Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F00788
ELIA, J.In this case, the primary question we must answer is did the doctrine of law of the case prevent the trial court in a retrial from excluding evidence upon which this court relied, in part, to conclude that the defendant was entitled to a self-defense instruction and a new trial? For reasons that follow we conclude that it did not. However, we agree that there were trial errors, but conclude that they do not warrant reversal except for an instructional error, which requires that we reverse the jury's true findings on three Penal Code section 12022.55 enhancements.
Facts and Proceedings Below
On May 26, 2000, appellant, along with Javier Villalobos, Jesus (Jessie) Salazar and Salvador (Saul) Garcia went to Santa Cruz to a dance at Veteran's Hall. Salazar drove his BMW convertible from Watsonville and parked it in a parking garage. As the four young men walked toward Veteran's Hall, several individuals came out from the dance and focused on Garcia who was wearing a red shirt. These individuals were throwing gang signs. Although Villalobos was not a gang member, because he had grown up in Watsonville around gang members, he recognized the individuals as Surenõs. He testified that both in Watsonville and in Santa Cruz, there are red (Nortenõs) areas and blue (Surenõs) areas and he knew if you went into one of those areas wearing the wrong color you are a target.
According to Villalobos, just before Garcia was punched, at least one person said, " 'This is what happens to you when you come to Santa Cruz wearing red.' " Appellant, Villalobos, Salazar and Garcia (hereafter the friends) were encircled by this group of Surenõs and then attacked and beaten. When the attack stopped momentarily, the friends got up and ran back to where they had parked Salazar's car. Garcia was bleeding from a "nasty cut" above his nose.
Before they started to drive home, Salazar got a tire iron from the car trunk. In the car, Garcia was still bleeding from his wounds and used his sweater to wipe his face. As Salazar drove past Veteran's Hall, Villalobos saw the men that had just beaten them walking down the street with their backs to Salazar's car. Appellant hit one of the men with the tire iron and Garcia yelled "Norte" as they drove by.
Villalobos described it as "car-jack handle." Later, the prosecutor described it as a "tire iron."
Thereafter, the friends drove to a "7-Eleven." Appellant got out of the car and went into the store and the remaining friends stayed in the car. Several men approached the car with sticks and hit the car, cracking the windshield. The men tried to hit inside the car. In particular, they tried to hit Garcia. Appellant came out of the store and threw a bottle at the men. It hit one man in the head and he fell down; the men ran away. Appellant got into the car, and the friends left the parking lot of the 7-Eleven, driving in the same direction that the men ran. When asked by the prosecutor if he thought the men that had been hitting the car "looked like" the guys that he saw at the Veteran's Hall, Villalobos said, "Well, I kind of thought that was obvious."
Richard Spidell, the clerk at the 7-Eleven that night saw the windshield of a parked car hit with a stick. He saw someone who had been in the store and purchased a "Sobe" in a glass bottle, run outside and throw the bottle at the men who were attacking the car; a man was hit in the head and "went down" to the ground. The people in the car left immediately. Spidell called the police, but within one minute after the incident started everybody who had been in the store and parking lot was gone, including the men with shaved heads that had attacked the car. Later, Spidell found a broken piece of broomstick in the parking lot.
Antoinette Corrigan testified that she was out running with her nephew near the 7-Eleven in Santa Cruz on May 27, 2000. She saw a group of approximately six men wearing loose-fitting clothing and carrying mop handles approach the 7-Eleven. Corrigan thought she was seeing some sort of gang activity; she was frightened and felt threatened. She heard a loud noise behind her as she was running, which "sounded like metal. Thump of metal." Her nephew looked back and then called 911.
After the attack at the 7-Eleven, the friends got onto the freeway going south, but pulled off; Salazar checked the damage to the car. Villalobos was angry about being beaten up and Salazar was upset about the state of the car. Salazar said something about getting a gun; he said " 'Just get a nine' " and come back.
The friends drove back to Watsonville. Villalobos went to his friend Jerry Shallenberger's house because he did not want to go home since he had been beaten in the earlier attack. Shallenberger confirmed that the friends arrived together and were all injured. Salazar used Shallenberger's telephone. Villalobos stayed behind when the remaining friends left.
Salazar, Garcia and appellant went to Garcia's house so they could use his car instead of the damaged BMW. Then, they went to George Reyes's house. George Reyes, who was a close friend of Salazar, had purchased a gun from Salazar sometime in 2000. The gun was in working order. Reyes remembered that one night in May 2000, Salazar asked to borrow the gun. When Salazar got to Reyes's house about 1 a.m. he was angry. Salazar pointed out where he and his car had been hit and complained that Surenõs "messed up" his windshield. Reyes gave the gun to appellant. The gun was not loaded, but a magazine clip in the gun case had nine to 12 bullets in it.
When appellant returned to Garcia's car, he gave the gun, which was in a case, to Salazar. Salazar unzipped the case and put the clip into the gun. Salazar did not check to see if the clip held any bullets. Garcia's car, a Honda, had a trunk that could be accessed from the back seat. Salazar put the gun into the trunk.
Garcia drove back to Santa Cruz. Salazar was in the back seat and appellant was in the front passenger seat. Salazar was thinking that he wanted to find the men who had damaged his car and get them to pay for the damage. He did not remember any conversation or planning on the trip back to Santa Cruz. When they arrived in Santa Cruz, appellant was frightened and did not want to sit in the front of the car and so he and Salazar changed seats.
Seeing three men wearing gang attire on a street corner and because they thought they were familiar, they turned into the street, which Salazar learned later was Bixby Street. It was very dark and a group of people were blocking the street. People were yelling at them. They were blocked in both ahead and behind and the people started to approach the car; there were between 15 and 20 of them. They looked and acted similar to gang members. They seemed to be holding things in their hands and they were swinging their arms. There was no way Garcia could drive forward and not hit the people. Salazar thought that the same thing was going to happen as had happened earlier. Salazar heard rapid gun fire; he thought it came from outside the car.
Appellant testified that he became frightened and panicked. As the people approached the car he thought they were armed because they had been earlier and gang members are always armed. Appellant was sure that the people were the same group of Surenõs that had assaulted the friends at Veteran's Hall. Everything happened very quickly; appellant was "scared to death" because he thought they were going to be killed. Appellant got the gun from the trunk, unzipped the case, racked it and shot the gun from the window of the car where he was sitting because he thought they were all going to be killed. Appellant stuck his hand out of the window to fire the gun, but he was not looking where he was firing it; he was not trying to kill anybody, rather, he was trying to make a noise to make the people leave. The group of people in front of the car moved and Garcia drove very fast down the street. Before they reached Watsonville, the car was stopped by the police.
Watsonville Police Officer Eric Montalbo saw the Honda pass by at 50 miles per hour in a 30 mile per hour zone. When the officer activated his emergency lights, the Honda immediately pulled to the curb and stopped. Montalbo ordered Garcia, Salazar, and appellant to get out of the car. All three were cooperative. When the car was searched, an officer found a semi-automatic handgun and a gun case on and around the speaker box in the car's trunk and a nine-millimeter bullet. Montalbo saw that Garcia had a cut on the bridge of his nose that appeared to be bleeding.
On May 27, 2000, while investigating a hit and run accident, Santa Cruz Police Sergeant Jonathan Bush heard eight to 10 gun shots in rapid succession. He thought the sounds were coming from the area of Ocean and Barson Street. Then, he heard the loud modified exhaust from a vehicle, which appeared to accelerate. Thinking that there had been a drive-by shooting, Sergeant Bush went to the area of Ocean and Barson Street and advised his dispatcher that he had heard gunshots in the area. As he was passing Bixby Street he was informed by his dispatcher that there had been a report of a gunshot wound in the front of 128 Bixby Street. As he was coming down the street, he saw a group of 10 to 15 people standing around the front of 128 Bixby. Sergeant Bush saw Vladimir Hernandez on the ground, Javier Escalante about six feet away and Luis Reyes Escobar about six feet from Escalante. They were all critically wounded.
Richard Mason, the Santa Cruz County Coroner, performed autopsies on Escalante, Escobar and Hernandez. Escalante had two gunshot entrance wounds. Escalante was standing when he was shot and one of the shots, which entered his abdomen, was fatal. The wounds were approximately three feet from the ground. Hernandez had two gunshot wounds; one, a leg wound was three feet from the ground. The lethal wound punched two holes in Hernandez's aorta. Escobar had a bullet lodged in his right shoulder joint, which had gone through the right lobe of the liver and both lungs. Mason opined that Escobar was not standing when he was shot.
Marielena Ruiz, a witness from the first trial died of a drug overdose before the second trial. Her prior testimony was read to the jury. Ruiz was on Bixby Street on May 26, 2000. There were 20-30 people selling drugs and "hanging out." Isaac Martinez was dealing drugs. Ruiz was shown a photograph taken from inside the 7-Eleven store and identified Martinez on the photograph. Before the shooting, Ruiz saw four or five males walking toward a car. She heard rapid gunfire. She left the area after the shooting because she was in possession of a large amount of heroin.
The reporter's transcript from this trial indicates that her name was spelled Marie Elaina. However, in our previous opinion in this case, we noted her name as Marielena. On this court's own motion we have taken judicial notice of our previous opinion and trial court records in this case.
Isaac Martinez's former testimony was read into the record. Martinez was "hanging out" with friends on Bixby Street. He went with Escalante and other friends to the 7-Eleven to purchase beer and cigarettes. Martinez denied seeing a fight at the store. After they walked back to Bixby Street, they were just chatting. Luis Reyes Escobar was standing near the fender of a parked truck and Javier Escalante and Vladamir Hernandez were in front of the truck. Lazaro Escobar was on the corner of Bixby Street. Martinez saw a stopped car and an arm come out of the window and shoot. Martinez identified Garcia's car. Martinez threw himself to the ground. He heard Javier Escalante say he was hit. Martinez denied that they had any weapons in their hands while they were near the truck.
The prior testimony of Manuel Cabrera was read to the jury. Cabrera said that he came from El Salvador. He knew Javier Escalante, Luis Reyes Escobar and Vladimir Hernandez; Hernandez was his cousin. Earlier in the evening, before the shooting, Cabrera went to the dance at Veteran's Hall with his cousin. Cabrera said he did not see or participate in a fight at Veteran's Hall. Cabrera testified that after the dance he went to the 7-Eleven with Hernandez, Lorenzo Escalante, Omar Escalante, and Lazaro Escobar. Cabrera and his friends walked back to Bixby Street from the 7-Eleven. Cabrera was walking behind Hernandez when he heard shots. Lorenzo Escalante, Omar Escalante, and Lazaro Escobar were standing on the corner. The shots came from a car driving slowly up Bixby Street. Cabrera heard Luis Reyes Escobar shout, " 'Oh, they got me' "; he fell face down. Cabrera threw himself face down on the sidewalk. He heard a number of shots from a semi-automatic weapon. The police arrived shortly thereafter.
Santa Cruz Police Sergeant Scott Campbell and District Attorney Investigator Raul Castellanos interviewed appellant on May 27, 2000. After he was read his Miranda rights, appellant said that he was willing to talk. Appellant said that he picked up the gun, that he fired the gun, but did not know how many rounds he fired. Appellant said he did not mean to kill anyone; he was not shooting at anyone in particular. He told Campbell and Castellanos what had happened at the Veteran's Hall and the 7-Eleven. Appellant said he used the gun to protect himself; he did know during the interview that anyone had been killed.
The jury found appellant guilty of three counts of involuntary manslaughter (Pen. Code, § 192, subd. (b), counts one through three), one count of shooting from a motor vehicle (Pen. Code, § 12034, subd. (c), count four) and found true the allegations that appellant inflicted great bodily injury or death as a result of discharging a firearm from a motor vehicle (Pen. Code, § 12022.55), which were attached to counts one through three. On February 24, 2009, the court sentenced appellant to a total prison term of 18 years, four months consisting of the midterm of three years on count one (the principal term) and two consecutive one year terms (one third the midterm) for counts two and three, and for the enhancement allegations (Pen. Code, § 12022.55) the upper term of 10 years for count one and two consecutive one year eight months terms (one third the lower term) for counts two and three. The court imposed a concurrent midterm of five years on count four.
At sentencing, the court stated that it was imposing one third the midterm or one year eight months on the enhancements attached to counts two and three; it appears the court misspoke because one year eight months is one third the lower term. (Pen. Code, § 12022.55 [additional punishment is a consecutive term of five, six, or 10 years].)
Appellant filed a timely notice of appeal.
Discussion
Law of the Case: Evidence of Self-Defense and Gang Affiliations of the Victims Background
Although appellant briefs these issues separately, we deal with them together for purposes of discussion of the doctrine of law of the case.
At appellant's first trial, Dr. Berg and Dr. Missett testified for the defense. In our unpublished opinion in case number H026159, which was appellant's first appeal, we summarized their testimony as follows: "Dr. Paul Berg, a psychologist, testified that [appellant] would have more difficulty than most people in knowing what to do if attacked; he was likely to be overwhelmed. Dr. James Missett, a psychiatrist, testified that [appellant] was suffering from acute stress disorder after the Veterans Hall beatings. [Appellant]'s conduct on the night of the homicides was to be protective, and his actions were inconsistent with premeditated killing or revenge."
Similarly, in his first trial, appellant presented evidence that Javier Escalante was a member of La Mara Salvatrucha, a criminal street gang and Vladimir Hernandez was an associate of Mara Salvatrucha gang members. This court summarized this evidence as follows: "Marielena Ruiz, who at the time of trial was serving a state prison sentence for narcotics sales, testified that she had been a member of the Santa IC gang. She testified that Bixby Street was 'just kind of a hang out spot' for the Mara Salvatrucha gang. Ruiz was nearby at the time of the shooting and there were about 20 to 30 people, about five or six of them women, on the street. Most of the men were members or associates of the Mara Salvatrucha gang. Javier Escalante was her friend, known as 'Chucho, ' and he was a member of the Mara Salvatrucha gang. Escalante was 'just hanging out.' Ruiz testified that Vladimir Hernandez and Luis Reyes [Escobar] 'would hang out on Bixby with the Mara guys.' That night, Bixby Street was 'pretty busy' and people were playing loud music, drinking, and playing cards. Some people, including Manuel Cabrera, were 'dealing drugs.' " We summarized Sergeant Martinez's testimony as follows: "Sergeant Richard Martinez, a police officer for the city of... Santa Cruz, testified that Mara Salvatrucha is an El Salvadorian gang affiliated with the Surenos gangs. He said, 'Surenos are notoriously blue clothing in color.' He said, 'the Bixby Street area is know[n] for M[ara] S[alvatrucha] gang members.' Bixby Street is about a quarter of a mile from the 7-Eleven."
In ruling in appellant's first appeal that he was entitled to a self-defense instruction, we stated the following: "Here, defense counsel repeatedly told the court that [appellant] and his codefendants were relying on the theory that [appellant] had acted in self-defense. Substantial evidence supported this theory. [Appellant] himself testified that he fired the gun in self-defense. Other evidence, including testimony by Salazar, Ruiz, Sergeant Martinez, Dr. Berg, and Dr. Missett, supported that defense."
At appellant's second trial, defense counsel moved in limine to admit testimony of the gang affiliation of some of the prosecution's witnesses, the gang affiliation of the decedents, and expert testimony regarding the effect the two earlier assaults had on appellant that evening.
The court ruled that Dr. Berg and Dr. Missett could not testify because their testimony was not probative on any issue in the case. Similarly, the court excluded any testimony tending to show that the decedents and their associates were gang members, as irrelevant.
Appellant contends that the trial court erroneously excluded this evidence in the second trial because the doctrine of law of the case governs since "the relevance and substantial character of this evidence had already been determined... in [his] first appeal."
"Under the doctrine of the law of the case, a principle or rule that a reviewing court states in an opinion and that is necessary to the reviewing court's decision must be applied throughout all later proceedings in the same case, both in the trial court and on a later appeal. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 94.) "We will apply the law of the case doctrine where the point of law involved was necessary to the prior decision and was ' "actually presented and determined by the court." ' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 197.)
Nonetheless, "[T]he law-of-the-case doctrine governs only the principles of law laid down by an appellate court, as applicable to a retrial of fact, and it controls the outcome on retrial only to the extent the evidence is substantially the same." (People v. Boyer (2006) 38 Cal.4th 412, 442.)
"The law of the case doctrine does not prevent a retrial, does not preclude the presentation of new evidence upon remand, does not limit the new evidence a party may introduce at a retrial, and only compels the same result if the People attempt on remand to prove the charge using the substantially same evidence. [Citations.]" (People v. Cooper (2007) 149 Cal.App.4th 500, 526-527.)
A reversal of a judgment without directions is an order for a new trial. (Pen. Code, § 1262.) "An unqualified reversal remands the cause for new trial and places the parties in the trial court in the same position as if the cause had never been tried." (People v. Murphy (1963) 59 Cal.2d 818, 833.) In other words, "[t]he granting of a new trial places the parties in the same position as if no trial had been had...." (Pen. Code, § 1180.)
Thus, amendment of the accusatory pleading is permitted (see People v. Chadd (1981) 28 Cal.3d 739, 758), as well as renewal and reconsideration of pretrial motions and objections to the admission of evidence. (See, e.g., People v. Murphy, supra, 59 Cal.2d at pp. 833-834.) Absent a statutory provision precluding relitigation, a stipulation by the parties, or an order by the court that prior rulings made in the prior trial will be binding at the new trial, objections must be made to the admission of evidence (Evid. Code, § 353), and the court must consider the admissibility of that evidence at the time it is offered. (See People v. Bell (1989) 49 Cal.3d 502, 520-521; People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3.)
Nothing in this court's previous opinion informed the trial court that it had to permit the introduction of certain testimony on retrial. We determined only that there was prejudicial instructional error based on the evidence presented in a premeditated murder case. In fact, specifically, we described Dr. Missett's testimony on acute stress disorder as demonstrating that appellant's "actions were inconsistent with premeditated killing or revenge."
Accordingly, the doctrine of law of the case did not preclude the court from excluding appellant's proffered evidence. We reject appellant's contention that because we reversed the judgment and ordered a new trial, even though he had only been convicted of involuntary manslaughter, we necessarily ruled that the evidence was relevant to the involuntary manslaughter charge and to self-defense as a defense to that charge because otherwise we would not have found it necessary to reverse the conviction.
Although in his appeal after the first trial we determined that the excluded evidence supported appellant's claim of self-defense, we did not determine that it was a necessary part of that defense; nor did we determine that it would be relevant and admissible on retrial; no issue of relevance or admissibility of this evidence was before this court at that time.
In the alternative, appellant argues that even if the trial court had been free to rule on the admissibility of the testimony of Dr. Berg and Dr. Missett and the admissibility of the gang testimony without application of the doctrine of law of the case, it should have found the testimony relevant and admissible.
In order to provide context to appellant's arguments, briefly, we outline the differences between the first and second trials and the prosecution's and the defense's theories behind the case in the second trial.
Originally, appellant was charged by information in counts one, two and three with murder with special circumstances allegations of multiple murder and drive-by shooting. (Pen. Code, §§ 187, subd. (a), 190.2, subds. (a)(3) & (21).) In addition, the information charged appellant with discharging a firearm from a motor vehicle. (Pen. Code, § 12034, subd. (c).) Arming allegations-personal and intentional discharge of a firearm causing great bodily injury (Pen. Code, § 12022.55), were attached to each count. The court gave a defense requested instruction on imperfect self-defense, but refused to instruct the jury on perfect self-defense. The jury acquitted appellant of first and second degree murder and convicted him in counts one, two and three of the lesser-included offense of involuntary manslaughter, and found true the arming allegations as to these counts.
On retrial, appellant was charged with three counts of involuntary manslaughter and one count of discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (c)). Attached to each manslaughter count was an allegation of personal and intentional infliction of great bodily injury or death (Pen. Code, § 12022.55). Specifically, as to these counts, he was charged with killing "in the commission of an unlawful act, not amounting to felony." (Pen. Code, § 192, subd. (b).) As charged, the unlawful act was brandishing a firearm. Thus, he was charged with what has been called misdemeanor involuntary manslaughter. (People v. Cox (2000) 23 Cal.4th 665, 675.)
The charged offenses were committed before our Supreme Court's decision in People v. Blakely (2000) 23 Cal.4th 82 (Blakely), which held that an unintentional imperfect self-defense homicide is voluntary manslaughter, but that its holding could not be applied retroactively, because it constituted an "unforeseeable judicial enlargement of the crime of voluntary manslaughter." (Id. at pp. 91, 92, 96.). "If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial...." (Pen. Code, § 1262.) Constitutional protections against double jeopardy affect the scope of retrial. "The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee that a person may not be placed twice 'in jeopardy' for the 'same offense.' " (People v. Seel (2004) 34 Cal.4th 535, 541-542.) "[B]ecause greater and lesser included offenses constitute the 'same offense' for double jeopardy purposes [citation], 'a conviction of a lesser included offense bars subsequent prosecution of the greater offense. [Citations.]' " (Id. at p. 542.) Since appellant was found not guilty of murder, but guilty of involuntary manslaughter, on retrial because of Blakely, the only offense with which he could be charged was involuntary manslaughter.
Appellant's defense to these charges was, as he testified, that he was acting in self-defense because he thought he was going to be killed. The prosecution's answer to this claim was that appellant did not actually believe in the need for self-defense, but even if he did, he acted unreasonably in using deadly force.
Perfect self-defense applies when a defendant has an actual and reasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 773, 783.) The prosecution had the burden of proof beyond a reasonable doubt that appellant did not act in lawful self-defense. (CALCRIM No. 505 [Justifiable homicide].) "For self-defense, the defendant must actually and reasonably believe in the need to defend, the belief must be objectively reasonable, and the fear must be of imminent danger to life or great bodily injury." (People v. Lee (2005) 131 Cal.App.4th 1413, 1427.) Any right of self-defense is limited to the use of such force as is reasonable under the circumstances. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) Thus, the crux of appellant's defense was whether he had the actual and reasonable belief that it was necessary to defend himself and his friends from imminent death.
Under the theory of perfect self-defense, there is a subject element-the defendant must actually believe in the need to defend himself against imminent peril to life or great bodily injury, but there is an objective element also-the trier of fact needs to evaluate the reasonableness of the defendant's belief. (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262; In re Christian S., supra, 7 Cal.4th 768, 783 [for perfect self defense the belief must be objectively reasonable].)
As to the excluded testimony of Dr. Missett and Dr. Berg, appellant contends the proffered testimony of Dr. Missett and Dr. Berg was relevant to both prongs of the self-defense claim. Similarly, as to the gang testimony, appellant argues that the fact that the men who he thought were about to kill him when he fired the fatal shots were members of a criminal street gang, the very same criminal street gang whose members had beaten him earlier, bore directly on both the subjective and objective elements of self-defense.
Appellant recounts the testimony of Dr. Missett and Dr Berg from the first trial, but has not provided this court with the transcript from the first trial or asked us to take judicial notice of the record from the first trial. In essence, it appears that this testimony would have shown that at the time of the shooting, appellant was suffering from acute stress disorder.
Relying on People v. Humphrey (1996) 13 Cal.4th 1073, appellant argues that he was entitled to have the jury consider the question of reasonableness from the perspective of a person in his shoes, and to do that the jury needed to know what he had gone through.
In Humphrey the California Supreme Court held the jury could consider expert testimony on battered women's syndrome to support a claim of self-defense to a murder charge. Such expert testimony, the court concluded, was relevant to show the objective reasonableness of the defendant's actions and the defendant's actual belief in the need to defend. (Humphrey, supra, 13 Cal.4th at pp. 1088-1089 .) The Supreme Court rested its holding on Evidence Code section 1107, which specifically permits in a criminal action admission of expert testimony of battered women's syndrome. (Id. at pp. 1082, fn. 1, 1087.) No similar statute exists for evidence of acute stress disorder.
In Humphrey, the expert's testimony on battered women's syndrome was found relevant and admissible, as well as highly useful to the jury. The essence of the testimony, which went to the heart of the objective reasonableness issue, was the expert's opinion that a battered woman can become sensitized to their abuser's behavior. "As violence increases over time, and threats gain credibility, a battered person might become sensitized and thus able reasonably to discern when danger is real and when it is not." (Id. at p. 1086.) This testimony allowed the jury to assess the reasonableness of the defendant's action from the defendant's unique perspective as a battered person.
Although the Humphrey court expressed "no opinion on the admissibility of expert testimony regarding other possible syndromes in support of a claim of self-defense, " but rested it's "holding on Evidence Code section 1107 [relating to Battered Women's Syndrome]" (Humphrey, supra, 13 Cal.4th at p. 1087), Evidence Code section 801 subdivision (a) states that expert testimony is admissible on any subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."
A trial court has broad discretion in determining whether to admit expert testimony and its ruling will be reversed on appeal only where the record reveals an abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 [decision of a trial court to admit expert testimony will not be disturbed on appeal unless a manifest abuse of discretion is shown]; People v. Ramos (2004) 121 Cal.App.4th 1194, 1205 [trial court did not abuse its discretion in refusing to admit expert testimony regarding police interrogation techniques and false confessions].)
We find no abuse of discretion here. It is not beyond common experience that a young man who has not been exposed to violent attacks in the past might be traumatized by two violent unprovoked attacks. The impact of these prior incidents on appellant's subjective state of mind and the reasonableness of his actions were not subjects that needed to be established by expert testimony. As we stated in our prior opinion in this case, "What reasonable person, who found himself a passenger in a car surrounded at night on a dark street by 12 to 15 yelling and shouting men running toward him, some of whom had attacked him earlier, would not fear for his safety? [Appellant] testified that he acted out of that fear."
As to the evidence that the decedents were gang members or associated with gang members, as noted, appellant argues that it was relevant on both the objective and subjective elements of his defense of self-defense. Further, the evidence that Javier Escalante, Isaac Martinez and others were gang members and Vladimir Hernandez and Luis Reyes Escobar were associates of the Mara Salvatrucha gang would have impeached the credibility of witnesses who testified for the prosecution at trial. Essentially, appellant asserts that gang membership and the pattern of past attacks made it much more likely that the decedents and their associates on Bixby Street had joined in another gang attack as described in his testimony and that the people on Bixby Street were not simply relaxing innocently on the street.
Evidence that the decedents and others on Bixby Street belonged to or were associated with a gang would not have any "tendency in reason to prove" (Evid. Code, § 210) that appellant actually and reasonably believed in the need to defend himself because although "[t]he law... recognizes that the objective component [of a self-defense justification] is not measured by an abstract standard of reasonableness but one based on the defendant's perception of imminent harm or death" and a defendant "may explain his [or her] action in light of his [or her] knowledge concerning the victim" (People v. Humphrey, supra, 13 Cal.4th 1073, 1094), at the time of the shooting appellant did not know the decedents and others on Bixby Street were gang members or associates of gang members. Nor would the evidence tend to prove that appellant actually believed in the need for self-defense for the same reason.
As to bias of prosecution witnesses, the probative value of the gang membership evidence was minimal at best. The only people that testified that the people on Bixby Street were just standing around relaxing and drinking beer were Manuel Cabrera and Isaac Martinez. Essentially, appellant is arguing that the evidence of gang membership showed bias on the part of these prosecution witnesses. However, bias was already established by the fact that one of the prosecution witnesses, Cabrera, was Hernandez's cousin and Martinez was good friends with the people on Bixby Street. The fact that these prosecution witnesses were gang members or associated with gang members added little to further the defense's objective of showing that the prosecution witnesses were biased because of their close association with the decedents.
Accordingly, we conclude that the trial court did not abuse its discretion in ruling the gang evidence inadmissible. (See, People v. Cardenas (1982) 31 Cal.3d 897, 904, [admission of evidence of gang membership to prove witness bias was abuse of discretion where bias already established by other testimony].)
Appellant asserts that the prosecutor exacerbated the error by asserting that there was no evidence of gang membership. Since the trial court instructed the jury that the prosecutor's argument was improper because the court had excluded gang evidence, the jury was indirectly informed that at least some of the witnesses were gang members.
Finally, we reject appellant's claim the exclusion of this evidence violated his constitutional right to put on a defense. Although due process requires that a criminal defendant have " 'a meaningful opportunity to present a complete defense[ ]' [citations]" (Crane v. Kentucky (1986) 476 U.S. 683, 690), this right is not absolute. Courts have "long observed that, '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [state or federal constitutional] right to present a defense.' [Citations.]" (People v. Robinson (2005) 37 Cal.4th 592, 626-627, fn. omitted.) The United States Supreme Court has stated, "we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability-even if the defendant would prefer to see that evidence admitted. [Citation.]" (Crane v. Kentucky, supra, 476 U.S. at p. 690; accord People v. Yeoman (2003) 31 Cal.4th 93, 141-142.) "Although completely excluding evidence of an accused's defense theoretically could rise" to the level of impairing an accused's right to present a defense (People v. Fudge (1994) 7 Cal.4th 1075, 1103), such was not the case here. Appellant and Salazar both presented testimony that supported appellant's defense.
Section 12022.55 Enhancements
As to each of the counts of involuntary manslaughter charged in this case, the prosecution alleged a violation of Penal Code section 12022.55 as follows: "It is further alleged as to Count[s] [1, 2, and 3], that the Defendant, LUIS DANIEL RIOS, with the intent to do so, inflicted great bodily injury and death on [the decedent] as a result of discharging a firearm from a motor vehicle in violation of Penal Code section 12022.55."
Over appellant's objection, the trial court instructed the jury that "To prove this allegation, the People must prove that, one, the defendant personally discharged a firearm during the commission of that crime from a vehicle. Two, the defendant intended to discharge the firearm. Three, the defendant's act caused death of a person. And, four, the person killed was not an occupant of a motor vehicle."
It appears that appellant's proposed instruction, which would have told the jury that to find true the enhancement allegation, they must find that he "specifically intended to inflict great bodily injury or death" was rejected by the trial court.
Consistent with this instruction, the court provided the jury with verdict forms that stated "Having unanimously found the defendant guilty of Count... we the jury find the allegation that he personally used a firearm to be true."
Appellant contends that the jury instruction and verdict forms were incorrect because Penal Code section 12022.55 is not violated unless the perpetrator has the specific intent to cause either great bodily injury or death. Respondent agrees with appellant.
Relevant here, Penal Code section 12022.55 states, "any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony" is subject to an enhanced sentence.
In In re Sergio R. (1991) 228 Cal.App.3d 588 (Sergio R.), the Second District Court of Appeal held that in order to invoke the enhancement of section 12022.55, "it is not enough to prove only that the defendant intentionally set the injury-causing force in motion; it is also necessary to prove that in doing so the defendant intended to inflict the great bodily injury on a person. [¶] Thus, we hold that in order to invoke the enhancements based upon 'intent to inflict great bodily injury' provided for in section[]... 12022.55 it is necessary to prove that the defendant had the intent to do the act which caused a person to suffer great bodily injury, coupled with the specific intent to inflict such injury upon a person. [Citations.]" (Id. at p. 601.) We agree with this conclusion.
In addition to holding that the specific intent to inflict injury applied to Penal Code section 12022.55, the Sergio R. court held that it applied to Penal Code section 12022.7, which at the time stated: "Any person who, with the intent to inflict the injury, personally inflicts great bodily injury on any person other than an accomplice" (Stats.1993, ch. 607 (S.B.529), § 2.) Legislation passed in 1995 changed this portion of the statute to read: "Any person who personally inflicts great bodily injury on any person other than an accomplice" (Stats.1995, ch. 341 (Assem. Bill No. 928), § 1.)
As this court has said before in the context of our analysis of former Penal Code section 12022.7's phrase "with the intent to inflict such injury" the "required intent is not simply 'to inflict'; it is 'to inflict such injury.' The necessary intent is linked to the end result and not merely to the act that brings about that result." (People v. Santos (1990) 222 Cal.App.3d 723, 744.) Similarly here, the phrase "intent to inflict great bodily injury or death" requires that the defendant must intend to do not just the act causing the injury but the great bodily injury or death itself.
We recognize that the Legislature amended Penal Code section 12022.7 in 1995 deleting the requirement that the defendant act with the specific intent to inflict such injury. (Stats. 1995, ch. 341, § 1; People v. Carter (1998) 60 Cal.App.4th 752, 756 [since amendment only general intent is required].) The Legislature has not similarly amended Penal Code section 12022.55.
As the First District Court of Appeal reasoned in People v. Simpson (1987) 192 Cal.App.3d 1360, "The fact that the word 'inflict' connotes causation by a particular means does not convert the requirement that the defendants have intended to cause great bodily injury into a mere requirement of 'intent to commit an act' which happens to cause great bodily injury. [¶] The plain meaning... is that the defendant must have intended to cause great bodily injury." (Id. at p. 1367.)
Although the court included language in the beginning of the instructions to the jury on the Penal Code section 12022.55 enhancement requiring that appellant have intentionally discharged a firearm, the instruction did not require that appellant have intended to inflict great bodily injury or death. This was error. The trial court has a sua sponte duty to instruct the jury on every element of an enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Failure to instruct on an element of an enhancement merits reversal unless such error is harmless beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327; Chapman v. California (1967) 386 U.S. 18, 24.) The failure to instruct on an element of an offense or an enhancement is harmless when we can conclude "beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error...." (Neder v. United States (1999) 527 U.S. 1, 17.)
Respondent appears to concede that the failure to instruct here was not harmless error and suggests that this court should reduce appellant's enhancement to the "lesser" enhancement of personal use of a firearm in the commission of a felony under Penal Code section 12022.5. We agree that in this case the trial court's error was not harmless; appellant testified that when he fired the gun he was not aiming at anyone and did not intend for the shots to strike anyone. Furthermore, the forensic evidence was such that we cannot conclude that appellant was specifically targeting the decedents in order to inflict great bodily injury or death.
Generally, "[w]hen a greater offense must be reversed, but a lesser included offense could be affirmed, [an appellate court may] give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense." (People v. Kelly (1992) 1 Cal.4th 495, 528.) " 'An appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.]' " (People v. Edwards (1985) 39 Cal.3d 107, 118.)
The question here is this- may we impose a different enhancement than the one charged by the prosecution?
Under Penal Code section 12022.5, subdivision (a), "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense."
The concept of one enhancement being included within another enhancement is not without precedent. An enhancement for being armed with a firearm pursuant to section 12022, subdivision (a)(1) is an enhancement included in personal firearm use pursuant to section 12022.5, subdivision (a)(1). (See People v. Majors (1998) 18 Cal.4th 385, 410 (Majors); People v. Allen (1985) 165 Cal.App.3d 616, 627 [enhancement for firearm use under section 12022.5 necessarily includes enhancement for being armed with a firearm under section 12022].)
" '[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' [Citation]." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
However, it is well established that enhancements are not substantive offenses. (People v. Dennis (1998) 17 Cal.4th 468, 500.) Thus, one enhancement cannot be a lesser necessarily included enhancement of another enhancement. We will not extend the doctrine of lesser necessarily included offenses to create a doctrine of "lesser included enhancements." (People v. Manning (1992) 5 Cal.App.4th 88, 90-91.)
Moreover, enhancements must "be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (Pen. Code, § 1170.1, subd. (e).)
Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. (People v. Lohbauer (1981) 29 Cal.3d 364, 368; People v. Reed, supra, 38 Cal.4th at p. 1227.) This means that except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense. (People v. Reed, supra, at p. 1227, [a defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime].) The same rules apply to enhancement allegations. (See People v. Jackson (1985) 37 Cal.3d 826, 835, overruled on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 355, as stated in People v. Burton (1989) 48 Cal.3d 843, 863.)
For the forgoing reasons, we decline respondent's invitation to impose a Penal Code section 12022.5 enhancement on appellant in place of a Penal Code section 12022.55 enhancement. Accordingly, we must strike the true finding on the Penal Code section 12022.55 enhancement.
Prosecutorial Misconduct
Appellant contends that the prosecutor committed misconduct in her argument to the jury. Specifically, appellant asserts that it was misconduct for the prosecutor to argue that although appellant was charged only with manslaughter, he had actually committed murder; and that there was no evidence that the decedents or any of the other people on Bixby Street at the time of the shooting were gang members. Appellant asserts that both of these arguments were improper and constituted a reprehensible attempt to persuade the jury to convict him "by dishonest means."
Background
At the beginning of her opening argument, the prosecutor stated that appellant "murdered Luis, Vladamir and Javier. He murdered them.... [¶] And the defendant fired his gun nine times. Nine times. And by his own admission he fired that gun eight times as those men who were sitting ducks ran away. [¶] That is murder." Defense counsel objected, observing that appellant was not charged with murder, but the court overruled the objection. Subsequently, the prosecutor told the jury, "an unusual feature of this case is that this trial and the charges that the judge talked to you about in jury selection and read to you yesterday, involuntary manslaughter in this case, it doesn't mean that the evidence hasn't proved crimes much more serious than those he is facing." The prosecutor went on, "I have said, the defendant committed murder. And some of you might be wondering, why is she talking about murder? He isn't charged with murder. [¶] There are two very important reasons. One is that murder, an intentional killing, is irreconcilable with self-defense." Defense counsel objected and the court sustained the objection. The prosecutor continued, "If you intend to kill somebody, you are not doing it in self-defense." Again, defense counsel objected and again the court sustained the objection. In her rebuttal argument, during a discussion of the injuries that Garcia and Salazar had sustained, the prosecutor stated that it would not be appropriate to "patronize and trivialize" the injuries, "but when you look at it in the context of murdering three people later that night, come on.... [¶] Again, if he hadn't murdered three people, sure." This time, defense counsel did not object.
Appellant claims that the prosecutor contended that the evidence showed that he had no defense to the charge of murder. We do not read the record as appellant asserts.
Also in her rebuttal argument, the prosecutor stated that there was no evidence that any of the people on Bixby Street were gang members. Specifically, the prosecutor stated that defense counsel "talked about gang members, gang members, gang members. There wasn't any evidence that anybody on Bixby Street was a gang member." Defense counsel did not object. Later, while talking about the defense's attempt to portray one of the prosecution's witnesses as a drug dealer, the prosecutor stated, "that is just not true. [¶] Now, granted, there is a lot of different stuff to keep track of in that trial. So it is certainly understandable, but the fact is that that is not true, but what does that show? Why do you have these photographs of people at the 7-11 at times that are completely unrelated to what happened there? [¶] The reason is somehow to make the victims and the people on Bixby Street look bad. Otherwise, why is that in there if they were at 7-11 at some point that night? Who cares? Who cares? It is not relevant unless they had something to do with what happened at 7-11. It doesn't matter. So why do you get that evidence? [¶] Why? [¶] It is just somehow to paint the people on Bixby Street, including the victims, as some type of person, but I am going to iterate. There is no evidence that any of the people on Bixby Street that night was a gang member. So why talk about them like that? [¶] To justify it? To make you feel less empathy for what happened to them or the family?" Defense counsel objected on the ground that the prosecutor was misstating the evidence. At this point, the court stated that it was "concerned about another issue." After an off the record discussion, the court told the jury "One of the things the Court does prior to you guys even coming in here in the courtroom is, I define the evidence in the case. [¶] Counsel file motions, responses, and particularly in a case like this, we try to keep the evidence channeled, so it doesn't mushroom into collateral issues. And I made an order excluding any evidence in this case as to whether any individual, witness, passerby, 7-11 store, Vets Hall, Bixby Street, whether or not any of those folks were gang members. [¶] So given that ruling it is not proper for the attorneys to argue in the absence of evidence as to whether or not anyone is a gang member, because I excluded that subject from this trial. All right."
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.)
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) Acts of prosecutorial misconduct do not justify the reversal of a conviction "unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.)
Initially, we note that it is misconduct to appeal to the passion and prejudice of the jurors. (People v. Mayfield (1997) 14 Cal.4th 668, 803.)
"When an appellant bases a prosecutorial misconduct claim on the prosecutor's arguments to the jury, we consider how a reasonable juror would or could have understood the statement in the context of the entire argument. [Citation.] No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. [Citation.]" (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 839.)
As to appellant's claim that it was misconduct for the prosecutor to argue that appellant had committed murder, our Supreme Court has long held that a killing ought not to be "characterized as 'murder' in advance of a verdict so finding." (People v. Garbutt (1925) 197 Cal. 200, 204, 208-209, [defendant claimed the killing was accidental]; see also People v. Johnson (1951) 105 Cal.App.2d 478, 482, 490, [defendant raised self-defense claim].) The trial court should have instructed the prosecutor not to use the term, and, if that instruction was disobeyed, admonished the jury. (People v. Price (1991) 1 Cal.4th 324, 479-480.)
We reject appellant's argument that the prosecutor was prohibited by principles of collateral estoppel from saying that appellant was guilty of murder. Collateral estoppel principles apply when the issue being litigated is identical to the one that was previously litigated. (Johnson v. Lewis (2004) 120 Cal.App.4th 443, 456.) For an issue to be litigated it must be something that is capable of being resolved in the particular case. Here the issue being litigated was whether appellant was guilty of involuntary manslaughter, not whether he was guilty of murder. In no way was it possible for the prosecutor to litigate the issue of whether appellant was guilty of murder.
Here, of course, appellant had been found not guilty of murder in his first trial and was charged only with involuntary manslaughter. However, although we believe the prosecutor's conduct in this case to be outside the bounds of acceptable prosecutorial conduct, the record does not suggest that these references improperly conditioned the jury to reject appellant's claim of self-defense because he was really guilty of murder and find him guilty of involuntary manslaughter, and in so doing denied him a fair trial. In other words, on the record presented we cannot say that no rational jury could have found appellant guilty of involuntary manslaughter beyond a reasonable doubt.
As to appellant's arguments that the prosecutor committed misconduct in telling the jury there was no evidence that any of the people on Bixby Street were gang members, while again we believe that the prosecutor's comments were beyond the bounds of acceptable prosecutorial conduct, the trial court's admonition to the jury cured any potential prejudice to appellant. Since we must presume the jury followed the court's instructions as given (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331), and in light of the court's clarifying explanation that the court had ruled that gang evidence was inadmissible, and had instructed the jury on its duty to follow the court's instructions on the law (CALCRIM No. 200), there is no reasonable likelihood that the prosecutor's remarks misled the jury as appellant suggests. (People v. Morales, supra, 25 Cal.4th at p. 47.)
The prosecutor's statements, while outside the bounds of the latitude afforded a prosecutor during argument, did not rise to the level of misconduct warranting a finding of prejudice. In the absence of prejudice, a prosecutor's misconduct will not trigger reversal. (People v. Milner (1988) 45 Cal.3d 227, 245.)
Judicial Bias
In a motion for a new trial, appellant argued that he should be granted a new trial on the "non-statutory ground that the Court should have recused itself from this case based on a doubt as to its ability to be impartial." Specifically, appellant stated that unbeknownst to him or his attorney, the trial court had given a newspaper interview to a reporter from the Santa Cruz Sentinel. Appellant attached a copy of the Sentinel article about Judge Stevens, which had been published during the trial. The article, entitled "Sam Stevens: Closing the case as a judge, " concerned the judge's impending retirement from the bench. After reciting the history of Judge Stevens's appointment and some of his more memorable cases, the article quoted Judge Stevens as saying, "he was known as a bad judge for a defendant to draw on a case involving a gun, as he is intolerant of guns."
The alternate ground for the new trial motion was that Judge Stevens had "misdirected the jury in matters of law."
At the hearing on the new trial motion, Judge Stevens pointed out that the motion was not made pursuant to Code of Civil Procedure section 170.1 because defense counsel had not followed the correct procedure. After hearing argument from defense counsel and the prosecution, Judge Stevens denied the motion for a new trial. He explained that as far as the interview with the press was concerned, "this was not an interview about this case. This was what [he] would style an exit interview with the local press after 20 years on the bench and retiring." As to the accuracy of the article, he was "sure the subject of guns came up." He explained that he was "intolerant of guns, period. Unqualified. Intolerant of guns." He went on to say that he was "not a second amendment person" and that it was "well known to anybody who's had contact with [him] throughout [his] life." Judge Stevens said that if he had his choice his courtroom deputy "would not be wearing one right now." However, as far as the actual statements in the article were concerned, all he could do was "cite to the accuracy of the article that [he was] now married to somebody named Tammy."
Code of Civil Procedure section 170.1, subdivision (a), provides that a judge shall be disqualified if any one or more of the following is true, "(1)(A) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.... [¶] (2)(A) The judge served as a lawyer in the proceeding, or in any other proceeding involving the same issues he or she served as a lawyer for any party in the present proceeding or gave advice to any party in the present proceeding upon any matter involved in the action or proceeding.... [¶] (3)(A) The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding.... (4) The judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party. [¶] (5) A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge's spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding. [¶] (6)(A) For any reason: [¶] (i) The judge believes his or her recusal would further the interests of justice. [¶] (ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial. [¶] (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. [¶] (B) Bias or prejudice toward a lawyer in the proceeding may be grounds for disqualification. [¶] (7) By reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding. [¶] (8)(A) The judge has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discussions regarding prospective employment or service as a dispute resolution neutral, or has been engaged in such employment or service, and any of the following applies: [¶] (i) The arrangement is, or the prior employment or discussion was, with a party to the proceeding. [¶] (ii) The matter before the judge includes issues relating to the enforcement of either an agreement to submit a dispute to an alternative dispute resolution process or an award or other final decision by a dispute resolution neutral. [¶] (iii) The judge directs the parties to participate in an alternative dispute resolution process in which the dispute resolution neutral will be an individual or entity with whom the judge has the arrangement, has previously been employed or served, or is discussing or has discussed the employment or service. [¶] (iv) The judge will select a dispute resolution neutral or entity to conduct an alternative dispute resolution process in the matter before the judge, and among those available for selection is an individual or entity with whom the judge has the arrangement, with whom the judge has previously been employed or served, or with whom the judge is discussing or has discussed the employment or service."
Appellant argues that he was entitled to a new trial because he was denied due process of law due to judicial bias.
Apart from the newspaper article, as additional evidence of bias, appellant asserts that Judge Stevens consistently ruled in favor of the prosecution on every major issue during the trial. Specifically, appellant points out that during the hearing on the defense motion seeking the admission of the testimony of Dr. Missett and Dr. Berg defense counsel stated that she expected the evidence in the case would be about the same as it was at the first trial. The court disagreed, stating " 'it's going to be different.' " Defense counsel said she did not expect it to be much different. Then, the court remarked, " 'you wait.' " Thereafter, the court excluded the testimony of Dr. Berg and Dr. Missett. In addition, appellant points to the fact that Judge Stevens excluded other proffered defense testimony that had been admitted in the first trial including evidence that the decedents and various prosecution witnesses were either gang members or closely affiliated with members of the Mara Salvatrucha criminal street gang; granted the prosecution's motion to prohibit cross-examination of prosecution witnesses about their criminal street gang involvement; ruled in favor of the prosecution in determining which jury instructions to give; allowed the prosecution to argue that although he was charged only with involuntary manslaughter, the evidence showed appellant was guilty of murder; allowed the prosecution to argue that just because he had a right to a trial and he exercised that right it did not mean he had a viable defense; and allowed the prosecution to argue to the jury that he could not have reasonably associated the shooting victims with the gang assault earlier in the evening because there was no evidence presented that they were gang members.
A defendant "has a due process right to an impartial trial judge under the state and federal Constitutions. [Citations.] The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) However, "a trial court's numerous rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review." (Ibid.)
Citing the United States Supreme Court's most recent case on the subject of judicial bias and the due process clause, Caperton v. A.T. Massey Coal Co., Inc. (2009) ___ U.S. ___, 129 S.Ct. 2252, 173 L.Ed.2d 1208, the California Supreme Court has concluded that "while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist ' "the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable." ' [Citation.] Where only the appearance of bias is at issue, a litigant's recourse is to seek disqualification under state disqualification statutes: 'Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution.' [Citation.] Finally, ... only the most 'extreme facts' would justify judicial disqualification based on the due process clause. [Citation.]" (People v. Freeman (2010) 47 Cal.4th 993, 996.)
"On appeal, we assess whether any judicial... bias was so prejudicial that it deprived defendant of ' "a fair, as opposed to a perfect, trial." ' [Citations.]" (People v. Guerra, supra, 37 Cal.4th at p. 1112.)
As the United States Supreme Court has explained "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias... unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German-American defendants: 'One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans' because their 'hearts are reeking with disloyalty.' [Citation.] Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display." (Liteky v. U.S. (1994) 510 U.S. 540, 555-556.)
Here, based on our review of the record, we conclude appellant has failed to establish he was deprived of his constitutional right to a fair and impartial tribunal because all of these grounds cited by appellant are inadequate under the principles we have described above: They consist of judicial rulings, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, with the exception of the newspaper article, and neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.
Furthermore, as to the newspaper article, Judge Stevens did not display "overt bias against the defense" so as to deprive appellant of a fair trial. (People v. Snow (2002) 30 Cal.4th 43, 79.) The article did not discuss appellant's case and contained general comments about the judge's career. Nothing in the article established that Judge Stevens could not preside over appellant's case and give him a fair trial. The mere fact that a trial judge does not like guns does not establish judicial bias.
Moreover, as to Judge Stevens's pretrial and trial rulings, appellant never expressed any concern that Judge Stevens was prejudiced against him during trial nor did he request the judge recuse himself. Appellant's willingness to let the entire trial pass without a charge of bias against Judge Stevens strongly suggests it is without merit. (See, e.g., People v. Tappan (1968) 266 Cal.App.2d 812, 816-817 [following the trial judge's allegedly prejudicial pretrial comment, defendant's failure to complain of judge's bias during trial showed defendant's confidence in judge's impartiality].)
Accordingly, we reject appellant's contention that he was denied due process because of judicial bias.
Disposition
We reverse the true findings on the Penal Code section 12022.55 enhancements. We remand with instructions that the People may, if they choose, retry appellant on the Penal Code section 12022.55 enhancement allegations within 60 days after the filing of the remittitur in the trial court pursuant to Penal Code section 1382, subdivision 2,
unless time is waived by defendant, but if the People do not choose the retrial option, the trial court is to resentence appellant on counts one, two, three and four.
WE CONCUR: RUSHING, P. J., PREMO, J.