Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD213535 Cynthia Bashant, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Ross Shane Ivy guilty of one count of second degree murder (Pen. Code, §§ 187, subd. (a), 189) (count 1). The jury also found that Ivy personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1) in committing the murder. The trial court sentenced Ivy to an aggregate term of 16 years to life in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Ivy claims that there is insufficient evidence in the record to support the jury's verdict finding him guilty of second degree murder. In addition, Ivy contends that the trial court erred in admitting in evidence certain photographs of the victim. Ivy also raises three claims of error pertaining to the trial court's jury instructions. Specifically, Ivy maintains that the court erred in failing to adequately instruct the jury with respect to the issue of the foreseeability of the victim's death, and with respect to Ivy's right to self-defense. Ivy also claims that the trial court erred in failing to provide a lesser included offense instruction on assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). We reject all of Ivy's claims and affirm the judgment.
As discussed in part III.G., post, the minute order from the sentencing hearing and the abstract of judgment both erroneously state that the trial court imposed a determinate sentence of 16 years. In our disposition, we direct the trial court to prepare an amended abstract of judgment and to file an amended minute order that reflects the trial court's imposition of an indeterminate sentence of 16 years to life.
II.
FACTUAL BACKGROUND
We provide additional discussion of the prosecution's evidence in our discussion of Ivy's sufficiency claim, in part III.A., post.
On April 14, 2008, at approximately 11:45 p.m., the victim, Gregarry Willis, was seated in his wheelchair in the 800 block of F Street in San Diego. Willis had lost the lower part of his left leg in an accident when he was a child. As Ivy walked by Willis, Willis asked Ivy for some change. Ivy responded that he did not have any change. As Ivy passed by, Willis said, "Well, fuck you, faggot."
Ivy turned around, threw something at Willis, punched Willis in the face, and told Willis that he was going to kill him. Willis stood up from his wheelchair, holding a metal crutch. Ivy grabbed Willis's crutch and began to strike Willis in the head with it. After Ivy struck Willis in the head numerous times with the crutch, Willis fell to the ground in an apparent state of unconsciousness. While Willis lay on the ground, Ivy struck Willis in the head again with the crutch. Several bystanders intervened, urging Ivy to stop the attack. Ivy ran from the scene.
When police arrived, they found Willis lying on the ground. Willis appeared to be severely injured, and was bleeding from various parts of his head. The officers found the crutch that Ivy had used in the attack. The crutch was bent and was missing its handle. Paramedics transported Willis to a local hospital.
Willis was pronounced dead at the hospital approximately an hour after the attack. He had suffered severe blunt force trauma injuries to his head. Toxicology tests revealed that Willis had cocaine and alcohol in his blood at the time of the attack. The medical examiner, Dr. Steven Campman, was of the opinion that Willis died from a cardiac arrest caused by blunt force trauma, cocaine and alcohol, and a preexisting heart condition.
B. The defense
1. The charged offense
Eyewitness Sylvia Ward testified that Willis started a fistfight with Ivy, and that Willis hit Ivy lightly with his crutch during the altercation. According to Ward, after Willis hit Ivy with his crutch, Ivy grabbed the crutch from Willis and used it to strike Willis several times in the face, including once while Willis was on the ground.
Ivy testified in his own defense. Ivy stated that the confrontation began when he was walking by Willis and Willis asked him for some change. When Ivy did not respond, Willis called Ivy a "faggot." Ivy said that he tossed a bible to Willis, and Willis responded, "I am going to fucking kill you." As Ivy turned to walk away, he felt Willis punch him in the back and side of his head. Ivy and Willis then struggled briefly, and Willis fell over. Willis stood up and struck Ivy in the head with a crutch. As Willis attempted to strike Ivy again, Ivy grabbed the crutch and struck Willis in the face about four times with it. Willis fell backward and struck his head on the concrete. Ivy maintained that he did not hit Willis in the head while Willis was on the ground. After Willis fell and struck his head on the concrete, Ivy threw the crutch down and left the scene.
Dr. Harry Bonnell, the defense medical expert, testified that in his opinion, Willis died of a heart attack caused by heart disease and Willis's recent use of cocaine and alcohol. Dr. Bonnell testified that blunt force trauma was not the cause of Willis's death. Dr. Bonnell believed that Willis suffered a heart attack during the altercation, which caused him to fall to the ground.
Lisa Dimeo, a forensic specialist, testified that there was a lack of blood spatter at the scene of the attack. Dimeo testified that the lack of blood spatter suggested that Ivy had not struck Willis with the crutch at a time when there was blood on Willis's face.
2. Other incidents
The defense presented evidence that in 2007, Willis had been involved in another altercation in which Willis had yelled insults at a passing pedestrian. Willis chased the pedestrian for a distance as the pedestrian attempted to leave the area.
Ivy acknowledged that he had been involved in an altercation at a homeless shelter with a man named Juan Pena. Ivy claimed that Pena had tried to punch him, and that he had responded by punching Pena.
C. Rebuttal
Juan Pena testified that Ivy assaulted him during a fight in a shelter in July 2006.
III.
DISCUSSION
A. There is sufficient evidence in the record to support the conviction for second degree murder
Ivy claims that there is insufficient evidence in the record to support the jury's verdict finding him guilty of second degree murder (§§ 187, subd. (a), 189) (count 1). Specifically, Ivy contends that there is insufficient evidence in the record that he acted with implied malice.
Ivy asserts, "Appellant was found guilty of second degree murder based on a theory of implied malice." The record does not support Ivy's assertion. The prosecutor argued that the jury could find that Ivy harbored malice aforethought pursuant to a theory of either express or implied malice, and that the jurors were not required to unanimously agree as to which particular theory of malice applied. Further, the trial court instructed the jury on both express and implied malice. Although Ivy contends that the evidence was "insufficient to support any offense greater than involuntary manslaughter, " his legal argument pertains strictly to implied malice. We conclude in the text below that there is sufficient evidence in the record to support the jury's guilty verdict pursuant to an implied malice theory. Accordingly, we need not address whether there is sufficient evidence in the record to support the jury's verdict pursuant to an express malice theory.
1. Governing law and standard of review
a. Sufficiency of the evidence
"A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238, 269, citing Jackson v. Virginia (1979) 443 U.S. 307, 313-324.) In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia, supra, at p. 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
b. Implied malice
Section 187 provides in relevant part, "(a) Murder is the unlawful killing of a human being... with malice aforethought." Section 188 defines malice as follows:
"Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
"When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice."
In People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun), the court observed, "[T]he statutory definition [of implied malice] permits, even requires, judicial interpretation." The Chun court summarized the Supreme Court's interpretation of that term as follows:
"We have interpreted implied malice as having 'both a physical and a mental component. The physical component is satisfied by the performance of "an act, the natural consequences of which are dangerous to life." [Citation.] The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and... acts with a conscious disregard for life." [Citation.]' [Citation.]" (Ibid.)
2. Application
The record contains the testimony of numerous eyewitnesses to the altercation. Viewed in the light most favorable to the judgment, that testimony reveals the following facts. After Willis insulted Ivy, Ivy punched Willis, who was seated in his wheelchair. While Ivy was striking Willis with his fist, he told Willis that he was going to kill him. Ivy then grabbed Willis's crutch from him and began "swinging at [Willis] uncontrollably." Ivy repeatedly swung the crutch with "[a] lot of force, " striking Willis in the head numerous times. One of the blows caused Willis to lose consciousness and collapse to the ground. While Willis lay on the ground motionless, Ivy hit Willis twice in the head with the crutch. In striking Willis in the head with the crutch, Ivy swung the crutch over his head as if he were swinging an ax, and used a tremendous amount of force. Ivy also kicked Willis three times in the head while Willis was lying on the ground. Ivy then ran from the scene.
Clinton Mink, an eyewitness, testified that Ivy hit Willis in the head "like four times."
The prosecutor asked Jessie Perez, an eyewitness, to describe the amount of force that Ivy used in striking this blow. Perez testified, "From a range of one to ten it was a ten."
In addition to this eyewitness testimony, the People presented expert medical testimony concerning the extent of Willis's injuries. Dr. Campman testified that Willis had "at least probably ten areas of hemorrhage" on his head that were caused by at least four separate blunt force impacts. Dr. Campman also testified that Willis suffered a subdural hemorrhage, a subarachnoid hemorrhage, and bruising to the brain itself, i.e.-brain damage. Dr. Campman stated that in his opinion, Willis died of "cardiac arrest during [an] altercation with blunt force head trauma due to cocaine and ethanol toxicity and hypertrophic cardiomyopathy." Based on this testimony, the jury could reasonably have found that Willis died of a heart attack that was caused by a combination of factors, including blunt force head trauma, Willis's recent use of cocaine and alcohol, and Willis's preexisting heart disease.
Dr. Campman explained that Willis could have died from the brain damage that he suffered during the attack if he had not died of a heart attack first.
Under these circumstances, the jury could have reasonably found that Ivy committed " 'an act, the natural consequences of which [were] dangerous to life, ' " that Ivy knew "that his conduct endanger[ed] the life of another, " and that Ivy acted " 'with a conscious disregard for life.' " (Chun, supra, 45 Cal.4th at p. 1181, citations omitted.) While Ivy contends that "malice can be implied only when [a] beating is so brutal that death is a probable consequence, " the jury could have reasonably found that Willis's death was a probable consequence of the beating by Ivy.
We reject Ivy's contention that either People v. Munn (1884) 65 Cal. 211, 213 (Munn) or People v. Spring (1984) 153 Cal.App.3d 1199 (Spring) requires a different result. As Ivy acknowledges, "Appellant's assault... was more serious than the assaults in... Munn or Spring." We agree. Unlike the "two or three blows with [a] fist" as were at issue in Munn, supra, at page 212, or the "single punch" at issue in Spring, supra, at page 1206, Ivy repeatedly struck Willis in the head with a metal object. (See Munn, supra, at p. 213 ["In the trial of cases of homicide committed by violence it is almost always important to consider the character of the weapon with which the homicide was committed, and all through the cases great emphasis is laid on the fact that a weapon likely to produce death was used by the accused"].)
We reject Ivy's contention that cases in which the defendant appealed a manslaughter conviction such as People v. Morgan (1969) 275 Cal.App.2d 603, abrogated on another ground as stated in People v. Cox (2000) 23 Cal.4th 665, 675, and People v. Jackson (1962) 202 Cal.App.2d 179, 183, are relevant to the question whether there is sufficient evidence to support Ivy's second degree murder conviction. Even assuming that the defendants in Morgan and Jackson had committed acts similar to Ivy's, the fact that these defendants were convicted of manslaughter is not relevant to the question whether there is sufficient evidence to support Ivy's conviction for murder.
Accordingly, we conclude that there is sufficient evidence in the record to support the jury's verdict finding Ivy guilty of second degree murder.
B. The trial court did not err in admitting in evidence two photographs of Willis while he was alive, and five autopsy photographs
Ivy claims that the trial court erred in admitting in evidence two photographs of Willis while he was alive, and five autopsy photographs. Ivy contends that the photographs were inflammatory and unduly prejudicial, and were therefore inadmissible pursuant to Evidence Code section 352.
1. Factual and procedural background
Prior to trial, the People filed a motion in limine in which they requested permission to introduce the photographs at issue. Two of the photographs depict Willis while he was alive. One of the photographs shows Willis standing, resting his right arm on the hood of a car. One can clearly see in the photograph that Willis's left leg had been amputated. The second photograph shows Willis in a seated position, smiling. Three of the autopsy photographs are of Willis's face, and depict facial trauma, including injuries to his left eye and nose. Two of the autopsy photographs are of Willis's mouth, and show swelling and scraping of his lip.
In their motion, the People argued that the cause of Willis's death and whether Ivy had acted in self-defense were contested issues in the case. The People maintained that the autopsy photographs would be useful to illustrate their medical expert's testimony concerning the cause of death. The People also explained that the photographs depicted significant facial trauma, and were therefore relevant to prove the amount of force that Ivy used in striking Willis. The People argued that the photographs of Willis while he was alive were relevant to establish a baseline of what his face looked like before the attack, which could be contrasted with photographs taken after the beating. The People also noted that the photographs of Willis taken while he was alive depicted his physical condition, including his inability to stand without holding onto another object. The People argued that these photographs were relevant to disprove Ivy's anticipated self-defense claim.
Ivy objected to the admission of the autopsy photographs. Ivy claimed that the court should not admit the autopsy photographs in evidence because they depicted excessive amounts of swelling to Willis's face. Ivy also argued, "[T]hey [the jurors] are going to think that I did all this to him. This is hours after."
At the time of the hearing on the motion in limine, Ivy was representing himself.
The trial court ruled that it would admit the photographs. With respect to the autopsy photographs, the court reasoned:
"I understand your objection. At this point I will admit those. I have looked at them. I understand one of the issues in this case is the cause of death. I think the People have an obligation to prove that. I think under [Evidence Code section] 352 these are extremely probative. I think they are prejudicial but I think the probative value outweighs the prejudice. I don't think there is an excessive number. I don't think they are excessively-given the crime that is alleged in this case, they are not geared towards the passions of the jury as opposed to the just factual evidence of what happened. [¶] So I do think that the probative value outweighs the prejudice and I will admit the photos that were presented by [the prosecutor]."
At trial, Willis's mother testified concerning the photographs of Willis taken while he was alive. She explained that Willis had lost the lower portion of his left leg in an accident when he was a child.
During the trial, outside the presence of the jury, defense counsel renewed the objection to publication of the autopsy photographs to the jury. The trial court overruled the objection, noting its previous ruling on the motion in limine. The prosecutor presented the autopsy photographs to the jury during the direct examination of Dr. Campman. Dr. Campman stated, generally, that the photographs were consistent with the victim having suffered blunt force trauma.
Later during the trial, outside the presence of the jury and over defense counsel's objection under Evidence Code section 352, the court admitted in evidence both the photographs of Willis taken while he was alive, and the autopsy photographs.
2. Governing law and standard of review
In People v. Cowan (2010) 50 Cal.4th 401, 475 (Cowan), the defendant claimed that the trial court erred, pursuant to Evidence Code section 352, in admitting several postmortem photographs of two murder victims, as well as a photograph of one of the victims taken while the victim was alive. The Supreme Court outlined the law governing the defendant's claim:
"Evidence Code section 352 permits the trial court, in its discretion, to exclude relevant evidence 'if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice of confusing the issues, or of misleading the jury.' As we have explained, ' " '[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant' " [citations], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [citation]. A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.' [Citation.]" (Cowan, supra, at p. 475.)
The Cowan court rejected the defendant's claim that the trial court erred in admitting the postmortem photographs, stating, "a prosecutor is not required to rely solely on oral testimony when a visual image would enhance the jury's understanding of the issues." (Cowan, supra, 50 Cal.4th at p. 476; see also People v. Loker (2008) 44 Cal.4th 691, 704-705 [concluding trial court did not abuse its discretion in admitting autopsy photograph of murder victim to demonstrate prosecution's theory of how murder was committed, and to illustrate coroner's testimony].)
The Cowan court also concluded that the trial court had not abused its discretion in admitting the photograph of the murder victim taken when the victim was alive. The Cowan court reasoned:
"Finally, the trial court did not abuse its discretion by admitting the photograph of Alma Merck while alive. Although the photograph is somewhat grainy, defendant concedes, as he must, that it was relevant to show that Alma had worn a ring similar to the ring recovered from defendant's sister, Catherine Glass. Moreover, defendant fails to persuade us that the photograph, which the trial court described as 'grandmotherly, ' was unduly inflammatory. (See People v. Davis [(2009) 46 Cal.4th 539, 615] [school portrait of young female victim not 'unduly inflammatory'].) Indeed, the 'possibility that [the photograph] generated sympathy for the victim [ ] [was] not enough, by itself, to compel its exclusion' given its relevance. (People v. DeSantis (1992) 2 Cal.4th 1198, 1230; but see People v. Kelly (1990) 51 Cal.3d 931, 963 ['marginally relevant' photograph of young victim 'probably should have been excluded'].)" (Cowan, supra, 50 Cal.4th at p. 477.)
3. Application
The issues of the cause of Willis's death, and whether Ivy had acted in self-defense, were hotly contested at trial. The autopsy photographs were relevant to both issues. Specifically, the autopsy photographs were relevant to prove the amount of force that Ivy had used in beating Willis, and were also useful to illustrate the medical examiner's testimony regarding the victim's injuries. While Ivy contends that the photographs were cumulative to the medical expert's testimony concerning Willis's injuries, the prosecution was not required to rely solely on oral testimony concerning the physical manifestation of the victim's injuries. (See People v. Brasure (2008) 42 Cal.4th 1037, 1054 ["The photographs were not cumulative to the testimony of the police detectives and medical examiner; rather, they illustrated that testimony and made its import clearer to the jury"].) Finally, the autopsy photographs were not nearly as gruesome as those described in People v. Marsh (1985) 175 Cal.App.3d 987, 996, the principal case that Ivy cites. (See ibid. ["Another [photograph] shows an almost full view of the victim's nude body the closeup portion of which is the exterior surface of the exposed brain below which dangles part of the bloody scalp and in the background of which is the child's blood-splattered torso 'field dressed' with the ribcages rolled back to expose the bowels"].)
The photographs of Willis that were taken while he was alive also were relevant to the issues of cause of death and self-defense, in that they helped to establish the condition of Willis's face prior to the beating, and demonstrated that Willis had difficulty standing unassisted. The trial court could have reasonably determined that the probative value of these photographs was not substantially outweighed by the possibility of unfair prejudice. (See Cowan, supra, 50 Cal.4th at p. 477.)
Ivy argues that, "an objection under Evidence Code section 352 is adequate to preserve a federal due process claim, " and contends that the admission of the photographs also violated his right to due process and a fair trial. In light of our rejection of Ivy's claim under Evidence Code section 352, we also conclude that the admission of the photographs did not violate Ivy's right to due process and a fair trial. (People v. Loker, supra, 44 Cal.4th at p. 704, fn. 7 ["No separate constitutional discussion is required... when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised for the first time here"].)
C. The trial court did not err in instructing the jury with respect to second degree murder
Ivy contends that the trial court erred in instructing the jury with respect to second degree murder. Specifically, Ivy maintains that the trial court's second degree murder instruction was deficient because it did "not include the requirement that the death of the victim be a foreseeable result of the defendant's actions."
1. Relevant law
a. The law governing jury instruction claims
Appellate courts determine de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial 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.]" (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.) "A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case. [Citation.]' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246.)
b. The elements of murder
"Murder is the unlawful killing of a person with malice aforethought. [Citation.] Murder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, an act of either the defendant or an accomplice must be the proximate cause of death. [Citations.]" (People v. Concha (2009) 47 Cal.4th 653, 660, italics omitted.) " 'A proximate cause of... death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the... death and without which the... death would not have occurred.' " (People v. Bland (2002) 28 Cal.4th 313, 335, citation omitted; see also People v. Roberts (1992) 2 Cal.4th 271, 320 (Roberts).)
" 'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citation.]' [Citation.]" (Chun, supra, 45 Cal.4th at p. 1181.)
2. The trial court's second degree murder instruction
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 520, as follows:
"The defendant is charged in count one with second degree murder. To prove that the defendant is guilty of this crime the People must prove that:
"One, the defendant committed an act that caused the death of another person.
"Two, when the defendant acted, he had a state of mind called malice aforethought.
"And, three, he killed without lawful excuse or justification.
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if he unlawfully intended to kill.
"The defendant acted with implied malice if:
"One, he intentionally committed an act.
"Two, the natural consequences of the act were dangerous to human life.
"Three, at the time he acted, he knew his act was dangerous to human life.
"And, four, he deliberately acted with conscious disregard for human life.
"Malice aforethought does not require hatred or ill will towards the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
"An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
"In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death."
3. The jury's question concerning natural and probable consequences, and the trial court's response
During deliberations, the jury sent the trial court a noted that stated:
"'When the defendant acted, he had a state of mind called malice aforethought... [.]' At the time he acted, he knew his act was dangerous to human life.' [¶] Are we deciding if a reasonable person would know the act was dangerous to human life, or if Ross Ivy knew the act was dangerous to human life? [¶] 'A natural [and] probable consequence is one that a reasonable person would know is likely to happen....' "
The court responded with a note that stated:
"Implied malice requires that Ross Ivy actually knew his act was dangerous to human life. [¶] 'A natural and probable consequence' refers to an act that is a cause of death and requires that a reasonable person know the natural [and] probable consequence is likely to happen if nothing unusual intervenes. This is a different analysis from that required to find malice aforethought."
4. Application
Ivy contends that the trial court was required to specifically instruct the jury that it had to determine whether Willis's death was a "foreseeable result of appellant's conduct." We assume that Ivy is correct that a defendant may not be found guilty of second degree murder based on a death that was not reasonably foreseeable. (See Roberts, supra, 2 Cal.4th at pp. 321-322 ["A result cannot be the natural and probable cause of an act if the act was unforeseeable"].) However, in this case, the trial court instructed the jury that "[a] natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." The court provided a similar instruction in responding to one of the jury's questions during deliberations. Ivy presents no argument as to any claimed difference between a result that is "foreseeable, " and one "that a reasonable person would know is likely to happen if nothing unusual intervenes." Nor has Ivy cited any case that indicates that the trial court was required to use the word "foreseeable" in describing the causation element of the offense of murder. Ivy thus has not demonstrated that the trial court erred in failing to adequately instruct the jury that in order to find Ivy guilty of second degree murder, it was required to find that Willis's death was a foreseeable result of Ivy's actions. (See People v. Fiu (2008) 165 Cal.App.4th 360, 372 ["foreseeability is an important component of causation, but... language... requiring an injury or death to be a direct, natural, and probable consequence of a defendant's act necessarily refers to consequences that are reasonably foreseeable"].)
We reject Ivy's claim that the jury instruction on murder was erroneous because it informed the jury that " '[a]n act causes death only if it is a substantial factor in causing the death, ' " and defined a substantial factor as one that is more " 'than a trivial or remote factor.' " Ivy argues, "[a] trivial factor or remote factor is a substantially lower standard than a foreseeable result." However, nothing in the instruction suggested that the jury could ignore the requirement that the victim's death also be the "natural and probable consequence" of the defendant's act. Reasonably interpreted, the trial court's instruction informed the jury that an act causes death if the death is the direct, natural and probable consequence of the act, and the act is a substantial factor in causing death.
We also reject Ivy's contention that the prosecutor's closing argument, insofar as it focused on the "substantial factor" component of the causation element of murder, requires reversal. In his rebuttal closing argument, the prosecutor argued:
In his reply brief, Ivy argues, "[t]he prosecutor's arguments were relevant to determine how the jury likely understood the instructions the trial court gave."
"Natural and probable consequences. It is confusing language, but it doesn't say what [defense counsel] seemed to be implying. It does not require that the defendant knows anything about the victim's condition. It addresses the cause of death, along with a substantial factor. A reasonable person-and this is natural and probable consequence. A reasonable person would know that the natural and probable consequence of the act is likely to happen."
The prosecutor's closing argument thus correctly suggested that the jury was required to consider both whether Willis's death was a natural and probable consequence of Ivy's act, and whether Ivy's act was a substantial factor in causing Willis's death. In any event, even assuming that the prosecutor mischaracterized the causation element, we presume that the jury followed the trial court's instructions, which were legally correct in all respects. (People v. Osband (1996) 13 Cal.4th 622, 717 ["When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]"].)
D. The trial court did not err in instructing the jury concerning Ivy's right of self-defense
Ivy contends that the trial court erred in instructing the jury with respect to his right of self-defense. We apply the de novo standard of review to this contention. (See People v. Posey, supra, 32 Cal.4th at p. 218.)
1. The trial court's self-defense jury instructions
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 505, in relevant part, as follows:
"The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. [¶] The defendant acted in lawful self-defense if:
"One, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury.
"Two, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
"And, three, the defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The 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 wasn't justified.
"When deciding whether the defendant's beliefs were reasonable consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed.
"If the defendant's beliefs were reasonable, the danger does not need to have actually existed. A defendant is not required to retreat. He is entitled to stand his ground and defend himself, and if reasonably necessary to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating."
The trial court also instructed the jury with a modified version of CALCRIM No. 3474 as follows:
"The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury then the right to use force ends."
2. Relevant law
a. The law governing claims of jury instruction error
In reviewing Ivy's claim, as described in detail in part III.C.1, ante, we consider the relevant jury instructions as a whole to determine whether the trial court properly instructed the jury on the applicable law.
b. Relevant principles of law governing the right of self-defense
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.]... To constitute 'perfect self-defense, ' i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) "[T]he right of self-defense is based upon the appearance of imminent peril to the person attacked. When that danger has passed and the attacker has withdrawn, there can be no justification for the use of further force." (People v. Perez (1970) 12 Cal.App.3d 232, 236.)
In People v. Minifie (1996) 13 Cal.4th 1055, 1068, the Supreme Court explained that "reasonableness" is the touchstone of the right to self-defense:
"[T]he law recognizes the justification of self-defense... because the defendant acted reasonably under the circumstances. Reasonableness is judged by how the situation appeared to the defendant, not the victim. As the Court of Appeal noted, 'Because "[j]ustification does not depend upon the existence of actual danger but rather depends upon appearances" [citations], a defendant may be equally justified in killing a "good" person who brandishes a toy gun in jest as a "bad" person who brandishes a real gun in anger.' If the defendant kills an innocent person, but circumstances made it reasonably appear that the killing was necessary in self-defense, that is tragedy, not murder."
3. Application
Ivy contends that the trial court's self-defense instructions were erroneous in two respects. First, Ivy claims that the trial court's instructions "allowed appellant to use only the amount of force that was actually necessary to defend himself rather than the amount of force he reasonably believed was necessary to defend himself." We disagree. The trial court instructed the jury, "The defendant is only entitled to use the amount of force that a reasonable person would believe is necessary in the same situation." (Italics added.) The trial court thus properly instructed the jury that Ivy was permitted to use the amount of force that he reasonably believed was necessary to defend himself.
Ivy also contends that it was improper for the trial court to instruct the jury both that a defendant may "use[] no more force than [is] reasonably necessary, " and that "[w]hen the attacker... no longer appears capable of inflicting any injury then the right to use force ends." Ivy contends that these instructions improperly suggested to the jury that it should find that Ivy forfeited all of his right to self-defense, if it found that he committed any acts of force after the danger had abated. Ivy contends that such instructions were erroneous and prejudicial on the facts of this case, because he acted in lawful self-defense prior to the time Willis fell to the ground, and that any unjustified force that he may have used after Willis was on the ground did not cause Willis's death.
We disagree with Ivy's claim that the jury could have reasonably understood the trial court's instructions to suggest that if it found that Ivy used force after the danger had abated, the jury could not find that he acted in self-defense while the danger existed. The trial court's modified version of CALCRIM No. 3474 stated that the right to use force "continues" as long as the danger reasonably appears to exist. In addition, the trial court's modified version of CALCRIM No. 505 emphasized that the jury was to consider whether Ivy was justified in responding to the "danger" and in "killing" another person. We conclude that the trial court's jury instructions did not improperly suggest that a defendant forfeits any right to self-defense if the defendant uses force after the danger has abated. Accordingly, we conclude that the trial court did not err in instructing the jury with respect to self-defense.
In light of our conclusion, we need not consider Ivy's factual contentions regarding prejudice.
E. The trial court did not err in failing to instruct the jury on assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) as a lesser included offense of murder
Ivy contends that the trial court erred in failing to instruct the jury on the offense of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), as an alleged lesser included offense of the offense of murder. Ivy acknowledges that assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) is not a lesser included offense of murder. However, he argues that trial court was required to provide a lesser included offense instruction in this case because the accusatory pleading alleged, as a sentencing enhancement, that Ivy used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in committing the charged offense of murder. Ivy reasons, "If the deadly weapon enhancement is considered an element of the crime of murder, the evidence raised a question of fact regarding appellant's guilt of assault with a deadly weapon or means of force likely to cause great bodily injury in violation of Penal Code section 245, subdivision (a)." This claim raises a question of law, which we review de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
In People v. Wolcott (1983) 34 Cal.3d 92, 96 (Wolcott), the California Supreme Court held that "a 'use' enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses." The court explained that, pursuant to the accusatory pleading rule, an uncharged crime is included in a greater charged offense if the language of the accusatory pleading encompasses all of the elements of the lesser offense. (Id. at p. 98.) The Wolcott court reasoned that the rationale for the accusatory pleading rule did not apply in the context of enhancements:
It is undisputed that an allegation that a defendant used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in the commission of a crime is a " 'use' enhancement" as that term is used in Wolcott, supra, 34 Cal.3d at page 96.
"That rule rests on principles of due process-that a defendant cannot be convicted of a charge unless he has received notice from the accusatory pleading that he may be called upon to defend against the charge. [Citation.] The application of those principles to an enhancement allegation, however, is unclear since that allegation becomes relevant only if the defendant is convicted of the substantive crime. Thus a defendant who has a good defense to a robbery charge may not be on notice that he should nevertheless controvert a 'use' enhancement to protect against conviction for a lesser offense of assault with a deadly weapon.
"But even if California could constitutionally consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses, we see no reason to adopt that course. Not only is the weight of authority against it, but the result would be to confuse the criminal trial. Present procedure contemplates that the trier of fact first determines whether the defendant is guilty of the charged offense or a lesser included offense, and only then decides the truth of any enhancements. [Citation.] The sentencing judge then decides whether to use the fact found as an enhancement to impose the upper term of the sentence, or to enhance the sentence. [Citation.] This orderly, step-by-step procedure would become muddled if evidence of the enhancement must be considered in determining guilt of a lesser offense." (Wolcott, supra, 34 Cal.3d at p. 101.)
Ivy concedes that his claim fails under Wolcott, but contends that Wolcott is "no longer good law" in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. We are not persuaded. To begin with, the California Supreme Court has twice reaffirmed the holding of Wolcott in cases in which the court considered whether Apprendi requires that sentence enhancements be treated as legal elements for purposes of applying the rule that prohibits multiple convictions based on necessarily included offenses. (People v. Sloan (2007) 42 Cal.4th 110, 114; People v. Izaguirre (2007) 42 Cal.4th 126, 130, fn. 4.)
"In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged.' [Citations.] But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses." (People v. Montoya (2004) 33 Cal.4th 1031, 1034, italics omitted.)
Further, there is nothing in the reasoning of Apprendi that undermines the validity of Wolcott. In Apprendi, supra, 530 U.S. at page 490, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Although the Apprendi court stated that any sentencing provision that increases the penalty for a crime beyond the statutory maximum is the "functional equivalent" of an element of a greater offense for purposes of a defendant's federal constitutional rights to a jury trial (id. at p. 494 & fn. 19), "to say that a penalty provision must sometimes be treated as the 'functional equivalent' of an element for claims arising under the federal Constitution does not mean such provisions are now elements for all purposes under California law." (People v. Anderson (2009) 47 Cal.4th 92, 117, fn. omitted (Anderson).)
As the California Supreme Court explained in Anderson, "[T]he constitutional requirements of Apprendi apply only when a penalty or enhancement has the potential to increase a defendant's punishment beyond the statutory maximum. [Citation.] When such an increase is not possible, Apprendi does not apply." (Anderson, supra, 47 Cal.4th at p. 117, fn. 11.) Thus, Apprendi does not apply to a court's determination of whether an uncharged offense is a lesser included offense of a greater charged offense, since such a determination does not have the potential to increase a defendant's punishment beyond the statutory maximum. Under these circumstances, we see no basis for concluding that Apprendi has undermined the "longstanding rule that enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses." (People v. Sloan, supra, 42 Cal.4th at p. 114.)
Ivy also claims that the equal protection clauses of the state and federal constitutions require that California abandon this long-standing rule. Ivy argues that a "defendant who is charged solely with a substantive crime is similarly situated to a defendant who is charged with a substantive crime and an enhancement." We disagree. Such persons are not similarly situated because a defendant who is charged with a substantive offense and an enhancement "is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense." (People v. Wims (1995) 10 Cal.4th 293, 307, overruled on another ground by People v. Sengpadychith (2001) 26 Cal.4th 316, 326; accord People v. Izaguirre, supra, 42 Cal.4th at p. 134 ["By definition, an enhancement is 'an additional term of imprisonment added to the base term.' [Citations.] For that reason alone, an enhancement cannot be equated with an offense"].)
We conclude that the trial court was neither required, nor permitted, to consider the deadly and dangerous weapon sentence allegation (§ 12022, subd. (b)(1)) attached to the charged offense of murder for purposes of identifying lesser included offenses of that count. The trial court thus did not err in failing to instruct the jury on assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) as a lesser included offense of murder.
In light of our conclusion, we need not consider whether Ivy is correct that the "combined elements of the murder allegation and the deadly weapon enhancement contained all the elements of felony assault, " or whether the evidence supported the giving of a felony assault instruction in this case.
F. Ivy has not demonstrated that his counsel provided ineffective assistance
Ivy argues, "In the event this Court deems [his claims of instructional error] waived or forfeited based on defense counsel's failure to object to the instructions or to make a specific request for instruction, then appellant received ineffective assistance of counsel...." We have not deemed any of Ivy's jury instruction claims waived or forfeited on appeal, and we have rejected all of Ivy's claims on the merits. Ivy has therefore not demonstrated that his counsel provided ineffective assistance.
G. The abstract of judgment and sentencing hearing minute order must be corrected
The transcript of Ivy's sentencing hearing reveals that the trial court orally imposed an indeterminate sentence of 16 years to life. However, the sentencing hearing minute order and the abstract of judgment both state that the trial court imposed a determinate sentence of 16 years. Because the oral pronouncement of sentence controls, and the minute order and abstract of judgment specify an unauthorized sentence for second degree murder (§ 190), the minute order and abstract must be corrected. (See People v. Wynn (2010) 184 Cal.App.4th 1210, 1221.)
The parties have not addressed this error in their briefs on appeal. However, we may correct such an error sua sponte. (See People v.Serrato (1973) 9 Cal.3d 753, 763, disapproved on another ground by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [unauthorized sentence may be corrected "whenever the error [comes] to the attention of the trial court or a reviewing court"].)
IV.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment and to file an amended minute order reflecting the imposition of an indeterminate sentence of 16 years to life. The trial court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitations. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.