Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF046479 John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Robert E. Boyce, under appointment by the Court of Appeal, and Laura G. Schaefer for Defendant and Appellant Byron Walter Mayfield.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant Eric Stephen Lewis.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Joseph Rimoldi.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster J.
Byron Walter Mayfield, Eric Stephen Lewis and Anthony Joseph Rimoldi appeal their convictions for voluntary manslaughter (Mayfield) and first degree murder (Lewis and Rimoldi) arising out of a prison riot. We affirm their convictions, modifying only Rimoldi’s sentence to omit a parole revocation fine erroneously imposed by the trial court.
PROCEDURAL HISTORY
Defendants Mayfield, Lewis and Rimoldi, along with others who are not parties to this appeal, were charged with the murder of Master Hampton. (Pen. Code, § 187, subd. (a).) (All statutory citations refer to the Penal Code.) The information also alleged a hate crime special circumstance, personal use of a dangerous or deadly weapon, and one prior strike conviction as to each defendant. (§§ 190.2, subd. (a)(16), 12022, subd. (b), 667, subds. (b)-(i).)
Peter Morales, who was tried with defendants, was also charged with the murder of Rodman Wallace during the same incident. Morales was acquitted on both counts. Defendants were not charged with Wallace’s murder.
A jury convicted Lewis and Rimoldi of first degree murder and found the hate crime allegation and the personal weapon use allegation true as to each. The jury found Mayfield guilty of the lesser offense of voluntary manslaughter and found the personal weapon use allegation true. The court dismissed the prior strike allegations against Rimoldi and Lewis on motion of the prosecution. The court found the prior strike allegation true as to Mayfield. Lewis and Rimoldi were sentenced to life in prison without possibility of parole, plus a one-year consecutive term for the weapon use allegation. The court sentenced Mayfield to a doubled upper term of 22 years, plus a one-year consecutive term for the weapon use allegation. Each defendant filed a timely notice of appeal.
FACTS
In October 2003, defendants were inmates at Eagle Mountain, a private prison operated by Management Training Corporation (MTC). The prison was a minimum security facility housing only level 1 and level 2 inmates who were scheduled to be released by December 31, 2003, on which date Eagle Mountain was to be closed. MTC employees did not carry weapons. Eagle Mountain also had a few contract employees from the Department of Corrections. Those employees, who did have access to weapons, worked only during regular business hours.
The prison housed approximately 250 Hispanic inmates, approximately 100 Black inmates, and an unspecified number of White inmates. The prison was not formally segregated, but the inmates tended to segregate themselves by race and ethnicity.
On October 25, 2003, around 7:00 p.m., several Hispanic, White and Black inmates were watching the World Series in one of the television rooms in the recreation area. A Black inmate accidentally stepped on the foot of a Hispanic inmate. The Black inmate apologized, but the Hispanic inmate reacted angrily and stood up in a fighting stance. The Black inmate struck the Hispanic inmate and broke his jaw. Some of the other inmates left the room. The rest formed two groups, one consisting of Black inmates and one consisting of Hispanic and White inmates, and began to fight.
The fight spread to the rest of the recreation area. Approximately 100 to 120 inmates engaged in fist fights, threw furniture and other objects and sprayed each other with fire extinguishers. Some broke up furniture and used the broken pieces as weapons.
Some inmates left the recreation building and continued fighting outdoors. A fight also broke out in the dining hall, where 30 to 80 inmates were eating dinner. The inmates again grouped themselves into Blacks in one group and Whites and Hispanics in another group. The inmates left the dining hall, the Black inmates running from the north door and the White and Hispanic inmates running from the west door. Rimoldi, an inmate who was the head cook, ran from the kitchen with a kitchen “oar” (a stirring device), holding it over his head “like he was going to swing it.” Inmates broke the lock on the box containing the kitchen utensils and removed most of them, including knives, a grinder blade and two meat cleavers. When the riot reached the prison yard, the two groups were separated by a fence at gate 10. Staff attempted to persuade the Black inmates to allow them to lock the gate and to persuade them to leave the area. The inmates refused to allow the gate to be locked. A few of them did leave the area with staff and relinquished their weapons. Staff took them behind gate 8 and locked the gate. A group of more than 100 inmates, mostly Hispanic, rushed toward gate 10. They were armed with table legs and other items. Some of the Black inmates held the gate closed, while the other inmates on both sides threw rocks, dirt and other objects and sprayed fire extinguishers at the opposing group. Both groups were screaming profanities and racial epithets.
The White and Hispanic inmates forced the gate open and ran toward the Black inmates, brandishing weapons. The Black inmates ran to gate 8. The other group pursued them and jabbed knives and other objects through the fence. Rimoldi was standing near the front of the group of White and Hispanic inmates with a weapon in his hand, trying to get through the gate. Lewis was standing at the gate, screaming “F-you, niggers.” Others in the group were also screaming similar epithets.
Gate 8 was locked, and the Black inmates climbed the fence to escape the mob. Most of them made it over the fence. Rodman Wallace and Master Hampton were not so fortunate. They were either pulled off the fence or slipped and fell. Hispanic and White inmates swarmed over both of them. Wallace was beaten and stabbed to death. A group of inmates took turns beating and stabbing Hampton. Mayfield, Lewis and Rimoldi were among that group. Lewis hit him several times with a metal pipe or table leg. Mayfield hit him with an empty fire extinguisher and beat him several times with a wooden crutch. Rimoldi hacked at Hampton with a meat cleaver or machete, inflicting one blow which broke Hampton’s upper arm and severed a branch of his brachial artery. While the inmates were beating and stabbing Hampton, both Hampton and the other Black inmates begged them to stop. Rimoldi screamed, “Kill those mayates,” and “Fuck y’all, fuck y’all. Y’all come over the fence and get us.” Another of the attackers yelled, “[F]uck you niggers, if it was us, you guys would have did the same thing.”
“Mayate” is Spanish for “nigger.”
The assault on Hampton ceased when Department of Corrections emergency response personnel arrived and one of them fired a gunshot into the air. Hampton died about two hours later, of blood loss resulting from multiple sharp-force injuries.
LEGAL ANALYSIS
JOINDER
Rimoldi and Lewis purport to join in the arguments of their codefendants to the extent that those arguments benefit them. However, with the exception of their similar arguments concerning Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 521 and 522, neither defendant explains how any issue raised by another defendant applies to him, or how he suffered any prejudice from the error.
Although we agree with Lewis that joinder is broadly permitted (see Cal. Rules of Court, rule 8.200(a)(5)), each appellant nevertheless has the burden of demonstrating prejudice as well as error. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; People v. Coley (1997) 52 Cal.App.4th 964, 972.) Prejudice depends in most instances on the particulars of the individual case. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Therefore, joinder in a codefendant’s argument without making an individual argument as to prejudice is generally futile. For example, Mayfield’s argument that the court had a sua sponte duty to instruct on self-defense requires a showing that there is substantial evidence that Mayfield reasonably feared death or great bodily injury and that he acted in response to that fear. (See discussion below.) Without a showing that there is substantial evidence that Lewis and Rimoldi acted in response to a reasonable fear of death or great bodily injury, their joinder in Mayfield’s argument fails to satisfy their burden on appeal. We will therefore address each argument only with reference to the defendant who raised the issue.
THERE IS NO EVIDENCE WHICH WOULD HAVE SUPPORTED AN INSTRUCTION ON SELF-DEFENSE (Mayfield)
The court instructed the jury on voluntary manslaughter as a lesser included offense of murder, on the basis of both provocation or heat of passion and imperfect self-defense, i.e., the actual but unreasonable belief in the need to defend oneself from imminent death or serious injury. (People v. Stitely (2005) 35 Cal.4th 514, 551.) Mayfield contends that because the jury based its verdict of voluntary manslaughter on imperfect self-defense, it necessarily found that he acted out of fear. He contends that because the prosecution must disprove self-defense in order to meet its burden of proving malice in connection with the charged offense of murder, the trial court’s failure to instruct on actual self-defense violated his constitutional right to have the jury determine every element of his case. He contends that if the jury had been instructed to determine whether his fear was reasonable, there is a reasonable probability that the jury would have found that he acted in self-defense and would have acquitted him.
Mayfield did not request an instruction on actual self-defense and he did not rely on that defense. Nevertheless, the court had a duty to instruct on self-defense sua sponte if there was substantial evidence to support the instruction and self-defense was not inconsistent with Mayfield’s theory of the case. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.) We review the record independently to determine whether substantial evidence supported the defense. (Id. at p. 1055.) We conclude that there was no substantial evidence which would have supported an acquittal based on a finding that Mayfield acted in self-defense.
A person acts lawfully in self-defense if he actually and reasonably believes that he is in imminent danger of being killed or suffering great bodily injury, if he reasonably believes that the immediate use of deadly force was necessary to defend against that danger, and if he uses no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 505; People v. Romero (1999) 69 Cal.App.4th 846, 853.) Mayfield does not point to any substantial evidence which would support the conclusion that he actually and reasonably believed that the use of force was necessary to defend himself against Hampton, who was lying on the ground being beaten, stabbed and chopped by other inmates when Mayfield joined in. The testimony of Dr. Rappaport, to which he refers, does not supply the necessary evidence. Dr. Rappaport did not testify that an inmate might reasonably fear an unarmed person who has been incapacitated by other inmates; rather, he merely testified generally about the mentality which prevails in prisons and about the manner in which an inmate might respond in a riot. Even if he did testify as Mayfield represents, moreover, to support a self-defense instruction, a fear of imminent harm must be objectively reasonable. Although the individual’s situation and knowledge may be considered, “the ultimate question is whether a reasonable person, not a reasonable [prison inmate], would believe in the need to kill to prevent imminent harm.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1087.) There was no evidence that Mayfield perceived any danger from Hampton, nor is there any evidence that it would have been objectively reasonable to harbor any fear of harm from Hampton under the circumstances. Accordingly, the court had no duty to instruct on self-defense.
IMPOSITION OF THE UPPER TERM SENTENCE DID NOT VIOLATE MAYFIELD’S CONSTITUTIONAL RIGHT TO A JURY TRIAL (Mayfield)
The trial court imposed the upper term based on its findings that the crime involved a high degree of viciousness, cruelty and callousness, and that Mayfield’s performance on parole was unsatisfactory, in that he had violated parole three times. Mayfield contends that by doing so, the trial court violated his Sixth Amendment right to have the jury find all facts upon which the court relied to impose the upper term.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed its earlier holding in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), that any fact, other than the fact of a prior conviction, which is used to increase the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Blakely, at p. 301.) In People v. Towne (2008) 44 Cal.4th 63, the California Supreme Court recognized that “[W]hile some acts related to a prior conviction lend themselves to consideration by a sentencing court without jury factfinding, some do not. The critical determinant is whether the ‘facts’ were established in a proceeding in which there was a right to a jury trial. Thus, for example, a conclusion that the defendant’s performance while on parole had been unsatisfactory could be based on convictions for new offenses during the period of supervision; in such a case, court records would demonstrate the existence of the proceedings in which the defendant was afforded jury trial rights as they would in the case of any prior conviction. However, a heightened sentence could not be based on poor performance on parole if that performance consisted of events that had never been the subject of adjudication in a criminal trial. In such a case, the necessary safeguards, including the right to a jury trial, would not be present. In those circumstances, the court held, the defendant must be afforded the right to have the jury find the facts before the matter can be used to make the defendant eligible for an enhanced sentence.” (People v. Del Rio (2008) 165 Cal.App.4th 439, 443 (dis. opn. of Zelon, J.), discussing People v. Towne, supra, at pp. 81-82.)
Here, the facts relating to Mayfield’s performance on probation and parole were not determined in a proceeding in which he had a right to a jury trial. Accordingly, he had a right to have the jury determine whether his performance was unsatisfactory. However, if a reviewing court concludes, beyond a reasonable doubt, that if the question of the existence of an aggravating circumstance had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence, the error in not submitting the issue to the jury is harmless. (People v. Sandoval (2007) 41 Cal.4th 825, 838.) Here, given the clarity of the record which shows that Mayfield’s probation was revoked and that he violated his parole three times, we can say beyond a reasonable doubt that the jury would have found it true that Mayfield’s performance on probation and parole was unsatisfactory.
Similarly, we can say beyond a reasonable doubt that the jury would have found that the crime involved a high degree of cruelty, callousness and viciousness if that issue had been submitted to it. Hampton was utterly helpless, pleading for his life, while a mob, including Mayfield, took turns beating, hacking and stabbing him. It is difficult to imagine a more cruel, callous and vicious crime. Thus, the court’s reliance on that factor, even though erroneous under Apprendi/Blakely, is also harmless. (People v. Sandoval, supra, 41 Cal.4th at p. 838.)
SUBSTANTIAL EVIDENCE SUPPORTS LEWIS’S CONVICTION FOR FIRST DEGREE MURDER (Lewis)
Lewis contends that the evidence showed only that he participated in a gang fight, and that such participation is not sufficient to support the conviction for first degree murder on an aiding and abetting theory. He contends that there is no evidence that he knew that Rimoldi intended to kill Hampton, and that the evidence is therefore insufficient to prove beyond a reasonable doubt that he intended to aid, encourage or facilitate Rimoldi in the commission of first degree murder.
To prove that a defendant is an aider and abettor, the prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of committing or of encouraging or facilitating commission of the offense. When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Thus, evidence that Lewis participated in a mob fight, in and of itself, is insufficient to prove that he intended to commit murder or that he intended to facilitate or encourage the commission of murder by another person. (See People v. Zammora (1944) 66 Cal.App.2d 166, 204 [“Because a number of defendants are principals, in an offense of assault, battery, disturbance of the peace, riot, rout or unlawful assembly, it does not necessarily follow that all would be principals in an offense of murder or felonious assault that might occur during such a disturbance”].) Rather, there must be evidence either that he personally intended, with premeditation and deliberation, to kill, or that he knew that someone else harbored that intent and acted with the purpose of facilitating the commission of the crime. Evidence that Lewis specifically intended to assist Rimoldi in killing Hampton is not necessary, however. Although the prosecutor designated Rimoldi as the perpetrator, we are not limited to determining whether there is substantial evidence to support the verdict on that theory. Rather, if there is substantial evidence to support the verdict on any valid legal theory, we must affirm the judgment. (See People v. Sanchez (2001) 26 Cal.4th 834, 851-852; see also People v. Bolin (1998) 18 Cal.4th 297, 331.)
In reviewing the sufficiency of evidence, we view the evidence as a whole in the light most favorable to the verdict to determine whether any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1175.)
Viewed in the light most favorable to the verdict, the evidence supports the conclusion that Lewis participated in chasing down the Black inmates as they fled from gate 10 with the intention of killing someone or of encouraging or facilitating a killing by another inmate. Lewis told Investigator Ramirez that he had been hit by rocks thrown by Black inmates, and that at gate 10 he was jabbed in the face with a stick. He admitted that he was angry about being injured and that he was yelling at the Black inmates. Lewis told Ramirez that he pulled his white T-shirt over his face to contain the bleeding from the facial injuries he suffered when he was jabbed in the face at gate 10. Ramirez testified that Lewis had identified himself on the video, at the point at which he pulled the shirt up over his face. The video then shows Lewis throwing some rocks or dirt before the gate opened. It shows Lewis among the crowd coming through gate 10. Corie Cornist testified that at gate 10, Lewis was screaming racial epithets. Lewis told Ramirez that obscenities were flying back and forth, and mentioned that someone called him a “honkey.”
Video from the security surveillance camera was placed on a compact disc and admitted into evidence as Exhibit 34. The video was played for the jury. It showed portions of the riot, including the Black inmates’ retreat over the fence and the beating of Hampton.
Lewis told Ramirez that some of the Black inmates had dropped weapons as they fled, and that he picked up a discarded weapon after he came through gate 10. At gate 8, the video shows an inmate with a shirt over his head approaching Hampton, who is on the ground, with a long stick in his left hand and “something” in his right hand. The video then shows that inmate striking Hampton multiple times with a long pole after another inmate hit Hampton several times using a chopping motion. Wesley Crank testified that he saw Lewis hit Hampton three or four times with a pole and that he was yelling racial epithets. Lewis denied that he was the inmate hitting Hampton with the pole, but he admitted having hit Hampton on the arm once or twice with a metal pipe or a metal table leg.
This statement is based on our viewing of the video. There is no testimony to that effect.
Lewis’s admissions to Ramirez and the testimony of Cornist and Crank, combined with the video, constitute substantial evidence which reasonably supports the conclusion that Lewis, incensed by having been injured and insulted by Black inmates, picked up a weapon and pursued the fleeing Black inmates from gate 10 to gate 8 with the intent of killing any one of them, or of assisting others in doing so. That is not the only conclusion that can be drawn, but it is a reasonable one. It is immaterial that Lewis may not have known specifically that Rimoldi intended to kill Hampton. It is also immaterial that Lewis struck Hampton only after the lethal injuries had been inflicted and that the blunt-force injuries he inflicted did not contribute to Hampton’s death. It is enough that Lewis intended to kill or to assist others in killing. (People v. Prettyman, supra, 14 Cal.4th at p. 259.) And, his acts of arming himself and acting in concert with the mob in chasing the Black inmates down are sufficient to support the inference that Lewis intentionally encouraged murder by other inmates.
The pathologist testified that the cause of death was blood loss resulting from multiple sharp-force injuries; the contusions caused by the blunt-force impacts did not contribute significantly to his death. For this reason, we disagree with the Attorney General that Lewis’s conviction can be upheld on the theory that he was a direct perpetrator of Hampton’s murder.
The same evidence supports the jury’s finding that Lewis committed the crime for racial reasons, contrary to Lewis’s argument. To prove the allegation that a victim was intentionally killed because of his or her “race, color, religion, nationality, or country of origin” (§ 190.2, subd. (a)(16)), the prosecution must prove that bias was a cause in fact of the offense, and if there is more than one cause, that it was a substantial factor in bringing about the offense. (People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741.)
Lewis is correct that during a fight which is not motivated by racial animus, a combatant may nevertheless hurl racial epithets at his opponent. That is an argument which can be made to the jury, and it may, in some cases, be persuasive. But a reasonable juror could reach the opposite conclusion on the same facts. Here, the evidence showed that Lewis was part of a mob of Whites and Hispanics, some of whom were screaming “[k]ill the niggers” and “[k]ill those mayates”; that the Whites and Hispanics were attacking Blacks exclusively; and that Lewis himself was screaming racial epithets, including “Fuck you, niggers” during the incident at gate 10 and while he was hitting Hampton. A reasonable juror could disregard Lewis’s disavowal of racial motivation and infer that Lewis committed the crime for racial reasons.
Lewis contends that we must apply an elevated level of scrutiny to the substantiality of the evidence because a true finding on the hate crime allegation has such dire consequences—a mandatory term of life in prison without possibility of parole. He cites People v. Blakeslee (1969) 2 Cal.App.3d 831, in which the appellate court stated that, in applying the substantial evidence rule in a murder case, “We think it follows that the more serious the charge—and murder is considered the most serious charge of all—the more substantial the proof of guilt should be in order to reasonably inspire confidence.” (Id. at p. 837.) However, the California Supreme Court has made it clear that even in an appeal from a judgment of death, the substantial evidence rule applies just as it does in all other cases. In People v. Millwee (1998) 18 Cal.4th 96, for example, a death penalty appeal, the court held, “Contrary to what defendant suggests, the judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. [Citation.] We review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. [Citation.]” (Id. at p. 132, italics added.) We must, of course, apply the substantial evidence rule in accordance with our Supreme Court’s directions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
THE COURT’S FAILURE TO INSTRUCT THE JURY TO VIEW LEWIS’S PREOFFENSE STATEMENTS WITH CAUTION WAS HARMLESS (Lewis)
CALCRIM No. 358 provides: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]” A court has a sua sponte duty to give the bracketed cautionary instruction if there is evidence that a defendant made any oral statement “before, during, or after the crime,” if the statement was not recorded. The purpose of the instruction is to assist the jury in determining whether the statement was in fact made. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393 (Carpenter), disapproved on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) In this case, the court instructed the jury using only the unbracketed portion of the instruction. Lewis now contends that this was prejudicial error.
In this case, there were two classes of statements made by Lewis to which the instruction applies. The first class consists of Lewis’s statements to Investigator Ramirez; the second class consists of eyewitness testimony that Lewis used racial epithets during the incident. Lewis’s statement to Ramirez was recorded; the racial epithets during the incident were not. Lewis contends that where there were both recorded and unrecorded statements, the cautionary portion of CALCRIM No. 358 must be given. However, he asserts error and prejudice only with respect to the absence of a cautionary instruction pertaining to his unrecorded statements during the riot.
We first address the Attorney General’s contention that the error in omitting the cautionary instruction was invited. He asserts that counsel for all defendants acquiesced without objection in the prosecutor’s request that the cautionary instruction not be given. The doctrine of invited error, on which the Attorney General relies, applies only where the record shows that the defendant made a conscious and deliberate tactical choice to request or to omit a particular jury instruction. (People v. Thornton (2007) 41 Cal.4th 391, 436.) However, as Lewis points out in his reply brief, his attorney asked to revisit the instruction and did request that the cautionary instruction be given. The court denied the request. Thus, there was no invited error. And, even if Lewis had acquiesced in the omission of the cautionary instruction, the record shows that the parties discussed only the applicability of the instruction to their recorded statements, i.e., the statements they gave to the investigators. There was no discussion of the applicability of the instruction to the defendants’ unrecorded statements. The record therefore does not demonstrate that Lewis made a conscious and deliberate tactical choice not to request the instruction with regard to the unrecorded statements which are the subject of his argument on appeal.
The record is ambiguous, in that Lewis’s attorney asked the court to revisit CALCRIM No. “353,” and the court responded by discussing whether Lewis had made any false or misleading statements. CALCRIM does not include an instruction numbered 353, and false and misleading statements are the subject of CALCRIM No. 362. However, because counsel’s request to revisit an instruction was made immediately after the discussion of CALCRIM No. 358, the context makes it clear that counsel was referring to CALCRIM No. 358.
The omission of the cautionary instruction was unquestionably an error. The instruction must be given sua sponte when the evidence warrants it. (People v. Dickey (2005) 35 Cal.4th 884, 905; Carpenter, supra, 15 Cal.4th at p. 392.) Here, the prosecution relied on testimony concerning Lewis’s unrecorded statements to prove the hate crime allegation. That evidence was subject to CALCRIM No. 358.
We disagree with the Attorney General’s assertion that the instruction applies only to a defendant’s “statement of intent.” On the contrary, the instruction applies to any oral statement of the defendant, made before, during or after the crime. (Carpenter, supra, 15 Cal.4th at p. 393.)
We review an erroneous omission of the cautionary instruction to determine whether it is reasonably probable that the jury would have reached a result more favorable to the defendant if the instruction had been given. (Carpenter, supra, 15 Cal.4th at p. 393.) Under that standard, the error was harmless. The evidence that defendant uttered any racial slurs or epithets came from Corie Cornist and Wesley Crank, who claimed that they specifically recalled Lewis casting racial slurs. Questioning of both witnesses exposed the frailties in their assertions. Cross-examination of Cornist revealed that it was “possible” he told Investigator Ramirez shortly after the incident that he did not hear Lewis say “F-you, niggers,” but “F-you guys.” He admitted that the “white guy” he identified as Lewis “might not have” uttered any racial slurs. Cornist also admitted that there was a great deal of commotion and that many people were yelling slurs and obscenities. He also admitted that he caught only a quick glimpse of the person he identified as Lewis. Questioning of Crank demonstrated that he could not identify Lewis with certainty as the person he heard uttering racial slurs as he struck Hampton. Defense counsel addressed those frailties in his closing argument. Thus, the jury was made aware that the testimony of Cornist and Crank might be unreliable. It was also told that each juror must evaluate the credibility of witnesses and decide “how much” of each witness’s testimony to believe and the effect of inconsistencies and conflicts between the witness’s testimony and any prior statements (CALCRIM Nos. 226 & 317), and was told how to evaluate eyewitness identifications (CALCRIM No. 315). All of those instructions, combined with counsel’s argument, adequately cautioned jurors to examine all eyewitness testimony carefully. Nevertheless, the jury determined that Cornist and Crank were believable. There is no reasonable probability that the omitted cautionary instruction would have brought about a different result.
CALCRIM NOS. 521 AND 522 ADEQUATELY CONVEY THE CONCEPT THAT PROVOCATION CAN NEGATE PREMEDITATION AND DELIBERATION AND RESULT IN A CONVICTION FOR SECOND DEGREE MURDER (Lewis and Rimoldi)
What would otherwise be deliberate and premeditated first degree murder may be mitigated to second degree murder if the jury finds that the defendant “formed the intent to kill as a direct response to . . . provocation and . . . acted immediately,” i.e., without deliberation or premeditation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) Provocation sufficient to mitigate a murder to second degree murder requires only a finding that the defendant’s subjective mental state was such that he did not deliberate and premeditate before deciding to kill. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296 (Fitzpatrick); People v. Padilla (2002) 103 Cal.App.4th 675, 677-678.) Thus, a defendant who is subjectively prevented from deliberating because of provocation is guilty of second degree rather than first degree murder, even if a reasonable person would not have been so precluded. (Fitzpatrick,at pp. 1294-1296.) In contrast, provocation sufficient to reduce murder to voluntary manslaughter requires not only that the defendant subjectively experienced a heat of passion resulting from the provocation but also that the response was objectively reasonable, i.e., that a person of average disposition would have been provoked to commit homicide in the same situation. (Ibid; People v. Lasko (2000) 23 Cal.4th 101, 108.) Rimoldi and Lewis contend that the CALCRIM instructions given in their case—CALCRIM Nos. 521 and 522—fail to make this distinction clear. They contend that although there was evidence that they acted out of provocation and heat of passion, rather than with deliberation and premeditation, the instructional errors effectively left jurors only a choice between first degree murder and voluntary manslaughter and eliminated any possibility that jurors would convict them of second degree murder.
“In reviewing a challenge to jury instructions, we must consider the instructions as a whole. [Citations.] We assume that the jurors are capable of understanding and correlating all the instructions which are given to them. [Citation.]” (Fitzpatrick, supra, 2 Cal.App.4th at p. 1294.) As given in this case, CALCRIM Nos. 521 and 522, taken together, adequately explain that provocation can mitigate first degree murder to second degree murder.
CALCRIM No. 521 states that a verdict of first degree murder requires a finding of deliberation and premeditation, and that “[a]ll other murders are of the second degree.” It states that in order to determine that the defendant premeditated and deliberated, the jury must find that the defendant “carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.” It explains that “[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” CALCRIM No. 522 provides: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] 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.” Thus, the instructions clearly informed the jury that it could not convict a defendant of first degree murder if it found that his decision to kill was made “rashly, impulsively, or without careful consideration” and that it could consider provocation in deciding whether the crime was first or second degree murder. And, CALCRIM No. 521 as given in this case distinguished between first and second degree murder only on the basis of premeditation and deliberation. Taken together, these instructions adequately informed the jury that if it found that either defendant acted rashly or impulsively as a result of provocation, he did not deliberate and premeditate, and that the jury could conclude on that basis that the crime was second degree murder rather than first degree murder.
CALCRIM No. 521, as given in this case, provides, in pertinent part, as follows:
Lewis contends that the instructions do not adequately convey the idea that provocation can prevent a defendant from premeditating and deliberating because, unlike CALJIC No. 8.20, CALCRIM No. 521 fails to make that idea explicit. CALJIC No. 8.20 includes the following paragraph: “If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.” (Italics added.) We agree that CALJIC No. 8.20 provides a clearer explanation of the effect of heat of passion on the jury’s determination of first degree versus second degree murder. Nevertheless, CALCRIM No. 522, which states that “[p]rovocation may reduce a murder from first degree to second degree,” adequately conveys the basic legal principle.
In People v. Rogers (2006) 39 Cal.4th 826 (Rogers), the California Supreme Court addressed a similar contention concerning CALJIC No. 8.73. CALJIC No. 8.73 provides, “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.” In response to criticism that CALJIC No. 8.73 fails to provide a sufficient explanation of the relationship between provocation and second degree murder, the California Supreme Court held that CALJIC No. 8.73 is a pinpoint instruction, i.e., one which relates particular facts to the charged crime. (Rogers, at pp. 878-880; see also People v. Mayfield (1997) 14 Cal.4th 668, 778-779 (Mayfield).) The court held that the principles spelled out in CALJIC No. 8.73 need not be explained further in the absence of a request for amplification. (Rogers, at p. 879; Mayfield, at pp. 778-779.) CALCRIM No. 522, which is the analogue of CALJIC No. 8.73 (Rogers,at p. 878), states that “[p]rovocation may reduce a murder from first degree to second degree.” Although we agree that CALCRIM No. 522 could provide a better explanation of the possible effect of provocation on the determination of the degree of a murder, it nevertheless adequately conveys the basic legal principle, particularly when read in conjunction with CALCRIM No. 521. If either defendant had felt that amplification was necessary, it was incumbent on him to request it.
Lewis also contends that the instructions were confusing because although CALCRIM No. 570 explained in great detail the objective test applicable to heat of passion voluntary manslaughter, there was no comparable instruction which explained the standard the jury was to use to determine whether provocation precluded a finding of premeditation and deliberation for purposes of mitigation from first degree murder to second degree murder. He contends that in the absence of the parallel instruction on second degree murder, the jury would necessarily have assumed that the same test applied in both instances.
CALCRIM No. 570 provides:
The California Supreme Court addressed a similar contention in Rogers, supra, 39 Cal.4th 826. There, the court held that the heat of passion voluntary manslaughter instruction is not inherently misleading in a homicide case where the jury is also instructed on premeditated murder and there is evidence of provocation, or that such manslaughter instructions must always be accompanied by instructions on the principles of provocation set out in CALJIC No. 8.73. The court held that in the absence of other instructional errors or other factors, the standard manslaughter instruction is not misleading because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder. (Rogers, at p. 880.) As noted above, the jury in this case was also informed that all murders not committed with deliberation and premeditation are of the second degree. Finally, the court held that the voluntary manslaughter instruction does not prevent the defense from arguing that provocation prevented the defendant from premeditating and deliberating, and that it does not prevent the jury from giving weight to any evidence of provocation in determining whether premeditation existed. (Ibid.) Here, if either defendant had perceived that CALCRIM No. 570 might have confused the jury as to the role of provocation with respect to second degree murder, as opposed to voluntary manslaughter, the defense could have requested clarification from the court. In the absence of a request, no clarification was required.
Rimoldi contends that even if CALJIC No. 8.73 adequately conveys the relationship of provocation to second degree murder, CALCRIM No. 522 does not. He contends that the sentence, “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” (see CALCRIM No. 522), suggests that the victim must actually do something to provoke the defendant’s deadly response. He points out that even an objectively unreasonable perception may be the source of provocation which negates premeditation and reduces a murder from first degree to second degree. (People v. Padilla, supra, 103 Cal.App.4th at p. 679.) He then contends that because CALCRIM No. 570 contains the same passive language to explain the objective standard which applies to voluntary manslaughter, the instructions “may have” caused the jury “to misinterpret the passive language in CALCRIM No. 522, determine there was no objectively reasonable provocation by the victim and reject a voluntary manslaughter verdict while entirely discounting second degree murder.” We fail to see any material distinction between CALJIC No. 8.73 and CALCRIM No. 522, however. CALJIC No. 8.73 refers to “provocation which played a part in inducing an unlawful killing of a human being.” This language too seems to imply that there must actually have been provocation which induced the homicide. Nevertheless, the California Supreme Court has held that it is adequate to convey the pertinent legal principles, and that a defendant who deems it inadequate has the duty to request amplification. (Mayfield, supra, 14 Cal.4th at pp. 778-779; Rogers, supra, 39 Cal.4th at pp. 879-880.) Like CALJIC No. 8.73, CALCRIM No. 522 adequately conveys the pertinent legal principles, and any desired amplification must be requested by the defendant.
Rimoldi contends that if any issues pertaining to these instructions were waived because his attorney failed to request amplification, Rimoldi was deprived of effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the defendant must show both that his attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that the deficiency in the attorney’s performance was prejudicial. In this context, prejudice means that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692, 693-694, 697-698.) A reviewing court need not determine whether counsel’s performance was deficient if the defendant has failed to make the required showing of prejudice. (Strickland v. Washington, supra, at p. 696.) Here, we can find prejudice only if it is reasonably probable that an amplification of CALCRIM Nos. 521 and 522, to explain more explicitly that provocation or heat of passion can negate premeditation and deliberation, would have resulted in Rimoldi being convicted of second degree murder rather than first degree murder. Rimoldi asserts that this is the case, but he provides no reasoning in support of his argument. In light of our conclusion that CALCRIM Nos. 521 and 522 adequately explain the effect of provocation on deliberation and premeditation, we are not persuaded that counsel’s failure to request amplification was prejudicial, even if we assume that it was error.
CALCRIM NO. 570 IS NOT DEFECTIVE (Lewis)
Lewis argues that CALCRIM No. 570 is defective because although “it correctly instructs that heat of passion can negate premeditation and deliberation so as to reduce a first degree murder to manslaughter, the instruction fails to instruct that it is malice that is ultimately negated for voluntary manslaughter and that a defendant can intend to kill—and can even deliberate and premeditate the killing—and yet still be guilty of voluntary manslaughter.”
Lewis is correct that the instruction omits any mention of malice, which is the element of murder which is negated by objectively reasonable heat of passion. (People v. Taylor (2004) 32 Cal.4th 863, 872.) Rather than referring to heat of passion negating malice, CALCRIM No. 570 refers to heat of passion which causes the defendant “to act rashly and without due deliberation” and “from passion rather than from judgment.” However, the language of CALCRIM No. 570 is taken directly from a series of opinions of the California Supreme Court. (See People v. Lee (1999) 20 Cal.4th 47, 59, citing People v. Valentine (1946) 28 Cal.2d 121, 138-139.) We therefore accept that it correctly states the law of heat of passion voluntary manslaughter. (Auto Equity Sales, Inc., supra, 57 Cal.2d at pp. 455-456.) And, because the instruction correctly conveys to the jury that an intentional killing which results from heat of passion caused by circumstances which would cause a reasonable person to react in a similar fashion is not murder but manslaughter (People v. Lasko, supra, 23 Cal.4th at p. 108), the fact that it fails to couch the concept in terms of malice does not render the instruction either incorrect or misleading. Moreover, as Lewis points out, malice is a notoriously slippery concept (see People v. Wright (2005) 35 Cal.4th 964, 975-978 (conc. opn. of Brown, J.)), and reference to malice would not necessarily assist the jury in applying the concept to the facts. Accordingly, we see no error in the instruction as given.
Because we have rejected all of Lewis’s arguments concerning instructional error, we need not address his contention that instructional errors were cumulative prejudicial.
RIMOLDI’S PAROLE REVOCATION FINE MUST BE STRICKEN (Rimoldi)
Rimoldi contends that the trial court erroneously imposed a parole revocation fine, despite the fact that he was sentenced to life in prison without the possibility of parole. He contends that the fine must be stricken. The Attorney General agrees, and so do we. Section 1202.45, which provides that parole revocation fines must be imposed at sentencing and suspended unless the defendant’s subsequent parole is revoked, does not apply if the defendant is ineligible for parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) We will direct the clerk of the superior court to prepare an amended abstract of judgment deleting the parole revocation fine.
DISPOSITION
The superior court is directed to issue an amended abstract of judgment as to defendant Rimoldi, deleting the parole revocation fine, and to provide a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation within 30 days of the date of this opinion. The judgments are otherwise affirmed as to all defendants.
We concur: Hollenhorst Acting P.J., Gaut J.
“If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] . . . [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”