect understanding of the evidence.
In making this argument, Harris cites various statistics on crime and the use of lethal force in self-defense. We need not resolve the parties' dispute as to whether we may properly consider these sources. As discussed below, Harris's argument still fails, even if we accept as true the premise for which Harris cites these statistics-that only a small portion of the American population has experienced violent crime or been involved in an incident of self-defense involving lethal force, and thus the average juror is unlikely to have had such an experience.
By contrast, courts have excluded expert testimony about how an individual may react to a situation a juror is likely not to have himself experienced when that reaction is not counterintuitive and does not require special knowledge to understand. For example, the average juror is not likely to have been a jailhouse informant, but in People v. Johnson (1993) 19 Cal.App.4th 778 (Johnson), the court deemed it "well within a jury's ken" to understand that a jailhouse informant may have reason to lie, and therefore excluded a sociology professor's testimony on the unreliability of prison inmate testimony. (Id. at p. 791.) Similarly, although a juror may not have experienced childhood abuse, the effects of childhood abuse on adulthood is "neither technical or complex" and thus within the understanding of jurors, so expert testimony on this topic may be excluded. (People v. McDowell (2012) 54 Cal.4th 395, 427; see ibid. ["as the jury had evidence on [the defendant's abusive childhood] from several other witnesses, and the jurors could rely on their common sense to consider whether defendant's abusive childhood could have affected his adult behavior, including his criminal behavior"].) And more specifically in the area of self-defense, absent some additional circumstances giving rise to a counterintuitive reaction-such as those in the cases discussed above-what constitutes a reasonable reaction to a threat of force is well within the jury's common-sense ability to assess. (See People v. Czahara (1988) 203 Cal.App.3d 1468, 1478 ["psychiatric testimony on adequacy of provocation is inadmissible" because "the adequacy of provocation is not a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" and "the reasonableness of a reaction is left to the jurors precisely so that they may bring their common experience and their own values to bear on the question of whether the provocation partially excused the violence"].)
It is not counterintuitive-to the contrary, it logically follows as a matter of common sense-that, as Smith sought to testify, an aggressor's threats and concurrent assault may demonstrate an aggressor's opportunity and intention to inflict death or great bodily injury. The same is true for Smith's proposed testimony that prior injury or confinement in a car may place an individual at a significant disadvantage in terms of physically defending himself. Smith's proposed testimony on these and similar topics is thus distinguishable from the expert testimony permitted in the cases on which Harris relies. "[W]e are inclined to give great weight to the trial judge's decision as to the admission of expert testimony, and will not reverse that decision absent a clear showing of an abuse of discretion." (Johnson, supra, 19 Cal.App.4th at p. 790; see People v. Alcala (1992) 4 Cal.4th 742, 781-782 &788-789.) The record reflects no such clear abuse.
D. Denial of Past Threats Self-Defense Instruction
Harris next argues that, although the court properly instructed the jury regarding the general principles applicable to self-defense, the court erred in denying his request for an additional, more specific instruction on the effect of past threats in assessing a claim of self-defense. Specifically, Harris requested the following instruction: "Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person. If you find that the defendant received a threat from someone else that he reasonably associated with the decedent, you may consider that threat in deciding whether the defendant was justified in acting [in] self-defense or defense of another." Harris based his request on Balanzar's promise to "be back" after Balanzar and Harris's initial encounter and Balanzar's expression of a desire to "fight" with Harris, all of which occurred before the shooting.
The court denied Harris's request on the basis that the term "past" in the instruction required the threats to have occurred on "a separate occasion." Harris contends the court incorrectly interpreted the term "past" in the jury instruction, and thus erred in denying Harris's request for the instruction. We independently review denial of a requested defense instruction.
The standard self-defense instructions (CALCRIM No. 505 and CALCRIM No. 571) given to the jury are legally correct and complete, meaning the concept of antecedent threats is fully consistent with the general principles expressed in them. (People v. Garvin (2003) 110 Cal.App.4th 484, 489.) As a result, an instruction on antecedent threats is a clarifying or" 'pinpoint'" instruction, which must be given upon request only if supported by sufficient evidence. (Ibid.; accord, People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1068-1069.)
Even assuming the evidence supported Harris's request for the past threats instruction, any error in denying it was harmless. An erroneous denial of a defense pinpoint instruction is prejudicial if" 'the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.'" (People v. Wharton (1991) 53 Cal.3d 522, 571, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) The general self-defense instruction given instructed the jury to consider all relevant circumstances, which would include interactions between Balanzar and Harris on the same evening the shooting occurred. The threats at issue here are not separated from the shooting by any appreciable amount of time or space, such that the jury might arguably have been unclear as to whether or not these threats could be considered relevant circumstances. Rather, the shooting and the threats all occurred at the same gathering at the Bungalows, and within the span of a few hours. It is thus not reasonably probable that the jury would have reached a different result, had the court expressly instructed the jury that Balanzar's threats were among the circumstances that the jury could properly consider in assessing whether Harris shot in self-defense. (See People v. Gonzales (1992) 8 Cal.App.4th 1658, 1665 [no prejudicial error for omitting antecedent threat instruction because that threat to defendant was "closer to rough and ready common sense than abstract legal principle [and] . . . fully consistent with the otherwise complete self-defense instructions given by the court"].)
E. Sufficiency of the Evidence to Support the Section 26100 Conviction
Harris next argues that the evidence presented at trial was insufficient to support his conviction for violating section 26100, subdivision (c), which provides that "[a]ny person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of the motor vehicle is guilty of a felony punishable by imprisonment in state prison for three, five, or seven years." (§ 26100, subd. (c).)" '[T]he elements of a violation of section [26100], subdivision (c) are (1) acting willfully and maliciously, and (2) shooting from a motor vehicle at a person outside a motor vehicle.'" (People v.
Rodarte (2014) 223 Cal.App.4th 1158, 1167.) Harris argues that the language of the statute regarding a person being "outside a motor vehicle" is ambiguous, and that we must therefore look to the legislative history and purpose of the statute to interpret whether it encompasses someone who, like Balanzar when shot, had some portion of his body in or partially in the motor vehicle at issue. This legislative history of section 26100, Harris argues, reflects an intent to punish so-called "drive-by shootings," in which, unlike here, the car is used as an instrumentality to facilitate the shooting, and the victim has no portion of his or her body in the vehicle.
Harris's argument thus initially presents a question of statutory interpretation, which we review de novo. (See Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183.) The first and best indicator of the legislature's intent in such an analysis is the plain language of the statute. (People v. Licas (2007) 41 Cal.4th 362, 367.) Only when the statutory language is ambiguous may we look to legislative history and purpose to interpret the statute. (Ibid.) The statutory language requiring that the victim be "outside the motor vehicle" is not ambiguous, and we apply the plain meaning of this phrase. The plain meaning of being "outside a motor vehicle" does not require, as Harris suggests, that the victim be "fully" outside the vehicle or that the victim not have "broken the plane defined by the . . . front door." The Legislature certainly could have included such additional language in the statute if it had intended such a meaning. It did not.
We next determine whether the evidence presented was sufficient to support the jury's finding that Balanzar was "outside the motor vehicle," understanding that this does not require Balanzar to have had every body part outside the vehicle. In so doing, we review the record for substantial evidence to support the jury's finding."' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." '" (People v. Bean (1988) 46 Cal.3d 919, 933.) The jury heard ample evidence to support the conclusion that, when shot, Balanzar was a person "outside the motor vehicle" within the plain, common sense meaning of the phrase. S.I. testified that Balanzar walked around to the front passenger's seat and began punching her. Video footage and S.I.'s testimony both indicated she opened her car door to greet the victim before he began punching her. When shot, the victim fell to the ground outside, and not inside the car. From this evidence, the jury could conclude that Balanzar was outside the car when he was shot. Harris's citation to evidence that the victim may have been moving towards or inside the car does not mean the record is devoid of evidence supporting the jury's conclusion that Balanzar was outside the car-as it must in order for us to conclude the record lacks substantial evidence. (See Bean, supra, at pp. 932-933.)
F. Sentencing Error
The record reflects that the parties were in express agreement that the sentence for count one (murder) should be no more than 15 years to life, and the court agreed that such a sentence was just. On appeal, Harris does not argue otherwise, but instead challenges the manner in which the court achieved this result. Specifically, he argues that there is no authority under which a court may, as the court purported to do here on the murder count, stay execution of the section 12022.53 gun use enhancement found true by the jury. He asks that we direct the trial court to instead strike the section 12022.53 gun use enhancement found true as to the murder count and correct the abstract of judgment accordingly.
The state acknowledges that the court erroneously stayed the firearm enhancement to the murder count, but contends the appropriate remedy is to remand for resentencing so that the trial court can exercise its sentencing discretion.
The parties are both correct that the court did not have discretion to stay the section 12202.53, subdivision (c) gun use enhancement to the murder count. (See § 12022.53, subd. (c) [enhancements "shall" be imposed where elements proven].) The means by which the court could have nevertheless avoided adding time to Harris's sentence based on the gun use enhancement was to strike it pursuant section 12022.53, subdivision (h) and section 1385. (See § 12022.53, subd. (h) ["[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section"].) Correcting the court's error in staying instead of striking the enhancement thus does not require an exercise of sentencing discretion, because the court has no discretion as to how to decline to impose such an enhancement once the jury finds it should be imposed. Because the court has already exercised its discretion and decided to impose a 15-years-to-life sentence on the murder count, with no additional time based on a gun use enhancement, and because neither party claims this was in error, we need not ask the court to again exercise its sentencing discretion. The far more efficient resolution on appeal is to instruct the court to amend the abstract of judgment to reflect that the gun use enhancement on the murder count is stricken.
The gun use allegation (§ 12022.53, subd. (d)) found true on the conviction for discharging a firearm from a motor vehicle (§ 26100, subd. (c)) is not at issue.
G. Attorney Fee
Finally, Harris challenges the court's order that he pay $150 in attorney fees. This order must be stricken as the trial court failed to determine Harris's ability to pay the $150 before imposing the fee. (See People v. Duenas (2019) 30 Cal.App.5th 1157, 1162.) Remand is inappropriate as there is no longer authority for requiring an indigent defendant to reimburse the government for any portion of the expense of his representation. Specifically, on September 18, 2020, prior to Harris's sentencing, the Governor signed Assembly Bill No. 1869, repealing statutory authority for ordering reimbursement of attorney fees as of July 1, 2021 and enacting section 1465.9 to provide: "On and after July 1, 2021, the balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Stats. 2020, ch. 92, § 62.) Therefore, the attorney fee order must be stricken. (People v. Clark (2021) 67 Cal.App.5th 248, 259-260; People v. Greeley (2021) 70 Cal.App.5th 609, 625-627.)
This is reflected in the reporter's transcript, not in the minutes or the abstract of judgment.
DISPOSITION
The judgment is reversed solely to the extent it includes a stayed section 12022.53 firearm enhancement on the murder count. Upon remand, the court is directed to strike that enhancement in the interest of justice under sections 1385 and 12022.53, subdivision (h). The court is further instructed to issue a new order reflecting our modification of the judgment, amend the abstract of judgment in accordance with this opinion, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The trial court is further instructed to issue an order vacating the attorney fee obligation reflected in the reporter's transcript. In all other respects, the judgment is affirmed.
We concur: CHANEY, J. BENDIX, J.