Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA070193, Laura F. Priver, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant, Appellant and Respondent.
Steve Cooley, District Attorney, Brentford Ferreira and Susan K. Dozier, Deputy District Attorneys, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant and appellant Juan Manuel Linares of second degree murder with the personal use of a firearm. (Pen. Code, §§ 187, 12022.53, subd. (b).) In a bifurcated proceeding, the trial court found that Linares suffered a prior felony conviction for robbery under the “Three Strikes” law. (§§ 1170.12, subds. (a) & (d), 667, subds. (a)-(i).) The trial court did not find that the same conviction was a serious felony under section 667, subdivision (a) (section 667(a)). The trial court thereafter sentenced Linares to an aggregate term of 40 years to life in state prison. Both Linares and the People filed the appeals that come before us today. Linares contends the trial court erred by erroneously admitting gang and tattoo evidence, improperly instructing the jury, and the improperly denying a jury view. The People appealed the trial court’s determination that Linares’s prior conviction was “true” under section 1170.12, but “not true” under section 667(a). We reject Linares’s claims and affirm his conviction. However, we agree with the People that the trial court erred in failing to find the prior robbery conviction a serious felony under section 667(a) and therefore reverse in part with directions to modify the abstract of judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS
1. The Shooting.
In 2007, Yesenia Macias worked at a recycling company where Linares worked; though Linares was married, the two began a romantic relationship. On July 1, 2007, Macias planned to go to the movies with Linares. Before watching the movie, the two agreed to go to the Towne House Motel on Main Street, in Alhambra, for a romantic interlude. Around 7:00 p.m., they arrived at the motel. Macias parked in a secluded spot in the parking lot so that Linares’s wife would not recognize the car.
The reporter’s transcript incorrectly states Townhouse Motel.
Around 7:00 p.m. on July 1, 2007, Evette Martinez, who lived behind the motel, heard a couple arguing. After approximately five minutes of arguing, Martinez heard a bang and someone say “Oh my god” three to four times. Martinez’s boyfriend, Garrett Kurai, also heard the gunshot and the scream of “Oh my god.” Martinez described the voice as high-pitched, or in a panic. Kurai described the voice as “like Asian.” After hearing the statements, Martinez heard a car drive off, with its tires screeching. She peeked out the window to see a dark Honda driving out of the alley. Martinez and Kurai then called 911.
Shortly after 7:00 p.m., Alhambra Police (AP) Officer Marisabel Orozco responded to a suspicious noise call at the motel. Specifically, a citizen had reported a loud bang in the alley, followed by a male voice yelling “Oh my god.” The same party reported seeing a Honda driving off eastbound in the alley. Orozco checked the area but did not see anything suspicious. Later that evening, AP Officer Kenny Le arrived at the motel and inspected the premises for evidence of the crime. He spoke with the motel clerk and some of its occupants and obtained a surveillance tape. Le contacted Linares sometime later and collected gunshot residue samples from both of Linares’s hands.
The Los Angeles Sheriff’s Department dispatched Deputies Angel Fonseca and Xochilt Rosas to Los Angeles Community Hospital (Community Hospital), located on East Olympic Boulevard in East Los Angeles, where Linares had driven Macias. Fonseca made contact with Linares, and Rosas interviewed him twice. Rosas was present when Macias was transported to County/University of Southern California Hospital (County/USC), as Community Hospital was not equipped to handle emergency trauma. Rosas observed Linares made no attempt to see Macias. Macias was admitted to County/USC at 9:13 p.m.
Meanwhile, Community Hospital called for assistance, and Los Angeles Police Department (LAPD) Detective Gilbert Silva arrived at the hospital at 9:40 p.m. Silva spoke to Deputy Fonseca, who informed him that Macias had been taken to County/USC. He pointed out Macias’s boyfriend, Linares, who was sitting on a retaining wall outside the Community Hospital near a Honda Accord. Detective Silva inspected the Honda and saw that its windows were rolled down. He saw blood on the seat and head rest of the front passenger seat, which was almost fully reclined. After inspecting the car, Silva spoke to Linares. Linares told Silva that he drove Macias to Community Hospital. Silva described Linares’s demeanor as peculiar. He was staring downward, focused and thoughtful. Deputy Rosas, who had observed Linares when Macias was transported to County/USC, found it significant that Linares was not emotional because most family members of shooting victims are emotional.
Macias died at 10:50 p.m.
2. Linares’s Statements to Law Enforcement.
Detective Silva, in an effort to determine where the crime had been committed, asked Linares what happened. Linares stated that he had been sitting in the driver’s seat and Macias was sitting in the front passenger seat. He stated that as he was getting out of the car, he heard one shot and then ducked down. Linares told Silva that when he looked up, Macias had been shot. Linares said he did not see the shooter. Linares admitted that the shooting occurred at the motel. Linares identified the Honda as the car Macias had been in at the time of the shooting.
At around 11:00 p.m., Officer Orozco arrived at Community Hospital “to determine where the incident happened at first.” Orozco found Linares seated on a retaining wall in front of Community Hospital. Linares was putting his hands in the pockets of his baggy pants and appeared nervous. His shirt had blood on it. Orozco asked Linares if he had washed his hands; Linares stated that he had. Orozco asked Linares what happened. Linares stated that the shooting had occurred at the motel. Linares said that he and Macias were parked in the parking lot. As he was getting out of the vehicle, he heard a single gunshot and ducked down. He stated that he saw that Macias was slouching and attempted to wake her. Linares said he tried to check Macias’s pulse, found a low heart rate and then took Macias to the hospital immediately.
Officer Orozco spoke to Linares again. This time, Linares added that he saw an Asian male in the parking lot of the motel and asked him to call the police. Orozco never located the Asian male. Linares had $1,700 in his pocket when he was arrested. When first asked about the money, Linares told Orozco that the money came from income taxes. He later stated it was from a child custody dispute.
At trial, after being shown a photograph of Linares with “FU” tattoos on his eyelids, Orozco identified the individual in the photograph as the one whom she contacted at the hospital. Orozco also identified Linares in court.
Deputy Angel Fonseca also talked to Linares that night. Fonseca asked him who was in the operating room; Linares responded that it was his girlfriend. In response to Fonseca’s question, Linares was unable to say where the shooting took place. Fonseca’s partner, Deputy Rosas, interviewed Linares twice. The first time, Linares stated that he was outside of the car, walking to pay for the motel, when he heard a single shot and then saw Macias slumped over. He stated he drove Macias to the nearest hospital. During the second interview, Linares stated that he was inside the car, with his left foot outside the car, when he heard a single gunshot and saw the victim slumped over.
Deputy Rosas, who was working patrol at the time, identified County/USC as the hospital closest to Towne House Motel with an emergency room. AP Detective Kevin Laing also went to Community Hospital that night. He identified both Alhambra Hospital and County/USC as being closer to the motel than Community Hospital. Each hospital was within a few minutes of the motel. Sheriff’s Detective Timothy Cain testified that it took him 20 to 30 minutes to drive from the motel to Community Hospital.
Linares was arrested, taken to the AP station and was read his Miranda rights. After waiving his rights, he agreed to speak with the officers. Detective Laing described Linares as being evasive. In response to Laing’s questions, Linares stated that the shooting was not an accident and that Macias had not killed herself. Detective Cain read Linares his Miranda rights a second time and interviewed him again after he waived his rights a second time. Linares told Cain that Macias picked him up and they drove to the motel. Macias was leaning forward, even though the seat was reclined. Linares heard a bang, looked over and saw that Macias had been shot in the neck. He checked for a pulse, and then drove away. In describing his route, Linares stated that he drove through Alhambra, onto the 710 Freeway to East Los Angeles. Linares exited at Olympic Boulevard and drove to Community Hospital. He never used his cellular telephone to call for help. However, when he arrived at the hospital, a female used his cellular telephone to call 911.
(Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
3. The Forensic Evidence.
Multiple expert witnesses testified regarding forensic evidence. Deputy Edmund Anderson testified as a firearms identification expert. Anderson examined the bullet taken from Macias’s body and opined that the bullet was consistent with a bullet fired from a.38-caliber or.357 Magnum cartridge. The bullet could have been fired from a semiautomatic handgun or a revolver.
Anderson further testified that gunshot residue would be found on the perpetrator’s hands and the car if the weapon was fired within the car. Anderson opined that he would not expect large amounts of gunshot residue to be found if the weapon was fired more than five to six feet outside the vehicle.
Senior Criminalist Joseph Cavaleri testified regarding the gunshot residue evidence. He found only two particles consistent with gunshot residue from the exterior of the Honda. Multiple particles were found within the Honda: on the sun visor, headrest, front driver’s seat, steering wheel and gear shift. Cavaleri found numerous particles consistent with gunshot residue from Linares’s hands. Cavaleri also testified that hand washing would remove gunshot residue particles from the hands. Finally, Cavaleri opined that the gunshot residue found was consistent with a gun being fired from within the vehicle or within 10 feet outside the car door window.
Senior Criminalist Cristina Gonzalez testified about the stains on Linares’s clothing. She examined Linares’s clothing and determined that the stains were blood stains. She opined that the blood spatter on Linares’s clothing was consistent with a single contact gunshot to base of the skull. Dr. Susan Selser, a Los Angeles County deputy medical examiner, testified regarding cause of death. Selser testified that Macias died as a result of a gunshot wound to her neck. Selser further opined that the gunshot wound was consistent with a contact gunshot wound, where the weapon is pressed against the skin.
4. The Defense Evidence.
The defense presented a stipulation stating that there was a surveillance videotape on July 1, 2007, depicting both persons and cars which could not be identified.
5. The Jury Instructions.
At the end of the evidence, the court conducted a conference regarding the jury instructions. Counsel for defendant requested a jury instruction on involuntary manslaughter. The court declined to give the requested instruction stating that the evidence did not show that the shooting was an accident. No further objections were noted. As a result, the court read substantive instructions for: (1) murder (CALCRIM Nos. 500 and 520); (2) degrees of murder (CALCRIM No. 521); (3) provocation (CALCRIM No. 522); and (4) voluntary manslaughter, heat of passion (CALCRIM No. 570).
Following closing argument, the jury deliberated for approximately two days. The jury found Linares guilty of second degree murder (§ 187) and found true the allegation that Linares personally used a firearm. (§ 12022.53, subd. (b).)
The Trial on Linares’s Prior Conviction.
Linares waived trial by jury on the prior and a bifurcated court trial ensued. The People presented evidence from a forensic identification specialist and certified conviction documents. After the court received the evidence and both sides rested, it stated: “The court will find the prior conviction for a violation of... section 211 to be true.” The court went on: “I would note, however, that it’s not a 667(a)(1) prior because the defendant was never sentenced to state prison, so I’ll find the allegation pursuant to 667(a)(1) to be not true.” At a later proceeding, the court noted that it had erred in its finding that Linares’s prior robbery conviction was not true for purposes of section 667(a)(1) because that section does not, in fact, require that a defendant receive a state prison sentence.
In calculating Linares’s credits, the court gave Linares credit for 410 actual days in custody and an additional 61 good time/work time credits, accrued at a rate of 15 percent.
Linares filed a timely notice of appeal (B221432). The People also filed a timely notice of appeal (B220489).
DISCUSSION
Linares contends his conviction should be reversed because: (1) the court erroneously admitted tattoo and gang evidence; (2) the prosecutor committed misconduct; (3) Linares received ineffective assistance; (4) the court erred in failing to grant defendant’s motion to view the scene of the murder; and, (5) the court erred in instructing the jury. We disagree with Linares’s claims and affirm the conviction. We agree with the People, however, that the prior conviction should have been found to be a serious felony within the meaning of section 667(a)(1) and order that the abstract of judgment be corrected.
The Tattoo and Gang Evidence.
Linares first contends the trial court erred by admitting evidence that: (1) he had “FU” tattooed on his eyelids, (2) he had other tattoos, and (3) he was affiliated with a gang. We find each lacking merit.
In assessing whether the trial court erred in admitting evidence, we apply the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1132.) Such an error will not be reversed on appeal absent a showing that the court exercised its discretion in “ ‘an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Any “[e]rror in the admission of evidence warrants reversal only if it is reasonably probable a result more favorable to the appellant would have been reached in the absence of the error.” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1446, citing People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.)
At sidebar before Officer Orozco’s testimony, counsel for Linares objected to the use of a photograph, People’s exhibit 9 (People’s 9), showing Linares with “FU” tattoos on his eyelids. The People represented that Orozco was able to identify Linares, in part, because of the tattoos. Counsel for Linares objected based upon relevance and the fact that the photo was prejudicial. The court overruled the objections.
During direct examination, the prosecutor showed Officer Orozco People’s 9 and asked if she recognized the person in the photograph. Orozco indicated she did, and that he was the person with whom she had spoken. She indicated there was nothing unusual about Linares’s face that she noticed. In the midst of Officer Orozco’s cross-examination, while the jury was out of the courtroom, counsel for Linares again raised the issue of People’s 9. Counsel argued that Orozco had not identified Linares based upon any tattoos and requested that the court admonish the jury. In response, the prosecutor noted that during her pretrial interview with Orozco, Orozco had previously identified Linares’s tattoos. The prosecutor conceded that Orozco had no current memory of the tattoos. As a result, the prosecutor “took the picture off [the projection screen] and stepped back....” The court stated that it was not inclined to admit People’s 9 into evidence. The court cautioned the parties to be careful in putting a photograph on the screen and showing it to the jury.
Defense counsel asked Orozco whether she ever felt threatened by Linares and the fact that he had his hands in his pockets. Orozco responded: “Just seeing tattoos on his face, the baggy clothing, officer safety, yes.” Defense counsel next asked: “Did anyone tell you this was a gang-related shooting?” Orozco answered, “No.” On redirect, the prosecutor followed up on Orozco’s statement about being afraid of Linares. The prosecutor reiterated Orozco’s testimony that she felt afraid because of Linares’s tattoos. Then the prosecutor asked Orozco what she saw. After defense counsel objected on relevance, the court overruled the objection. The witness then responded: “I don’t recall where I saw tattoos, but he had some on the face, neck area, he was a--he was associating with a gang. I don’t recall what gang, and just the way he was.”
The court sustained defense counsel’s objection based upon relevance. Defense counsel then said “352.” The court solicited a motion to strike from defense counsel, which she made. The court responded, “Without foundation.” The prosecutor next asked whether Officer Orozco’s observations about Linares’s tattoos made her afraid. Defense counsel again objected and asked to approach. The court denied the request to approach and sustained the objection. The prosecutor then moved to a different area of questioning.
Though the trial court did not expressly tell the jury that the answer should be stricken, it appears the intent was to do so.
During the testimony of Deputy Fonseca, the prosecutor asked whether Fonseca was certain the person he contacted on July 1, 2007, was the same person in court. Fonseca responded yes. When the prosecutor asked Fonseca why he remembered Linares as the same person, he responded, “The tattoos.” The prosecutor then asked, “And what about the tattoos, sir, help[s] you to be certain in your identification today?” Fonseca responded, “The tattoos that he had, apparently.” The prosecutor next asked whether Fonseca could see the tattoos, to which he responded “no.” The prosecutor asked Fonseca whether there was anything the defendant could do to assist Fonseca in seeing the tattoos. Once again defense counsel objected, this time based upon Evidence Code section 352. The parties then proceeded to sidebar.
At sidebar, defense counsel asked for sanctions. After lengthy argument, the court denied the request for sanctions, cautioned the prosecutor against pursuing the line of questions, and permitted the prosecutor to ask the witness whether he was certain that Linares was the person he contacted on July 1, 2007. The prosecutor did not ask any further questions on the subject.
There was no abuse of discretion because there was no evidence introduced at trial that Linares had “FU” tattoos on his eyelids. At most, two officers testified that their identifications were based in part upon unspecified tattoos. The prosecutor did not elicit any further description of the tattoos. Neither side sought to introduce the photograph, People’s 9, of Linares’s eyelids. The trial court did not err in permitting the two witnesses to state the basis for their identification, namely Linares’s tattoos. The court did not permit the witnesses to describe the tattoos and cautioned the parties about displaying evidence before it was admitted.
With respect to the gang testimony, the trial court solicited and sustained a motion to strike the answer regarding Linares’s association with a gang. Later, when instructing the jury, the court informed the jury they were not to consider evidence where an objection had been sustained, or evidence that had been stricken. Jurors are presumed to follow the court’s instructions. (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) Defense counsel elicited the only gang testimony. Her questions made clear that the murder was not gang related. The trial court did not err.
2. Prosecutorial Misconduct.
Linares next claims that the prosecutor committed repeated misconduct by asking questions of Officer Orozco and Deputy Fonseca about Linares’s tattoos. We disagree.
A prosecutor’s trial conduct “ ‘ “violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) “The primary purpose of the requirement that a defendant object at trial... is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.” (People v. Williams (1997) 16 Cal.4th 153, 254, citing People v. Mitcham (1992) 1 Cal.4th 1027, 1050-1051.)
With respect to the questions asked of Officer Orozco, the prosecutor’s questions occurred on redirect, in response to defense counsel’s questioning. Defense counsel asked Officer Orozco whether she felt afraid of Linares, to which the she responded “yes.” Officer Orozco then explained why she felt afraid, referencing the tattoos. As we explained above, the trial court then struck Officer Orozco’s answer regarding gang association. At no time during this questioning did defense counsel raise a claim of prosecutorial misconduct. Defense counsel’s failure to object forfeits his claim. (Samayoa, supra, 15 Cal.4th at p. 841.)
With respect to Deputy Fonseca, he based his identification, at least in part, upon Linares’s tattoos. When the prosecutor sought to inquire further on the matter, Fonseca simply stated, “It’s the tattoos.” The prosecutor then attempted to have Linares display his tattoos to assist Fonseca, but the trial court did not allow it. At sidebar, defense counsel objected on the basis of prosecutorial misconduct but did not request an admonition be given to the jury. Counsel’s failure to request an admonition to the jury forfeits the claim of misconduct unless the request for admonition would have been futile. (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1584.) In any event, we note there was no prosecutorial misconduct. The prosecutor’s comments and questions were brief, relevant, and did not mislead the jury.
3. Ineffective Assistance of Counsel.
Linares next claims that he received ineffective assistance of counsel by failing to preserve the claims of prosecutorial misconduct. Again, we disagree. To succeed, Linares must show that: (1) counsel’s performance was constitutionally deficient, and (2) the deficient performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).) On a direct appeal, a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442.) Claims of ineffective assistance of counsel are rejected where the record sheds no light on why counsel failed to act in the manner challenged, unless there can be no satisfactory explanation for the failure to act. (People v. Mitcham, supra, 1 Cal.4th at p. 1058.)
Here, defense counsel’s reasons for failing to object or failing to request an admonition are not apparent from the record. Thus, no light is shed on why counsel failed to object and failed to request an admonition. We then examine whether there is a satisfactory explanation for the failure to act. Numerous reasons may explain why counsel failed to object, including the fact that the witnesses were not describing the tattoos. In addition, Linares’s motion to strike was granted by the trial court. With respect to the prosecutor’s questions to Deputy Fonseca, an admonition would serve to highlight the information, causing additional harm to Linares.
Even were defense counsel ineffective, Linares has not established that he was prejudiced. In order to establish that he was prejudiced, Linares must show that there was a reasonable probability that, but for the failure to object and seek an admonition, the result of the trial would have been different. (Strickland, supra, 466 U.S. at p. 686.) The People presented evidence establishing Linares’s presence at the scene of the murder. Contrary to Linares’s assertion, expert testimony established that the gun could not have been fired from the distance he claimed. The gunshot residue found in the car and on his clothing contradicted Linares’s account of the shooting. The medical examiner’s opinion that the gunshot wound was a “contact shot” further contravened Linares’s statements. In short, the case against Linares was strong. Linares’s counsel’s elicited evidence that the shooting was not gang related. Linares simply cannot show that but for the failure to object or request an admonition to a few questions--which elicited very little testimony--he would not have been convicted.
4. Jury Instructions.
Linares raises four contentions with respect to the jury instructions. He claims the trial court erred because: (1) the homicide series of instructions violated due process by failing to instruct on all required elements, (2) the voluntary manslaughter instruction impermissibly shifted the burden in favor of murder, (3) it failed to instruct on involuntary manslaughter, and (4) the reasonable doubt instruction violated due process by limiting the evidence to be considered by the jury. We find no instructional error.
a. The homicide instructions were appropriate.
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instructions in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. (Ibid.) Further, in examining the entire charge we assume that jurors are “ ‘ “ ‘intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” ’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
The CALCRIM instructions given by the trial court were the standard homicide instructions. The court read CALCRIM Nos. 500, 520, 521, 522 and 570. Linares claims that these instructions impermissibly failed to establish the absence of heat of passion, which was a prerequisite to finding him guilty of murder. This argument fails.
In People v. Rios (2000) 23 Cal.4th 450, 453 (Rios), the California Supreme Court held that “where murder liability is at issue, evidence of heat of passion or imperfect self-defense bears on whether an intentional or consciously indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus the lesser offense of voluntary manslaughter. In such cases, the People may have to prove the absence of provocation, or of any belief in the need for self-defense, in order to establish the malice element of murder.” (Id. at p. 454.)
The Rios court examined provocation in context of CALJIC jury instructions.
CALCRIM No. 522 properly instructed the jury to consider provocation which could reduce a first degree murder to murder or second degree murder to manslaughter. The trial court next read CALCRIM No. 570, which listed the elements for voluntary manslaughter and reminded the jurors: “The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” The trial court properly instructed the jury that the People bore the burden of proof as to each element of murder. The jury was properly instructed as to the elements of murder and voluntary manslaughter. In sum, we agree with the Third District, which, Linares acknowledges, rejected this exact argument. (People v. Her (2010) 181 Cal.App.4th 349.)
b. The voluntary manslaughter instruction does not shift the burden in favor of murder.
Linares next claims that CALCRIM Nos. 522 and 570 created an impermissible presumption in favor of murder and reduced the prosecution’s burden of proof. The plain language of CALCRIM Nos. 522 and 570 belies Linares’s argument. As we explained above, the jury instructions, taken as a whole, make clear that the People bore the burden of proving Linares guilty of murder beyond a reasonable doubt and that the People shouldered the burden of proving lack of provocation.
The jury instructions in the cases cited by Linares differ significantly from the instructions here. As a result, the cases are inapplicable. The language of the jury instruction in People v. Owens (1994) 27 Cal.App.4th 1155, 1158 stated, “The People have introduced evidence tending to prove that there were more than three acts of substantial sexual conduct... upon which a conviction in Count I may be based.” (Emphasis added.) The court found that the words tending to prove implied that that the court believed that the acts had occurred, thereby relieving the prosecution of its burden. Likewise, in Mullaney v. Wilbur (1975) 421 U.S. 684, 686, the court instructed the jury that malice was to be “conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.” The Supreme Court concluded that the language impermissibly shifted the burden of proof to the defendant. (Id. at p. 701.) As a result, the language ran afoul of the due process clause. (Id. at pp. 703-704.) In People v. Kurtzman (1988) 46 Cal.3d 322, 327, the court instructed the jury, paraphrasing CALJIC No. 8.75, requiring the jurors tell the court whether they “agree[d] or disagree[d]” as to first degree murder before considering the lesser offenses. The jury returned a verdict of not guilty on first degree murder, and were clearly split on the issue of second degree murder. The jury questioned whether it could consider manslaughter; the court asked the jury to consider second degree murder first. (Id. at p. 328.)
Here, all of the jury instructions, but specifically CALCRIM Nos. 522 and 570, read together, make clear that the People bore the burden of proving that defendant did not kill as a result of provocation or heat of passion. The plain language of CALCRIM No. 570 placed that burden of proof squarely upon the prosecution. The burden never shifted. Further, use of the phrase “reduce a murder to manslaughter” does not create the inference that the jury is required to consider murder before manslaughter. The jury was instructed that it could consider the degree of the murder only after they found defendant guilty of murder. Nor does the phrase “reduce a murder to manslaughter” imply that the murder has been established. As a result, it does not shift the burden away from the prosecution. Accordingly, Linares’s claim fails.
c. The trial court properly refused to instruct on involuntary manslaughter.
In determining whether the trial court improperly failed to instruct on a claimed lesser included offense, we apply a de novo standard of review. (People v. Licas (2007) 41 Cal.4th 362, 366.) A trial court bears a sua sponte obligation to instruct on a lesser included offense only where substantial evidence to support it exists. (Ibid.) Substantial evidence is evidence that a reasonable jury could find persuasive, which, if accepted, would “ ‘ “absolve [the] defendant from guilt of the greater offense, ” but not the lesser.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
In this case, the trial court properly determined that substantial evidence did not support an involuntary manslaughter instruction. The trial court instructed on first and second degree murder and voluntary manslaughter. An involuntary manslaughter instruction required substantial evidence that the killing was unintentional. (See CALCRIM No. 580; People v. Hendricks (1988) 44 Cal.3d 635, 643.) There was no evidence presented that the killing was unintentional. Defense counsel claimed that the testimony of Martinez and Kurai hearing screams of “Oh my god” provided substantial evidence justifying the instruction. The trial court properly rejected this, acknowledging that while the screams might support an instruction on provocation or heat of passion, there was no evidence to support an accidental shooting. Indeed, Linares’s theory centered on someone else shooting Macias, not Linares. Accordingly, an involuntary manslaughter instruction was not warranted based upon the evidence presented.
d. The reasonable doubt instruction does not violate due process.
Linares contends that CALCRIM No. 220 violates due process for three reasons. First, he claims it prevents the jury from considering the lack of evidence presented in determining whether the People have proven him guilty beyond a reasonable doubt. Second, he contends that the instruction incorrectly advised the jury to weigh the evidence to a lesser degree than beyond a reasonable doubt. Third, Linares claims that CALCRIM No. 220 does not require the People to meet the burden by proving each element beyond a reasonable doubt. A legion of cases has upheld the use of CALCRIM No. 220 in the face of such challenges. (People v. Flores (2007) 153 Cal.App.4th 1088, 1092 [rejecting the argument that CALCRIM No. 220 precluded the consideration of a lack of evidence]; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268 [finding that CALCRIM No. 220 does not lower the burden of proof]; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238.) The plain language of CALCRIM No. 220, taken with all of the jury instructions, made it clear that the People bore the burden of proving every element beyond a reasonable doubt and that the jury could consider the lack of evidence presented by the People in making their determination. As a result, we too reject Linares’s contentions and find that CALCRIM No. 220 did not violate the due process clause.
5. The Motion to View the Scene.
Linares next contends that the trial court erred in failing to grant defense counsel’s request to view the crime scene. We disagree.
Section 1119 empowers a trial court to permit a jury to view a crime scene. We review the trial court’s decision under the deferential abuse of discretion standard. (People v. Davis (2009) 46 Cal.4th 539, 610.) A trial court abuses its discretion where it acts in an arbitrary, capricious, or patently absurd manner that results in a miscarriage of justice. (People v. Lawley (2002) 27 Cal.4th 102, 158.) The trial court did not abuse its discretion. In requesting a trip to view the crime scene, defense counsel explained that such a trip would show that the scene was “not a very good neighborhood, ” faces a “busy street, ” was “small” and not a place one would select to kill someone. Multiple photographs depicting the scene were introduced, showing the scene from different angles and times of day. A video surveillance tape of the area was admitted by stipulation. Defense counsel offered no reason why the photos or video surveillance tape would be insufficient. Counsel also conceded that a trip would cause logistical problems. In all, the court did not act arbitrarily or capriciously in denying Linares’s request.
6. Sentencing Issues.
a. Linares’s prior conviction under section 667(a)(1) must be imposed.
As noted at the outset of this opinion, the People also filed an appeal in this case. In it, they argue that the court improperly failed to impose a five-year sentence based upon Linares’s prior robbery conviction (§ 667(a)(1)). We find the People have a right to appeal on this basis, that their appeal is not barred by the trial court’s “not true” finding, that the trial court erred in failing to impose the five-year prior, and finally, that the five-year sentence under section 667(a)(1) must be imposed and the abstract amended to so reflect it.
At the sentencing hearing, the People presented evidence showing that Linares previously had been convicted of robbery, in violation of section 211. The court found the prior conviction “true” for purposes of the Three Strikes law, but “not true” under section 667(a)(1) for purposes of imposing a five-year enhancement. While finding that Linares had committed the prior robbery, the trial court failed to impose the five-year sentence pursuant to section 667(a)(1), because it believed that in order to do so, Linares would have had to serve a prior prison term. The People brought this error to the attention of the trial court. The court stated, “I did make an actual not true finding. [¶] I’m going to note I think that my initial ruling to find it not true was wrong. I should have thought it through more carefully and I didn’t. That’s my error.” The trial court indicated it felt it was without jurisdiction to change its prior ruling, believing it was appropriate only for an appellate court to do so.
First, we find the People may appeal this issue. The People have a limited right to appeal a criminal case. (§ 1238.) In facts similar to those before us, the California Supreme Court found the People may appeal a trial court’s erroneous finding that a prior conviction for a violent felony was not a strike within the meaning of the “Three Strikes” law. (People v. Trujillo (2006) 40 Cal.4th 165, 171-174 (Trujillo.) We follow Trujillo and find the People may likewise appeal in this case, where the trial court improperly found a prior robbery conviction not true under section 667(a)(1). (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
Contrary to Linares’ contention, we also find that the People’s appeal is not barred by the California Constitution’s double jeopardy clause. Once again, we find this issue is conclusively resolved against Linares by Trujillo. (Trujillo, supra, 40 Cal.4th at pp. 173-174.) Auto Equity indicates we are bound to follow our Supreme Court’s precedent and we note, also, its reliance upon the clear holding of the United State Supreme Court in Monge v. California (1998) 524 U.S. 721.
We find it disappointing that the People did not cite the Trujillo case in their briefs, as it is clearly dispositive of both of these issues.
Section 667(a)(1) mandates the imposition of a consecutive five-year prison term where a defendant suffers: (1) a prior conviction for a serious felony, (2) separately brought and tried, and (3) the present felony is a serious felony. As the trial court later recognized, section 667(a)(2) imposed no requirement of a prior prison term. The only issue remaining was whether the robbery conviction fell within the parameters of section 667(a), an issue of law. We review issues of law de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) In this case, Linares’s prior conviction meets the requirements of section 667(a)(1). First, the trial court found that Linares previously had been convicted of a violation of section 211. Section 211 is a serious felony. (§ 1192.7, subd. (c).) The prior conviction was brought and separately tried. (People v. Deay (1987) 194 Cal.App.3d 280, 287-288.) Additionally, the jury in the present case convicted Linares of murder, in violation of section 187, a serious felony. (§ 1192.7, subd. (c).)
The trial court’s failure to impose the five-year enhanced sentence under section 667(a) was erroneous. Its imposition is not discretionary, but mandatory. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Therefore, the court was required to impose a sentence of 45 years to life rather than 40 years to life. We reverse the judgment of the trial court on the finding regarding the prior on this point only, and order the abstract of judgment to be amended to reflect a sentence imposing the five-year prior conviction for robbery pursuant to section 667(a)(1).
b. Linares is not entitled to conduct credits.
The People also contend the trial court improperly granted Linares good time/work time credits. They are correct. Section 2933.2 prohibits the accrual of conduct credits where a defendant is convicted of murder. (People v. Duff (2010) 50 Cal.4th 787, 794.) This absolute prohibition compels its application to the determinate as well as the indeterminate portion of a sentence. (People v. McNamee (2002) 96 Cal.App.4th 66, 72.) As a result, the trial court erred in awarding conduct credits to Linares. We order that the abstract of judgment also be corrected to reflect this issue.
DISPOSITION
The judgment of conviction in case No. B221432 is affirmed. As to case No. B220489, the judgment on the prior conviction is reversed as to the finding under section 667(a), but affirmed in all other respects. The trial court is directed to prepare a corrected abstract of judgment reflecting a sentence imposing the five-year prior conviction for robbery pursuant to section 667(a)(1), for an aggregate sentence of 45 years to life and deleting all conduct credits. The revised judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BIGELOW, P.J., FLIER, J.