Opinion
F071158
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LOVELY, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Daniel B. Bernstein for Plaintiff and Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
On the court's own motion, it is hereby ordered that the opinion filed herein on April 27, 2018, be modified as follows:
1. On page 49, in the fifth full paragraph beginning with "The court asked if Juror No. 10 felt pressured ...," the third sentence is deleted and replaced with the following:
Juror No. 10 did not like confrontation and could not sleep at night, and had apologized to Juror No. 1 and said, " 'If there's something that I said that upset you, I'm sorry.' "
Except for the modification set forth, the opinion previously filed remains unchanged. This modification does not effect a change in the judgment.
POOCHIGIAN, Acting P.J. WE CONCUR: DETJEN, J. PEÑA, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF140055A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Daniel B. Bernstein for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Steven Lovely was an inmate at Kern Valley State Prison and housed with Scott McInnis. On the morning of December 25, 2011, correctional officers discovered McInnis was dead and the cell was covered in blood. The coroner later determined that McInnis had been beaten from blunt force trauma, and strangulation was the cause of death.
Defendant was charged with the first degree murder of McInnis. At trial, defendant testified that McInnis was a violent man who tried to kill him, and was jealous that defendant was about to be released on parole while McInnis was serving a lengthy sentence. Defendant testified that McInnis tried to strangle him, he fought back, and he strangled McInnis in self-defense.
Defendant was found not guilty of murder, and convicted of the lesser included offense of voluntary manslaughter of McInnis. Defendant was also charged and convicted of assault with a deadly weapon on another inmate, based on an incident that was apparently unrelated to McInnis's death. Defendant was sentenced to an aggregate third strike term of 58 years to life, plus 15 years.
On appeal, defendant raises numerous evidentiary and instructional issues. He argues the court abused its discretion when it excluded the proposed testimony of a defense expert, that the prison never should have housed defendant and McInnis because of McInnis's history of violence and potential jealousy since defendant was scheduled to be released soon. Defendant also contends that while the jury was properly instructed on self-defense and justifiable homicide, the court improperly gave an instruction on mutual combat because it was not supported by the evidence for either the homicide or assault charge.
Defendant further argues the court abused its discretion when it denied his pretrial motion to prevent the prosecutor and witnesses from referring to McInnis as the "victim," since defendant's trial theory was that he used lawful self-defense and it was a justifiable homicide.
Finally, defendant challenges the court's handling of an incident during deliberations, when a juror sent a note about a conflict with another juror, the court questioned three jurors about the incident, and the court ultimately decided to allow the jury to continue deliberations. Defendant argues that the court effectively coerced a potential holdout juror to change that juror's vote.
We strike the three-year term that was improperly imposed in count II for a great bodily injury enhancement that was not found true, and otherwise affirm.
THE HOMICIDE
Defendant was charged with count I, first degree murder of McInnis, which occurred on December 25, 2011, at Kern Valley Prison. He was also charged with the unrelated offense of count II, assault with a deadly weapon on an inmate at the Lerdo Facility, which occurred on April 4, 2013. We will separately consider the prosecution's evidence in support of these two charges.
Defendant was an inmate at Kern Valley State Prison. As of December 2011, defendant and Scott McInnis had been housed together in cell 217 for about seven months, and they appeared to get along. Both defendant and McInnis were classified as Southern Hispanics by the prison.
Their cell was six feet by 12 feet. It contained a sink and toilet, two bunk beds, storage lockers, and a set of shelves on the wall across from the bunks. A television and a fan were plugged into power outlets.
Defendant testified that he was assigned to the bottom bunk, and McInnis slept in the top bunk.
Defendant was scheduled to be released on parole in approximately January 2012, and talked with other inmates about going home. McInnis was still required to serve another 40 years and was considered a "lifer" by other inmates.
Inmate Efrain Zayas was housed in the adjacent cell 216. He testified McInnis was known as "Troubles," McInnis was aggressive, "lived up to his name," and he had altercations with other inmates. McInnis worked as a "porter" to clean the dayroom. Zayas had never seen defendant act negatively toward McInnis or anyone.
A few weeks before the homicide, McInnis became ill and passed out in the cell from his diabetic condition. Defendant alerted the guards that McInnis was down and needed help. McInnis later told defendant never to again call for help if that happened. Discovery of McInnis's body
At 12:15 a.m. on December 25, 2011, Correctional Officer Richard Martinez performed routine security checks and inmate counts in the cell block. He walked by the cell shared by defendant and McInnis and did not notice anything unusual.
At 3:05 a.m., Officer Martinez again walked by the cell and noticed something was wrong. The cell was dark and he aimed his flashlight through the cell door's window. Defendant was standing near the shelves on the right side. He reached for something on a shelf, and picked up a pendant with rosary beads. McInnis was lying on the bottom bunk and was partially covered with a blanket. Defendant placed the rosary on top of the blanket, over McInnis's chest. There was blood splattered on the shelves.
Officer Martinez ordered defendant to step back and for McInnis to move. McInnis did not move. Defendant stood at the back of the cell, his hands were in fists, and his arms were crossed at the waist. Defendant looked straight at the door with a "blank stare." Defendant appeared "dazed" and "shocked with no expression."
Officer Martinez called for backup officers to respond to the cell because of a possible homicide. The officers ordered defendant to place his hands through the cell door's food port so they could place him in handcuffs. Defendant did not initially respond. The officers repeated the order and defendant complied.
Defendant was escorted to a separate holding cell. Defendant complied with orders and did not resist. Paper bags were taped around his hands to preserve possible evidence.
When the officers entered the cell, they found bloody towels on the floor near the toilet. McInnis's head and face were dark. His skin was hard to the touch, consistent with rigor mortis having set in. A rosary was wrapped around McInnis's hands and arms, and his hands were across his chest.
The officers were going to start CPR on McInnis, but a nurse determined that he was already dead. Defendant's injuries
At 11:00 a.m. on December 25, 2011, a prison nurse conducted a visual examination of defendant. Defendant had scratches on his chest, a scratch and redness behind his ear, and redness on the upper portion of his neck. His right hand was red and swollen. He had small abrasions under his chin. Defendant refused to remove his shirt or pull up his pant legs for further evaluation, and refused any medical treatment.
Defendant tested negative for drugs. The investigation
After McInnis's body was removed from the cell, the officers entered to investigate the scene. There were blood stains on white state-issued towels found on the floor of the cell. There were blood stains splattered on the cell's walls, the shelves, the floor, and on the corner of the top bunk. The mattress on the upper bunk was upside down. When the officers flipped it over, the top part of the mattress was covered with blood.
There was blood on a pair of white Nike shoes that were under the lower bunk, and on slippers that were on top of the storage locker. There was blood on the fan and the cord and on several articles of clothing. It appeared as if blood had been wiped from one of the shelves, and from defendant's shoes.
The officers did not find any weapons inside the cell.
Inmates in the adjacent cells (Nos. 216 and 218) were interviewed a few hours after the homicide.
Inmate Efrain Zayas, in cell 216, testified he did not hear anything until the guard sounded the alarm. Inmates Damien Doster and Antoine Dove were housed in cell 218, and also testified they did not hear anything. DNA tests
DNA tests established that McInnis was the contributor of blood found on defendant's shoe and behind defendant's right ear. McInnis's own blood was found on his right hand. McInnis's photo album
The officers examined McInnis's personal property that was inside the cell. They found a book on combat fighting techniques. They also found a photograph album that had a slot carved into it. The slot was about six inches long and in the shape of a triangle. The slot could have been used to conceal a weapon, but officers did not find a weapon in the album or in the cell. The "kite"
As we will explain, defendant testified at trial that he was familiar with this album and knew McInnis kept a weapon hidden inside it. Defendant further testified that he believed McInnis was reaching for this album to retrieve the weapon during their confrontation in the cell, and he feared for his life.
Also during the search of the cell, the officers found a "kite" in the corner of the bottom bunk, which had been assigned to defendant. The "kite" was a tiny note with small writing, used by inmates to secretly communicate with each other. There was some blood on the kite.
The writing on the kite included the word "gracias," the letters "HA" with a "smiley" face under the letters, and the phrase, "Trouble asleeP C/R Gee."
Officer Hector Robles of the prison's Investigative Services Unit testified that defendant had "HA" tattooed on his neck and shoulder, and it signified defendant's home of "Harbor Area."
Officer Robles testified that "Trouble" or "Troubles" was McInnis's nickname. Robles testified that "C/R" signified "con respeto," which meant "with respect" in Spanish. Robles believed the letter "G" meant "Gangster." Pathologist's testimony
Dr. Robert Whitmore, a forensic pathologist with the Kern County Coroner's Office, performed the autopsy on McInnis.
McInnis had numerous injuries consistent with blunt force trauma. There was an open and gaping two-inch wound on the back of his head, almost all the way down to the bone. McInnis's brain was swollen and herniated. There was subarachnoid hemorrhaging under his scalp.
There were contusions on McInnis's scalp, a bruise on his upper right chest, a bruise on his left buttock, a rib fracture, and multiple bruises and abrasions on both legs. There was an abrasion on the back of his right hand, possibly consistent with a defensive wound.
McInnis had a large bruise in the center of his face, which stretched from his lower forehead to his lips; it was four inches by seven inches, and larger on the right side. There were multiple fractures to his nose. There was blood in his nostrils, and bruises on the jawline and right side of the chin. His eyes were swollen shut. His lips were swollen and lacerated.
There was blood in McInnis's trachea, bronchi, and lung tissue, consistent with breathing in blood from his broken nose and swollen lips while still alive. There was also blood in his stomach, consistent with swallowing it while still alive.
McInnis also had injuries consistent with strangulation. There were three linear abrasions on the right side of his neck, and a single linear abrasion on the left side of the neck. These abrasions were inflicted by "[s]ome kind of ligature." His tongue was bruised, perhaps from biting it during strangulation. There were broken blood vessels inside his eyelids that resulted in hemorrhages (petechiae).
McInnis's hyoid bone in his neck was fractured, the thyroid cartilage was fractured on both sides, and there were hemorrhages in the strap muscles of the neck. These fractures were the "hallmark" of a significant amount of pressure applied to the front of the neck.
Dr. Whitmore testified that McInnis died from strangulation. Based on the nature of the injuries and bleeding, the blunt force trauma to the head would have been inflicted before the strangulation and resulted in a loss of consciousness. The strangulation injuries were consistent with applying pressure with a ligature.
Dr. Whitmore testified a person could die from a heart attack or arrhythmia while being strangled, which would happen in less time than strangulation, as pressure was being applied to the neck. He could not determine if McInnis had suffered a heart attack.
Dr. Whitmore testified that the ligature marks were thin, and were not consistent with being applied with a rope or towel. He could not rule out a tightly wound towel, and it was possible the marks were inflicted by some type of cord. There were no ligature marks on the front of McInnis's neck, which could have happened if McInnis placed his hand between the ligature and his neck while he was being strangled.
McInnis's blood tested positive for a small amount of methamphetamine, but that would not have contributed to his death. He was not under the influence at the time of his death.
McInnis was a diabetic. On December 17, 2011, McInnis was taken to the hospital because he had a blood/glucose level of 490, a heart rate of 140, and tachycardia. Dr. Whitmore testified these factors did not contribute to his death.
THE ASSAULT (Count II)
As of April 2013, defendant was housed at the Lerdo Pretrial Detention Facility in Kern County. Defendant was not allowed to have free time with other inmates because of his security status.
On the evening of April 4, 2013, defendant was the only inmate in the day room, pursuant to his security status. Deputy Elias Morales was supervising three inmates who were on a cleaning detail. They needed to enter the day room to place cleaning supplies there. Morales was warned by another officer that defendant was in the day room.
Deputy Morales decided to enter the day room with the three inmates because Morales never had any problems with him. Morales also believed defendant was about to be downgraded to another security level. When Morales entered the dayroom, defendant asked if he could use the cleaning supplies since he had previously worked on the detail. Morales agreed.
Cleighton Shelhart was one of the inmates on Deputy Morales's detail.
Deputy Morales opened the dayroom's door for the three inmates. Defendant suddenly lunged by Morales toward Shelhart. Defendant raised his arm and appeared to hit Shelhart's eye. Shelhart fell backwards and he was bleeding from his face.
Deputy Morales grabbed defendant's right arm and called for help. Another deputy responded and helped Morales wrestle defendant to the floor. Defendant resisted and failed to obey their commands. An object fell from defendant's hand, and defendant kept trying to reach for it.
Deputy Morales testified that defendant said to "let him go so he could finish him off," referring to Shelhart.
Once defendant was restrained, the officers recovered the object that fell from his hand. It was a three-inch wall screw used to mount sinks. It had been sharpened to a point, and plastic was wrapped around it to make a handle, for a total length of five or six inches.
Shane Courtris, a paramedic with Hall Ambulance, testified that he responded to Lerdo because of Shelhart's injuries, and escorted him from the prison infirmary to the hospital. Shelhart complained of left eye pain and a headache, and said he had been hit with a fist. Courtris saw two lacerations on his face. Shelhart said he did not lose consciousness and did not have any back or neck pain. Shelhart received four stitches below his eye.
Courtris testified for the defense.
Shelhart testified he never had a problem with defendant prior to this incident. Shelhart testified he was reaching to pick up trash when he was punched in the face. No one said anything to him before he was punched. Shelhart did not see who hit him and did not know if he was stabbed, although an officer told him that he had been stabbed by a knife. He could not remember going to the prison infirmary. The next thing he remembered was being treated at the hospital. Assault on Ramirez (Prior Act Evidence)
Shelhart testified he had 13 charges pending against him at the time of this incident. One month later, he accepted a plea deal for robbery and burglary and was sentenced to three years. Shelhart testified he did not get the deal in exchange for his testimony in this case.
On May 4, 2013, defendant and Jared Ramirez were inmates at the Lerdo facility. Ramirez had been charged with murdering a 13-month-old infant. Defendant and Ramirez were placed by themselves in separate but adjoining recreation yards. The two yards were separated by a chain-link fence that was 12 to 15 feet high, with barbed wire at the top. The adjoining yard was five to seven feet away from defendant's location.
Defendant climbed the fence between the two recreation yards toward Ramirez's location. A correctional officer ordered to him to get down. Defendant ignored the order and jumped over the fence. The barbed wire cut his arm, and he broke his foot when he jumped down.
Defendant confronted Ramirez and threw punches at his face and body. Ramirez covered up and tried to dodge the punches. An officer ordered them to stop, but defendant continued to assault Ramirez for about one minute. An officer drew his Taser and again ordered them to stop, and defendant complied. The blood from the cut on defendant's arm splattered over the yard.
DEFENSE EVIDENCE
Mary Colclasure, defendant's grandmother, testified that they regularly wrote letters to each other and she sent him money in prison. He often wrote "smiley faces" in his letters. Defendant was looking forward to being released from prison, wrote to her about his future, and he was already trying to find a job. She admitted that when he was previously out of custody, he had stayed at her trailer park, but she made him leave because he hurt her feelings. She had written to defendant that he could not live with her when he was released.
Cindy Gomez (defendant's aunt) and Johnny Yniguez (defendant's cousin), testified their family was trying to help him find work in anticipation of his release from prison. Evidence about McInnis
The defense introduced evidence about McInnis's prior violent acts pursuant to Evidence Code section 1103, which provides an exception to the general inadmissibility of character evidence and permits a criminal defendant to offer evidence of the victim's character to show the victim acted in conformity with it. (Evid. Code, § 1103, subd. (a)(1); People v. Myers (2007) 148 Cal.App.4th 546, 552.)
Javad Siddiqi testified for the defense that he operated a Quiznos restaurant in the Harbor City area of Los Angeles. McInnis robbed his restaurant in 2006. McInnis entered the restaurant just before it closed, held a knife within an inch of Siddiqi's neck, and said to give him the money "or I'll kill you." Siddiqi's wife and family hid in the back of the store. Siddiqi emptied the cash register, then grabbed a meat knife and yelled at McInnis to get out. McInnis ran outside and got into a car, and Siddiqi got part of the license plate. The store's surveillance cameras picked up the car's license place. McInnis was apprehended about a month later.
Deputy Chavez of the Los Angeles County Sheriff's Department dealt with McInnis when he was an inmate in the county jail. McInnis was "very aggressive" toward the other inmates for "a small guy," and his nickname was "Troubles." Chavez testified that in 2006, McInnis and his cellmate hoarded pills and were disciplined for the conduct. When they returned to the general population, they beat another inmate. Chavez and other officers needed pepper spray to gain control of McInnis as he fought with the jail staff.
Officer Fariaz testified that in April 2008, McInnis was housed in Kern Valley State Prison. Fariaz was conducting random patdown searches in the yard. He asked McInnis if he was in possession of contraband, and he said yes. Fariaz found an inmate-manufactured plastic knife in McInnis's pocket. It was four and one-half inches long and sharpened to a point.
Daniel Boaz, a probation officer in Kern County, interviewed McInnis in 2009. McInnis said he had a long history of drug use, including heroin. McInnis said he used methamphetamine and marijuana on a daily basis until July 2006, when he was sent to prison.
Dr. Albert Atesalp was a licensed clinical psychologist with the California Youth Authority, and testified for the defense that he conducted a psychological evaluation of McInnis in 1993, when he was 18 years old and facing a robbery charge. Dr. Atesalp testified that he found McInnis was not amenable to placement in the Youth Authority for that case. He diagnosed McInnis with antisocial personality disorder and "psychopathy." McInnis had strong narcissistic and passive-aggressive personality traits, and alcohol dependence and substance abuse problems. His IQ was 78, classified as "upper borderline" for retardation. McInnis said he felt suicidal and homicidal. McInnis admitted he had been going into the living areas of other inmates at the Youth Authority to fight with them deliberately, because he was trying to force the court to sentence him to state prison.
Dr. Carolyn Murphy, a forensic pathologist, testified as a defense expert. She evaluated McInnis's history and prior psychological reports. When he was 18 years old, he had "borderline intellectual abilities" and impulse control problems. McInnis committed multiple crimes before he was 15 years old; that was consistent with Dr. Atesalp's diagnosis of antisocial personality disorder and psychopathy. These conditions can be exacerbated by a lengthy prison term, methamphetamine use, and being a diabetic who was noncompliant with his medication. McInnis had a "diabetic episode" shortly before the homicide, and his failure to follow his diabetes treatments could have further diminished his ability to control his impulses.
Dr. Murphy testified that inmates use the phrase "short to the house" to describe someone who was close to being released. An inmate who was "short to the house" may face jealousy and violence from other inmates serving longer terms. Dr. Murphy testified that she regularly cautioned inmates who were close to parole that they were at risk of being assaulted and triggered into violence by other inmates. These inmates will usually take evasive measure such as isolating themselves or staying away from the yard to avoid trouble before being released.
Dr. Murphy testified that McInnis was serving 40 to 45 years. In her experience, an inmate who was "short to the house" could potentially be in danger if he was housed with an inmate serving 40 years.
As we will explain in issue I, post, the court denied defendant's motion to call an expert to testify that the prison improperly housed defendant and McInnis together because of the potential for conflict since defendant was about to be released. However, the court held that Dr. Murphy could address similar issues.
Dr. John Treuting, a toxicologist, testified the effects of methamphetamine include aggression, hallucinations, irritability, and hyperactivity. At the time of death, McInnis had 23 nanograms per milliter of methamphetamine, and 9.2 nanograms per milliliter of amphetamines in his blood stream. These levels indicated that McInnis was under the influence of methamphetamine. However, Dr. Treuting further testified these levels were low, and he could not determine whether these levels would have caused McInnis to suffer the effects of methamphetamine.
DEFENDANT'S TRIAL TESTIMONY
The homicide (Count I)
Defendant testified that in 2006, he was convicted of two felony offenses of moral turpitude. Once he was out of custody, he picked up another case within four months. In 2009, he was sentenced to 32 months in prison after pleading guilty to evading an officer. He was serving this term at the time of the homicide.
As of December 2011, defendant and McInnis had been cellmates for about seven months. McInnis was older than defendant. Defendant was known as "Ghost" and McInnis was known as "Troubles." They were both from the same hometown. The television and CD player in the cell belonged to McInnis, but he allowed defendant to use them.
Throughout his trial testimony, defendant referred to McInnis as "Troubles."
McInnis told defendant that he had been sentenced to 45 years, and he did not think he was going to make it home. McInnis said he did not care about "catching" more time since he would never get out.
Defendant knew that McInnis was a diabetic, and he regularly went to the medical building for treatment and medication. McInnis worked as a porter in the prison, and had a limited amount of freedom to walk around the cellblock and obtain drugs from other inmates. McInnis used methamphetamine and it made him more paranoid and aggressive. McInnis also used heroin that would put him in a good mood. Defendant occasionally used drugs with him, but thought McInnis used too much. McInnis would sober up when they were on lockdown and he could not get drugs.
Whenever they had disagreements, McInnis would show defendant a tattoo on his arm, of one man holding another man in a chokehold and with a knife. McInnis also used aggressive words toward him. They had argued six or seven times but did not have any physical altercations.
Defendant testified McInnis always had one or two knives in the cell, and sometimes as many as four or five weapons. McInnis showed defendant a photograph album that he used to hide a sharpened piece of metal. McInnis bragged he was good with knives. McInnis told defendant that he did not have to work out because if he had a problem with another inmate, he would just stab that person.
Defendant was always concerned that McInnis could use the weapon to stab and kill him. Defendant was also concerned that he would be caught with McInnis's weapons since he already had two strikes. Defendant asked McInnis to get rid of the weapons. McInnis refused, but said he would keep them in his separate property locker in the cell. McInnis also said he would put a photograph of himself in the album to show it belonged to him. The kite
Defendant testified he wrote the kite that the officers found in the cell after the homicide, but the note was incomplete and he never passed it along. Defendant wrote the note to thank another inmate who had passed snacks to defendant. The note meant that McInnis was asleep so he would not get any of the food, and defendant drew the "smiley" face because he thought that was funny. Defendant signed the note "Gee" for his nickname, "Ghost," and it did not mean "gangster." Defendant's imminent release
Defendant testified he had been advised that he was scheduled to be released on parole on January 18, 2012. As that day approached, McInnis became less friendly. Defendant talked with McInnis about being "short to the house" a few times. Whenever he did, McInnis was "real negative" and said defendant was being rude since McInnis was not going home soon. McInnis said that he "didn't want to hear that shit," so defendant tried not to talk about it with him.
A few times, McInnis told defendant, "[W]ell, you'll just be back." McInnis also told defendant "plenty of times" that defendant "might not make it home."
Defendant testified he sometimes talked about how he was going to make a career when he was released. McInnis told defendant to "just rob people, stick up kids," and use a gun or a knife. Defendant said he wasn't going to take that route. McInnis said it was easy, and that McInnis was good with a knife and a pistol.
Defendant testified the holidays were hard for McInnis, and he used more drugs during that time. McInnis was jealous and spiteful that defendant was about to be released. Defendant and McInnis argue
On the morning of December 24, 2011, defendant saw McInnis with a knife in their cell. McInnis injected two lines of "speed" that day. Defendant did not use any drugs but consumed a lot of coffee.
Late that night, defendant was sitting in his bottom bunk and McInnis was in the top bunk. The television was on later than usual because defendant was watching a movie. The cell lights were off, and defendant used the television as a light. Defendant was still wearing his shoes.
McInnis climbed down from the top bunk and used the toilet. McInnis shut off the television and seemed angry. Defendant turned the television on again and said he had been using the light. McInnis replied that defendant was not following "his" rules, and it was time for lights out.
McInnis told defendant that if he kept acting "like a punk, I will treat you like a punk." Defendant asked McInnis what he meant when he said that. McInnis said defendant was acting like a punk because he was not following McInnis's "house rules and I'm going to treat you like a punk." Defendant testified that being a "punk" meant that a man had to give sexual favors to another man.
Defendant testified that McInnis was standing and facing him, and defendant felt aggression from him. Defendant said he did not want any problems because he was going home. McInnis replied, "If you don't follow the rules, you might not make it home." Defendant believed McInnis meant he was "either going to hurt me or do something where I wouldn't make it home, like get caught with something...." Defendant took McInnis's words as a threat and that "if we get into it, that I'm going to be dead."
Defendant testified he replied to McInnis "in spite" and said, "At least I'm going home." McInnis was standing up and looking down at defendant, who was still sitting on the lower bunk. McInnis was angry and again said defendant was acting like a punk. Defendant cursed McInnis and said he was "nothing but a dope fiend." The fight
Defendant testified that McInnis threw three punches at defendant's face while defendant was still sitting on the bottom bunk. Two of the punches landed on defendant's face, and he dodged the third punch.
Defendant testified that in return, he hit McInnis "as hard as I could." "I hit him back. I came - I responded with - with a few swings of my own combination, and rose to my feet during the process. I figured it was five - five punches as I got to my feet throwing them." Defendant hit McInnis's stomach, face, and head, and all his punches "connected."
Defendant testified that McInnis stumbled backwards and "got knocked down," he "hit the floor," and "he got KO'd," but he did not lose consciousness.
Defendant testified he took two steps back since McInnis was on the floor, but "kept my hands up" to be ready to fight. "And I'm just waiting to see where it's going to go from there."
In issue II, post, we will explain that defendant's testimony about the initial stages of the fight supported the court's decision to give CALCRIM No. 3471, mutual combat and self-defense.
McInnis got up and said: "[Y]ou f**ked up now. You're dead, Ghost," using defendant's nickname. McInnis reaches for the photo album
Defendant testified that McInnis reached toward his locker where he kept the photo album that contained the hidden shank. Defendant believed McInnis was going for the shank, and feared for his life because of his earlier threats.
Defendant testified he rushed McInnis "like a football tackle" and "pushed him away to get away from that locker, get him away from that piece." Defendant hit McInnis as hard as he could.
"And then once - once we engaged like that, like wrestling, we started back - we started back to - to fighting, to wrestling and throwing punches. [¶] I was throwing punches on my end and he - I felt a few coming from his end. Mainly - mainly wrestling and bumping around [the cell], but - in my mind was get away from there."McInnis slammed into the wall, the floor, and parts of the cell, and there was blood.
Defendant testified he was afraid because he thought McInnis had "a piece," McInnis was heavier, and defendant was not a good wrestler. Defendant tried to stay on his feet "because if I hit the ground, [if] he'd grabbed a shank, and then I'll be dead." McInnis could also stomp him if he was on the floor.
Defendant testified he fell "two, three times towards the toilet, got back up. Both of us got back up. And we continued. We were both - we were both aggressive. I was aggressive, as well. [¶] And I do - I do recall falling a few time and getting back up." Defendant was punching McInnis at the same time. "[W]hen we weren't locked arms, I would throw punches ...." Defendant was pretty sure there was blood on both of them.
Defendant testified they were both by the cell door and "were no longer wrestling." Defendant "ran" and "hopped" to the top bunk to get out of the narrow aisle in the cell and away from McInnis. "We're not going to be able to fight no more if I'm on the top bunk standing up." Defendant stood on top of the mattress on the top bunk. McInnis "approached me" and defendant tried to kick him. McInnis grabbed defendant's leg and pulled him down from the top bunk. Defendant fell to the floor, and became dazed and "a little punch drunk" from the fall.
When McInnis pulled defendant from the top bunk, the mattress fell to the floor with him. After defendant was on the floor, they were "back to aggressive" and defendant tried to stand up. Defendant was leaning on his knee and "felt feet, hands" as McInnis kicked and punched him. McInnis tries to strangle defendant
McInnis was on top of defendant and behind him. McInnis started to strangle defendant with some type of cloth. Defendant tried to pull it away from his neck and realized it was a sheet or a towel.
"I was thinking I got to get up. I got to get this - this off my neck. Thinking that this is it, that, you know, I'm going to die in this cell. Thinking that this fight went way too far. Thinking about my family..." (Italics added.)Defendant strangles and kills McInnis
Defendant threw back his head, and used the back of his head to butt the front of McInnis's head. McInnis released the towel and stopped choking him. Defendant grabbed the towel away from him.
"Q. What happened next?
"A. I - I seen what I had was choking me was a towel and I used it back to choke my cellie.
"Q. Why did you -why did you do that?
"A. Because I needed him to stop. It got - it got to the point where it's too far. It's twice he reached for a weapon and it's no longer fists. [¶] Now I'm being choked and now I know that he was serious about his threat and now I've got to make him stop. I've got to make him pass out. I've got to have him - have him sit."
Defendant testified things had already been "serious when he's reached for a piece. But now that he's choking me I know he's serious about his threat. [¶] Yeah, I needed to stop him."
Defendant was lying behind McInnis, and used the same towel to choke McInnis. Defendant believed there was nothing else to do to stop the fight.
"At that point, no. But maybe I could - could maybe knocked him out or hit him hard. But at that point I'm getting choked, I'm going to choke back."
Defendant wrapped the towel around McInnis's neck and choked him for about five minutes. The towel was not wound up. Defendant choked him "as hard as I could. And I used my legs to wrap around him too, and we both-we both fell to the floor...."
"Q. Did you want to choke him or were you thinking you just need to do it to survive?
"A. I didn't want it as like I wanted to. I must have wanted to because I did it. But I did it to survive, yes, to pass him out. [¶] So I didn't want to—do I want to choke the man? No, I don't want to choke the man. But I wanted to stop this fight, yes. And that's why I choked him ... it seemed like forever." (Italics added.)
Defendant did not let go of the towel because he believed McInnis was so strong that he would have attacked him again. McInnis kept reaching for the towel around his neck and kicking his legs. During that time, "we were both moving" and defendant was "trying to hold him down."
After about five minutes, McInnis stopped moving and struggling. Defendant thought McInnis was hurt. There was blood all over the cell. Defendant released the towel from McInnis's neck. He got up and kicked McInnis four or five times "as hard as I could," in the face, neck, and chest, to make sure he stayed down. He did not think McInnis was dead.
Based on the nature of McInnis's injuries, Dr. Whitmore believed the blunt force trauma was inflicted on McInnis before he was strangled to death.
Defendant sat on the desk, and felt "amped," panicked, and nervous. He still thought McInnis was alive. He dragged McInnis from the floor to the bottom bunk. As he did so, defendant realized that McInnis was dead. Defendant prayed for McInnis. He picked up the mattress and returned it to the top bunk. He tried to clean the blood with towels. He looked through the window in the cell door to see if an officer was around, but he did not yell for help because he was not thinking rationally.
Defendant picked up his own rosary and placed it on McInnis's chest to pray for him since McInnis was religious, "even though he's in purgatory or wherever," and then the officer appeared at the cell door.
Defendant admitted that McInnis did not have a weapon because he "never got a chance" to pull a knife or shank on him that night. Defendant never called for help during the struggle.
Defendant testified that he had been in fights before, and he could "hold my own" in a fistfight. If there had been any way to avoid killing McInnis, he would have done so. He tried two or three times to stop the fight because "I didn't want to kill nobody." Assault on Shelhart (count II)
Defendant also testified at trial about the assault on Shelhart. At the time, he was housed in Administrative Segregation at Lerdo, he was in a single cell, and had limited dayroom privileges. Defendant testified that ever since he killed McInnis, he was afraid that he would be attacked by inmates who liked McInnis.
When Deputy Morales opened the day room's door, he asked defendant to clean something that had spilled on the floor. That request "threw" defendant since it wasn't his job to clean the room, but he agreed. When the inmates walked into the day room, defendant believed he was being set up because he was supposed to be alone. The inmates were associated with the Northern Mexicans, and defendant was classified as a Southern Hispanic.
Defendant testified that he previously found a shank in the day room. He added a handle on the screw to make it into a weapon. Defendant was holding the shank inside his closed fist when he hit "the biggest inmate I could spot there," who was Shelhart. Defendant punched Shelhart in the face with his closed fist, and insisted the shank did not stab him.
Defendant testified Shelhart did not say anything to him or try to hit him. However, Shelhart "came in my dayroom. And that was aggressive to me because I seen mops and brooms and other inmates that I'm not familiar with." Defendant thought that if he hit Shelhart, that would prevent the other inmates from having the chance to jump him, and he could get more protection.
Defendant denied that he told Deputy Morales to "let me finish him off." Prior assaults
Defendant testified about the uncharged assault on Ramirez. Defendant called Ramirez a "baby killer." Ramirez told defendant he was not a baby killer, and he was "taking 20 years for involuntary manslaughter." Defendant told Ramirez he did not want to hear about his case because Ramirez was "a sicko." Ramirez laughed. Defendant reacted out of "anger and ignorance," and jumped the fence to fight him. Defendant broke his foot and cut his arm when he jumped the fence, but he got up and punched Ramirez as many times as he could before the officers responded because Ramirez had "killed a little girl."
In 2003, defendant started a fight with another inmate when they were on a bus and deputies were transporting them to San Bernardino. In 2007, he got into a fight with a different cellmate. In 2013, he attacked the transportation deputies at Lerdo because he did not like how they were "manhandling" him with a waist chain. He punched one deputy, fought with two other deputies, and then was subdued with pepper spray and a Taser.
THE CHARGES AND INSTRUCTIONS
Defendant was tried for count I, first degree murder of McInnis (Pen. Code, § 187, subd. (a)); and count II, assault with a deadly weapon on Shelhart (Pen. Code, § 245, subd. (a)(1)), with two prior strike convictions, two prior serious felony enhancements, and two prior prison term enhancements. As explained above, defendant relied on a claim of self-defense and justifiable homicide for count I. Instructions for count I
As we will explain below, defendant contends the court improperly instructed the jury with CALCRIM No. 3471, mutual combat and self-defense, because the instruction undermined his defense claim of justifiable homicide and confused the jury, and it was inapplicable to both counts I and II.
The court instructed the jury on the charged offense in count I of first degree murder, and the lesser included offenses of second degree murder and voluntary manslaughter.
The court gave CALCRIM No. 505 on justifiable homicide based on self-defense:
"The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. 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 or was in imminent danger of being maimed; [¶] 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 the 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 death or great bodily injury to himself. The 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 attempted killing was not 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.
"The defendant's belief that was threatened may be reasonable even if he relied on information that was not true.
"However, the defendant must actually and reasonably have believed that the information was true.
"If you find the victim threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. If you find the defendant knew the victim had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.
"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself, 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 court gave CALCRIM No. 522, that provocation may reduce a murder from first to second degree, and may reduce a murder to manslaughter:
"If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first-or second-degree murder. [¶] Also consider the provocation in deciding whether the defendant committed murder or manslaughter."
The court gave CALCRIM No. 570 for the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion. It also gave CALCRIM No. 571 for voluntary manslaughter based on imperfect self-defense.
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.
After this instruction, the court gave CALCRIM No. 640, on how the jury should deliberate regarding the greater and lesser offenses of first and second degree murder, and voluntary manslaughter. Instructions for count II
Immediately after giving CALCRIM No. 640, the court told the jury that it was going to "[s]witch gears here to Count 2." It began with CALCRIM No. 875 that defined assault with a deadly weapon, and CALCRIM No. 915 for the lesser included offense of simple assault. Self-defense and mutual combat
The court next gave CALCRIM No. 3470 on the right to self-defense, specifically as to count II.
"Self-defense is a defense to Count 2. The defendant is not guilty of that if he used force against the other person in lawful self-defense.
"The defendant acted in lawful self-defense if, one, the defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; two, the defendant reasonably believed that the immediate use of 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 bodily injury to himself or an imminent danger that he would be touched unlawfully.
"Defendant's belief must have been reasonable and he must have acted 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.
"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 .... [¶] ... [¶] ....
"The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching ... does not have to cause pain or injury of any kind.
"The defendant's belief that he was threatened may be reasonable, even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
"If you find that Shelhart threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"If you find that the defendant knew that Shelhart threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.
"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of Count 2.
Immediately after reading CALCRIM No. 3470, the court gave CALCRIM No. 3471, on the right to self-defense and mutual combat.
"A person who engages in mutual combat or who starts a fight has a right to self-defense only if one, he actually and in good faith tried to stop fighting .... [¶] Number two, he indicated by work or conduct to his opponent in a way that a reasonable person would understand that he
wanted to stop fighting and that he had stopped fighting; and three, he gave his opponent a chance to stop fighting.Convictions and sentence
"If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight.
"However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting or communicate the desire to stop to the opponent or give the opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.
Defendant was found not guilty of count I, murder of McInnis, but guilty of the lesser included offense of voluntary manslaughter. He was found guilty of count II, assault with a deadly weapon on Shelhart. The court found all the prior conviction allegations were true.
Defendant was sentenced in count I, voluntary manslaughter, to 33 years to life as the third strike term, plus five years for the prior serious felony enhancement and one year for the prior prison term enhancement; count II, assault with a deadly weapon, 25 years to life as the third strike term, plus five years for the prior serious felony enhancement, one year for the prior prison term enhancement and three years for a section 12022.7 great bodily injury enhancement.
As we will explain in issue VII, post, the court improperly imposed the great bodily injury enhancement for count II, and it must be stricken.
DISCUSSION
I. Exclusion of Defense Expert
Prior to trial, the defense moved to call Alfonso Fillon as an expert witness about housing practices in the state prisons. Fillon would testify the prison improperly housed McInnis and defendant together because of the difference in their terms, defendant's imminent release, and McInnis's history of violence. The court conducted an evidentiary hearing and denied defendant's motion to call the expert.
Defendant contends the court's exclusion of this witness was prejudicial because it undermined his self-defense claim, and violated his state and federal due process rights to present a defense.
A. Proposed Defense Experts
During the pretrial motions, defense counsel moved to call Dr. Atesalp to testify about McInnis's history of violence and homicidal tendencies. The court found Dr. Atesalp's proferred testimony relevant to defendant's claim of self-defense, and held it would be admissible.
Defense counsel moved to call Dr. Carolyn Murphy as an expert about McInnis's psychological characteristics and anti-social behavior. The court conducted an evidentiary hearing on her proposed testimony, and held that Dr. Murphy's testimony was also relevant to defendant's claim of self-defense, McInnis's history of violence and narcotics use, and why defendant responded in a certain way to McInnis's conduct.
B. Evidentiary Hearing for Fillon
Defense counsel also moved to call Alfonso Fillon, a former prison warden, as an expert to testify that the prison never should have housed defendant and McInnis together because of McInnis's history of violence. The court conducted an evidentiary hearing on Fillon's proposed testimony.
Fillon testified that he worked for the prison system for nearly 33 years. He had been chief deputy warden of Wasco State Prison and interim warden at Salinas Valley Prison. He had made classification decisions about inmates to determine their housing arrangements.
Fillon had reviewed McInnis's records, known as the "C-File," and he was concerned about why McInnis was housed with another inmate. The records showed McInnis had a "propensity towards a predatory violence with the use of a weapon," psychological issues for which he received mental health treatment at the prison, and had been found in possession of weapons. Fillon testified that McInnis's status of having psychological problems had been "dropped" from these records without explanation. Fillon admitted an inmate's medical and mental health records are not included in his "C-File."
Fillon testified that based on McInnis's prior offenses, mental health issues, and classifications, the prison officials should have realized there were risks to place McInnis in a cell with another inmate. The omission of McInnis's psychological status showed the prison did not follow normal practices when it placed him in a double cell. There was nothing in his records to show that prison officials considered these factors when McInnis was housed with another inmate.
Fillon also testified that when an inmate was close to being released, he was considered "short to the house." In such situations, the inmate is moved into a lower level of custody with more movement and interaction with staff and inmates "to make sure he's ready to go out, and any violence or predatory behavior takes place in the institution and not in the community, if at all possible." Fillon testified that prison officials should also ensure the safety of an inmate about to be released, which could include placing him in a single cell to prevent peer pressure. Fillon believed that other inmates envy those who are about to be released, and try to get them in trouble to prevent their release.
Fillon testified he would not have housed an inmate with six months left in his term, in the same cell with an inmate serving 40 years, because of the potential for psychological conflict between the two inmates.
Fillon further testified that an inmate violated prison rules by using methamphetamine, and possessing a contraband book about combat techniques.
C. The Parties' Arguments
Defense counsel argued that Fillon's proposed testimony was relevant on the classification and housing of an inmate with a history of violence, housing an inmate about to be released with an inmate serving a longer term, and whether prison officials failed to enforce rule violations against McInnis.
Counsel conceded the evidence was not going to show that the prison officials were particularly biased against defendant. Instead, counsel argued the evidence would show the prison investigators were biased towards "covering themselves for an incident where you're letting a violent person who's high on methamphetamine[,] who has serious rules violations be doubled celled with [defendant] who's about to get out in a few weeks." The evidence would show numerous rules violations in the cell, including the fact that McInnis was high on methamphetamine and he possessed a book about combat fighting. Fillon's testimony would support the defense theory that the prison officers "had a reason to cover their tracks" during the investigation because they improperly placed defendant and McInnis in the same cell.
The prosecutor replied that defense counsel could attack the investigation by cross-examining the members of the prison staff, who were going to testify for the People. Fillon's proposed testimony about classification was not probative and could potentially confuse the jury, particularly since Fillon did not have the entirety of McInnis's prison records and did not review his medical file. The prosecutor also pointed out that both McInnis and defendant had histories of violence. The prosecutor asserted the prison system was not on trial, and "are we going to have a war over how these people should have been housed or are we just going to have a trial about what happened that night?"
D. The Court's Ruling
The court denied defendant's motion to call Fillon:
"My concern is that we'll end up turning this trial into an indictment of the California Department of Corrections because they failed to house Mr. McInnis appropriately, and we'll end up spending more time about the failure to have McInnis classified appropriately than whether or not there was an adequate use of self-defense here. They're both in the same cell, one of them is dead. I don't see - or why does it become relevant that McInnis should not have been in there?
"We'll get in the [Evidence Code section] 1103 evidence. You'll be able to show that McInnis was extremely dangerous, that he was under the influence of methamphetamine. Defendant will testify it was self-defense.
"I don't see that going after the CDC - an indictment of the CDC for failure to classify [based on the proposed testimony of Fillon] who, granted does not have access to everything that the institution would have had in making this classification. I see that is an undue consumption of time ...."
As explained above, defendant introduced evidence about McInnis's history of violence, drug use, and prior criminal acts pursuant to Evidence Code section 1103.
In response to defense counsel's further objections, the court noted it had already held Dr. Murphy could testify as a defense expert about McInnis and the prison system, and she could also address the significance of defendant's pending release and possible conflicts with McInnis.
As set forth above, Dr. Murphy testified about what it meant when an inmate was "short to the house," and explained that an inmate about to be released potentially faced jealousy, threats, and violence from other inmates serving longer times.
E. Admission of Expert Testimony
Defendant contends the court abused its discretion when it excluded Fillon's expert testimony. " 'Expert opinion testimony is admissible only if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ' [Citations.] 'When expert opinion is offered, much must be left to the trial court's discretion.' [Citation.] The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion. [Citations.]" (People v. McDowell (2012) 54 Cal.4th 395, 425-426.)
The court's discretion to exclude evidence under Evidence Code section 352 extends to the admission or exclusion of expert testimony. (People v. Richardson (2008) 43 Cal.4th 959, 1008; People v. Linton (2013) 56 Cal.4th 1146, 1181.) "[E]ven if expert testimony will assist the jury, it is still subject to 'the normal controls on scope of testimony and relevance.' [Citation.]" (People v. Linton, supra, at p. 1183.)
The court has broad discretion to exclude relevant evidence under Evidence Code section 352 "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; accord, People v. Lee (2011) 51 Cal.4th 620, 643.)
F. Analysis
Defendant contends the court violated his due process right to present a defense when it excluded Fillon's proposed testimony. Defendant asserts Fillon's testimony was relevant to show the prison placed defendant in a dangerous situation when he was housed with McInnis because he was about to be released on parole, McInnis was serving 40 years, and McInnis had a prior history of violence and possessing weapons in prison. Defendant argues Fillon's testimony would have supported his own trial testimony that he had to defend himself from McInnis's assault and the homicide was justified. Defendant further argues the evidence would have showed the prison was at fault for placing McInnis with defendant, and "biased" in the investigation of the homicide because of its erroneous decisions about his housing placement.
We find the court did not abuse its discretion when it excluded Fillon's testimony. First, defendant introduced extensive evidence about McInnis's history of violence, use of weapons, drug use and psychological issues, and that he was serving a lengthy term, based on testimony from Dr. Atelsalp, Dr. Murphy, correctional officers, and victims of his prior offenses.
Second, the court did not abuse its discretion when it decided that Fillon's testimony would turn the matter into a mini-trial on why the prison housed defendant with McInnis. Defendant never claimed that prison officials were biased against him prior to the homicide, or intentionally housed him with McInnis to trigger some type of violent incident or prevent defendant from being released. Instead, defendant argued Fillon's testimony was relevant to show the prison investigators had an alleged motive to cover up what happened during their investigation of the homicide, since they improperly housed defendant with McInnis and ignored McInnis's rules violations.
As noted by the prosecutor, however, defendant was not foreclosed from attacking the thoroughness of the homicide investigation during the trial. Defense counsel extensively cross-examined the correctional officers about McInnis, the evidence found in the cell, the presence of the book on combat fighting, the photo album with the hollowed-out space for a weapon, and that a weapon was never found in the cell. While the officers never found a weapon, defendant testified that he repeatedly saw McInnis in possession of various weapons, he knew that McInnis had hidden a weapon in the photo album, he thought McInnis was reaching for the photo album to retrieve a shank, and conceded he never saw a weapon immediately before or after the homicide.
Third, defendant introduced evidence about the impact of his imminent parole release through the testimony of Dr. Murphy. Dr. Murphy explained that an inmate who was about to be released was considered "short to the house," and such an inmate could face jealousy or violence from other inmates who were serving longer terms. Dr. Murphy also addressed the point that Fillon would have talked about - that an inmate who was "short to the house" should have been protected and not housed with a life-term inmate. Dr. Murphy's testimony thus supported defendant's own trial testimony about how McInnis was becoming more hostile toward him as defendant's release date approached.
Finally, as to defendant's claim of constitutional error, "[t]he 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1010; People v. Lewis (2009) 46 Cal.4th 1255, 1284.) "Although a defendant has the general right to offer a defense through the testimony of his or her witnesses, 'a state court's application of ordinary rules of evidence - including the rule stated in Evidence Code section 352 - generally does not infringe upon this right ....' [Citations.]" (People v. Linton, supra, 56 Cal.4th at p. 1183.)
II. Instructions on Mutual Combat
Defendant next contends the court improperly instructed the jury with CALCRIM No. 3471, self-defense and mutual combat, because it was not supported by the evidence for either counts I or II. Defendant argues that he never engaged in any "combat" with Shelhart, and McInnis was the aggressor just before the homicide. Defendant asserts the mutual combat instruction would have confused the jury and undermined his claim of self-defense and justifiable homicide.
A. Background
During the instructional phase, the court said that it had already discussed the instructions with the parties in chambers. The court said defense counsel asked for CALCRIM No. 3470, on self-defense in a non-homicide case, and that would apply to count II, assault with a deadly weapon on Shelhart. The court was inclined to give the instruction. The prosecutor submitted the matter.
The following exchange ensued:
"THE COURT: [M]y review of the CALCRIM looks like we should necessarily give [CALCRIM No.] 3471, as well, which [is] his right to self-defense, mutual combat, or initial aggressor. [¶] It does appear my review of the CALCRIM that if we give 3470 we should give 3471.
"[DEFENSE COUNSEL]: Okay."
The prosecutor was concerned whether CALCRIM No. 3471 on mutual combat would apply to count II since there was no evidence of mutual combat with Shelhart. The court said: "Well, I'm not so sure that 3471 is going to be limited to Count 2," and thought the mutual combat instruction could "go to both Count 1 and Count 2. There's a whole slurry of jury instructions in this particular area, some of you asked for them some of you have not. But I think 3470 clearly goes to Count 2 because Count 1 is the homicide." The court said that CALCRIM No. 3471 on mutual combat "can be argued for both counts," and the bench notes stated that "if the defendant was the initial aggressor and is charged with homicide, always give CALCRIM 505 [justifiable homicide and self-defense], which we have done."
B. The Instructions
We have already set forth the instructions above, and the jury was fully and correctly instructed on murder, manslaughter, self-defense, provocation, and justifiable homcide.
The court gave CALCRIM No. 3470, lawful self-defense, and the instruction specifically stated that it applied to count II, assault with a deadly weapon on Shelhart.
The court then gave CALCRIM No. 3471 on the right to self-defense and mutual combat.
"A person who engages in mutual combat or who starts a fight has a right to self-defense only if one, he actually and in good faith tried to stop fighting .... [¶] Number two, he indicated by word or conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and three, he gave his opponent a chance to stop fighting.
"If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight.
"However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop
fighting or communicate the desire to stop to the opponent or give the opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.
C. Forfeiture
Defendant contends the court erroneously gave CALCRIM No. 3471. We first note, however, that the court advised the attorneys that it was going to give the mutual combat instruction, defense counsel agreed and did not object, and counsel's failure to object to CALCRIM No. 3471 should result in forfeiture of this issue on appeal. (See, e.g., People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.)
Defendant acknowledges that counsel failed to object but argues this court must address the issue since the erroneous instruction affected his substantial rights or, alternatively, counsel was prejudicially ineffective for failing to object. (See, e.g., People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1233-1234.) We thus turn to the merits of the issue.
D. Mutual Combat Instruction
The court must only give those instructions that are supported by substantial evidence, and it is not obliged to instruct on theories that have no evidentiary support. (People v. Larsen (2012) 205 Cal.App.4th 810, 823.) "Substantial evidence in this context ' "is 'evidence sufficient "to deserve consideration by the jury," not "whenever any evidence is presented, no matter how weak." ' " [Citation.]' [Citation.] 'In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether "there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt ...." [Citations.]' [Citation.]" (Id. at pp. 823-824.)
In People v. Ross (2007) 155 Cal.App.4th 1033 (Ross), the court held that it was erroneous to tell a jury to rely on the "common meaning" of " 'mutual combat' " because "the lay meaning of 'mutual combat' is too broad to convey the correct legal principle." (Id. at p. 1044.) Ross explained that the problem with the common definition of "mutual" was that "any combat may be correctly described as 'mutual' so long as it is seen to possess a quality of reciprocity or exchange. In ordinary speech, then, 'mutual combat' might properly describe any violent struggle between two or more people, however it came into being. If A walks up to B and punches him without warning, and a fight ensues, the fight may be characterized as 'mutual combat' in the ordinary sense of those words." (Ibid.)
Ross held that " mutual combat" refers instead to " 'a duel or other fight begun or continued by mutual consent or agreement, express or implied. [Citations.]' In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual." (Ross, supra, 155 Cal.App.4th at p. 1045, italics in original, fn. omitted.)
" '[M]utual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047, italics in original.)
CALCRIM No. 3471, the pattern instruction for mutual combat, was revised after the decision in Ross to "add in brackets: 'A fight is mutual combat when it began or continued by mutual consent or agreement.' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1050, italics in original.)
E. Analysis
Defendant contends that CALCRIM No. 3471 was misleading because it stated a party does not have the right to self-defense unless he retreats and withdraws. However, CALCRIM No. 3471 is a correct statement of the law. (People v. Nguyen, supra, 61 Cal.4th at p. 1050.)
1. Count I - Homicide
Defendant next argues mutual combat requires an agreement to fight before the initiation of hostilities, and there was no evidence defendant was the aggressor or that he had a prearranged agreement to fight with McInnis that led to the homicide. Defendant asserts the prosecution did not introduce any evidence to counter his trial testimony, that McInnis unilaterally started the altercation by assaulting him and threatening to kill him, and defendant was entitled to defend himself.
CALCRIM No. 3471 states the requirements for a person who engages in mutual combat to claim the right to self-defense. The instruction also defines mutual combat so the jury can determine whether or not the instruction applies: "A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose." This language thus called upon the jury to make a determination, in the first instance, as to whether there was an express or implied "agreement" to engage in mutual combat. Based on this language, there is no reasonable likelihood that the jury would have believed that CALCRIM No. 3471 required it to assume that such an agreement existed. (See, e.g., People v. Cross (2008) 45 Cal.4th 58, 67-68 [defendant must demonstrate a reasonable likelihood that the jury instruction was understood as he interprets it].)
In addition, there was evidence from which a reasonable juror could have found evidence of an implied agreement for mutual combat. (Ross, supra, 155 Cal.App.4th at p. 1047.) Defendant testified McInnis turned off the television, defendant turned it back on, and they exchanged words. McInnis called defendant a punk, said he was not following his rules, and he might not go home. Defendant admitted that he replied "in spite" and said that at least he was going home, and that McInnis was just a "dope fiend." McInnis threw three punches at defendant's face. In return, defendant testified he hit McInnis as hard as he could, landed five punches, and McInnis fell to the floor and was "KO'd." Defendant kept his hands up to be ready to fight, and stepped back to see what would happen. McInnis said defendant was "dead" and reached for the photo album where defendant believed he kept his shank. At that point, defendant rushed and attacked him, because he was afraid McInnis had a weapon. Defendant testified they were both aggressive. The fight culminated in McInnis trying to strangle defendant, and then defendant breaking free and strangling McInnis.
From defendant's testimony, the jury could have found implied evidence of a mutual combat. The jury could have believed defendant's testimony that after he "KO'd" McInnis, he stepped back to see what was going to happen and gave McInnis a chance to stop fighting, and that defendant did not continue the fight until McInnis appeared to reach for his hidden weapon.
If the jury believed defendant's account, it could have followed the instruction to find that McInnis tried to kill defendant and defendant had the right to self-defense. The jury's verdict, however, indicated that it did not believe the entirety of defendant's story, particularly given the severity of the blunt force trauma to McInnis's head. CALCRIM No. 3471 was supported by the evidence, and it did not mislead the jury.
2. Count II - Assault of Shelhart
Defendant also argues that CALCRIM No. 3471 was inapplicable to count II, the assault on Shelhart, because there was no evidence of a fight between defendant and Shelhart.
At trial, defendant testified Shelhart did not say or do anything to him. Defendant believed he was being set up and considered Shelhart's entrance into the dayroom as an aggressive act, since Shelhart and the other two inmates were Northern Hispanics while defendant was a Southern Hispanic. Nevertheless, there was no evidence of mutual combat between defendant and Shelhart, as defined by CALCRIM No. 3471.
"It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) "[G]iving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' [Citation.]" (People v. Cross, supra, 45 Cal.4th at p. 67.)
When a court errs by giving a correct instruction that has no application to the facts of the case, the error "does not appear to be of federal constitutional dimension.... [¶] The error is therefore one of state law subject to the traditional [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)] test.... Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.]" (People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
As we have explained, the jury was properly instructed on the definition of mutual combat, and it was not required to assume that mutual combat occurred as to either count. The jury also instructed with CALCRIM No. 200, that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them."
Accordingly, we presume that the jury, heeding the directive of CALCRIM No. 200 and the definition of mutual combat, disregarded the inapplicable portions of CALCRIM No. 3471 when it considered count II.
III. Referring to McInnis as a "Victim"
Defendant next argues the court should have granted his pretrial motion to prevent the prosecutor and all witnesses from referring to McInnis as a "victim." Defendant asserts such references were prejudicial because he relied on self-defense and justifiable homicide, and the theory that no crime was committed and McInnis was not a victim. Defendant argues the error was exacerbated by the inclusion of the word "victim" in some of the jury instructions. Defendant argues the use of the word "victim" undermined the presumption of innocence, reduced the prosecution's burden of proof, and violated his due process rights to present self-defense and justifiable homicide as defenses.
A. Defendant's Pretrial Motion
Defendant filed a pretrial motion in limine that, among other issues, sought to prevent the prosecutor from soliciting testimony from any witnesses using "argumentative and legally conclusionary terms including 'victim', 'kill', 'slay', 'murder', and homicide' (with the exception of pathologist Dr. Robert Whitmore being permitted to use the term 'homicide with appropriate foundation)."
Defendant argued the term "victim" was "inherently argumentative. Being killed does not necessarily make someone a victim because [defendant] could have acted in self-defense (i.e. justifiable homicide). The term 'victim' is also not necessary to reflect that [Mr. McInnis] is deceased. Terms such as 'decedent' and 'the deceased' can be used without being argumentative." Defendant also moved to prevent Dr. Whitmore from referring to McInnis as "the 'named victim.' "
B. The Court's Ruling
During the pretrial motions, defense counsel argued the court should grant his motion because the prison officers were going to testify about finding the "victim," but they did not see what happened and there were no eyewitnesses to the incident: "I know Mr. McInnis is dead, but that doesn't mean he was a victim. That means he lost a fight with deadly force." Counsel suggested they should refer to McInnis by his name or as the "alleged victim." Counsel also argued the witnesses could not say that defendant "killed or slayed or murdered [McInnis] when they don't have any personal knowledge of that." Counsel asserted these words have "a powerful effect" on the jury.
The prosecutor objected and argued "[t]hese are common words that are used every day," and did not have any more meaning "than what they are."
The court denied defendant's motion without comment.
C. Trial References
On appeal, defendant concedes the prosecutor and witnesses "usually referred to McInnis by name" during trial.
However, defendant argues McInnis was prejudicially described as the "victim" in the following instances: the prosecutor's opening statement, that the "victim was fighting for his life that night"; Officer Faulkner's testimony about investigating the contents of the cell; the criminalist's testimony about the examination of the "victim's right hand"; the prosecutor's questions to Officer Robles about recovering the "victim's body"; the prosecutor's redirect examination question to Dr. Whitmore about whether "the victim" died within seconds; the prosecutor's reference to an exhibit that showed "the victim's right hand; and the prosecutor's closing arguments, when he used both McInnis's name and the word "victim."
Defendant also complains that CALCRIM No. 505, about homicide and self-defense, referred to "the victim"; whereas the instructions for count II, assault, used Shelhart's name and did not describe him as a "victim."
D. Relevant Cases
Defendant relies on three cases in support of his argument that the court erroneously denied his pretrial motion to exclude any references to McInnis as a "victim."
In People v. Williams (1860) 17 Cal. 142 (Williams), the defendant was charged with murder and claimed self-defense. The defendant argued the court committed error when it referred to the decedent as a " 'victim' " when instructing the jury. (Id. at p. 146.) Williams cautioned against use of that word:
"The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. When the deceased is referred to as 'a victim,' the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal. The Court should
not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. The experience of every lawyer shows the readiness with which a jury frequently catch at intimations of the Court, and the great deference which they pay to the opinions and suggestions of the presiding Judge, especially in a closely balanced case, when they can thus shift the responsibility of a decision of the issue from themselves to the Court. A word, a look, or a tone may sometimes, in such cases, be of great or even controlling influence. A Judge cannot be too cautious in a criminal trial in avoiding all interference with the conclusions of the jury upon the facts; for of this matter, under our system, they are the exclusive judges. We are far from intending any reflection upon the learned Judge below by these observations; but the importance of the question and the undesigned expressions noticed, suggest the propriety of making them." (Id. at pp. 147-148.)
While Williams made these observations, it apparently reversed defendant's conviction on another ground, based on the trial court's refusal to give a requested instruction that correctly stated the law on self-defense. (Williams, supra, 17 Cal. at p. 148.)
In People v. Wolfe (1954) 42 Cal.2d 663 (Wolfe), the defendants were convicted of stabbing and murdering a fellow inmate while they were housed together in prison. The defendants relied on Williams and argued the prosecutor committed misconduct when he asked one defendant what happened to his knife, and the defendant replied he left it in the victim's back. The prosecutor then asked whether he left the knife in the victim's back, and the defendant said yes. The defendants asserted the prosecutor's language "assume[d] the guilt of the defendant." (Wolfe, supra, at pp. 665-667.) Wolfe distinguished Williams because the prosecutor's expression "did not come from the judge, but from the prosecuting attorney without objection by defense counsel or motion to strike being made, and the jury was instructed that it was the sole judge of the value and effect of the evidence; that it could not convict a defendant upon mere suspicion; that the prosecution was 'bound to establish the guilt of a defendant beyond a reasonable doubt, and unless the prosecution does so, then it is your duty to find the defendant not guilty.' " (Ibid.)
In People v. Sanchez (1989) 208 Cal.App.3d 721 (rejected on other grounds by People v. Jones (1990) 51 Cal.3d 294, 307), the defendant argued his counsel was ineffective for failing to object to the prosecutor's references to the complaining witness as the " 'victim.' " (Sanchez, supra, at p. 739.) Sanchez held that the "scattered references to 'victim' made by the prosecutor, though possibly objectionable, did not deserve defense counsel's interruption of the trial." (Id. at p. 740.)
1. Cases From Other States
Defendant also relies on a series of cases from other states that address whether it is prejudicial for the court and/or the prosecutor to use the word "victim" where there is a question about whether the alleged offense occurred. (See, e.g., State v. Plain (Iowa 2017) 898 N.W.2d 801, 818-820 [reviews cases from other states; concludes prosecutor's reference to complaining witness as "victim" was not prejudicial]; Veteto v. State (Tex.Ct.App. 2000) 8 S.W.3d 805, 816-817, abrogated on other grounds by State v. Crook (Tex.Crim.App. 2008) 248 S.W.3d 172, 176-177 [use of "victim" instead of "alleged victim" in jury instruction was an "improper comment on the weight of the evidence by the court"]; Talkington v. State (Tex.Ct.App. 1984) 682 S.W.2d 674, 675 [instruction referring to complaining witness as victim was improper where the issue was whether there had been consent to sexual intercourse]; Jackson v. State (Del. 1991) 600 A.2d 21, 24-25 [officers' use of the word "victim" was not prejudicial since law enforcement officers use the descriptor as a "term of art synonymous with 'complaining witness' "]; State v. Albino (Conn. 2011) 24 A.3d 602, 617 [prosecutor's repeated references to "victim," "murder" and "murder weapon" were prejudicial where defendant claimed self-defense]; State v. Warholic (Conn. 2006) 897 A.2d 569, 584 [prosecutor's reference to child "victim" in closing argument was not improper because it was likely understood by jury as reflecting state's contention that "based on the state's evidence, the complainant was the victim of the alleged crimes"].
E. Analysis
We first note that this court is not bound by the decisions of other states. (People v. Mays (2009) 174 Cal.App.4th 156, 167; People v. Williams (1997) 16 Cal.4th 153, 190.)
We further observe that while Williams cautioned that a trial court in a homicide case should not refer to the deceased person as a " 'victim,' " Williams apparently reversed the conviction based on a different claim of error. (Williams, supra, 17 Cal. at pp. 146-148.)
In addition, the trial court in this case overruled defendant's pretrial motion to prevent the use of the word "victim," and the prosecutor's references to McInnis as the "victim" did not violate an existing order or constitute misconduct.
In any event, even if we were to assume the trial court erroneously denied defendant's pretrial motion, any error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24; Watson, supra, 46 Cal.2d at p. 836.)
Defendant's jury trial began on December 2, 2014, with the presentation of evidence, and the jury began deliberations on December 15, 2014. Defendant concedes that during this lengthy trial, the prosecutor and the witnesses usually referred to McInnis by name, with the minimal exceptions quoted above. Defendant has not argued that the prosecutor used the word "victim" as part of an improper " 'appeal for sympathy for the victim ... during an objective determination of guilt.' [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Seumanu (2015) 61 Cal.4th 1293, 1342-1344.)
When defendant testified, he described McInnis's drug use, weapon possession, and the fatal altercation in the cell, and continually referred to McInnis by his nickname of "Troubles" and not by his last name.
Defendant was charged with the first degree murder of McInnis, and the prosecutor's theory of the case was that defendant committed a premeditated, deliberate, and intentional murder, and dismissed the credibility of defendant's claim of self-defense.
Given the context in this case, the jury could have reasonably been expected to understand that references to McInnis as "the victim" meant "the person who was killed," not that certain witnesses saw defendant murder McInnis. Indeed, it was undisputed that there were no witnesses to the homicide aside from defendant. It is common to speak of a "homicide victim" even though the homicide may not be criminal. In addition, the term "victim" is used in standard jury instructions on homicide, even though those instructions are given before any crime has been found. (See, e.g., CALCRIM No. 600 [concurrent intent exists when the defendant intended "to kill a specific victim or victims and at the same time intend[ed] to kill everyone in a particular zone of harm or 'kill zone.' " (Italics added)]; CALCRIM No. 520 ["[m]alice aforethought does not require hatred or ill will toward the victim." (Italics added)].) The use of the term in those instructions shows a general recognition that the jury will not interpret it as an expression of guilt before it returns a verdict.
The jury was fully instructed on reasonable doubt and the People's burden of proof (CALCRIM No. 220); that it "must decide what the facts are" and it "alone" decides "what happened, based only on the evidence that was presented in this trial"; not to let "bias, sympathy, prejudice, or public opinion influence your decision" and bias included being "for or against" the "alleged victims" (CALCRIM No. 200); that "[n]othing that the attorneys say is evidence" and the attorneys' remarks during "opening statements and closing arguments" were not evidence) (CALCRIM No. 222; and the jury "alone must judge the credibility or the believability of the witnesses." (CALCRIM No. 226.)
We presume the jury followed the court's instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.) In addition, the jury rejected the People's theory of first degree murder, thus giving credence to some part of defendant's trial testimony by finding him guilty of voluntary manslaughter, further indicating that the use of the word "victim" was not prejudicial under the circumstances.
IV. Cumulative Evidentiary Error
Defendant asserts that the above-asserted evidentiary errors resulted in cumulative prejudicial error. Having rejected defendant's contentions, we similarly reject defendant's claim of cumulative error.
V. The Juror's Note and the Court's Reinstruction During Deliberations
As we will explain, the court received a note from Juror No. 10 during deliberations, and questioned that juror and two other jurors about whether there were any conflicts among the jurors. The court denied the prosecutor's motion to replace Juror No. 10 with an alternate, and instead reinstructed the jury to continue deliberations.
Defendant contends the court improperly addressed this situation and forced the jury to resume deliberations, which resulted in the coercion of Juror No. 10 to "cave" and return a guilty verdict for voluntary manslaughter.
A. Background
On December 15, 2014, the jury began deliberations.
On December 16, 2014, the jury sent a note and asked to hear defendant's testimony "to the cross by prosecution." The court asked the jury to be more specific with its request.
On December 17, 2014, the jury sent a note and asked the court to explain provocation, and explain whether the reference to a person of average disposition meant "an average person's disposition in a cell or out on the street ... or any other environment." The court sent a written response, that the "'average person' standard is objective. It is a person of average disposition in the same or similar circumstances."
At 9:42 a.m. on December 18, 2014, the jury asked to hear defendant's testimony "on the entire fight in the cell."
At 10:18 a.m. on December 18, 2014, the jury asked to hear Dr. Whitmore's testimony about the injuries to McInnis.
B. Juror No. 10's Note
At 4:25 p.m. on December 18, 2014, the court received a note from Juror No. 10. The note was addressed to the court, timed at 4:15 p.m., and stated:
"I [Juror No. 10] have some disagreements with one of the Jurors [identifying Juror No. 1]. The disagreements are making me feel uncomfortable. I would like to ... have a brief talk with you. Thank you."
The court discussed the note with the prosecutor and defense counsel. The court said it was going to bring in Juror No. 10 and find out what was making the juror feel so uncomfortable, without getting into the content of the deliberations. The court also planned to speak with Juror No. 1 about the situation, and then discuss the matter with the attorneys.
Defense counsel said he "definitely agree[d]" with the court's decision to separately talk to the two jurors. However, if the court determined the jurors could not reach a verdict, then defense counsel planned to move for a mistrial because "if those disagreements are leading to a juror feeling uncomfortable, any verdict at this point would be polluted because you would have such pressure.... I think this is technically day four of deliberations. It would not be a verdict, presumably, that was not polluted by the disagreements being so heated. [I]f the deliberations have reached an impasse with a juror saying they even feel uncomfortable with them, if it's not based on misconduct but based on not being able to see eye to eye in reaching a verdict, that we don't give the impression to that juror or jurors that feel uncomfortable that we're going to keep them here until somebody changes their mind and doesn't stick to their guns, especially in a case of this magnitude."
The prosecutor said there was no way to make any decisions until the court spoke to the jurors.
The court asked the bailiff to escort Juror No. 10 into the courtroom. The court advised the attorneys that they could not directly ask the juror any questions, but it would conduct a sidebar conference to see if they wanted to raise any issues.
C. Juror No. 10
When Juror No. 10 entered the courtroom, the court said it had received the juror's note and asked what was making the juror feel uncomfortable. The court asked Juror No. 10 not to address the content of the deliberations.
Juror No. 10 said Juror No. 1 was upset about Juror No. 10's decision, they disagreed about the decision, and Juror No. 1 was trying to persuade Juror No. 10 to agree with Juror No. 1. The disagreement began the previous day and continued to that day. Juror No. 1 was upset because the juror was unable to persuade Juror No. 10 to change the decision.
Juror No. 10 said:
"So it's causing - and, you know, when you have 12 jurors and so many are agreeing on this and so many are agreeing on that, they start taking sides to the ones who agree to whatever they agree on and the ones to whatever they agree on. [¶] And I just want it to be - I don't want to feel like I'm persuaded if it's based on the evidence that was perceived to me...."
Juror No. 10 said it was unnecessary for Juror No. 1 to "push on and take sides based upon [Juror No. 1] feeling the way that she feels based upon my decision."
The court asked if Juror No. 10 felt pressured by Juror No. 1. Juror No. 10 said: "Somewhat, yeah, but I kind of calmed down ...." Juror No. 10 did like confrontation and could not sleep at night, and had apologized to Juror No. 1 and said, " 'If there's something that I said that upset you, then I'm sorry.' "
Juror No. 10 said: "[I]f it can be resolved, I want it to be resolved, and ... [Juror No. 1] knows when to be quiet, I know when to be quiet, and that's it."
The court asked Juror No. 10 if it was "this way on both counts or have you made a decision on one of the counts and having a problem on another." Juror No. 10 replied: "We already made the decision on one count," but did not specify which count that was. The court asked if the problem arose based on the count that had already been decided. Juror No. 10 said there were no problems on that count, and the problem was on the count they were unable to decide.
The court had a sidebar conference with the attorneys, and then thanked Juror No. 10, with directions to return to the jury room.
D. Juror No. 1
The court next questioned Juror No. 1, and read aloud Juror No. 10's note. The court asked Juror No. 1 not to discuss the content of deliberations, but explain the problem with Juror No. 10.
Juror No. 1 said there was no problem with Juror No. 10. However, another juror said something to Juror No. 10. Juror No. 10 did not like what the other juror said. Juror No. 1 said that Juror No. 10 stood up, and told the other juror, " 'Don't address me in this manner. If you have a problem with me, we will meet outside of this room to settle it.' "
Juror No. 1 felt that was inappropriate. Juror No. 1 told Juror No. 10 that if Juror No. 10 was going to tell the other juror " 'to stop talking to you directly, you need to stop talking to [the other juror] directly.' " Juror No. 10 replied to Juror No. 1: " 'I'm not going to put up with the way you're talking to me. I have a problem with it.' "
Juror No. 1 said Juror No. 10 "has been bullying, and when [the other juror] was being verbally attacked and not defending herself, I told [Juror No. 10], I said, 'If you're going to tell [the other juror] to stop, you need to stop.' "
The court asked whether the incident happened after the jury had reached a verdict on one count but not the other. Juror No. 1 said that was correct, and everything was calm and a verdict was reached on one count, and the incident happened while the jury was having "a hard time" reaching a verdict on the other count.
The court conducted another sidebar conference, and then asked Juror No. 1 to return to the jury room.
After Juror No. 1 left the courtroom, the court noted it was nearly 5:00 p.m. and that defense counsel wanted to file a motion for mistrial. The court decided to continue to address the matter the following day.
E. Defense Counsel's Request for a Special Admonition and Questions
On the morning of December 19, 2014, the court reconvened and said it wanted to question the foreperson about the situation, and whether it had an impact on the jury during deliberations.
Defense counsel said he had thought about the situation, and asked the court to take the jury's verdict "on Count 2 and grant a mistrial on Count 1," because Juror No. 10 said they disagreed on the evidence and verdict for count I, and Juror No. 1 confirmed that.
Both Juror No. 1 and Juror No. 10 said the jury had reached a verdict on one count but not the other one. However, neither juror specified which count had been decided. Juror No. 10 was questioned on the afternoon of December 18, 2014, and said the disagreement had begun the previous day.
Based on the nature of the jury's earlier questions to the court, it appears the jury was still deliberating on the murder charge at the time of Juror No. 10's note. On the morning of December 18, 2014, the jury asked to hear defendant's testimony about the fight in the cell, and Dr. Whitmore's testimony about McInnis's injuries. The court received Juror No. 10's note later that afternoon, after the testimony had been read to the jury.
Defense counsel argued that the jurors would feel like they had done something wrong to have their own opinions, but that "sticking to your own guns is not doing anything wrong, it's doing what you're supposed to be doing when you're a juror on a criminal case."
Defense counsel objected if the court decided to question any other jurors. Counsel said there was no evidence of juror misconduct to allow the court to conduct an evidentiary hearing. "Merely saying 'Let's take this outside' during heated discussions which [both jurors] confirmed were about the case, is not inappropriate." Counsel said there was no evidence of intimidation, or that any of the jurors were refusing to deliberate.
Defense counsel also objected to questioning the foreperson because it would leave the impression that the jury was doing something wrong. "There isn't enough based on Juror Number 10 and Juror Number 1 to go further."
1. Defense Counsel's Suggested Admonitions
In the alternative, defense counsel stated that if the court decided to talk to the foreperson or any other jurors, he requested the court to read the following special admonition before it questioned any juror, to ensure that the juror did not think he or she was doing anything wrong. The proposed admonition stated:
"There is nothing wrong with jurors disagreeing on a verdict, disagreeing on the application of the law to the evidence received in court, or what evidence was or was not proved during the trial. Disagreeing on a verdict is not the same as failing to deliberate. Each juror is entitled to his or her own opinion for this case. The opinions of other jurors must be respected even if you disagree with them. The law requires that each juror make their own individual verdict in this case. You alone must decide what happened. You alone must decide what your individual verdict in this case is."
Defense counsel also moved for the court to ask each juror the following four questions.
"1) Have you communicated with any other juror about the proceedings outside of the presence of the other jurors?
"2) Do you believe that the jurors in this case are not able to reach a verdict as to Count 1?
"3) Do you believe that the jurors in this case have different verdicts as to Count 1? Do you believe that further deliberations in this case will not lead to reasonable probability of a verdict?
"4) Have all jurors in this case ... been discussing the case in the jury room and deliberating?"
Defense counsel argued the questions were important because it appeared that cliques were forming within the jury, the jurors may be frustrated, and the questions would reveal whether there was any misconduct and whether the jurors felt they could still reach a verdict.
F. The Prosecutor Moves to Replace Juror No. 10
The prosecutor filed a motion to excuse Juror No. 10 for good cause and seat an alternate because Juror No. 10 was not deliberating. The prosecutor acknowledged that the court had just started to investigate the matter, and agreed the court should interview the foreperson and the other jurors. If the allegations were confirmed after the investigation, then Juror No. 10 had lost the ability to be impartial and should be excused.
The prosecutor wanted the court to particularly clarify with the foreperson whether Juror No. 10 personally threatened Juror No. 1 by saying they should take the dispute outside.
Defense counsel replied that after the court questioned the foreperson, Juror No. 10 should have the chance to respond to Juror No. 1's allegations about what was said, before the court addressed the prosecutor's motion to remove Juror No. 10.
The court was not inclined to bring back Juror No. 10 to respond and create a "mini trial" unless it talked to every one of the jurors. The court decided to talk to the foreperson and see where it went from there.
G. The Foreperson
At approximately 9:18 a.m. on December 19, 2014, the court questioned the foreperson [Juror No. 2] about what was going on between Juror Nos. 1 and 10.
The foreperson said: "I've kind of broken this up a couple of times when they got a little aggressive and grabbed everybody back to No, no, no, this whole things about justice and us evaluating what's going on here with the evidence, it's not about personalities, let's move the personalities out, and that worked for a while with the juror on the end [Juror No. 10], but [Juror No. 10] tends to be a little more aggressive."
The court asked the foreperson whether Juror No. 10 said anything about taking it outside. The foreperson said yes. The court asked whether Juror No. 10 was participating in the deliberation process. The foreperson said no, because Juror No. 10 said: " 'My beliefs will not allow me to do what this is doing.' " The foreperson told Juror No. 10 that they had to stick to the evidence, and repeatedly went over the instruction about what jurors could and could not consider.
The foreperson said Juror No. 10 replied: " 'I don't want to hear that no more. I've made my mind up. You're not going to talk me out of it.' " The foreperson said, "Nobody's trying to talk you out of it. We're presenting evidence." Juror No. 10 said, " 'I don't want to hear it anymore.' "
The foreperson said that no other juror was acting this way. In response to the court's questions, the foreperson said Juror No. 10 stopped participating in deliberations on the second day. The foreperson gave an example about how the photographic exhibits were placed on the wall, and everyone was asked for their opinions; Juror No. 10 said, " 'I don't care about the pictures on the wall. As far as I'm concerned, they probably made that stuff up.' " Juror No. 10 added: " 'I'm here. I've made my mind up. That's it. You can ask me a thousand times, I'm not going to change my mind, that's it.' "
The foreperson said that Juror No. 10 continuously referred to his/her "beliefs" and refused to discuss the evidence in the case.
The foreperson said the first verdict was reached immediately, and there were no problems reaching that verdict. The court asked whether the foreperson believed further deliberations would be helpful. The foreperson replied: "Yes, sir, I do. I'm a diehard, I believe we can do it - sir."
H. The Court Reinstruction of the Jury
After the court questioned the foreperson, it conducted a sidebar conference with the attorneys. The court then called for the rest of the jury to return to the courtroom.
The court advised the jury that it had talked to a few of the jurors and the foreperson, and "[i]t appears that tempers have flared and words were exchanged during deliberations on one of the counts. It's very important jurors conduct themselves in a calm and civil manner and treat each other courteous, all right?"
The court then instructed the jury with CALCRIM No. 3551.
"Sometimes juries that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict on one or more counts. Please consider the following suggestion. Do not hesitate to reexamine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors.
"It is your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. Both the People and the Defendant are entitled to the individual judgment of each juror.
"It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective.
"Let me know whether I can do anything to help you further, such as give additional instructions or clarify instructions I have already given you.
"Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing using the form my bailiff has given you."
At 9:43 a.m., the jury resumed deliberations.
I. The Prosecutor's Objections
After the jury resumed deliberations, the court asked the attorneys for any objections about what had just happened.
Defense counsel said he would "submit it on my prior comments."
The prosecutor renewed his motion to dismiss Juror No. 10 for not participating in deliberations based on the foreperson's statements, and that the alternate should be seated.
The court denied the prosecutor's motion to replace Juror No. 10 because the foreperson also said the jury "had fully discussed the case, and [Juror No. 10] made her mind up at that point, and she's been steadfast since then and there's the problem."
The court believed the jury had reached a verdict on count II, and instructed the jury to advise the court if it could not reach a verdict on count I, but the foreperson was "steadfast" that they could reach a verdict. The court had just instructed the jury to send a note if they were having problems, and Juror No. 10 had already sent the note the previous day, so the jurors knew what to do if they needed help.
The court stated: "It's obvious they're having some difficulties back there, but we've got some diehards who want to try and get a verdict and I certainly appreciate that."
J. The Verdicts
At 10:22 a.m. on December 19, 2014, the court stated the foreperson had sent a note that the jury had reached verdicts for both charges. The court stated the note was sent at 9:57 a.m., about 15 minutes after the jury had resumed deliberations.
The jury found defendant not guilty of murder, and guilty of the lesser included offense of voluntary manslaughter. It found defendant guilty of assault with a deadly weapon. The court polled the jury and all the jurors - including Jurors No. 1 and 10 - agreed the verdicts were true and correct.
Neither the prosecutor nor defense counsel raised any additional issues about the deliberations; the court thanked and excused the jury.
K. Analysis
Defendant argues the court abused its discretion when it "forced" the jury to continue to deliberate. Defendant asserts the court should have again talked with Juror No. 10 to determine if further deliberations would have been useful. Instead, the court improperly gave CALCRIM No. 3551, which operated to "displace" Juror No. 10's independent judgment and coerced the juror to change his/her mind, particularly since the jury returned the verdicts within 15 minutes of the reinstruction. Defendant further argues the court should have given defense counsel's proposed admonition, which would not have coerced Juror No. 10 to change her vote.
A trial court derives its authority to instruct a potentially deadlocked jury from section 1140, which allows the court "to discharge a jury and declare a mistrial if the court determines that the proper period of time for deliberation has expired and 'there is no reasonable probability' that the jurors can agree on a verdict. The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion. [Citations.] 'Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived " 'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' " ' [Citation.]" (People v. Debose (2014) 59 Cal.4th 177, 209.)
"Coercion has been found where the trial court, by insisting on further deliberations, expressed an opinion that a verdict should be reached. [Citations.]" (People v. Rodriguez (1986) 42 Cal.3d 730, 775; People v. Peoples (2016) 62 Cal.4th 718, 783.) The question of coercion is necessarily dependent on the facts and circumstances of each case. (People v. Breaux (1991) 1 Cal.4th 281, 319.)
The jury's own assessment of being in a deadlock is not determinative, and does not remove the court's discretion to require further deliberations. (People v. Harris (2005) 37 Cal.4th 310, 364-365; People v. Sandoval (1992) 4 Cal.4th 155, 195-196; People v. Rodriguez, supra, 42 Cal.3d at pp. 774-777.)
Even when a jury has deliberated for a substantial amount of time and indicates it is unable to reach a verdict, a trial court still retains discretion to require further deliberation without being coercive. (See People v. Sandoval, supra, 4 Cal.4th at pp. 196-197 [no abuse of discretion where court ordered more deliberations following five month trial and deliberations that lasted a little over 14 hours]; People v. Breaux, supra, 1 Cal.4th at pp. 319-320 [jury informed court it had reached an impasse after four days of deliberation, indicated there was no chance of a verdict upon further deliberation, and was properly asked twice to deliberate further]; People v. Rodriguez, supra, 42 Cal.3d at pp. 775-776 [court did not coerce jurors by asking them to resume deliberations after 18 days, with four intermittent impasses, based on long trial and complex issues]; People v. Peoples, supra, 62 Cal.4th at pp. 783-784 [court's statements to the jury that 21.5 hours of deliberation "was a 'drop in the bucket' " and the jury could continue deliberations until the end of the month were not coercive].)
We note that when the court addressed this matter, defense counsel repeatedly moved for the court to take the verdict on count II and declare a mistrial as to count I. Defense counsel deduced that the jury had already returned a verdict on count II, assault with a deadly weapon, and it was still deliberating on count I, murder, based on the nature of the jury's questions just before Juror No. 10 sent the note to the court. With that background, defense counsel objected to the prosecutor's motion to replace Juror No. 10 with the alternate. It is reasonably likely defense counsel wanted Juror No. 10 to remain on the jury as a potential holdout, or have the court grant a mistrial on the count that had not yet been decided.
When the court denied the defense motion for a mistrial, defendant then sought to have the court instruct the jury with its proposed admonition, and use his list of questions for the foreperson and any other juror it was going to speak with. The court declined counsel's request and instead questioned the foreperson about the situation.
Defense counsel did not specifically object to the court's decision to give CALCRIM No. 3551, most likely because the court had already denied counsel's request to give the proposed defense admonition.
In any event, the court was not obliged to give the proposed defense admonition. The essential elements of CALCRIM No. 3551 have been approved, and any departure from this language must be carefully considered. More importantly, CALCRIM No. 3551 "simply reminded the jurors of their duty to attempt to reach an accommodation." (People v. Moore (2002) 96 Cal.App.4th 1105, 1118, 1121; People v. Whaley (2007) 152 Cal.App.4th 968, 979-985.) As quoted above, the instruction did not single out holdout jurors, or coerce jurors into returning a verdict or changing their votes, but instead reminded the jurors of their duty "to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict." (CALCRIM No. 3351.)
Defendant contends the trial court abused its discretion in ordering the jury to continue deliberations because it failed to bring back Juror No. 10 to determine whether that juror felt further deliberations would be helpful. In People v. Moore, supra, 96 Cal.App.4th 1105, the court rejected a similar argument: "Defendant criticizes the trial court for not ascertaining whether there was a reasonable probability the jurors could agree on a verdict before giving them additional instructions. However, section 1140 vests the trial court with discretion to determine whether there is a reasonable probability of agreement among jurors who have reported an impasse. [Citations.] In this case, and presumably because of the relatively brief duration of deliberations conducted by the jurors before they announced they could not reach a verdict on count one, the trial court concluded further deliberations might be beneficial without questioning the jury regarding the impasse. The fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion." (Id. at pp. 1121-1122.)
In this case, the jury began deliberations on December 15, 2014, apparently reached a quick verdict on the assault charge, and continued deliberating on the murder charge. It asked to hear defendant's testimony about the fight in the cell, and Dr. Whitmore's testimony about McInnis's injuries. It also asked for an explanation about provocation. Based on the court's investigation, it appeared that a personal dispute had developed between Juror Nos. 1, 10, and an unidentified juror, and the foreperson had intervened to calm down everyone. While the court declined to bring back Juror No. 10 for further questioning, Juror No. 10 had already said that he/she wanted the dispute "to be resolved." The foreperson was concerned whether Juror No. 10 had been deliberating, but believed further deliberations would be helpful.
As we have already noted, while none of the jurors indicated which count they had decided, the jury's questions immediately before the court received Juror No. 10's note were solely focused on the murder charge.
" 'Jurors may be expected to disagree during deliberations, even at times in heated fashion.' " (People v. Keenan (1988) 46 Cal.3d 478, 541-542, quoting People v. Orchard (1971) 17 Cal.App.3d 568, 574.) "[J]urors, without committing misconduct, may disagree during deliberations and may express themselves vigorously and even harshly: '[J]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.' [Citation.] During deliberations, expressions of 'frustration, temper, and strong conviction' may be anticipated but, in the interest of free expression in the jury room, such expressions normally should not draw the court into intrusive inquiries. [Citations.]" (People v. Engleman (2002) 28 Cal.4th 436, 446.)
It was not unreasonable for the court to conclude, in light of the lengthy trial and the foreperson's comments, that the jury should resume deliberations. In reading CALCRIM No. 3551, the court expressly advised all the jurors, including Juror No. 10, to advise the court of any additional issues. It is entirely possible that the foreperson took advantage of the court's reinstruction to focus all the jurors on deliberating over the evidence and to put aside their personal issues. The jury's subsequent verdicts, and affirmation of those verdicts during polling, further support that conclusion.
VI. Prior Juvenile Adjudication
Defendant contends the court erroneously found his prior juvenile adjudication for robbery in 2001 was a prior strike conviction, and relied on that adjudication to impose the third strike terms for counts I and II. Defendant argues a juvenile adjudication cannot constitute a strike since he did not have the right to a jury trial in the proceeding, based on Apprendi v. New Jersey (2000) 530 U.S. 466.
As defendant acknowledges, this argument was rejected in People v. Nguyen (2009) 46 Cal.4th 1007. Defendant asserts Nguyen was wrongly decided. We are bound to follow Nguyen but note defendant's preservation of the issue for further review.
VII. Great Bodily Injury Enhancement
As to count II, assault with a deadly weapon on Shelhart, the court sentenced defendant to the third strike term of 25 years to life, plus five years for the prior serious felony enhancement, one year for the prior prison term enhancement, and three years for a Penal Code section 12022.7 great bodily injury enhancement.
Defendant contends, and the People concede, that the court improperly imposed a three year term for a great bodily injury enhancement for count II. The parties agree that the enhancement was alleged in the original information, but the People dismissed that enhancement from the amended information, the jury was not instructed on it, and the jury did not find it to be true. Nevertheless, the court mistakenly imposed a term for the enhancement without the parties realizing the error.
While defendant did not object, this court may correct an unauthorized sentence at any time. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.) The three-year consecutive term must be stricken. The abstract of judgment and minute order must be amended and corrected.
DISPOSITION
The three-year term for the great bodily injury enhancement imposed for count II is stricken. The trial court shall prepare and forward to all appropriate parties a certified copy of an amended abstract of judgment.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.