Opinion
D071726
04-10-2018
THE PEOPLE, Plaintiff and Respondent, v. LONNIE J. PHILPOT, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS283646) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Convictions affirmed; case remanded for resentencing. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Lonnie J. Philpot appeals from a judgment of conviction and sentence, entered after a jury found him guilty of one count of attempted murder and two counts of assault with a firearm, stemming from an incident in which Philpot shot at a parked vehicle occupied by two people at close range.
In challenging his convictions on appeal, Philpot raises two issues with respect to the court's handling of a prospective juror who expressed his view that the prosecution would not be bringing the case to trial unless there was strong evidence against the defendant, which was based on the prospective juror's history in law enforcement. Philpot first contends that the trial court erred in failing to declare a mistrial after the other prospective jurors heard Prospective Juror Number One make these comments. Philpot also contends that the prospective juror's comments violated his right to confront witnesses against him.
Philpot also challenges one of his convictions for assault with a firearm, arguing that there is insufficient evidence to support his conviction on that charge with respect to one of the two victims of the shooting. Specifically, Philpot contends that he was not aware of the second victim's presence in the vehicle, and therefore, he did not have the requisite mental state to be convicted of assaulting that victim with a firearm.
In addition, Philpot challenges two pinpoint instructions that the trial court gave to the jury at the request of the prosecution.
Finally, Philpot contends that the case should be remanded to the trial court for resentencing, to allow the trial court to exercise its discretion pursuant to a newly-enacted statutory provision that grants a sentencing court the discretion to strike a firearm enhancement.
We conclude that Philpot's challenges to his convictions are without merit. We therefore affirm the convictions. However, we accept the People's concession regarding the effect of newly-enacted amendments that grant a sentencing court authority to exercise discretion to strike or dismiss a firearm enhancement. We agree that because the judgment in this case is not final, Philpot is entitled to have the trial court exercise the newly-granted discretion regarding striking or dismissing firearm enhancements, which became effective on January 1, 2018. We therefore remand the case for resentencing, to allow the trial court to exercise the discretion granted to it in Penal Code sections 12022.5, subdivision (c) and 12022.25, subdivision (h).
Further statutory references are to the Penal Code unless otherwise indicated.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
At close to midnight on December 5, 2015, C.R. and her boyfriend R.R. were sitting inside of C.R.'s white Chevy Cruze sedan, which was parked next to a blue van in a dirt parking lot on Telegraph Canyon Road in Chula Vista. C.R. was sitting in the driver's seat, and R.R. was reclined in the front passenger seat. The two were eating ice cream and talking.
Philpot walked up an embankment toward C.R.'s vehicle. He was wearing dark pants, a reddish plaid flannel shirt or jacket, and a blue baseball cap. Philpot stopped approximately three to four feet away from the passenger side window and crouched down and looked in the window. He then raised a handgun and fired a shot into the front right passenger side window, shattering it. The bullet exited through the rear driver's side window, shattering that window, as well.
C.R. ducked between the steering wheel and the driver's side door. R.R. began yelling that they were being shot and attempted to get lower into the seat.
After shooting into the passenger side window, Philpot walked around to the front of the car and fired two more gunshots at the vehicle. The gunshots entered the vehicle through the passenger side of the front windshield. The bullets punctured the driver's side door and shattered the driver's side window.
After firing these shots, Philpot ran down the embankment.
C.R. drove the vehicle a short distance away from the scene of the shooting and called 911. Chula Vista Police Sergeant John English responded and headed to the scene. He noticed a gold-colored Lincoln Town Car parked in an unusual manner at the intersection of Telegraph Canyon Road and Camino Entrada, which is approximately 200 yards from where the shooting occurred. English ran the license plates on the car and learned that the car was registered to Philpot, and that Philpot's residence was only a few hundred feet away from where the car was located.
Another Chula Vista police officer, Robert Halverson, went to Philpot's residence. After Halverson announced that the police were there and were looking for the owner of Philpot's vehicle, Philpot came outside. He was wearing dark colored pants and a white t-shirt. Halverson asked Philpot about his car, and Philpot responded, " 'My car ran out of gas and I'm going to kill myself.' " Philpot then went back inside the house.
Philpot's brother, K. Philpot, came out of the house and told Officer Halverson that Philpot suffered from mental illness. Philpot's mother, L.T. also came outside. K. Philpot then returned inside the house and brought Philpot back outside. Halvorson handcuffed Philpot and placed paper bags over his hands. Philpot told Sergeant English, who was now also at the location, " 'I'm going to get my gun and kill you.' "
Officers conducted a search of Philpot's home. Inside of Philpot's bedroom they found a loaded, operable .38-caliber revolver, which was registered to Philpot. They also found .38-caliber ammunition, a single .38-caliber round, five expended shell casings, a "speed loader" device, an empty revolver holster, and a gun cleaning kit. In addition, officers found Philpot's wallet, his driver's license and social security card, and a letter addressed to Philpot. Officers also saw four blue baseball caps inside Philpot's bedroom, and there was a red and black plaid jacket hanging on a dining chair that K. Philpot indicated belonged to Philpot.
Police officers examined C.R.'s vehicle and the parking lot where the shooting had taken place. They found a bullet jacket in the left rear seat area of C.R.'s vehicle, and a bullet fragment in the right rear seat. The blue van that had been parked next to C.R.'s vehicle was still there, and the front passenger window of the van was shattered. On the ground nearby, officers found a bullet with some casing still around it. Another bullet was found on the pavement next to the dirt lot. Firearms testing showed that two of the bullets retrieved from the scene had been fired from the revolver found in Philpot's bedroom.
Police wiped Philpot's hands to test for gunshot residue. The samples obtained from Philpot's hands revealed "characteristic particles of gunshot residue" on both of his hands. This indicated that Philpot had either discharged a firearm, or had been "in an environment of gunshot residue."
At trial, C.R. described the clothing that the assailant had been wearing at the time of the shooting. She also identified Philpot as the assailant who had fired a gun into her car.
2. The defense
Philpot's main theory of defense was that he was not the assailant. In support of this theory, defense counsel extensively cross-examined C.R. with respect to her identification of Philpot as the perpetrator. Defense counsel was able to get C.R. to acknowledge that after the incident, police officers had taken her to a location to try to identify the assailant, indicating to her that they had a person in custody. She conceded that she was not sure about her identification of Philpot until police put the red plaid jacket on him.
The defense also presented the testimony of an expert in eyewitness memory, Mitchell Eisen, Ph.D. Dr. Eisen testified about the factors that would lead to a "solid" eyewitness identification, and also testified about how the "system or the procedures used to collect the eyewitness evidence" can negatively impact the accuracy of eyewitness identifications. According to Dr. Eisen, "[i]f the procedures used to collect the eyewitness evidence are substandard, are problematic or are suggestive in some way, this will always compromise the reliability of the evidence." Dr. Eisen explained that asking a witness to identify a suspect by showing the witness only a single person, rather than a line-up or photographic array, produces a higher rate of mistaken identifications. Dr. Eisen also testified that a hypothetical police procedure that tracked the one by which the police sought C.R.'s identification of Philpot in this case, i.e., in which a suspect is brought to the eyewitness in handcuffs for the witness to identify, and, if the witness cannot be sure that the suspect is the assailant, placing an article of clothing on the suspect that matches the witness's description of what the assailant had been wearing, was a "wildly suggestive" procedure. B. Procedural background
A jury convicted Philpot of one count of attempted murder (§§ 187, subd. (a), 664; count 1); one count of shooting into an occupied motor vehicle (§ 246; count 2); and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3, 4). The jury also found true the allegations that Philpot personally used a firearm in the commission of the attempted murder and the assaults with a firearm (§ 12022.5, subd. (a)), and that Philpot personally discharged a firearm in the commission of the attempted murder (§ 12022.53, subd. (c)).
The trial court sentenced Philpot to a prison term of seven years for the attempted murder, plus an additional 20 years for the enhancement for personal discharge of a firearm, and an additional one-year term for one of the counts of assault with a firearm. The court stayed the sentences on the remaining counts pursuant to section 654.
Philpot filed a timely appeal.
III.
DISCUSSION
A. The trial court did not err in declining to declare a mistrial after Prospective Juror Number One made comments that demonstrated his pro-law enforcement bias
1. Additional relevant background
During jury voir dire, the trial court asked prospective jurors "if anyone has any deep-seated personal, moral, religious or philosophical reasons why they believe they cannot sit as a juror in a criminal case." Prospective Juror Number One immediately raised his hand and, in response to the court's inquiry, said:
"I've been a federal agent for the last 24 years and with the Sheriff's Department.
"For the two years before I joined the federal agency, I worked downstairs.
"I coordinate a lot of high-risk warrants for my department.
"And the prosecution wouldn't be filing all these charges if there wasn't hard evidence backing these charges.
"That's the reason."
The court and Prospective Juror Number One then engaged in the following exchange:
"THE COURT: So you -- I would characterize it as you've got a bias as a law enforcement officer.
"PROSPECTIVE JUROR NUMBER ONE: Yes, sir.
"THE COURT: Okay. And you believe that you can't overcome that belief and sit and be impartial and listen to the evidence before --
"PROSPECTIVE JUROR NUMBER ONE: No. I mean, I can. I mean, of course I can listen to the evidence and hear rebuttals and all that good stuff. But I think, again, dealing with U[.]S[.] [A]ttorneys and the DA's office a lot, with weapons charges and drug charges, I know that a lot of times prosecutors don't file certain charges unless there's hard evidence to back those charges.
"THE COURT: Thank you, sir. [¶] We've got plenty more questions for you. And the attorneys will also have an opportunity to ask you follow[-]up questions."
The court then moved on to other potential jurors who had indicated a desire to respond to the court's question. During a subsequent recess, outside of the presence of the venire, defense counsel requested that the court declare a mistrial based on Prospective Juror Number One's "comment," arguing that the statements made regarding his history in law enforcement and his belief that the prosecutor would not have filed the charges unless there was significant evidence supporting the charges "bolster[ed] not only law enforcement but also the District Attorney's case, the weight of the evidence, things of that nature, in that he [made his comment] in such a manner as to influence potential -- other potential jurors."
The trial court denied defense counsel's motion, noting that Prospective Juror Number One "did express an opinion, based on his lifetime career as a law enforcement officer, that, in his opinion, the case wouldn't be filed unless the People had a strong case," but stating that the prospective juror's "pronouncement of faith in the prosecution hardly rises to the level of a mistrial." The court essentially concluded that Prospective Juror Number One's statement of opinion had not prejudiced the remaining prospective jurors.
Jury voir dire progressed, and the prospective jurors were asked to respond to questions on a juror questionnaire form. The form included questions about the prospective jurors' occupations, as well as questions about family or friends in law enforcement or the legal profession. Prospective Juror Number One indicated that he is a United States Border Patrol agent, and that he had been with the Border Patrol for 24 years. In that role, he is "in charge of a special operations detachment which deals with nothing but coordination of high-risk warrants and search and rescue-type scenarios." Prospective Juror Number One also indicated, in response to questions on the juror questionnaire form, that "[a] few buddies of mine have been arrested for DUI, unfortunately," and then added, "And I've got a whole gamut of friends in various agencies in law enforcement, Sheriff's Department, San Diego PD. Most of them Border Patrol agents. Some ICE agents and Port of Entry-type people. [¶] Other than my drive to put the bad guy away, I see no reason why I cannot be a fair and impartial juror."
Later, outside the presence of prospective jurors, defense counsel renewed her motion for a mistrial based on Prospective Juror Number One's comments. Counsel noted that in view of Prospective Juror Number One's many years in law enforcement, he "should be well aware of the potential damage his comments are potentially having [on] other prospective jurors." She particularly objected to his reference to "bad guy," coupled with his level of experience, and his "minimiz[ing of] the defense, saying, well, I can hear rebuttals and all that good stuff." (Italics added.) Defense counsel stated that she believed that this prospective juror was "intentionally trying to taint the jury."
The prosecutor agreed that Prospective Juror Number One's comments were "evidence that this particular juror is biased and there are grounds for a challenge for cause," but she did not believe that the comments rose to the level of requiring a mistrial. The prosecutor offered that an admonishment might be appropriate to attempt to address any concern that the court might have.
The trial court again denied the motion, noting that the prospective juror's comments had all been made during the voir dire process, that the prospective jurors had not heard any evidence, that Prospective Juror Number One was not actually seated as a juror, and that the prospective juror had not indicated that he had any special knowledge of the facts of the case or the alleged crime. The court found that the comments did not rise to the level of requiring a mistrial, but agreed that an admonishment to the prospective jurors would be appropriate to address the Prospective Juror Number One's comments.
The following day, the court addressed the entire venire, stating: "At this time, I am going to give the jurors an admonishment. We have heard from, everyone has expressed their opinions regarding certain issues, but I would like to admonish you now that comments made during jury selection are not evidence. You are not to consider any comments or opinions expressed by other potential jurors during your deliberations should you be selected."
Both attorneys agreed that Prospective Juror Number One should be excused for cause, in that "he ha[d] made it clear that he cannot be fair." The court agreed, and excused Prospective Juror Number One for cause.
2. Analysis
Philpot contends that the comments made by Prospective Juror Number One during voir dire irreparably tainted the entire venire and required the trial court to grant a mistrial. According to Philpot, having the prospective jurors hear another prospective juror discuss his law enforcement experience and then state that there must be " 'hard evidence' " against the defendant to support the charges or the case would not have been filed, required a mistrial because it tended to bias the jurors against the defendant.
Philpot acknowledges that a trial court's decision not to dismiss a jury panel is reviewed for an abuse of discretion. (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).) "[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required." (Ibid.)
Philpot also argues, however, that there is a question whether the trial court should have "engage[d] in additional questioning of the jurors to ensure their impartiality in light of their receipt of this extraneous information [i.e., Prospective Juror Number One's comments]." He concedes that a trial court's questioning of prospective jurors is also reviewed for an abuse of discretion. (See People v. Harris (2013) 57 Cal.4th 804, 831 ["A trial court . . . has wide discretion in deciding what questions should be asked on voir dire to determine potential jurors' biases"].)
However, quoting People v. Nesler (1997) 16 Cal.4th 561, 582 (Nesler), Philpot contends that the question whether a jury's "receipt of extraneous information resulted in prejudice 'is a mixed question of law and fact subject to an appellate court's independent determination.' " According to Philpot, "[a] juror's 'receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias.' "
"A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Bolden (2002) 29 Cal.4th 515, 555.) Indeed, it is clear that "discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant." (Medina, supra, 51 Cal.3d at p. 889.)
We first address Philpot's contention that the venire was exposed to "extraneous information" about the case when Prospective Juror Number One made his comments about his experience in law enforcement and his opinion that the case would not have been filed if there was not strong evidence against the defendant. Although we agree that Prospective Juror Number One's comments exposed significant bias on his part, and further agree that it was less than ideal that he shared his biased opinion openly and supported his views by citing his extensive experience in law enforcement, we cannot conclude that the only reasonable course of action was to declare a mistrial and that the trial court's refusal to grant one was an abuse of the court's discretion.
Medina, supra, 51 Cal.3d at pages 888-889 is instructive on this issue. In Medina, a prospective juror indicated that she had heard other prospective jurors make statements suggesting that they believed the defendant was guilty. Specifically, she stated that she heard fellow "venirepersons make statements such as 'even his own lawyers think he's guilty,' and 'they ought to have [sic] him and get it over with.' " (Id. at p. 888.) At a hearing on the matter, the following information was gleaned: "[The prospective juror who raised the issue] asserted that at least five prospective jurors had made such remarks, and she identified some persons whom she believed had either made such comments or had overheard them being made. Prospective juror Durling confirmed that he and a few other venirepersons, while in the court elevator, had made statements such as 'in frontier justice style,' the authorities should 'bring the guilty S.O.B. in, we'll give him a trial, and then hang him.' Prospective juror Clasen stated he had heard similar comments from other venirepersons." (Ibid.)
In response to this information, the defendant moved "to discharge the entire venire, on the ground that it had become tainted and further inquiry would only aggravate the situation." (Medina, supra, 51 Cal.3d at p. 888.) The trial court denied the motion without prejudice to a renewed motion following additional voir dire, but defense counsel was concerned that asking further questions of the prospective jurors would antagonize the jurors and add to the bias against the defendant. (Id. at pp. 888-889.) Ultimately, none of the offending prospective jurors remained on the jury, and every "person selected for the jury affirmed his or her ability to be fair and impartial." (Id. at p. 889.)
In addressing the defendant's contention on appeal that the trial court should have discharged the entire venire, the Supreme Court determined that the circumstances that the trial court had faced, where several potential jurors expressed their specific opinions about the guilt of the defendant, did not require discharging the entire venire. (Medina, supra, 51 Cal.3d at p. 889.) "Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks. Unquestionably, further investigation and more probing voir dire examination may be called for in such situations, but discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. The present case falls short of that mark." (Ibid.)
Although Prospective Juror Number One demonstrated a pro-law enforcement bias, unlike the prospective jurors in Medina, he did not indicate that he had already adjudged the defendant guilty. Nor did he suggest that he possessed particularized knowledge about the facts or evidence in this case. Rather, he suggested that he was inclined to believe that charges would not be brought against anyone unless the prosecution had strong evidence of guilt. In response to Prospective Juror Number One's initial comments, the trial court specifically remarked that it sounded like the prospective juror had "a bias as a law enforcement officer," and Prospective Juror Number One responded, "Yes, sir," thereby essentially admitting his bias for the entire venire to hear. Given Prospective Juror Number One's admission of his own bias, it is difficult to believe that other prospective jurors would have given credence to Prospective Juror Number One's commentary, and there is thus no reason to believe that the comments of Prospective Juror Number One expressing his general bias against defendants in criminal proceedings would influence the other prospective jurors to be biased against Philpot. We cannot conclude that any time a prospective juror expresses a pro-prosecution bias in front of other prospective jurors, the remaining venire must be discharged. The fact that Prospective Juror Number One appeared to cloak his bias in his extensive law enforcement background does not alter our conclusion. Although we agree that he should not have suggested that his experience gave him some unique insight into the guilt of any person on trial, these references do not render this scenario any more likely to have prejudiced Philpot than what occurred in Medina, supra, 51 Cal.3d at pages 888-889.
Further, the trial court specifically admonished the venire that nothing that was said by anyone during the jury selection process was evidence, and that they were not to consider any comments made during that time during the jury's deliberations. We presume that the jury understood and followed the court's instructions. (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed to be able to understand and correlate instructions and are presumed to follow the court's instructions].) In light of this, and in light of the fact that each person who ultimately served on the jury affirmed his/her ability to be impartial and fair, there is no reason to believe that Prospective Juror Number One's comments affected the jurors' ability to consider the evidence presented and to decide, impartially and without outside influence, whether the defendant was guilty of the charged offenses.
We reject Philpot's suggestion that the comments that Prospective Juror Number One made here were akin to those addressed in Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach), Paschal v. United States (5th Cir. 1962) 306 F.2d 398 (Pachal), or Nesler, supra, 16 Cal.4th at page 571. In Mach, a federal case that Philpot cites for persuasive value, the defendant was charged with sexual contact with an eight year old. (Mach, supra, at p. 631.) During voir dire, a potential juror, a social worker with Arizona's Child Protective Services, indicated that she had expertise in the area of psychology, and stated, in front of other prospective jurors in "four separate statements that she had never been involved in a case in which a child accused an adult of sexual abuse where that child's statements had not been borne out." (Id. at p. 633.) The Ninth Circuit Court of Appeals determined that, at a minimum, the trial court "should have conducted further voir dire to determine whether the panel had in fact been infected by [the potential juror's] expert-like statements" because "[g]iven the nature of [the] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated," the court had to "presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused." (Ibid.) This violated the defendant's right to an impartial jury. (Ibid.) The statements made by Prospective Juror Number One in this case are not analogous to the statements made by the prospective juror in Mach. The prospective juror's statements in Mach bore directly on the truthfulness of the main witness against the defendant -- the child who accused him of sexual misconduct. In stating that she had never encountered a case in which a child had lied about being sexually assaulted, the prospective juror was, in effect, bolstering the testimony of a particular witness. Here, there is no similar statement that effectively bolstered a witness's testimony, nor any statement that spoke specifically to the merits of the case at hand.
Philpot also relies on Paschal, supra, 306 F.2d 398. In Paschal, the defendant was charged with passing counterfeit bills. During voir dire, a prospective juror indicated that he was the director of a bank, and said in the presence of the other prospective jurors that "the bank [at which the prospective juror worked] got 'Some Paschal money' -- 'This defendant's money', about three years previously." (Id. at p. 399.) The court denied the defendant's motion to dismiss the jury and begin with a new jury panel. (Id. at p. 400.) On appeal, the Fifth Circuit Court of Appeals concluded, "It is difficult to see how a remark could be more prejudicial." (Ibid.) It is clear, however, that the prospective juror's comments in Paschal involved specialized knowledge about the guilt of the particular defendant in that case. That is simply not what occurred here.
Philpot also compares what occurred in this case with the facts of Nesler, supra, 16 Cal.4th at page 571, contending that the cases are similar. Nesler involved a seated juror who revealed to other jurors during sanity phase deliberations that she knew that the defendant used methamphetamine, left her children unattended, and was not a good mother. (Ibid.) The Supreme Court concluded that the juror's "repeated, improper use of the damaging information concerning defendant leads us to conclude that there is a substantial likelihood [the juror] was influenced to defendant's detriment by the information she had received outside of court and, therefore, that she was actually biased." (Id. at p. 585.) The Nesler court determined that, as a result of the juror's misconduct and the resulting unrebutted presumption of prejudice arising from the demonstration of bias, the defendant was entitled to a new trial on the issue of her sanity. (Id. at p. 590.) It is clear that Nesler is simply not on point with the present case. Here, the complained-of comments were made by a prospective juror during voir dire -- a time when the attorneys and the court are attempting to ascertain whether prospective jurors can be fair and impartial. Unlike in Nesler, Prospective Juror Number One's comments did not introduce extrinsic evidence to the venire. The prospective juror did not impart any information about the defendant or other witnesses in the case, but rather, exposed his personal bias regarding his general belief about the strength of evidence against defendants facing criminal charges.
We therefore reject Philpot's contention that the trial court erred in failing to grant his motion for mistrial based on the comments of Prospective Juror Number One. B. By failing to raise an objection on confrontation clause grounds, Philpot forfeited his argument that the trial court violated his confrontation clause rights by the manner in which it handled Prospective Juror Number One's comments; in any event, the argument is without merit
Philpot argues that "Prospective Juror Number One's statements amounted to unsworn testimony that violated appellant's Sixth Amendment right to confront and cross-examine witnesses." (Underlining and some capitalization omitted.) According to Philpot, "the statements of prospective Juror Number One about his 'inside knowledge' of the strength of the prosecutor's case were not made under oath, and were not subject to cross-examination," and therefore, the "statements violated appellant's right to confront witnesses under the Sixth Amendment of the United States Constitution."
As an initial matter, we note that Philpot did not object to the comments or seek a mistrial on the ground that Prospective Juror Number One's comments violated his Sixth Amendment right to confront witnesses. The lack of an objection on this ground forfeits such an argument on appeal. (People v. Redd (2010) 48 Cal.4th 691, 730 [failure to raise confrontation clause argument forfeits contention].)
The argument is also without merit. Philpot relies on Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1484, 1490 (Jeffries), overruled by Gonzalez v. Arizona (9th Cir. 2012) 677 F.3d 383, and Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612 (Lawson), to argue that the prospective juror's comments violated his confrontation rights. Jeffries states that "[w]hen a juror communicates objective extrinsic facts regarding the defendant or the alleged crimes to other jurors, the juror becomes an unsworn witness within the meaning of the Confrontation Clause." (Jeffries, supra, at p. 1490.) Lawson, which involved a juror telling other jurors about the defendant's reputation for being violent, stands for the proposition that "[j]ury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment." (Lawson, supra, at p. 612.) However, it is clear that this case does not involve a juror communicating extrinsic facts or relaying extrinsic evidence regarding the defendant or the alleged crimes. Rather, this case involves a venireperson expressing his opinion about the strength of evidence in criminal cases, generally. C. There is sufficient evidence to support the jury's verdict with respect to the assault against R.R.
Philpot contends that he cannot be guilty of an assault with a firearm against R.R. because the evidence demonstrates that he was not aware that R.R. was in the car when he shot into it. Philpot's argument is unavailing.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
According to Philpot, he cannot be guilty of assaulting R.R. with a firearm in the absence of evidence that he specifically knew that R.R. was inside the vehicle. This contention is an inaccurate statement of the law. "[I]n California assaults require no subjective specific intent to injure or even batter another person." (People v. Felix (2009) 172 Cal.App.4th 1618, 1628 (Felix).) The Supreme Court has stated, "[I]t is clear that the question of intent for assault is determined by the character of the defendant's willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault." (People v. Colantuono (1994) 7 Cal.4th 206, 217, italics added.)
The court in Felix explained that from this objective standard for intent, it follows that an " 'intent to do an act which will injure any reasonably foreseeable person is a sufficient intent for an assault charge.' " (Felix, supra, 172 Cal.App.4th at p. 1628, italics added, quoting People v. Tran (1996) 47 Cal.App.4th 253, 262.)
People v. Trujillo (2010) 181 Cal.App.4th 1344 (Trujillo) is particularly on point with respect to whether the evidence in this case is sufficient to support a conviction for assault with a firearm against R.R. In Trujillo, a defendant shot into a moving vehicle with tinted windows that was occupied by not only the driver, but by a backseat passenger, as well. This court rejected a claim that a defendant who fires into a vehicle knowing only that it is occupied by one person cannot be guilty of assault with a firearm against a passenger who the defendant may not have been aware was also in the vehicle. (Trujillo, supra, at pp. 1354-1357.) The jury convicted the defendant of two counts of assault with a firearm, despite the fact that there was no evidence that the defendant was actually aware that someone other than the driver was also in the vehicle. (Id. at p. 1349.) In upholding the jury's verdicts as to both counts of assault with a firearm, the Trujillo court explained that there need not be a separate mental state or intent with respect to each victim, but rather, that an existing mental state to commit an assault against one person can be extended to support additional convictions with respect to additional victims who ultimately were in fact assaulted by the defendant's act. (Id. at pp. 1354-1355.) "[A] defendant who harbors the requisite mental state for assault while committing one or more acti rei such that a direct, natural, and probable result is a battery against two persons may be convicted of assault against each." (Id. at pp. 1354.) The effect of this is that "a person who harbors the requisite intent for assault is guilty of the assault of all persons actually assaulted." (Id. at pp. 1354-1355, italics added.)
The Trujillo court also noted that in that case, the defendant could be convicted of assault with a firearm against a subjectively unknown backseat passenger because he had acted with the requisite mental state with respect to the driver of the vehicle, and because the victim's presence in the car was reasonably foreseeable, such that a reasonable person would have understood that harm to another person from shooting into a vehicle was a foreseeable result. (Trujillo, supra, 181 Cal.App.4th at p. 1357.) The Trujillo court relied on Felix, supra, 172 Cal.App.4th 1618, 1629, in concluding that "[n]o subjective intent to injure a particular victim is required." (Trujillo, supra, at p. 1353, italics added.) "Rather, a defendant's intended acts are evaluated objectively to determine whether harm to a charged victim was foreseeable." (Felix, supra, at p. 1629.)
In the present case, the evidence clearly demonstrates that Philpot knew that he was firing into a vehicle occupied by C.R. There is thus clear evidence that he harbored the requisite intent for assault with a firearm against her; he may therefore be found guilty of the assault with a firearm of both C.R. and R.R., since both of them were actually assaulted. Further, there is sufficient evidence that harm to a second victim in C.R.'s car was objectively foreseeable, such that a reasonable person would have understood that harm to a person other than just C.R. was a foreseeable result of shooting into her vehicle. Philpot could see C.R. inside the car, and in fact made eye contact with her. It is reasonably foreseeable that a parked car occupied by at least one person, late in the evening, might also be occupied by other individuals.
Further, even if one were to assume, for argument's sake, that knowledge of R.R.'s presence inside the car was required, sufficient evidence independently supports a reasonable inference that Philpot saw R.R. inside the car and that he was thus aware that there were two people in the vehicle when he shot at it. Philpot focuses heavily on the fact that R.R. did not see the person who shot into the vehicle to support his assertion on appeal that this must mean that Philpot never saw R.R. and was not aware of the presence of a second person in the vehicle. However, the fact that R.R. did not see the assailant does not mean that the assailant could not have seen that there was someone in the passenger seat of the vehicle. Indeed, testimony at trial indicated that Philpot walked up an embankment to the front passenger side window, just outside where R.R. was seated. Philpot crouched down and looked into the window before firing a shot through it. Further, according to C.R., R.R. had only "leaned his chair back a little bit" (italics added), indicating that the seat was not lowered to such a degree that it would not be apparent that someone was in the passenger seat. R.R. confirmed this by stating that his "chair was in an inclined position, about three quarters of the way down, not all the way back against the back seat." Further, after the first shot was fired, it was R.R., not C.R., who screamed that Philpot was shooting at him and C.R. R.R. also testified that he tried to crouch down lower into the seat. It is clear that R.R. made movements in the passenger seat at the same time that he was shouting about being fired at. After all of that occurred, Philpot moved to the front of the vehicle and fired another two shots. Given all of this, a reasonable factfinder could readily conclude that Philpot either saw the movement of two people in the vehicle, or heard the screaming of a male voice, indicating that there were two people in the vehicle, prior to firing the final two shots. Thus, even if the law required that Philpot be subjectively aware of the presence of a second person in C.R.'s vehicle, this evidence would be sufficient to support a finding that Philpot was aware that he was assaulting two victims with a firearm when he shot into the vehicle, and is therefore sufficient to support the finding that Philpot committed an assault with a firearm against R.R. D. There was no instructional error regarding assault and reasonable foreseeability, nor with respect to expert testimony concerning eyewitnesses
Philpot did not testify and therefore never stated at trial that he did not see a second person in the vehicle.
Philpot contends that the trial court committed instructional error in two respects. Specifically, he asserts that two of the instructions that the court gave, as requested by the prosecution, were argumentative and confusing. We disagree.
1. Additional background
Over defense counsel's objections, the trial court provided the jury with two pinpoint instructions, at the request of the prosecutor. First, with respect to assault with a firearm in relation to count 4, i.e., the count related to victim R.R., the trial court included the additional language in its instruction that "[a] person who assaults one person will be liable for assaulting others who are reasonably foreseeable." Second, the court provided the jury with an additional instruction, after giving the standard instruction on expert witness testimony, regarding the limitations of expert testimony concerning eyewitness identification. The language of the instruction that Philpot challenges is as follows:
The full instruction on assault with a firearm as charged in count 4 read:
"The defendant is charged in Count Four with assault with a firearm in violation of Penal Code section 245.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"AND
"4. When the defendant acted, he had the present ability to apply force with a firearm to a person, to wit: [R.R.]
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough 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 touching can be done indirectly by causing an object to touch the other person.
"The People are not required to prove that the defendant actually touched someone.
"The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault.
"A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.
"A person who assaults one person will be liable for assaulting others who are reasonably foreseeable."
The standard instruction on expert testimony was as follows:
"Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
"An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion."
"Expert testimony has been presented regarding factors which may affect an eyewitness identification. The law does not permit such experts to express an opinion regarding the presence or absence of such factors under the particular facts of this case. In addition, the law does not allow such experts to express an opinion as to the accuracy of the eyewitness identifications in this case. Therefore, you are not to speculate as to whether the expert holds an opinion regarding such issues or what such opinion might be. You are to give the testimony of the expert the weight to which you find it to be entitled. You are the sole judges to what extent, if any, such testimony is to be applied to the eyewitness identifications in this case."
2. Analysis
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse [a requested] instruction . . . if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' " (People v. Burney (2009) 47 Cal.4th 203, 246.)
When a defendant raises a claim of instructional error, " 'we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.' " (People v. Smith (2008) 168 Cal.App.4th 7, 13.) "Further, in examining the entire charge we assume that jurors are ' " ' "intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " ' " (Ibid.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
" 'A jury instruction is . . . argumentative when it is " 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' " ' " (People v. Campos (2007) 156 Cal.App.4th 1228, 1244.)
a. The trial court did not err in instructing the jury that criminal liability for assault with a firearm may extend to acts against victims who were reasonably foreseeable
Philpot argues that the addition of the language "[a] person who assaults one person will be liable for assaulting others who are reasonably foreseeable" created an argumentative instruction because "it outlined the prosecutor's argument that appellant had the necessary mental state" for a conviction on count 4. We disagree with Philpot's description of the instruction.
Philpot does not argue that the statement that "[a] person who assaults one person will be liable for assaulting others who are reasonably foreseeable" is legally incorrect; indeed, as our analysis in a prior section indicates, this statement is correct: An offender's criminal liability for assault with a firearm extends to those victims who are reasonably foreseeable. (Felix, supra, 172 Cal.App.4th at p. 1629; Trujillo, supra, 181 Cal.App.4th at p. 1357.) Rather, Philpot contends that this legally correct instruction "invited the jury to draw a conclusion in favor of one party against the other from specific evidence." We disagree with this assertion. The instruction did not suggest that the jury should draw any particular conclusion about the evidence. Rather, it left it to the jury to determine whether it was reasonably foreseeable, given the circumstances, that someone other than C.R. would be a victim of the assault with a firearm that occurred when Philpot shot into an occupied vehicle on the night in question. This is not an argumentative instruction.
Philpot also suggests that the instruction was confusing because it failed to mention that the defendant must be "aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone," and instead introduced "the language 'reasonably foreseeable.' " He suggests that because the defendant in Felix "had actual knowledge that the two minor children lived in the house and would likely be home," Felix is distinguishable from this case with respect to the concept of "aware[ness] of facts," and this somehow renders the instruction provided here "confusing." This argument is wholly without merit. There is nothing confusing about the instruction, and the distinction that Philpot attempts to draw between Felix and this case is unavailing. Based on the evidence presented, the jury could readily determine whether it believed that Philpot was "aware of facts" that would make the presence of another victim in the occupied car reasonably foreseeable.
b. The trial court did not err in instructing the jury with respect to expert testimony regarding eyewitness testimony
Philpot contends that the trial court erred in instructing the jury that it was not to speculate about an eyewitness identification expert's opinions about the accuracy of eyewitness identifications in this case. According to Philpot, the instruction singled out the defense expert's testimony, "strongly cautioning the jury as to the limitations on the defense expert testimony," and thereby undermined that testimony. We disagree with this contention. Although only the defense presented an expert to testify about eyewitness identification, and this instruction therefore applied only to testimony presented by a defense expert, the instruction itself is neutral and explained to the jury that it was not to speculate, either way, about what the expert might think about the application of relevant factors to the particular facts of the case. The instruction did not invite the jury to draw inferences favorable to one party, or to draw particular conclusions about the evidence.
Philpot also contends that the instruction was confusing "because it repeats some general principles already incorporated in the standard jury instruction that applied to all [of] the expert testimony, CALCRIM 322, but is aimed solely at the defense expert witness." We see nothing confusing about the instruction, or the fact that it essentially repeated to the jury the general idea that the jury could make its own determination as to the weight it believed the testimony should be given. The standard instruction and the pinpoint instruction were consistent in this manner; the pinpoint instruction is not rendered confusing merely because it reiterates that it is up to the jury to decide what weight to give the expert's testimony. E. We remand the matter for resentencing so that the trial court may exercise the discretion granted pursuant to the amendment of Penal Code sections 12022 .5, subdivision (c) and 12022.23, subdivision (h), which became effective January 1, 2018
As we have already discussed, the jury found true the enhancement allegation, pursuant to section 12022.53, subdivision (c), with respect to the attempted murder count, as well as three enhancement allegations pursuant to section 12022.5, subdivision (a) with respect to the attempted murder count and the two counts of assault with a firearm. With respect to the section 12022.53, subdivision (c) enhancement, the trial court imposed a 20-year enhancement term in addition to the seven-year sentence for attempted murder. With respect to the section 12022.5, subdivision (a) enhancements related to counts 1 and 3, the trial court imposed but stayed the additional enhancement terms pursuant to section 654.
The court struck the section 12022.5, subdivision (a) enhancement term related to count 4.
On October 11, 2017, after full briefing had been completed in this case, the Governor signed into law Senate Bill 620 (S.B. 620), which amends sections 12022.5 and 12022.53 (see Stats. 2017, ch. 682, §§ 1, 2). S.B. 620, which became effective on January 1, 2018 (Cal. Const., art. IV, § 8, subd. (c) [absent urgency legislation, statutory amendments enacted during regular session become effective on the next January 1 that follows a 90-day period from the date of enactment]), deletes the prior prohibition against dismissing or striking firearm enhancements that was contained in sections 12022.5 and 12022.53, and instead, "allow[s] a court, in the interest of justice and at the time of sentencing or resentencing, to strike or dismiss an enhancement otherwise required to be imposed" under prior law. (Legis. Counsel's Dig., Sen. Bill No. 620 (2017-2018 Reg. Sess.) Summary Dig.) Specifically, S.B. 620 eliminated former subdivision (c) of section 12022.5 and former subdivision (h) of section 12022.53, which prohibited the court from striking an allegation or finding under those sections, and replaces those sections with the following language:
The language of both sections provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) --------
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
In a supplemental brief, Philpot contends that because his case was not final at the time S.B. 620 went into effect, the amendments to sections 12022.53 and 12022.5 apply to his case. Citing the rule of In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada), Philpot requests that this court remand the case to the trial court to allow the court to exercise its discretion to strike the true findings made with respect to the section 12022.53, subdivision (c) and section 12022.5, subdivision (a) enhancement allegations.
Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Estrada, supra, 63 Cal.2d at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Notably, the rule expressed in Estrada has been applied not only to amendments reducing the specific penalty for a particular offense, but also to an amendment that grants the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76 (Francis).) Francis involved an amendment that permitted a trial court, in its discretion, to impose a misdemeanor or felony sentence with respect to an offense that had previously been punishable only as a felony. (Id. at p. 75.) Noting that "unlike Estrada, the amendment does not revoke one penalty and provide for a lesser one," but instead "vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty," the Francis court nevertheless concluded that there remains "an inference [in favor of the Legislature's intention that the amendment apply to pending cases] because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances." (Id. at p. 76.)
In response to Philpot's supplemental brief, the People concede that Francis, supra, 71 Cal.2d 66 "is controlling" authority with respect to the issue whether the amendments enacted in S.B. 620 apply to allow for resentencing in this case. The People further concede that the proper remedy in this case is to remand the case to allow the trial court to exercise its discretion to strike the true findings on the section 12022.5 and 12022.53 enhancements.
We agree with the People's concessions and accept them. We therefore remand the matter to the trial court to conduct a new sentencing hearing for the limited purpose of allowing the court to exercise its discretion under section 1385 to decide whether to strike the section 12022.5 and 12022.53 enhancements or to again impose the enhancement terms.
IV.
DISPOSITION
The sentence is vacated and the cause is remanded for resentencing to allow the superior court to consider whether the enhancements under sections 12022.5, subdivision (a) and 12022.53, subdivision (d) should be stricken under section 1385. In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.