Opinion
A153433
11-22-2019
In re P.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JW166240)
Defendant P.M. appeals from a disposition order declaring him a ward of the juvenile court and committing him to the Department of Juvenile Justice (DJJ) after the court sustained a section 602 petition (Welf. & Inst. Code, § 602) alleging he committed willful, premeditated and deliberate murder with firearm enhancements (Pen. Code, § 187, subd. (a)), carried a loaded firearm, a felony (§ 25850, subd. (a)), and was a juvenile in possession of a firearm, a felony (§ 29610). On appeal, defendant contends the court erred in (1) excluding expert testimony in support of his imperfect self-defense and heat of passion defenses and (2) committing him to DJJ in the absence of sufficient evidence that the commitment would result in a probable benefit to him or that less restrictive alternatives were inappropriate. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
On an evening in late September 2016, defendant was with his friend J.M. and two other friends. The group was using cocaine and drinking alcohol. J.M. wanted to smoke marijuana, so she called her friend D.G., whom both defendant and J.M. had known since middle school. Defendant drove to pick up D.G. D.G., in turn, suggested they contact Alejandro Valle to buy marijuana. She called Alejandro to tell him she was coming over, and defendant drove over with D.G. and J.M.
D.G. is sometimes referred to as D.H. in the record.
Defendant and Alejandro had once been close friends, but the two had a falling out after defendant loaned Alejandro some money and Alejandro became connected with Norteño gang activity. Despite repeated efforts by defendant to reestablish a relationship with Alejandro, the two had not spoken for about six months.
When they got to Alejandro's neighborhood, defendant parked up the street from his house and left the car idling. Defendant and D.G. got out and walked over to the house, and were shortly joined by J.M. D.G. called Alejandro on her cell phone to tell him she was out front. Defendant sat on the stairs of the "next house over."
As soon as Alejandro, who was wearing pajamas and a dark hooded sweater, came outside, defendant approached him and used his "hand[] to cover part of his face." The two were "really close" and facing each other. D.G. heard Alejandro say, " 'No. You know I love you. We're like family. Why you gonna do this?' " She saw Alejandro's mother look out the window and told defendant Alejandro's mother was there. She then heard defendant say he was going to " 'pop' " Alejandro in front of his mother, which she took to mean that he "was going to shoot him." D.G. saw defendant pull a gun out of his pocket. Defendant turned to D.G. and said, " 'If you snitch, it's all bad for you.' "
D.G. immediately walked away, and as she was leaving, heard gunshots. When she turned around, she saw Alejandro "crying on the floor" and asking for help. She never saw Alejandro with any weapons. She saw defendant run back to his car and then called her boyfriend to pick her up. When D.G. spoke to J.M. later that night, J.M. warned her not to " 'say anything.' "
Defendant called his friend A.F. and asked her for a "favor." He wanted her to say she "was with him on a certain day" to "establish an alibi." When A.F. asked why he shot Alejandro, defendant said "it was about money." Defendant also told her he was not afraid of the fact Alejandro was in a gang.
Alejandro's mother confirmed her son went outside a little after midnight and she was looking out of her window when he did so. She saw Alejandro speak with a woman and a man she identified as defendant. Alejandro and defendant were facing each other and got very close to one another. She described defendant as wearing a "black hooded sweatshirt" and dark jeans, and covering "the lower part" of his face with his left hand. Alejandro was saying, " 'No, no' " and then something to the effect of " 'Mommy's here.' " She then saw defendant shoot Alejandro and heard gunshots, "no less than three or more than five." Alejandro yelled, " 'Mom, help me,' " and defendant took off running up the street. She ran outside to Alejandro, but fainted upon seeing him.
San Francisco Police Officer Colin Patino received a dispatch a little after midnight of a shooting in the Bayview District. When he arrived at the scene, officers were already conducting CPR on Alejandro who "had multiple gunshot wounds." He tried to interview Alejandro's mother, who was now conscious but "crying and sobbing most of the time" and "extremely hysterical." Officer Patino took over the CPR efforts until the medics arrived. Alejandro was "having agonal breathing and there were gasps of air," his "eyes were rolled back into his head," and he was bleeding from his mouth and multiple bullet wounds.
Alejandro was taken to San Francisco General Hospital where he was later pronounced dead. An autopsy revealed he died of blood loss and suffered eight gunshot wounds.
During the investigation into the killing, Sergeant Mark Hutchings identified a photograph on J.M.'s phone of defendant "holding what appears to be a firearm in his left hand." He also determined that defendant's car had been taken to an auto dismantler and destroyed shortly after the murder.
In October, the San Francisco District Attorney's Office filed a juvenile wardship petition alleging defendant committed murder with firearm enhancements for arming, use, and discharge (§§ 187, subd. (a), 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d)), felony carrying a loaded firearm (§ 25850, subd. (a)), and felony possession of a firearm by a minor (§ 29610). That same day, the district attorney also moved, pursuant to Welfare and Institutions Code section 707, subdivision (c), to set a fitness hearing to remove the case from juvenile court.
The court ordered defendant to be detained and the probation department to file a fitness report in preparation for the Welfare and Institutions Code section 707 hearing. The department determined defendant was "not amenable to be [a] fit and proper subject to be dealt with under Juvenile Court Law." After a much-continued hearing on the matter, the juvenile court denied the motion to remove the case and retained jurisdiction.
Defense counsel identified Dr. John Shields as a potential witness at trial. Dr. Shields had performed a psychological evaluation of defendant and testified at the Welfare and Institutions Code section 707 transfer hearing about defendant's diagnoses of post-traumatic stress disorder (PTSD), depressive condition and substance abuse problems.
Shortly before trial commenced, the prosecution filed a trial brief seeking to exclude Dr. Shields' testimony on the ground it was not relevant. The prosecutor's view was that Dr. Shields stated "PTSD did not explain the Minor's conduct when he killed Alejandro," but instead "just explained why the Minor believed that he always had to arm himself." Further, Dr. Shields had not examined defendant for a not guilty by reason of insanity plea, had "not examine[d] the nature and quality of his actions," and had stated " 'I don't know in that moment what his precise—what was going on with him at that time.' " Defendant did not address the issue of Dr. Shields' testimony in his initial trial brief.
At the end of the second day of trial, the court and counsel discussed the issue, and the following exchange ensued:
"[The court]: . . . Is there something in the evidence that—the report of Dr. Shields that indicates your client cannot form intent?"
"[Minor's Counsel]: I don't think that he's going to be able as a matter of law to testify to that ultimate conclusion. . . . [¶] But Dr. Shields would—has evaluated my client extensively and he will and can testify to my client's basically suffering from post-traumatic stress disorder related to long-term emotional and physical abuse. And I believe there are other diagnoses as well which would be relevant to my client's subjective intent at the time the shooting took place."
"[The court]: . . . It just doesn't seem that—yes, he may have PTSD, but I'm not sure how that diminishes a first-degree, unless Dr. Shields has some indication that your client wasn't able to form intent or didn't know what he was doing."
"[The prosecution]: [Dr. Shields] says, 'In no way do I want to suggest or am I suggesting that it was the cause of what he did. That's not the case.' He's talking about his PTSD. . . . 'I'm not suggesting to the Court that his having post-traumatic stress disorder led him to act as he did in the commission of this crime. There may have been some aspects of it that might have been related, but it's certainly not an explanation or an excuse for that he did.' And Dr. Shields went on to state that he essentially didn't know what the minor's mental state was at the time of the shooting. And those are—that—so his evidence is not—he has no evidence that he could offer that would be relevant in this case."
The court deferred ruling until defense counsel could obtain a copy of Dr. Shields' evaluator report.
Defendant then filed a supplemental trial brief discussing Dr. Shields' testimony. He asserted that while Dr. Shields did not "discuss a NGI defense or the quality of [defendant's] actions in his report, he did discuss with [defendant] and related in his report what led up to the incident as well as specific facts related to the nature of [defendant's] involvement." Defendant intended to assert "slow-burning heat of passion" and imperfect self-defense, and requested that Dr. Shields be permitted to testify about defendant's "psychological condition around the time of the incident, even though Dr. Shields may not be able to testify about what was going on with [defendant] at the precise moment when the shooting occurred. . . ."
The court tentatively ruled Dr. Shields could testify.
Following the prosecution's case-in-chief, defendant testified on his own behalf. He first met Alejandro in middle school, and the two developed a "close friendship" that continued until "a year before the incident." The two then had a "falling out" after defendant loaned Alejandro money to buy a firearm during the summer of 2015 and after several other incidents, including Alejandro hanging out with Norteño gang members with whom defendant "didn't get along with." Around that time, defendant asked a mutual friend to try and get his money back from Alejandro. The friend told defendant Alejandro stated he was going to " 'smoke' " defendant, although Alejandro later denied making any threats against defendant. In the fall of 2015, defendant was at a bus stop and a car pulled up, with Alejandro in the front passenger's seat. Someone in the car then shot towards defendant, but did not strike him. After that, defendant's relationship with Alejandro "completely ended" and he felt "threatened, angry . . . betrayed." However, the following March, defendant attempted to call Alejandro from someone else's phone. Alejandro answered, but hung up when defendant spoke. Defendant testified he was afraid of Alejandro because he was "known to have firearms."
On the night of the shooting, defendant got out of his car to talk to Alejandro because it "was probably going to be my only chance to talk to him and see where his head was at and what was—what was going on." His "intention was just simply to kind of tag along [with D.G. who was trying to buy marijuana] and maybe have a discussion with him."
Defendant acknowledged he was carrying a loaded .40-caliber gun, which he kept placed under his seat in the car. He carried a gun the "[m]ajority of the time" to "protect" himself. He took the gun with him when he and D.G. approached Alejandro's house, placing it in his waistband. He did "[n]ot really" think he was going to need it. Rather, he brought the gun because he kept it on him "at all times," plus he did not "really trust the friend [he] was with to leave a gun in the car with him."
When Alejandro came out of his house, he and defendant made eye contact and "walked toward each other." They were "[a]bout a foot, foot and half, maybe two feet" apart from one another. Defendant asked Alejandro, " 'What's going on? What's up with you,' " and Alejandro "kind of brushed it off as in, like, he didn't want to talk." When defense counsel asked whether there was anything threatening about how Alejandro walked toward him, defendant responded, "No. Just he was mean-mugging me." Alejandro told defendant " 'I don't fuck with you. I don't associate with you,' " which defendant took to mean "You're not my friend."
Defendant was "disgusted" by this statement. He asked Alejandro, " 'So you do me like that?' " and " 'What about all the times I looked out for you and gave you money when you asked me for it?' " Alejandro replied he was not going to give the money back.
At that point, defendant pulled out his gun. Alejandro, on seeing the gun, said, " 'Do what you gotta do.' " Defendant claimed this "just—that made me snap. I got angry." He then shot Alejandro "four" times, but was not sure as to the exact number of shots. When defense counsel asked why he shot Alejandro, defendant said it was "the principle of it," and "[b]ecause I was angry. I snapped." Counsel then asked what he meant by "snapped." Defendant answered, "Just when you're—kind of act on impulse." When asked what caused him to "snap," defendant said "The drugs, trauma, just the whole situation, and betrayed. Just the whole—every little aspect of that situation added—added to it. And it was like a rope, just keep twisting; like a rubber band you keep pulling on and it just snapped."
Defense counsel then asked "how long had the rubber band been pulled," and defendant stated "A year, year, probably little bit more than year." Then counsel asked, "At the time of your encounter with Mr. Valle when you guys were together, you know, did you ever threaten—did you have—feel threated by him at all? Yes?" Defendant responded "Yes," because Alejandro was a passenger in the car involved in the shooting incident at the bus stop.
Immediately after the shooting, defendant said he was "in shock." He got in his car and drove "all around the Bay Area." He threw the gun away "somewhere in like a drain somewhere in like San Jose or something." Five days later, he got rid of the car, first trying to sell it and then after "[n]o one wanted to buy it," he took it "to the dismantlers." He also got rid of his cell phone, and asked A.F. to provide an alibi.
When defendant finished testifying, the court and counsel once again discussed Dr. Shields' proffered testimony. At this point, the court indicated it was not inclined to allow it because defendant's testimony had not suggested he feared any imminent danger, necessary for imperfect self-defense.
Defense counsel then asked to recall defendant, and the following exchange occurred:
"[The court]: Why, so now you can tell us—so now [defendant] can testify that it was imminent danger since we've all talked about it?
"[Minor's counsel]: Yes, Your Honor.
"[The court]: No. You know, come on.
"[Minor's counsel]: I want to clarify the record. And I know—because if I—if I made an omission, which I very well may have done, it's going to be an issue of IAC that would go up on appeal. I am on at this point still the Defense case. We have not rested yet.
"[The court]: . . . I mean, the veracity is somewhat suspect.
"[Minor's counsel]: Well, I get that part. [¶] . . . [¶]
"[Prosecution]: I think he was already questioned about all the circumstances surrounding the shooting itself and not once did [defendant] testify that he felt imminent fear or any threat from Alejandro that night."
"[Minor's counsel]: Yeah, but my recollection is—I don't recall. You know, [defendant] and I—I've had so many discussions and my memory is not clear in terms of the—exactly what questions I asked him about—about the issue at hand now. And I may have—I don't—basically what [defendant] said was what I put in my papers. You know, he felt like there was a rubber band and it kept getting tighter and snapped. [¶] . . . [¶]
"[The court]: That's not imminent fear. He never once said, 'I was afraid of him.' Never once.
"[Minor's counsel]: I think my recollection is he did. But I'm asking the Court for the opportunity to recall and ask him some more questions, obviously subject to cross-examination. [¶] . . . [¶]
"[The court]: You know, if he's going to get on the stand now and say, 'Oh, yeah, I was afraid,' come on. Really. He was on the stand all morning and never once said, 'I was afraid.' In fact, he said—you know, he goes to this person's house in the middle of the night— [¶] . . . [¶] . . . and the person doesn't even know he's coming out. He comes out in his jammies or is in his shorts. Doesn't have a weapon. There's nobody around besides people with [defendant]. I mean, the Minor sat there for a good morning and never once, never once uttered the word of fear.
"[Minor's counsel]: And that's where Dr. Shields would come in.
"[The court]: No. Dr. Shields doesn't come in unless there's imminent danger. I mean, the case law is absolutely clear that there has to be evidence of imminent danger [¶] . . . [¶] . . . necessitating force to defend yourself."
After some further back and forth with defense counsel, the court allowed counsel to recall defendant.
Defendant further testified that prior to the shooting he was fearful of Alejandro because of the drive-by shooting in November 2015 and because of the threats purportedly made by Alejandro and conveyed to defendant by a mutual friend. On the night of the killing, defendant felt "kind of—really felt awkward," when he walked over to Alejandro because he "didn't know what was gonna happen. I didn't know what he was gonna do." When counsel asked if defendant was afraid, defendant responded, "Yes," because Alejandro "was in the car when shots were fired at me. I didn't know if he was gonna shoot—if he was going to repeat the same incident the night that he died." When asked if he felt threatened, defendant replied, "Yes" because Alejandro "was in the car when shots were fired at me. How could you not feel threatened by a situation like that?" When asked if he thought he might be killed, defendant said "I don't know what could have happened, so, yes, I did feel that I could be killed," because Alejandro was "known to carry guns" and he "didn't know if he had a firearm on him or not."
Following this additional testimony, the court ruled Dr. Shields was not going to testify.
Defense counsel continued to assert the testimony should be allowed. Given defendant's PTSD diagnosis, counsel claimed "Shields would be able to fill in part of the gap, explain to the Court that people who suffer from post-traumatic stress, particularly the kind of stress that [defendant] has experienced, which is a reaction from multiple trauma, not a single trauma, but multiple trauma over long periods of time are likely to be more hypervigilant, are more likely to misinterpret the reality, facts as they are. . . . So what I'm saying is that without the testimony, without evidence on the record to show—to show [defendant's] psychological makeup at the time in respect to how it would affect his judgment at the time is denying the Defense a major part of—of our defense in this particular case. So I'm asking the Court to reconsider allowing . . . Dr. Shields to testify simply just on the psychopathology of my client and how he thinks it impacted his judgment at the time that this happened."
The court and counsel then discussed whether there was any evidence of threatening behavior by Alejandro on the night of the shooting, or that defendant feared any imminent threat of harm. The court concluded, "I don't see where there is any imminent threat at all, so Dr. Shields is not going to testify."
The court ultimately found the allegations true and declared defendant a ward of the court. At the request of defense counsel, the court stayed the sentences on counts 2 and 3 pursuant to section 654, and struck two of the count 1 firearm enhancements. It then committed defendant to DJJ for the term prescribed by law, not to exceed 50 years and eight months to life.
DISCUSSION
Exclusion of Dr. Shields' Testimony
Imperfect Self-Defense
"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771 (Christian S.).)
"It requires without exception that the defendant must have had an actual belief in the need for self-defense. . . . Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. ' "[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.' " . . . Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense. [¶] We also emphasize that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant's bare assertion of such a fear." (Christian S., supra, 7 Cal.4th at p. 783, italics omitted.)
We review a trial court's decision to exclude expert testimony for an abuse of discretion. (People v. Pearson (2013) 56 Cal.4th 393, 443.) Expert testimony must be "[r]elated to a subject that is sufficiently beyond common experience" such that it will assist the trier of fact. (Evid. Code, § 801, subd. (a).) And, like any evidence, it must be relevant and have adequate foundation. (Evid. Code, § 210.)
Thus, where expert testimony is offered in support of a theory of self-defense, there must be independent evidence supporting the requisites of the defense. (See People v. Brown (2004) 33 Cal.4th 892, 908 [there must "be independent evidence of domestic violence—otherwise the expert testimony about how victims of domestic violence behave would lack foundation"]; People v. Romero (1999) 69 Cal.App.4th 846, 856 (Romero) [exclusion of expert testimony not error because "defendant did not testify he was in imminent fear for his life at the time he stabbed [the victim]"].)
Defendant contends the juvenile court erred in excluding Dr. Shields' testimony (a) because the court was operating under legal misapprehensions as to imperfect self-defense and (b) because Dr. Shields' testimony was relevant to establishing the viability of the defense.
Imperfect Self-Defense Versus Diminished Capacity
Defendant first asserts the juvenile court was laboring under a "misunderstanding of controlling California Supreme Court precedent regarding imperfect self-defense" and, specifically, that the court confused diminished capacity with imperfect self-defense and also confused self-defense with imperfect self-defense.
Defendant bases his claim that the court confused diminished capacity with imperfect self-defense on the court's initial comments about intent. When the court initially inquired about Dr. Shields' testimony, it asked defense counsel whether he would be testifying about defendant's ability to "form intent." Defense counsel stated that Dr. Shields would testify as to how defendant's PTSD diagnosis "related to long-term emotional and physical abuse," which, in turn, was relevant to defendant's imperfect self-defense theory, because it related to his "subjective intent at the time the shooting took place." The court later clarified "are you putting on a self-defense at this point?" and defense replied, "Yeah. An imperfect self-defense." Thereafter, the court focused on that identified defense theory.
Thus, far from evidencing any "confusion" between the requisite mental state for murder and requirements of imperfect self-defense, it is clear the juvenile court's statements sought clarification as to the purpose of Dr. Shields' testimony, and once counsel explained, the court duly focused on defendant's claim of imperfect self-defense.
Perfect Versus Imperfect Self-Defense
The subjective component of both imperfect and perfect self-defense is the same—the defendant must prove he had an actual belief in the need for self-defense because of imminent danger to life or great bodily injury. The only difference between the two is that perfect self-defense includes an additional, objective component—that the defendant's belief of imminent danger was reasonable. (See Christian S., supra, 7 Cal.4th at pp. 773-774.)
Defendant points to two comments by the court that he claims exhibited confusion about the two defenses.
The first is the court's observation, "I think it's People versus Johnson that says it's not a subjective situation. It's what a reasonable person, not a reasonable person in [the defendant's] position is. But, you know, I'm still researching the issue since your brief cites no cases to support that position." Defendant claims this comment shows the court believed "the test was an objective rather than subjective one." That is hardly a fair conclusion. What this comment reflects is that defendant, himself, provided no assistance on the law and the court was in the midst of researching the issue itself.
The second comment occurred during a subsequent colloquy between the court and defense counsel. At one point, the court stated, "Dr. Shields [testimony] doesn't come in unless there's imminent danger. I mean, the case law is absolutely clear that there has to be evidence of imminent danger [¶] . . . [¶] necessitating force to defend yourself." This prompted defense counsel to say, "There has to be—there has to be—the holding concept there has to be actual or honest but unreasonable fear of imminent danger. And I certainly think that the evidence in this case shows it's unreasonable. What I would like to be able to show to the Court, if I'm able to do that, is that that unreasonable fear was honest as far as [defendant] was concerned . . . ." To this, the court responded, "Unreasonable fear doesn't even show up until you have imminent danger. The threshold is imminent danger." The court went on to discuss Menedez v. Terhune (2005) 422 F.3d 1012 (Menedez).
Defendant claims the court's final comment shows it thought "an actual imminent danger was required," as opposed to a subjective belief of an actual imminent threat. However, read in its entirety, the colloquy between the court and defense counsel makes clear that the comment by the court on which defendant has focused was a response to defense counsel's reference to "unreasonable fear." And in response to that comment, the court correctly observed one never reaches "unreasonable fear" (permissible for imperfect self-defense, but not for perfect self-defense) unless and until there is evidence of a subjective belief of imminent danger.
Defendant additionally claims the court "misapplied" Menedez, supra, 422 F.3d 1012, because it "did not accurately recall [defendant's] testimony." (Capitalization omitted.) In Menedez, because neither defendant "presented evidence that, at the moment of the killings, they had an actual fear in the need to defend against imminent peril to life or great bodily injury," the appellate court upheld the trial court's refusal to instruct on imperfect self-defense. (Id. at pp. 1030-1033.) Defendant claims that, unlike the defendants in Menedez, he "actually did testify that he felt mortally threatened by Alejandro." However, as we have recited, the record shows otherwise. While defendant testified to a general fear of Alejandro based on the threat that had been relayed to defendant and Alejandro's presence in the car involved in the drive by shooting the preceding year, defendant did not testify to believing he faced an imminent threat at the time he shot Alejandro.
Accordingly, the record does not show any confusion on the part of the juvenile court between perfect and imperfect self-defense.
Alleged Previous Threats
Citing People v. Minifie (1996) 13 Cal.4th 1055 (Minifie) as "illuminating," defendant maintained in his opening brief that in evaluating whether he believed Alejandro posed an imminent threat, the juvenile court improperly dismissed as irrelevant evidence of earlier threats and attacks by Norteños.
In Minifie, the defendant had previously killed the victim's friend. (Minifie, supra, 13 Cal.4th at p. 1060.) The defendant and the victim confronted each other in a bar one night and after exchanging words, the victim punched the defendant, knocking him to the ground. (Id. at pp. 1060-1061.) When the victim, who was on crutches at the time, went to retrieve one of them, he did so in a manner that suggested to the defendant the victim intended to hit him with it. (Id. at pp. 1061, 1064.) The defendant pulled a gun from his waistband and fired it, wounding the victim. (Id. at p. 1061.)
The defendant claimed self-defense. (Minifie, supra, 13 Cal.4th at pp. 1061, 1064.) At trial, he unsuccessfully sought to introduce evidence the family and acquaintances of the friend of the victim had a " 'propensity for violence' " and he (the defendant) had been threatened " ' "both directly and indirectly," ' " receiving threats in prison and through his wife. (Id. at pp. 1061-1062.) The defendant was also attacked while in jail. (Id. at p. 1061.) The Supreme Court, agreeing with the Court of Appeal, held third party threats are admissible to support a self-defense claim if there is also evidence from which a factfinder can find the defendant reasonably associated the victim with those third-party threats. (Id. at pp. 1060, 1065-1071.)
The high court went on to say that "[t]hird party threats, or even threats from the victim . . . do not alone establish self-defense. The victim's behavior is also highly relevant. There must be evidence the defendant feared imminent, not just future harm," (Minifie, supra, 13 Cal.4th at p. 1068) and that " '[e]vidence of antecedent threats is admissible when the threats are followed by some "overt act" that has placed the defendant in immediate danger,' " (id. at p. 1069) and "[e]vidence of third party threats is relevant only if other evidence shows fear of imminent harm." (Id. at p. 1070; id. at p. 1068 ["There was thus evidence of aggressive behavior and imminence plus the proffered prior [third party] threats. The threats were relevant to illuminate, not replace, the other evidence supporting self-defense."].)
Here, there was no evidence Alejandro engaged in any overt act, let alone an act that defendant subjectively believed placed him in imminent danger. Moreover, as we have discussed, defendant, himself, never testified to fear of any imminent danger.
In his reply brief, defendant cited to two additional cases, People v. Vu (1991) 227 Cal.App.3d 810 (Vu) and People v. Sotelo-Urena (2016) 4 Cal.App.5th 732 (Sotelo-Urena), which he asserts hold "a defendant's entire history, together with expert testimony explaining why this history would render defendant hypervigilant, is admissible to prove . . . imperfect self-defense."
In Vu, the defendant left the apartment of an enemy upon hearing someone call out to remove a gun and grenade. As he entered an alley, the victim and another man followed. When the defendant heard someone mention taking out a gun, he turned and shot the victim, fearing he would be shot. (Vu, supra, 227 Cal.App.3d at pp. 812-813.) The defendant sought, unsuccessfully, to present expert testimony about the effects of stress on his perception to show his view of events may have differed from reality due to stress and preconceived expectations about what might happen. (Id. at p. 813.)
The Court of Appeal concluded the testimony should have been allowed. Because the defendant "claimed he honestly believed [the victim] was trying to hurt him," the testimony "would have supported [his] argument that stress and expectations caused him to honestly perceive a threat," even where no threat was "apparent to others at the scene." (Vu, supra, 227 Cal.App.3d at p. 814.)
Here, however, that is no evidence of even a perceived threat of imminent harm. (See Romero, supra, 69 Cal.App.4th at p. 856 [exclusion of expert testimony not error because "[h]ere, unlike in Vu, defendant did not testify he was in imminent fear for his life at the time he stabbed [the victim]"].)
In Sotelo-Urena, the defendant, who was homeless, told police the victim, who had engaged the defendant in a "verbal altercation just days before" the murder, approached defendant in an "aggressive manner" and asked for a cigarette. (Sotelo-Urena, supra, 4 Cal.App.5th at p. 745.) When the defendant ignored the request, the victim angrily asked the defendant if he spoke English, and after the defendant confirmed he did, the victim once again asked for a cigarette. (Id. at pp. 738, 745.) The defendant responded he did not have one, and the victim moved closer "as if he wanted to fight." (Id. at p. 738.) The defendant also had been stabbed a few weeks earlier and thought he recognized the victim as one of his attackers. When the victim moved to " 'grab something' from his pocket or waistband," the defendant, thinking he was in danger, pulled out a knife and told the victim to leave him alone. (Ibid.) The victim "laughed like he wanted to hurt defendant." (Ibid.) After a tussle, the defendant stabbed the victim. He told the police he " 'wasn't gonna wait for him to get stabbed. Last time it happened is because I waited.' " (Ibid.)
The defendant unsuccessfully sought to introduce expert testimony that homeless individuals, as a result of a higher level of victimization, "experience a heightened sensitivity to perceived threats of violence." (Sotelo-Urena, supra, 4 Cal.App.5th at p. 736.) The Court of Appeal reversed, concluding the testimony was relevant to whether the defendant actually believed he faced an imminent threat of harm. (Id. at p. 750.)
Here, there is no comparable evidence. Defendant was not homeless. Nor was there any evidence he believed he faced an imminent threat of harm from Alejandro. There is no evidence, for example, Alejandro acted aggressively, reached for anything in his waistband, or took any other action suggesting he was reaching for a weapon and intent on harming defendant. And, again, even more fundamentally, defendant, himself, did not testify that he believed Alejandro presented an imminent threat.
Accordingly, the juvenile court did not err in finding, on this record, that the relayed threat and the drive by shooting the prior year were not significant.
Heat of Passion
Defendant also sought to rely on a heat of passion defense, and he contends "psychiatric evidence bearing upon a defendant's . . . heat of passion theor[y] is admissible as a matter of law." (Capitalization omitted.)
"The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . '[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' " (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253 (Steele).)
" 'To satisfy the objective or "reasonable person" element of this form of voluntary manslaughter, the accused's heat of passion must be due to "sufficient provocation." ' [Citation.] '[E]vidence of defendant's extraordinary character and environmental deficiencies was manifestly irrelevant to the inquiry.' " (Steele, supra, 27 Cal.4th at p. 1253.)
Defendant claims "the trial court seemed to forget" Dr. Shields' testimony was also offered in support of his heat of passion defense.
The record provides no basis to surmise the court "forgot" defendant sought to rely on Dr. Shields' testimony in support of both his imperfect self-defense and heat of passion theories. Rather, what the court said as to heat of passion was, "I don't think this is heat of passion because no reasonable person would have, quite frankly, responded the same way." In other words, the court found against defendant on the objective component of the defense. Ample evidence supports the court's finding, and that finding was dispositive as to the viability of the defense. Accordingly, any light Dr. Shields might have shed on the subjective component of the defense was immaterial, and the court did not err in excluding his testimony.
Juvenile Court Did Not Prejudge Case
Defendant also claims the juvenile court prejudged the case. He maintains that "[o]nce the trial judge formed the mistaken impression that [defendant] did not mention feeling afraid of Alejandro during his initial round of testimony, she was unwilling to listen with an open mind to anything more that [defendant] had to say regarding his reasons for shooting Alejandro."
Defendant points to two comments by the court that he claims shows the court had a closed mind and did not consider his testimony on recall.
The first occurred when defense counsel asked to recall defendant to give additional testimony about imminent fear of harm from Alejandro. The court expressed doubt as to the veracity of such testimony stating, "I don't know what you're going to have him on the stand for." Nonetheless, the court allowed counsel to recall defendant. The second comment occurred when, on recall, defendant testified he "didn't know if [Alejandro] had a firearm on him or not," and the court interjected that "Two days ago you testified he didn't have a firearm. I can't deal with it. I mean, you're suborning perjury here. He testified that he knew that Valle—he didn't see a gun." Defendant claims this "misstated [his] testimony . . . that he did not see a gun" and this misstatement was "highly significant insofar as it demonstrated that the juvenile court had already formed a fixed opinion as to what had transpired and classified testimony inconsistent with this preconception as perjury."
The Attorney General points out defendant made no objection to the court's comments and maintains he thus did not preserve any claim of judicial misconduct based on the comments. The Attorney General's point is well-taken. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 ["As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial."].)
In his reply brief, defendant claims any objection would have been futile given the clear bias of the court. Alternatively, he asks this court to exercise its discretion to consider the issue on appeal. Nothing in this record indicates a timely objection would have been futile. Nor does this record suggest we should overlook defendant's failure to object.
In any case, we discern no basis for concluding the juvenile court failed in its role as the finder of fact and impermissibly listened to defendant's testimony on recall with a deaf ear. Given defendant's initial testimony, the court understandably expressed skepticism when defense counsel asked to recall defendant in an effort to elicit testimony that he believed he faced an imminent threat of harm from Alejandro. In short, the court's comments at the outset of the colloquy on recall reflected the state of the record, which at that point did not come close to showing any belief of imminent peril. Nor was the court's subsequent expression of concern about suborning perjury unwarranted and a manifestation of a closed mind. Defendant did not testify merely that he "did not see a gun." He testified in detail as to his entire encounter with Alejandro and acknowledged he never saw Alejandro with a gun. He also specifically testified that when Alejandro took his hands out of his pockets "he did not have a weapon in his hand." Thus, the court can hardly be faulted for pointing out that defendant had previously testified "[Alejandro] didn't have a firearm."
Defendant cites Webber v. Webber (1948) 33 Cal.2d 153, in support of his claim the court impermissibly prejudged the case. In Webber, a case involving spousal support, the trial judge made comments that " '[Husband and his counsel] do not need to waive alimony. The court will waive it for them,' " and later, after wife's counsel explained why the wife was entitled to alimony, the court stated " 'Go ahead and wash your dirty linen. I won't stop you.' " (Id. at p. 156, italics omitted.) The court also complained multiple times that the wife's testimony was a " 'waste of time.' " And when the wife's counsel wanted to recall the wife, the court stated " 'I have told you that I am not going to award any support. I have told you that several times . . . I wish you would please stop wasting the Court's time.' " (Id. at p. 157.) The record here bears no semblance to that in Webber.
The DJJ Commitment
Defendant challenges his commitment to DJJ on the ground there was no substantial evidence of probable benefit from a DJJ commitment and the record "is devoid of evidence that less restrictive alternative[s] were inappropriate."
" 'The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision.' [Citation.] 'A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate.' " (In re A.R. (2018) 24 Cal.App.5th 1076, 1080.) We review the court's factual findings for substantial evidence. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154.)
The juvenile court's dispositional order is supported by ample evidence. The probation department prepared a detailed report on defendant's history in school, with Dr. Shields, with unlawful substances, with his family, and with the juvenile justice system. Defendant was 17 years 11 months old at the time of the shooting, and 19 by the time of the disposition hearing. He immigrated to the United States from Bulgaria when he was five years old.
He did not have a substantial record of involvement with the juvenile justice system. However, his limited exposure to the juvenile courts had not gone well. After he was placed on wardship probation in 2015, he "tampered" with his GPS and his drug tests so he would "appear 'clean.' " He had an "extensive history of substance abuse," including smoking marijuana at age 11 before moving on to cocaine, Xanax, and alcohol at age 13. He had been expelled from school for possession of ecstasy and was later found in possession of alcohol at school.
The juvenile court had previously sustained one count of vandalism in May 2015, one count of misdemeanor burglary and possession of a controlled substance (alcohol and Xanax) in March 2015, and two misdemeanor counts of vandalism in November 2012.
Dr. Shields' psychological assessment stated defendant "had several traumatic episodes in his life that could have possibly impacted his mental state of mind causing him to have issues of anger and anxiety disorder."
Defendant had, however, used his pretrial detainment to good advantage. He was a diligent student, obtained his high school degree and had enrolled in online college courses.
In probation's view, defendant had shown "little to no remorse" about killing Alejandro, although he had stated in court "how the murder of his 'friend' has affected him."
The probation department recommended a DJJ commitment because of defendant's level of sophistication, the gravity of the offense, and the need for the safety of the community. The report also outlined the benefits available to defendant through DJJ. Specifically, he would be able to obtain "substance abuse treatment, participate in anger management curriculum as well as individual and or group therapy to address past and current trauma," vocational training and higher education given that he had already obtained his high school diploma, and participate in the restorative justice program to "realize the magnitude of his behavior" and its subsequent impact. As for viable disposition options, probation reported that given defendant's age, DJJ was the "most viable" because defendant needed "the highest level of treatment, care and security." "DJJ uses Evidence Based Practices to measure their services and on arrival he will be assessed for appropriate programs," have the "opportunity for vocational training" and to "address" his "issues with anger management" and trauma. Further, a "review of the family dynamics indicates that a return to the home would be detrimental to the young adult at this time."
At the disposition hearing, the court announced its intention to declare defendant a ward of the court and commit him to DJJ.
Minor's counsel commenced his remarks by stating, "Obviously, the minor's not disputing the court's intended commitment to the . . . division of juvenile justice. [¶] And there are a couple reasons why we're not disputing that. And the first one is obviously the serious nature of the case which was understandable. And second one is the fact that there are no other options available for [defendant] because of his age because he's now 19 years old." Counsel then went on to ask the court to stay imposition of sentence in counts 2 and 3 pursuant to section 654, and to strike the firearm enhancements for count 1 pursuant to Senate Bill No. 620, which had just passed.
The prosecution agreed with probation's recommendation of DJJ commitment, and asked the court to make the appropriate findings—that "less restrictive alternatives have been considered but are rejected as either not appropriate or would not provide the necessary rehabilitation for the minor based on the facts and circumstances of this case" and that "it's in the minor's best interest to be committed to DJJ and that he would materially benefited by the DJJ reformatory and educational discipline and programs that are provided there." The prosecutor observed a commitment to the ranch was "not an option because [defendant] is over 19," and for the same reason neither was a commitment to the youth camp or juvenile hall. The prosecutor agreed one of the "gun charges needs to be stayed," but did not agree that any of the firearm enhancements should be stricken. The prosecution urged the court to commit defendant to DJJ for a maximum confinement time of 50 years and eight months to life.
After hearing from Alejandro's mother, the court stated it had "considered all the available alternatives and there are—given the minor's age and nature of the crime, there are no other alternatives other than commitment to the division of juvenile justice," and the court was "satisfied that the mental and physical conditions and qualification of the minor are such as to render them probable the minor will benefit from the reformatory educational discipline or other treatment provided by the division of juvenile justice."
The court subsequently repeated it had "weighed and considered less restrictive alternatives and rejects them as not appropriate to this particular case and this particular minor. The Court has considered number factors including the seriousness of the conduct, the need to protect society, and the value of imposing discipline and accountability, the extent of the minor's need for structured institutional setting. The Court has considered the professional health and intensive counseling and school programs provided by division of juvenile justice. The minor's not an individual with exceptional needs has never been designated special education student." The court then committed defendant to DJJ for a period not to exceed 50 years eight months to life.
Probable Benefit from the Placement
Relying on In re Carlos J. (2018) 22 Cal.App.5th 1 (Carlos J.), defendant contends his DJJ commitment order must be reversed because there was no evidence of probable benefit from such a commitment.
Carlos J. reaffirmed the statutory requirement derived from Welfare and Institutions Code sections 734 and 202, subdivision (b) that an order committing a minor to DJJ must be supported by "some specific evidence in the record of the programs at the [DJJ] expected to benefit a minor." (Carlos J., supra, 22 Cal.App.5th at pp. 6, 10.) In that case, the 15-year-old defendant admitted to assault with a firearm with a criminal street gang enhancement; one count of attempted murder and a second count of assault with a firearm were dismissed. (Id. at p. 4.) In recommending DJJ, the probation department pointed to the gravity of the offense, the defendant's gang association, his statement that he still wanted to " 'get' " the victim, his acceptance of responsibility for the crimes, and the serious risk he presented to others' safety. (Id. at p. 7.) "In rejecting a less restrictive place, the probation officer opined that, 'Programming available at the local level is insufficient to meet the minor's treatment, educational, and social needs," and that further, appellant was too impulsive to be monitored within the community. (Id. at p. 8.) In reversing, the Court of Appeal concluded the juvenile court "had no specific information before it regarding programs at the DJF." (Id. at p. 14.)
That is not the case here. The dispositional report prepared by the probation department described individual or group counseling to address defendant's trauma, higher education so he could continue his online college courses, vocational training, substance abuse training to address defendant's "extensive history of substance abuse," anger management classes to help with his underlying anger issues, and the restorative justice program. The juvenile court also commented defendant would benefit from the "structured institutional setting" provided by DJJ given the seriousness of the offense, the need to protect society and the value of imposing discipline and accountability.
In his briefing on appeal, and without citation to any record evidence, defendant argues "it is all but certain that plunging [defendant] into an environment dominated by gang members, including Norteños, when the Norteños are seeking vengeance from [defendant], would endanger [defendant]," and "would also harm [him] by aggravating his PTSD and hyperviligance [sic]." Such unsupported argument is not a basis on which the juvenile court's disposition order can be overturned.
Less Restrictive Alternatives
The court and counsel also discussed alternative placements during the disposition hearing, including the ranch, camp, and juvenile hall facilities. None of them, however, was feasible given defendant's age and/or the seriousness of his offenses. Furthermore, while defendant did not have a substantial history with the juvenile justice system, what history he had was poor and included efforts to disable GPS monitoring and falsify drug test results.
Accordingly, there was no failure to consider feasible, alternative placements. (See In re A.R., supra, 24 Cal.App.5th at pp. 1080-1081 [" 'Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted.' "].)
Ineffective Assistance of Counsel
Defendant also challenges his DJJ commitment on the ground he was denied effective assistance of counsel because his counsel conceded a DJJ commitment was appropriate. Defendant claims counsel should have called witnesses, including Dr. Shields (who "could have testified regarding how DJJ was likely to exacerbate [defendant's] PTSD") or another expert on "gangs, violence, and programming at DJJ." He also faults counsel for not raising "questions regarding [defendant's] safety in an institution with a large Norteño population.
Defendant asks this court take judicial notice of an unpublished opinion, In re N.B. (Jun. 27, 2019, A152417), in which Daniel Macallair, executive director of the Center for Juvenile Criminal Justice, testified at the disposition hearing. We deny this request. (Evid. Code, §§ 452, 459.)
To establish a claim of ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice. . . . When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
On this record, it was certainly reasonable for counsel to make the tactical choice to concede DJJ was appropriate and, instead, to urge the court to strike the firearm enhancements and stay sentence on counts 2 and 3. Indeed, this strategy paid off. The court struck two of the three firearm enhancements and stayed the sentences on counts 2 and 3. It also specified a shorter commitment time than the prosecution requested.
Furthermore, nothing in this record suggests failure to call either Dr. Shields or a gang expert fell below prevailing professional norms. In any case, the court read Dr. Shields' transfer hearing report, and was aware of both defendant's diagnosis and the counseling benefits of a DJJ commitment.
We further observe that while chastising trial counsel's failure to challenge the determination no alternative to DJJ placement was feasible, defendant has, on appeal, not identified any such placement. While he suggests a "federal minimum security prison" might be a potential placement and asserts the "Federal Bureau of Prisons website represents that '[u]nder certain agreements and special circumstances, we may also house state inmates,' " this assertion does not begin to show that a federal minimum security prison was a viable option. In fact, the Web site goes on to state that "[h]istorically, the federal juvenile population has consisted predominately of Native American males with an extensive history of drug and/or alcohol use/abuse, and violent behavior. These juveniles tend to be older in age, generally between 17 to 20 years of age, and are typically sentenced for sex-related offenses." (Federal Bureau of Prisons, Inmates Custody & Care, Juveniles, https://www.bop.gov/inmates/custody_and_care/juveniles.jsp <as of Nov. 22, 2019>.) This description hardly suggests an environment more appropriate than DJJ.
DISPOSITION
The juvenile court's dispositional order is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.