Opinion
F074847
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO ANTHONY McGILL, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF158853B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Mario Anthony McGill was charged in count 1 with the premeditated murder of Raul Valera (Pen. Code, §§ 187, subd. (a), 189, subd. (a)), with the special circumstance allegations that the murder was committed by lying in wait (§ 190.2, subd. (a)(15)); by an active gang member (§ 190.2, subd. (a)(22); that he personally used a deadly weapon in the commission of the murder (§ 12022, subd. (b)(1)); and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant was also charged in count 2 with active participation in a criminal street gang (§ 186.22, subd. (a)) and, as to each count, it was alleged appellant had served four prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
Following a jury trial, appellant was found not guilty of murder, but guilty of the lesser included offense of voluntary manslaughter. He was found not guilty as to the remaining charge and the special circumstance allegations found not true. In a bifurcated proceeding, the trial court found all four prior prison term enhancements true and sentenced appellant to a total of 15 years in prison.
Appellant, Jonathon Chacon and Arturo Alvarado were tried together. Chacon was also found guilty of the lesser included offense of voluntary manslaughter; the deadly weapon and criminal street gang enhancements were found not true. The jury failed to reach any verdicts as to Alvarado.
On appeal, appellant contends the trial court prejudicially erred by giving conflicting instructions on self-defense, and that the imposition of two of his four prior felony prison term enhancements at sentencing on the new offense was error. We agree with his latter contention, but reject the former and affirm.
STATEMENT OF THE FACTS
In December 2014, Raul Valera, Angela Lopez and Arturo Alvarado joined appellant, Jonathon Chacon and others inside a house in Bakersfield. Everyone was smoking methamphetamine. A number of people left, leaving only Valera, Lopez, Alvarado, Chacon, a man named "Face," and appellant in the house. Appellant told Valera, "'You got my sister pregnant at 15'" and punched Valera. Alvarado, Chacon and Face joined in and fought Valera. Valera pulled out a knife and stabbed appellant. Lopez heard Valera state, "'No, my babies, help me.'" Either appellant, Alvarado or Chacon used Valera's knife to stab Valera.
Lopez testified for the prosecution under a grant of transactional immunity.
During the fight, numerous injuries were incurred: appellant's arm was stabbed; Face's leg was stabbed; and Alvarado's hand was cut, with three of his fingers "hanging off." Alvarado told Lopez he cut his hand when he stabbed Valera and the folding knife bent back onto his hand. The fight did not last long, and Face and Chacon left. Alvarado gave Lopez two knives, which Lopez gave to Alvarado's brother.
Valera died at the scene and there was blood all over the house. Appellant and Lopez cleaned the house by wiping the floors and walls with bleach. They put the bloody sheets and towels into a pile. Appellant later told Lopez he was trying to get gasoline to burn down the house.
Valera's body was found December 15, 2014, in an alley. Valera had received numerous "sharp-force" injuries, some of which were lethal, as well as four or five defensive wounds. All of the wounds on Valera were consistent with being caused by the same knife or similar sized knives.
During a January 15, 2015, interview, appellant told law enforcement he received the injury to his arm, a laceration of his left elbow, during a traffic accident. At the time, he denied having recently seen Valera.
DISCUSSION
1. CALJIC NO. 5.55
At trial, the prosecution's theory of the case was that appellant was guilty of the murder of Valera as an aider and abettor. As framed by appellant, his defense was that he had a right to act in self-defense or, in the alternative, that he was guilty of the lesser included offense of voluntary manslaughter based on imperfect self-defense.
Numerous instructions based on appellant's defense were given, including CALJIC No. 5.10 [Resisting Attempt to Commit Felony]; CALJIC No. 5.12 [Justifiable Homicide in Self-Defense]; CALJIC No. 5.13 [Justifiable Homicide—Lawful Defense of Self or Another]; CALJIC No. 5.14 [Homicide in Defense of Another]; CALJIC No. 5.17 [Actual But Unreasonable Belief in Necessity to Defend—Manslaughter]; CALJIC No. 5.30 [Self-Defense Against Assault]; CALJIC No. 5.32 [Use of Force in Defense of Another]; CALJIC No. 5.50 [Self-Defense—Assailed Person Need Not Retreat]; CALJIC No. 5.51 [Self-Defense—Actual Danger Not Necessary]; CALJIC No. 5.52 [Self-Defense—When Danger Ceases]; and CALJIC No. 5.54 [Self-Defense by an Aggressor].
Appellant contends the trial court erred in giving an additional instruction, CALJIC No. 5.55 [Plea of Self-Defense May Not Be Contrived], because it effectively and erroneously prevented the jury from considering his self-defense claim. We find no prejudicial error.
Standard of Review
Errors in jury instructions are questions of law, which we review de novo. (See People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) The California Constitution addresses the prejudicial effect of instructional "misdirection of the jury" and provides that error in instructing the jury shall be grounds for reversal only when the reviewing court, "after an examination of the entire cause, including the evidence," concludes that the error has resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.) "'"The word 'misdirection' logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally 'misdirect' the jury's deliberations."'" (People v. Flood (1998) 18 Cal.4th 470, 487.)
In People v. Flood, supra, 18 Cal.4th at pages 490-491, the court reviewed instructional error under the California Constitution applying the Watson standard of harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836 ["[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."].)
Section 1259 provides for review of any instruction given, refused, or modified, even in the absence of a request or an objection, if the defendant's substantial rights were affected. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Accordingly, we examine the merits of appellant's arguments.
Applicable Law and Analysis
Appellant contends the trial court prejudicially erred in giving CALJIC No. 5.55 in addition to CALJIC No. 5.54.
CALJIC No. 5.54, as instructed, provides:
"The right of self-defense is only available to a person who initiated an assault if the victim of simple assault responds in a sudden and deadly counterassault. The original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense."
CALJIC No. 5.55, as given, provides:
"The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."
Appellant contends CALJIC No. 5.55 conflicts with CALJIC No. 5.54 and misstates the law by instructing the jury that an aggressor is foreclosed from raising a self-defense claim, because "every person who initiates a fight and subsequently claims self-defense fits within this description."
Appellant's argument in support of his position includes a detailed analysis of numerous California Supreme Court cases from the 1800's, as well as more recent cases. We need not address these cases, however, as we instead find appellant has misconstrued the wording of CALJIC No. 5.55. The instruction does not apply to "every person who initiates a fight and subsequently claims self-defense." Instead, the plain language of the instruction makes it clear that it applies only to those who initiate a fight in order to contrive the necessity of self-defense and then justify his or her violent actions. In other words, it applies only to an initial aggressor who commences combat for the purpose of provoking a violent reaction so that he or she can retaliate with further violence and justify it as self-defense. CALJIC No. 5.55 simply instructs that, under such circumstances, self-defense is not available. CALJIC No. 5.55 does not conflict with CALJIC No. 5.54, nor is it an incorrect statement of the law. (See, e.g., People v. Garvin (2003) 110 Cal.App.4th 484, 489 [standard CALJIC instructions on self-defense, including Nos. 5.54 and 5.55, are legally correct].)
The People contend, "[t]here was no evidence, argument or discussion concerning appellant seeking a quarrel with the intent to create a real or apparent necessity of exercising self-defense." And, they point out, CALJIC No. 5.55 did not remove appellant's defense that, even though he was an initial aggressor, he had the right to use reasonably necessary force in self-defense if responding to a sudden and deadly counterassault.
We agree with the People that, even if CALJIC No. 5.55 "was erroneously given because it was irrelevant under the facts, the error is merely technical and not grounds for reversal." (People v. Eulian (2016) 247 Cal.App.4th 1324, 1335; accord, People v. Cross (2008) 45 Cal.4th 58, 67; People v. Rowland (1992) 4 Cal.4th 238, 282.) As part of the instructions, the trial court directed the jury to make a determination as to each victim separately (CALJIC No. 1.11), and further instructed: "The purpose of the court's instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist...." (CALJIC No. 17.31, italics added.) Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095, and cases cited.)
The jury evaluated the evidence under the law as defined in CALJIC No. 5.54 and found appellant guilty of only the lesser included offense of manslaughter. There was no prejudice to appellant from the unnecessary instruction and we are confident that, even if CALJIC No. 5.55 had not been given, the result would not have been any more favorable to appellant. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d at p. 836.) 2. SECTION 667.5 , SUBDIVISION (B) PRISON PRIOR ENHANCEMENTS
The trial court imposed 4 one-year prior felony prison term enhancements pursuant to section 667.5, subdivision (b), based on appellant's prior felony convictions. Appellant contends two of those one-year terms must be stricken, as the superior court reduced those underlying felonies to misdemeanors, pursuant to appellant's section 1170.18 petitions. We agree.
We address the two terms separately, as the timing of when the section 1170.18 petitions were granted is different for each.
Proposition 47
At the November 4, 2014, General Election, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47 reclassified as misdemeanors certain offenses that previously were felonies or "wobblers." It also added section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors. Section 1170.18 allows those currently serving sentences for Proposition 47 eligible felony convictions to petition to have their sentences recalled and be "resentenced to a misdemeanor." (§ 1170, subd. (b).) It also allows those who have already completed their sentences for Proposition 47 eligible felony convictions to petition to have their convictions "designated as misdemeanors." (§ 1170.18, subd. (f).) Once an offense is resentenced or redesignated as a misdemeanor, it "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
Health and Safety Code section 11377, subdivision (b) conviction
On January 13, 2015, appellant's 2007 conviction for a violation of Health and Safety Code section 11377, subdivision (a), Kern Superior Court, case No. BF119478A, was reduced to a misdemeanor. On October 25, 2016, after the prior conviction was reduced to a misdemeanor, appellant was sentenced in the current case to a one-year prior felony prison term enhancement pursuant to section 667.5, subdivision (b) on that 2007 conviction.
Appellant contends and the People concede that a prior felony conviction that has been reduced to a misdemeanor before the defendant is sentenced in the current appeal cannot be used to enhance his current sentence as a prior prison term under section 667.5, subdivision (b). We agree. As we stated in People v. Call (2017) 9 Cal.App.5th 856, 862, "Because the underlying convictions were reduced prior to sentencing on defendant's current offenses, ... the requisite prior felony conviction no longer existed at the time of sentencing, and so imposition of the enhancements was error."
Our decision in People v. Call was recently approved in the Supreme Court's decision People v. Buycks (2018) 5 Cal.5th 857, 878-879, footnote 7 (Buycks), for the proposition that the phrase "misdemeanor for all purposes" in section 1170.18, subdivision (k) means that those who successfully obtain resentencing of their felony convictions to misdemeanors under Proposition 47 may not be subsequently subject to a felony-based enhancement for that reduced conviction. --------
Appellant is therefore entitled to vacation of the section 667.5, subdivision (b) enhancement based on his prior 2007 Health and Safety Code section 11377, subdivision (a) conviction.
Section 460, subdivision (b) conviction
Appellant's second argument concerning a one-year section 667.5, subdivision (b) prior felony prison term enhancement involves a different time line. On October 25, 2016, at sentencing on the current case, the trial court imposed a one-year term pursuant to section 667.5, subdivision (b), based on appellant's 2002 conviction for a violation of section 460, subdivision (b), Kern Superior Court No. BF099894A. On April 26, 2017, after sentencing, but while appellant's appeal was pending, appellant's 2002 conviction was reduced to a misdemeanor pursuant to appellant's section 1170.18 petition.
In supplemental briefing, appellant contends that, because his current conviction is not yet final on appeal, the one-year prior prison term enhancement under section 667.5, subdivision (b), imposed for his section 460, subdivision (b) conviction must also be stricken. At the time of appellant's supplemental brief, the Supreme Court had granted review in all cases that addressed this issue (see, e.g., People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; the Supreme Court ordered briefing on the following cases deferred pending decision in Valenzuela: People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539; People v. Jones (2016) 1 Cal.App.5th 221, review granted Sept. 14, 2016, S235901; People v. Evans (2016) 6 Cal.App.5th 894, review granted Feb. 22, 2017, S239635).
Recently, in Buycks, our Supreme Court, addressed three cases to resolve similar issues concerning Proposition 47's effect on felony-based enhancements in resentencing proceedings under section 1170.18. As stated in Buycks, "In People v. Valenzuela (S232900), we address whether Proposition 47 requires the dismissal of a one-year sentencing enhancement for having served a prior prison term (§ 667.5, subd. (b)) when the felony underlying that prior prison term has been reduced to a misdemeanor under section 1170.18." (Buycks, supra, 5 Cal.5th at p. 871.) As pertinent to our discussion, in Valenzuela, the defendant was convicted of a felony of receiving stolen property under section 496 in October 2012. In September 2014, she was found guilty of three new felonies and, at sentencing, a one-year term pursuant to section 667.5, subdivision (b) was added, based on her 2012 conviction. After the November 2014 election and while her appeal was pending, the defendant successfully petitioned to have her 2012 conviction redesignated as a misdemeanor. On appeal, she asserted Proposition 47 required the appellate court to strike her one-year section 667.5, subdivision (b) prior felony prison term enhancement because her 2012 conviction had been reduced to a misdemeanor. The Court of Appeal declined the request. (Buycks, supra, 5 Cal.5th at pp. 873-874.)
The Buycks court disagreed with Valenzuela and held that Proposition 47's mandate that a redesignated offense was to "be considered a misdemeanor for all purposes" (§ 1170.18, subd. (k)), when read in conjunction with the mandate of In re Estrada (1965) 63 Cal.2d 740 (Estrada) that legislative acts that mitigate punishment are presumed to apply retroactively to all "nonfinal judgments" absent a legislative declaration to the contrary, meant that felony convictions redesignated as misdemeanors under Proposition 47 may not be used as an enhancement under section 667.5, subdivision (b) in any case that "was not final when Proposition 47 took effect." (Buycks, supra, 5 Cal.5th at pp. 879, 894-896)
Buycks is not directly on point with this case because, unlike in Buycks, appellant here committed his current crime after Proposition 47 took effect (and, thus, his case was not even pending—let alone final—when Proposition 47 took effect). But Buycks's rationale nevertheless dictates reversal. Buycks rests in part on Estrada's presumption that laws that ameliorate sentences are to be given retroactive effect to nonfinal sentences. And here, appellant's sentence was not yet final at the time his 2002 felony second degree burglary conviction was redesignated a misdemeanor on April 26, 2017. Appellant is therefore entitled to vacation of the section 667.5, subdivision (b) enhancement based on that offense.
DISPOSITION
The trial court is ordered to strike appellant's Penal Code section 667.5, subdivision (b), enhancements based on his Health and Safety Code section 11377, subdivision (a), and Penal Code section 460, subdivision (b), misdemeanor convictions, and send a corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SNAUFFER, J.