Opinion
F069650
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY DALE SALTER, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF136375A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jeremy Dale Salter was charged with the murder of John Harley Evans (Pen. Code, § 187, subd. (a)). The information further alleged that he intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)); personally and intentionally discharged a firearm and proximately caused the victim's death (§ 12022.53, subd. (d)); and personally used a firearm (§ 12022.5, subd. (a)). The jury found defendant guilty of first degree murder and found true the lying-in-wait special circumstance and firearm allegations. The trial court imposed life without the possibility of parole plus an enhancement of 25 years to life for firearm discharge causing death. It stayed the enhancement for firearm use.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Defendant does not dispute that he shot and killed Evans. Nevertheless, he contends on appeal: (1) the trial court should have instructed the jury on heat-of-passion voluntary manslaughter and self-defense; (2) the court should have admitted into evidence Evans's prior convictions for domestic violence battery, exhibiting a deadly weapon, and willful infliction of corporal injury; (3) the court erroneously advised the jury that "there's no such thing as jury nullification in the state of California"; and (4) the cumulative effect of the above mentioned errors was prejudicial. In our original opinion, we held: (1) the court did not err when it declined to instruct on heat-of-passion voluntary manslaughter and its failure to instruct on self-defense did not amount to prejudicial error; (2) Evans's past criminal convictions for the aforementioned offenses were irrelevant; (3) the court did not err when it advised the jury that "there's no such thing as jury nullification in the state of California"; and (4) there was no cumulative error. Accordingly, we affirmed the judgment. We subsequently granted rehearing to determine whether amendments to sections 12022.5 and 12022.53, enacted by Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2) and effective January 1, 2018, apply retroactively to the instant case. The Attorney General concedes that they do, but contends remand is unnecessary. We agree with the Attorney General.
STATEMENT OF FACTS
Defendant lived with his girlfriend, Jasmine Johnson, her two daughters, Evans, and Melvin Martin at Martin's house in Inyokern.
On April 5, 2011, Johnson decided to break up with defendant because she believed that he was cheating on her. After moving defendant's possessions to the front porch and telling him to leave, Johnson and her daughters went to bed at around 8:00 p.m. At some point, defendant, Evans, and mutual acquaintance Michael Pate visited Evans's girlfriend, Heather Brown, at her residence in Ridgecrest. Evans accused Brown of cheating on him, leading to a "tussle" on the floor. During the altercation, Brown scratched Evans. Defendant, Evans, and Pate subsequently left in defendant's truck.
At around 9:00 p.m., law enforcement pulled over a red and white Ford pickup truck near the intersection of Brown Road and Bowman Road. Defendant was the driver and Evans was the passenger. Kern County Sheriff's Deputy Johnny Frisbie asked Evans about the scratches on his right cheek. Evans related that he had a fight with his girlfriend. Because neither defendant nor Evans possessed a driver's license, the two men departed from the scene on foot. They eventually returned to Martin's house. Later, Martin and guest John Reynolds overheard defendant and Johnson arguing on the front porch.
On April 6, 2011, sometime between 12:00 and 12:30 a.m., defendant instructed Martin to vacate the property with Johnson and her daughters because he intended to "confront" Evans and "there's gonna be trouble." Martin went to Evans, who was in his bedroom, and asked, "'Is there gonna be another fight out here?'" Evans replied, "'Fuck it. Let him come.'" Defendant woke up Johnson and explained that he "was going to be confronting ... Evans and ... didn't want the girls to wake up to any noise or any conflict that was going to be going on." Johnson, her daughters, and Martin left the premises. On the other hand, Reynolds was asked to stay behind because defendant "didn't want to be there by himself with [Evans] when he ... confront[ed] him." Defendant divulged that Evans "belittled [him] in front of [Johnson]," "said something about [Johnson]," and "pushed [Johnson] ... when she went out there to talk to [him]." For 30 to 45 minutes, Reynolds tried to convince defendant not to confront Evans, but to no avail. Afterward, Reynolds went to his brother's place nearby because he "d[id]n't want to get in the middle of the quarrel.
Defendant dropped by Reynolds's brother's place over half an hour after Reynolds left Martin's house. He was "kind of shook up" but did not exhibit any physical injuries. Defendant told Reynolds, "'[Johnson] and the kids are going to be here any minute, and you gotta help me.'" The two men returned to Martin's house. There, on the carpeted floor of the living room, Reynolds saw Evans's corpse lying in a pool of blood. A blood trail led back to Evans's bedroom. Defendant maintained that he "had to do it" and instructed Reynolds to help him move the body. Reynolds declined, citing a degenerative spine condition. Defendant put the corpse on top of "some plastic or vinyl-looking stuff" and dragged it into the kitchen, where a door led to the outside. He then removed the bloodstained section of the living room carpet with a knife and placed the cutout in a trash bag. Before leaving, Reynolds concealed the exposed floorboard with an area rug.
At around 5:00 or 5:30 a.m., Johnson received a text message from defendant, indicating "it was okay to come home." She and Martin went back to the house, but defendant was absent. In the living room, Johnson noticed "stuff ... that wasn't supposed to be [there]," including a "scrunched up" "[two-]liter bottle" and a chainsaw with "red spots." She also noted that the rug in the living room "sunk down" when she walked on it. Martin went to Evans's bedroom and saw a padlock on the door. At around 9:30 a.m., defendant returned. He "was dirty," "was shaking," and "looked like he was terrified." Defendant told Johnson that Evans "broke one of his ribs" and "attempted to stab him with a knife." He lifted his shirt and displayed two puncture wounds on his back. Defendant stated that Evans "was recuperating either in Trona or on Red Mountain."
Throughout the rest of the day, various individuals visited Martin's house, including Pate and Brown. When Pate headed toward Evans's bedroom, defendant stopped him and said, "'Nobody goes back there.'" Pate asked, "'Why not?'" Defendant answered, "'Because me and [Evans] got in a fight last night and [Martin] kicked him out of the house.'" Later, defendant told Brown that "he had asked [Evans] to leave town," "[Evans] wouldn't be returning," and "[Evans] would never harm [her] again." He also urged her "to not try to contact [Evans]." Ultimately, defendant admitted to Johnson that he shot Evans twice in the head and moved the body to a location where "no one was going to find him." At defendant's behest, Johnson cleaned the cargo bed of his truck.
On April 7, 2011, at around 6:30 a.m., defendant visited his mother's friend, Roy Stephenson, at his residence in Ridgecrest. He told Stephenson that "he'd just got back from burning the body," "he got rid of the body and the gun and they would never find it," and "the good of the many outweighed the good of the few." Defendant added that "he felt disrespected based on some interaction between ... Evans and ... Johnson."
Meanwhile, in response to a missing person report filed by Evans's family, law enforcement searched Martin's house. Investigators observed that a sizable section of the living room carpet was excised. Inside Evans's bedroom, they came across an upended couch "with a piece broken off"; a large kitchen knife; wood shavings on the floor; blood stains on the floor, wall, doorjamb, and ceiling light; and a trash bag containing a bloodstained section of "folded-up" carpet, which "fit perfectly" over the exposed floorboard in the living room. Outside, near the side of the house, investigators found the missing piece of Evans's couch, which was covered in blood. The DNA extracted from the bloodstained items at the scene matched Evans's DNA. In addition, forensic testing of the cargo bed of defendant's truck revealed the presence of more blood.
During a subsequent search of Martin's house, investigators recovered a roll of black vinyl material as well as an empty, two-liter Pepsi bottle with holes. Forensic testing confirmed the presence of vaporous lead and gunpowder residue inside the bottle. Furthermore, the size of each hole penetrating the bottle was "consistent ... with the size of a .22-caliber bullet." According to Gregory Laskowski, the supervising criminalist at the Kern County Regional Crime Laboratory, a two-liter soda bottle can be utilized as a gun silencer:
"Essentially, a [two]-liter bottle, soda bottle, can be attached to the muzzle end of the barrel, wrapped usually with tape or sometimes a hose clamp .... [¶] And then one can simply just fire the firearm, having the bullet leave the muzzle, pass through the soda bottle. [¶] ... [¶] [T]hey're quite effective. They will reduce the sound or suppress the sound."Based on "the configuration of the bottle," "the resulting chemical tests," and "the trace evidence inside the bottle," Laskowski opined that the two-liter Pepsi bottle had been used as a silencer.
On the morning of April 27, 2011, approximately 1.3 miles south of Inyokern, Gordon Irvin and his hunting dogs came across a burnt corpse on a dirt road. A cigarette lighter, the spout of a gasoline can, a leather gun holster, and black vinyl material were found at the scene. Dental records verified that the body belonged to Evans. An autopsy confirmed that Evans was shot twice in the back of the head and died as a result of those wounds. The size of each bullet extricated from the brain was "consistent with the size of a .22-caliber bullet." In addition, the corpse's state of decomposition was "consistent with having been ... charred ... [and] left out in the desert of Inyokern ... for three weeks."
Law enforcement executed a search warrant at the home of defendant's father, who owned a .22-caliber pistol, but could not find the weapon.
At trial, defendant, who represented himself, claimed that he had acted in self-defense, describing "[a] confrontation of a passive nature [that] quickly escalated into a struggle for survival" and portraying Evans as "a very aggressive person" who "[was] prone to violence," "had a criminal history of battery on women," and "thrived on intimidation and instilling fear upon others." Johnson and Reynolds, who testified for the prosecution, admitted that they had each been charged with accessory after the fact and agreed to testify in exchange for probation.
DISCUSSION
I. The trial court did not err when it declined to instruct the jury on heat-of-passion voluntary manslaughter and its failure to instruct the jury on self-defense did not amount to prejudicial error.
a. Background
At the jury instruction conference, the court, the prosecutor, and defendant discussed the propriety of issuing CALCRIM Nos. 505 (Justifiable Homicide: Self-Defense or Defense of Another) and 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included Offense), inter alia. In deciding against giving these instructions, the court reasoned:
"Here, at least what I've heard so far, ... there were two shots to the back of the head, almost equal distance on each side with a[n] empty [two]-liter bottle silencer taped to a firearm; ... individuals were told to leave the residence in advance because there would be loud noises or some sort of disturbance; ... the blood on the couch of the victim was found where he normally laid his head; [and], subsequently, the body was moved.... [¶] Mr. Reynolds saw the body initially and then assisted ..., for lack of a better term, in order to conceal the killing. [¶] ... [¶]
"There was no testimony that I recall about anyone threatening [defendant's] life any time close to April 6th.... [T]he testimony was that [defendant and Evans] were pretty much buddies earlier that day, or on the 5th, I should say. And had gone over to [Evans's] girlfriend's house together.... [¶] ... [¶]
"[CALCRIM No.] 570, voluntary manslaughter, heat of passion. It has to do with a sudden quarrel or in the heat of passion.... In fact, in the use notes for [CALCRIM No.] 570, it also references People v. Breverman [(1998) 19 Cal.4th 142, 163-164 (Breverman):], which references
'[S]ufficient evidence of provocation existed where a mob of young men trespassed onto [the] defendant's yard and attacked [the] defendant's car with weapons. [Citation.] Provocation has also been found sufficient based on the murder of a family member [citation]; a sudden and violent quarrel [citation]; verbal taunts [by] an unfaithful wife [citation]; and the infidelity of a lover [citation].' None of those are applicable here ... other than possibly a sudden and violent quarrel. There's no testimony about any quarrel .... None.... [¶] ... [¶]
".... I will not be giving CALCRIM [No.] 505. [¶] ... [¶] And I will not be giving CALCRIM [No.] 570. [¶] And here's why. In addition to the record that I've previously made as to the testimony, I'm referencing ... Breverman, [supra, 19 Cal.4th at p.] 162 ....
"'As our prior decisions explain, the existence of ... "[a]ny evidence[,] no matter how weak," will not justify instructions on a lesser included offense. [But] such instructions are required whenever evidence that ... defendant is guilty only of the lesser offense is, ... "substantial enough to merit consideration," ... by the jury.' [¶] ... [¶] It goes on to provide[:] '"Substantial evidence," in this context[,] is ... "evidence from which a jury composed of reasonable persons could conclude ..." that the lesser offense[,] but not the greater[,] was committed....'
"The benefit of the doubt in this situation goes to ... defendant. Even giving him the benefit of the doubt ..., there's absolutely no evidence other than ... anecdotal statements attributed to ... defendant and one statement by ... Johnson that she saw marks on ... defendant. [I]t does not rise anywhere close to substantial evidence...."
b. Analysis—heat-of-passion voluntary manslaughter
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (Breverman, supra, 19 Cal.4th at p. 154.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could ... conclude[]"' that the lesser offense, but not the greater, was committed." (Id. at p. 162.)
"'Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of ... voluntary manslaughter. [Citation.]' [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] 'But a defendant who intentionally and unlawfully kills lacks malice ... when the defendant acts in a "sudden quarrel or heat of passion" [citation], ....' Because heat of passion ... reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter ... is considered a lesser necessarily included offense of intentional murder [citation]." (Breverman, supra, 19 Cal.4th at pp. 153-154, italics & fn. omitted.) "An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' [citation], and is thus voluntary manslaughter [citation], if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."'" (Id. at p. 163; see People v. Steele (2002) 27 Cal.4th 1230, 1252 ["The heat of passion requirement for manslaughter has both an objective and a subjective component.... The defendant must actually, subjectively, kill under the heat of passion.... But the circumstances giving rise to the heat of passion are also viewed objectively."].)
We conclude that the court properly declined to instruct the jury on heat-of-passion voluntary manslaughter because there was no substantial evidence that defendant was guilty only of that crime. The record demonstrates that defendant instructed Johnson and Martin to leave the house with Johnson's daughters because he intended to confront Evans and did not want the girls to "wake up to any noise or any conflict that was going to be going on." Defendant then revealed to Reynolds that Evans "belittled [him] in front of [Johnson]," "said something about [Johnson]," and "pushed [Johnson]." After Reynolds left, defendant entered Evans's bedroom, where Evans was on a couch. Using a soda bottle to suppress the sound of gunfire, he shot Evans twice in the back of the head. (Cf. People v. Hawkins (1995) 10 Cal.4th 920, 956-957, overruled on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 89 [evidence of premeditated murder sufficient despite minimal proof of planning and motive where the accused shot the victim "execution-style" in the back of the head and the back of the neck].) Then, in an isolated area, defendant burned the corpse and left it to rot. (See People v. Spinelli (1939) 14 Cal.2d 137, 141 [finding of premeditation may be supported by evidence showing gruesome manner in which the accused disposed of the victim's body].)
Even if we accept defendant's assertions that Evans had disparaged him and Johnson and pushed Johnson, such conduct was "insufficient to cause an average person to become so inflamed as to lose reason and judgment" (People v. Manriquez (2005) 37 Cal.4th 547, 586) and "react with deadly passion" (People v. Lee (1999) 20 Cal.4th 47, 59). Likewise, we reject the notion that the "tussle" between Evans and Brown on the night of April 5, 2011, constituted adequate provocation.
Even assuming, arguendo, that a heat-of-passion voluntary manslaughter instruction should have been given, the jury found true the lying-in-wait special circumstance, "negat[ing] any possibility that defendant was prejudiced from the failure to instruct" on the lesser included offense. (People v. Cruz (2008) 44 Cal.4th 636, 665.)
c. Analysis—self-defense
"'"It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence"' and '"necessary for the jury's understanding of the case."' [Citations.] It is also well settled that this duty to instruct extends to defenses 'if it appears ... the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Brooks (2017) 3 Cal.5th 1, 73, italics added.)
The record demonstrates that defendant relied on self-defense. On this basis alone, the court should have given the corresponding instruction. Nevertheless, by constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Jones (2012) 54 Cal.4th 1, 53 [instructional error evaluated under Watson's reasonable probability standard].)
Even if the court had instructed the jury on self-defense, it is not reasonably probable that a result more favorable to defendant would have been reached. For a killing to be in self-defense, (1) "the defendant must actually and reasonably believe in the need to defend" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082); (2) "the belief must also be objectively reasonable," i.e., "'[t]he circumstances must be sufficient to excite the fears of a reasonable person'" (ibid.); and (3) "the fear must be of imminent harm" (ibid.). As we previously noted, the jury found true the lying-in-wait special circumstance, which "'requires "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage"'" (People v. Cruz, supra, 44 Cal.4th at p. 679) and "'"that the killing take place during the period of concealment and watchful waiting"'" (ibid.). (See People v. Stanley (1995) 10 Cal.4th 764, 794-795 ["Lying in wait is the functional equivalent of proof of premeditation, deliberation, and intent to kill."].) By virtue of this finding, the jury necessarily rejected the proposition that defendant, using a silencer, shot Evans twice in the back of the head because Evans was about to kill or inflict great bodily injury on him.
The court issued CALCRIM No. 521 (First Degree Murder), which read in part:
"[D]efendant has been prosecuted for first-degree murder under two theories. [¶] One[:] the murder was willful, deliberate, and premeditated. [¶] And, two[:] the murder was committed by lying in wait. [¶] ... [¶]
"B[:] lying in wait. [D]efendant is guilty of first-degree murder if the People have proved that ... defendant murdered while lying in wait or immediately thereafter.
"[D]efendant murdered by lying in wait if: [¶] One[:] he concealed his purpose from the person killed. [¶] Two[:] he waited and watched for an opportunity to act. [¶] And, three[:] then[,] from a position of advantage, he intended to and did make a surprise attack on the person killed.
"The lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation. [¶] Deliberation means carefully weighing the considerations for and against a choice, and[,] knowing the consequences, deciding to act. [¶] An act is done with premeditation if the decision to commit the act is made before the act is done.
"A person can conceal his or her purpose even if the person killed is aware of the person's physical presence. The concealment can be accomplished by ambush or some other secret plan."
In support of his self-defense claim, defendant points out that he "told ... Johnson that ... Evans confronted him, broke his rib and stabbed him with a knife" and Johnson "s[aw] two puncture wounds on [his] back." This interaction took place at around 9:30 a.m. on April 6, 2011. However, the record shows that defendant manifested no physical injuries in the immediate aftermath of the shooting. During the period between the shooting and his interaction with Johnson, defendant dragged Evans's lifeless body from the bedroom to the living room; placed the corpse on top of vinyl material; dragged the corpse from the living room to the kitchen; excised the bloodstained parts of the living room carpet and Evans's couch; dragged the corpse from the kitchen to the outside; loaded the corpse onto the cargo bed of his pickup truck; drove to a different location; and unloaded the corpse at said location. (See People v. Disa (2016) 1 Cal.App.5th 654, 668, fn. omitted ["[T]he jury was free to disbelieve [the] defendant's self-serving statements regarding what [the victim] did right before he killed h[im]."].) II. Evans's past criminal convictions for domestic violence battery, exhibiting a deadly weapon, and willful infliction of corporal injury were irrelevant.
a. Background
Before trial, defendant asked the court to admit into evidence Evans's prior criminal convictions, including a 1999 conviction for contributing to the delinquency of a person under 18 years of age (§ 272); a 2001 conviction for domestic violence battery (§ 243, former subd. (e)(1)); a 2001 conviction for exhibiting a deadly weapon (§ 417, subd. (a)(1)); 2002 and 2004 convictions for eluding a pursuing peace officer (Veh. Code, § 2800.2); and a 2002 conviction for willful infliction of corporal injury (§ 273.5). The court ruled:
"All right. As to the victim and what I believe would be appropriate under [Evidence Code section] 1103, it would be inclusive of the 2001 charges, both of them, the [section] 243[, subdivision ](e)(1) and the [section] 417[, subdivision ](a)(1). Frankly, the [section] 417[, subdivision ](a)(1) may be the most potentially relevant. [¶] And then the 2002[, section] 273.5.
"As to the 1999, [section] 272; no.
"As to the 2002, [Vehicle Code section] 2800.2; no.
"As to the 2004, [Vehicle Code section] 2800.2; no.Defendant responded, "I understand."
"But the others from 2001 and 2002 ... are reasonably related. And based on consideration of the appropriate factors can be referenced. [¶] Assuming there's some link that somehow this was self-defense or something along that, because if there isn't that link, ... then it's not relevant at all. [¶] ... [¶]
"If [defendant] testif[ies], ... and there's testimony that would make that link[,] ... then it can be referenced. [¶] But if that doesn't happen, ... neither one of you are going to be asking questions or introducing evidence of the victim's prior convictions that I've talked about. So that has to be after [defendant] testif[ies] or someone else makes that link.... [¶] ... [¶]
"[Defendant is] not going to reference [the convictions] unless [he] or some other witnesses saw what happened and can establish something, some connection between some violent act on behalf of the victim. [¶] ... [¶] Absent that, it's not relevant."
During trial, defendant did not introduce Evans's prior convictions for domestic violence battery, exhibiting a deadly weapon, and willful infliction of corporal injury.
b. Analysis
"Evidence Code section 1101, subdivision (a) provides that 'evidence of a person's character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion.' Evidence Code section 1103, subdivision (a)(1) provides an exception ... when a defendant offers evidence regarding the character or trait of a victim 'to prove conduct of the victim in conformity with the character or trait of character.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 827 (Gutierrez).) "The trial court must always perform its gatekeeping function pursuant to Evidence Code section 350 to exclude evidence that is irrelevant." (Id. at p. 828.) "'[W]here ... a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (Ibid.)
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.)
Here, before the court would allow defendant to introduce Evans's prior convictions for domestic violence battery, exhibiting a deadly weapon, and willful infliction of corporal injury, it required him to lay a foundation tending to show that he killed a violent Evans in self-defense. (See Gutierrez, supra, 45 Cal.4th at p. 828.) By close of evidence, however, no such showing was made. (See People v. Hoyos (2007) 41 Cal.4th 872, 913, overruled on other grounds by People v. Black (2014) 58 Cal.4th 912, 919-920 ["[E]ven if the murder victim were the most violent person in the world, that fact would not be relevant if the evidence made it clear that the victim was taken by surprise and shot in the back of the head."].) Thus, excluding these prior convictions as irrelevant was proper. (Gutierrez, supra, at p. 828.)
Since we examined the merits of the claim, we need not address the Attorney General's forfeiture argument.
III. The trial court did not err when it advised the jury that "there's no such thing as jury nullification in the state of California."
a. Background
Prior to summations, the court issued CALCRIM No. 200 (Duties of Judge and Jury), which read in part:
"Members of the jury, I will now instruct you on the law that applies to this case.... [¶] ... [¶] You must follow the law as I explain[] it to you[,] even if you disagree with it. [¶] If you believe that ... either [the prosecutor] or [defendant]'s comments on the law conflict with my instructions, you must follow my instructions. [¶] ... [¶] After you have decided what the facts are, follow the instructions that ... apply to the facts as you find them."
In his summation, defendant remarked:
"... I ask that you acquit ... because the conditions for both first- and second-degree murder have not been met. [¶] The People's hypothesis is
mostly guesswork. [¶] Please consider and weigh these factors before returning with a verdict. If you find that applies to the instructions, you can override them. And this is known as jury nullification ...."The prosecutor objected to defendant's comment on jury nullification. The court sustained the objection and advised the jury:
"Ladies and gentleman, there's no such thing as jury nullification in the state of California.
"You have to follow the law that I've given to you through the jury instructions, whether you agree with it or not. You apply the facts of the case and the evidence that you've heard, received through oral testimony as well as physical exhibits. You match those up and you do whatever you do in regard to whether you make a finding and what your finding is if you make a finding.
"There's no such thing as jury nullification. It's an inappropriate argument. It's not to be considered."
b. Analysis
Jury nullification refers to "the power to disregard the court's instructions and the evidence presented and return a verdict of acquittal or a lesser charge ...." (People v. Fernandez (1994) 26 Cal.App.4th 710, 714; see People v. Estrada (2006) 141 Cal.App.4th 408, 414 ["What is referred to as 'jury nullification' is a jury's 'defiance of the law.'"].) Our Supreme Court abolished this doctrine in People v. Williams (2001) 25 Cal.4th 441 (Williams). It reasoned:
"'In our system of justice it is the trial court that determines the law to be applied to the facts of the case, and the jury is "bound ... to receive as law what is laid down as such by the court." [Citation.] "Of course, it is a fundamental and historic precept of our judicial system that jurors are restricted solely to the determination of factual questions and are bound by the law as given them by the court. They are not allowed either to determine what the law is or what the law should be." [Citation.]' [¶] ... [¶]
"Encouraging a jury to nullify a law it finds unjust or to act as the 'conscience of the community' by disregarding the court's instructions may sound lofty, but such unchecked and unreviewable power can lead to
verdicts based upon bigotry and racism. Jurors who do not feel bound to follow the law can act capriciously, to the detriment of the accused.... [¶] ... [¶]
"Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law.... 'When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens—defendants, witnesses, victims, and everyone affected by criminal justice administration—to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.' [Citation.] A nullifying jury is essentially a lawless jury.
"We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court's instructions on the law." (Williams, supra, 25 Cal.4th at pp. 455, 462-463, italics & fn. omitted.)
In view of Williams (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of [the Supreme Court] are binding upon and must be followed by all the state courts of California."]), we cannot find that the court misinformed the jury about jury nullification. (See People v. Estrada, supra, 141 Cal.App.4th at p. 415 ["Since the court has the authority to discharge a juror who is engaging in juror nullification, it logically follows that the court can attempt to prevent an occurrence of juror nullification by informing prospective jurors at the outset that jurors have no authority to disregard the law ...."].)
IV. There was no cumulative error.
"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) "A claim of cumulative error is in essence a due process claim ...." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) "'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial."'" (Ibid.) "[T]he reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to [the] defendant in their absence.'" (People v. Williams (2009) 170 Cal.App.4th 587, 646.)
Having reviewed and analyzed each alleged error, we cannot conclude that the cumulative effect was such that defendant was deprived of due process and a fair trial. Therefore, we reject the argument. V. Although recent amendments to sections 12022.5 and 12022.53 apply retroactively to the instant case, remand is unnecessary.
At the time defendant was charged, convicted, and sentenced, subdivision (c) of section 12022.5 and subdivision (h) of section 12022.53 provided:
"Notwithstanding Section 1385 or any other provision[s] of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 620. As of January 1, 2018, subdivision (c) of section 12022.5 and subdivision (h) of section 12022.53 provided:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."Relying primarily on People v. Francis (1969) 71 Cal.2d 66, the Attorney General concedes the amendments apply retroactively to defendant's case since the case was not yet final when the amendments went into effect. We accept this concession without further analysis.
The remaining issue is whether remanding the matter for reconsideration of sentencing is appropriate. The Attorney General argues remand is unnecessary because the sentencing court would not have exercised its discretion to strike the firearm enhancements. Based on the record, we agree. At sentencing, the court made sure to emphasize "[e]very second of [defendant's] sentence is justified" given his conduct before, during, and after Evans's murder:
"You know, one of the things that I never heard from you is that you were sorry for what you did. And I don't think you are. It's kind of strange."Under the circumstances, no purpose would be served in remanding for reconsideration." (People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896.)
"Everything you did in this situation where you had everybody leave the house so that you could commit this murder, where you committed the murder while ... Evans was laying on the couch either asleep or laying in some other fashion, where you double-tapped him in the back of the head, ... where you tried to cover up everything. Where you sawed the couch. Where you cut out portions of the carpet and covered it with a rug. Then you tell people to come back.
"You call your friend over to help wrap up the body that gets him in trouble. [¶] ... [¶]
"Then you make statements to loved ones from ... Evans that you don't know where he is. He might be out on the mountain. There was some sort of argument that happened. Something along those lines to try to deflect everybody away from you and try to have them believe that there was some hope that he was out there somewhere.
"The agonizing hours and the days that ... Evans'[s] family spent looking for him while you knew what happened because you murdered him. Not only did you murder him, but you took his body and you put it in the back of your pickup truck and you took him out in the desert and you burned him.
"There doesn't appear to be any explanation for this other than anger. And I suppose it will be a mystery to everyone other than you, and you'll have plenty of time to think about it.
"And then eventually you confessed three or so times. I suppose you needed to unburden yourself. I don't know." (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 ["Reconsideration of resentencing is required under Romero where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations."].)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.