Opinion
C090474
12-29-2020
THE PEOPLE, Plaintiff and Respondent, v. KEYSHAWN STRICKLAND, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE018604)
This case arises out of the drive-by shooting of victim Jonathan Swift that occurred following an altercation at a house party. A jury found defendant Keyshawn Strickland guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187), discharging a firearm at an inhabited dwelling house (§ 246), and assault with a semiautomatic firearm (§ 245, subd. (b)). The jury also found true the firearm enhancement allegations (§§ 12022.5, subds. (a) & (d), 12022.53, subds. (b), (c) & (d)) and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced him to an aggregate term of 32 years to life in prison. This timely appeal followed.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends reversal is required due to insufficient evidence of intent to kill and instructional error as to the attempted murder offense. He further contends the matter must be remanded for resentencing, claiming the trial court was unaware of its discretion to impose a lesser firearm enhancement. We disagree and affirm the judgment.
BACKGROUND
We summarize the pertinent facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Additional information relevant to the claims raised on appeal is discussed below.
The Shooting
In the early morning hours of July 5, 2017, victim Swift went to a house party (with Shawn Robinson and Robinson's cousin and girlfriend) in a residential area of Elk Grove. When they arrived sometime after midnight, there were about 30 to 50 people at the party. An hour or so later, there was an altercation near the front door involving raised voices. The host of the party became upset when a group of people entered the party aggressively. At some point, the host pulled out a gun and told the group and everyone else at the party to "get out" of his house. People panicked and began to leave in a hurried manner. Robinson and his girlfriend walked to his car, which was parked about a block away. After about a minute, Robinson returned to the party and found Swift. He and Swift then walked to his car. At that point, Swift decided to go back to the party to look for Robinson's cousin. Robinson drove to the location of the party and parked across the street.
Swift went inside the host's house but did not find the cousin. He left the house and headed down the driveway towards Robinson's car. As he was on the sidewalk and about to cross the street, he saw the headlights of an approaching car and then heard gunshots. At that moment, he turned and ran up the driveway. As he was doing so, a bullet struck him in his right buttock.
Prior to the shooting, Robinson saw a white Chevy Camaro pass by him from behind as he was sitting in the driver's seat of his car. Less than a minute later, he saw the same car driving slowly towards him. As the car was passing by his location, he heard multiple gunshots. At that time, there were about 20 to 30 people spread out on the front lawn and driveway of the host's house. The shooter wore a black ski mask.
The Investigation
Police officers arrived at the scene around 3:20 a.m. Upon their arrival, they found Swift lying in the driveway and blood everywhere. Swift was taken to the hospital by ambulance.
The bullet that struck Swift caused a pelvic fracture. Although surgery was not required, there were bullet fragments that could not be removed from Swift's spinal canal and buttock. At the time of trial, Swift was experiencing pain from his injuries.
When officers searched the area, they found nine spent nine-millimeter shell casings in the street near the sidewalk. It was later determined that the bullets used in the shooting were Blazer brand ammunition. There was gunshot damage to the house (inside and outside), garage, and cars parked in the driveway and garage.
A review of residential surveillance footage taken on the night of the shooting showed a white Camaro drive past the location of the party at 3:16 a.m. and then flashing lights of a car alarm, which can be triggered by gunshots.
On July 11, 2017, a search warrant was executed at the apartment where defendant was staying with his girlfriend, Blessen McCarthy. At the time of the search, which was not related to the shooting, four males were inside McCarthy's apartment, including defendant and his friend, Izaiah Winston. During the search, officers found various items in defendant's bedroom, including his cell phone, two rounds of nine-millimeter Blazer brand ammunition, and a loaded silver and black nine-millimeter semiautomatic handgun. Defendant was arrested and taken into custody.
On the same day as the search warrant was executed, Detective Lindsey Goesch learned that a white Camaro resembling the car in the surveillance footage was stopped by police in June 2017. Brittany Martin was driving the car. The passengers in the car included Jakari Jenkins and Dajon Keola, also known as "Day-Day."
On July 13, 2017, Goesch interviewed Martin. During the interview, Martin admitted that the July 5 shooting was perpetrated by the man who was riding in the front passenger seat of her car at the time of the shooting, who went by the nickname "K-Steez." Martin said there were several other people in her car at the time of the shooting, including Jenkins, Keola, and Alice Keema. Martin explained that Jenkins had told her that K-Steez was the shooter, and that K-Steez was in custody for possessing the gun used in the shooting. Martin further explained that, shortly before the shooting, Jenkins instructed her to have the car "drive up over the lawn" of the house that was hosting the party. Martin also noted that the shooter took her floor mats and wiped down the door of her car after the shooting.
At trial, Martin testified that the man riding in the front passenger seat of her car (i.e. defendant) used a ski mask to wipe down the outside of the car after the shooting.
On July 14, 2017, Goesch interviewed Keema. During the interview, Keema described the shooter as a skinny black male, approximately 18 years old around six feet tall, with short hair "in little balls or curls," wearing a T-shirt and jeans. She also said that a man named Davon Towner was inside the trunk of Martin's car at the time of the shooting. Keema explained that, prior to the shooting, Jenkins was angry and "[k]inda acting up in front of the house" without his shirt on.
When Goesch interviewed Martin a second time on July 19, 2017, Martin confirmed that Towner was inside the trunk of her car at the time of the shooting. She also said that she believed the shooter was wearing a black T-shirt.
Around the same time as Martin's second interview, Goesch learned that defendant was known as K-Steez and that he had been arrested for unlawful possession of a firearm on July 11, 2017. He was 19 years old.
On August 18, 2017, Goesch interviewed Jenkins. During the interview, Jenkins eventually admitted that he was present during the shooting and indicated that K-Steez, who he described as a skinny black male, was the shooter. Jenkins explained that the host of the house party pulled a gun on K-Steez prior to the shooting and told everyone to leave. Jenkins explained that, as people were leaving the party, he thought there was going to be a fight. When Jenkins left the area, the host of the party was standing by the garage or on the front lawn with a gun. Jenkins eventually got into the backseat of Martin's car. Shortly thereafter, K-Steez got into the front passenger seat. As Martin's car drove by the location of the party, Jenkins heard multiple gunshots. After the shooting, the passengers in Martin's car, which included Keola, were dropped off at Keola's residence. Martin's friend, "a skinny white girl," drove. When Goesch showed Jenkins a picture of defendant, Jenkins identified him as K-Steez.
At trial, Martin testified that, shortly before the shooting, it appeared that Jenkins and Keola were about to get into a fight with some "other boys" in the driveway of the house that was hosting the party. At that point, Martin's car was next to the driveway. Martin yelled at Jenkins to get into her car, which he eventually did after she drove to the "corner" of the street and parked. Shortly thereafter, a young black male got into the front passenger seat of her car.
At trial, Martin and Keema testified that Keema was driving Martin's car when the shooting occurred. Martin also testified that, after the shooting, Keema drove the people in her car to her residence in North Highlands.
On November 3, 2017, defendant participated in a three-way jail phone call with his girlfriend (McCarthy), Keola, and Towner. During that call, defendant told the group not to "say too much" about the "situation" and asked what others had said about it, including "the females." He also indicated that there might be witnesses who could place him at "the scene."
Two days later, McCarthy visited defendant in jail. During the visit, defendant said, "Bruh got shot in his ass, right?" In response, McCarthy asked whether the "niggas" were "outside or inside the car when that shit happened?" Defendant replied, "Like as I was shooting?" He later wondered why he had been investigated but not arrested for the shooting.
In another jail visit around a week later, defendant told McCarthy, "This girl said . . . a dark skinned male with a ski mask got into the car and told me where to go. And then at the end of her statement she gone say KSteez was a black male about 18 years old, short hair with little balls, about 5'11 or 6' tall." Defendant acknowledged that the "girl" had given an accurate description of his hair but wondered how she was able to do so under the circumstances.
A criminalist with the Sacramento County Crime Lab determined that the nine spent shell casings found at the scene of the shooting were fired from the nine-millimeter handgun found at McCarthy's apartment.
A search of defendant's cell phone revealed multiple photographs of him with what appeared to be the nine-millimeter handgun found at McCarthy's apartment, including a photograph of him with the gun in his waistband on July 10, 2017. The search of defendant's cell phone also revealed that the following text message was sent to Keola around 9:00 p.m. on July 4, 2017: "[T]ell Smack I need my drill mask, blood." The evidence adduced at trial showed that the word "drill" is slang for gun, and that Towner was known as "Smack or "Smacka."
A review of cell phone records disclosed that defendant's cell phone connected to multiple towers in the area of Rancho Cordova at 12:11 a.m. on July 5, 2017. At 12:49 a.m., his cell phone connected to a cell tower in the South Sacramento area, which was approximately four to seven miles from the location of the house party. There was no other activity related to defendant's cell phone until 1:58 p.m. on July 5, 2017, which indicated that his cell phone was either turned off or had no power during that time period.
A search of Winston's cell phone revealed several photographs of him holding what appeared to be the nine-millimeter handgun found at McCarthy's apartment. These photographs were taken at Keola's residence on July 5, 2017, at 3:52 a.m. In one of the photographs, Winston is wearing a mask. Winston's cell phone also contained videos shot between 5:19 a.m. and 5:41 a.m. on July 5, 2017. Defendant is in these videos and is wearing a black T-shirt and jeans.
Defendant's Testimony
Defendant testified on his own behalf at trial; the defense called no other witnesses. He said that he was a rapper and went by the nickname "K-Steez." He claimed that he lived in North Highlands with Sevonna Holloway, their young son, and a man named Jared. When asked, he indicated that, at the time of the shooting, he was friends with Jenkins, Keola, Winston, and Towner. He claimed that he was not at the house party where the shooting occurred. He testified that he did not know Martin or Keema, was not inside Martin's car on July 5, 2017, did not fire any gunshots from Martin's car on that date, and did not wipe down Martin's car with a mask following the shooting. He also claimed that his roommate Jared had his cell phone on the night of the shooting.
Defendant testified that he was with Holloway and their son on the night of the shooting, and at her apartment from around 9:00 p.m. on July 4, 2017 until around 4:00 a.m. on July 5, 2017, when he drove to Keola's residence. Several people were there when he arrived, including Keola, Towner, Winston, and Jared. Around five minutes later, Winston handed him the nine-millimeter handgun that was later found during the search of McCarthy's apartment.
Defendant drove back to Holloway's apartment around 6:00 a.m. but did not stay long because she refused to allow him to store the gun there. He then drove to McCarthy's apartment. After he explained the "situation" to her, he placed the gun in a dresser drawer. Around an hour later, he returned to Keola's residence. Sometime thereafter, Jared returned his cell phone.
On cross-examination, defendant conceded that people in Sacramento commonly refer to shootings as "drills," and that a drill mask can mean a "shooting mask." The prosecutor also questioned defendant about a series of communications between himself and Holloway, which suggested that they were not getting along and defendant was not at her apartment on the night of shooting.
DISCUSSION
I
Sufficiency of the Evidence
We first address defendant's contention that his attempted murder conviction is not supported by substantial evidence. He does not challenge the sufficiency of the evidence of identity, but focuses on the claim that there was insufficient evidence establishing that he had the specific intent to kill Swift. We disagree.
A. Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) " 'We do not reweigh evidence or reevaluate a witness's credibility.' " (People v. Houston (2012) 54 Cal.4th 1186, 1215.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Additional Background
The information charged defendant with the attempted murder of Swift and alleged that the offense was committed willfully, deliberately, and with premeditation. During closing argument, the prosecutor argued that defendant was guilty of attempted murder because the evidence showed that he was within feet of Swift when he fired multiple gunshots in Swift's direction, and the close proximity of defendant to Swift established that he intended to kill Swift. Defense counsel argued that defendant was not the shooter.
The parties agree that there was no "kill zone" theory at play during the trial, and they do not argue that it is a factor here or is in any way relevant to this appeal. (See People v. Canizales (2019) 7 Cal.5th 591, 607-608.)
During deliberations, the jury sent a note to the court, which stated, in relevant part: "We would like clarification on the law in regards to (Pen. Code, §§ 21a, 663, 664) the court's definition of 'the defendant intended to kill that person.' " The parties agreed that the jury was seeking the legal definition or clarification of the phrase "intent to kill," and that the court should direct the jury to CALCRIM No. 600 (Attempted Murder--§§ 21a, 663, 664) and CALCRIM No. 601 (Attempted Murder: Deliberation and Premeditation--§§ 21a, 189, 664(a)), as both pattern instructions contain the phrase " 'intended to kill' " and the Penal Code sections referenced in the jury's note. The parties also agreed that the court should direct the jury to CALCRIM No. 200 (Duties of Judge and Jury); specifically, to the language: " 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.' " Finally, the parties agreed with the court's suggestion to direct the jury to CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together). The written response to the jury's note stated, in relevant part: "[W]ords and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings. Also, instructions numbers 252, 600, and 601 specifically relate to Penal Code sections 21a, 663 and 664."
As part of the discussion on how to respond to the jury's note, the trial court wondered if the jury was asking "whether a particular person need be targeted," that is, "whether the intent [to kill] has to be directed to a particular person or not." After a brief discussion, the parties and court agreed that the response to the jury's note need not address the kill zone theory of liability, as it was not the theory behind this (single victim) case and the jury had not received any instruction on it.
The verdict form given to the jury regarding the attempted murder offense asked the jury to, among other things, determine whether defendant was guilty of attempting to murder Swift with malice aforethought. Later that same day, the jury returned a guilty verdict on the attempted murder and found true the allegation that it was committed willfully, deliberately, and with premeditation.
C. Analysis
Attempted murder requires " 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) " 'To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.' [Citation.] Whether the defendant acted with specific intent to kill 'must be judged separately as to each alleged victim.' " (Id. at p. 740.) "[T]his is true whether the alleged victim was particularly targeted or randomly chosen." (People v. Stone (2009) 46 Cal.4th 131, 141.)
"[T]he crime of attempted murder is not divided into degrees." (Smith, supra, 37 Cal.4th at p. 740.) The prosecution may, as it did here, "seek a jury finding that an attempted murder was 'willful, deliberate, and premediated' for purposes of sentence enhancement[.]" (Ibid.) The jury in this case was properly instructed on the elements of willful, deliberate, and premeditated attempted murder pursuant to CALCRIM Nos. 600 and 601, including the requirement that defendant be found to have acted with the intent to kill.
"[T]he mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." [Citation.]' " (Smith, supra, 37 Cal.4th at p. 741.)
Viewing the evidence in the light most favorable to the judgment, we conclude there was sufficient evidence from which a jury could have reasonably concluded that defendant acted with the requisite specific intent to kill Swift. The evidence adduced at trial showed that defendant fired numerous rounds from a semiautomatic firearm in the direction of Swift at close range from the passenger seat of Martin's car. Swift testified that he was on the sidewalk and about to cross the street when he saw the headlights of an approaching car and then heard gunshots. At that moment, he turned and ran up the driveway. As he ran, a bullet struck him from behind. The evidence found at the scene showed that defendant fired at least nine bullets.
On this record, a rational jury could have inferred that defendant acted with the specific intent to kill Swift, who was directly in his line of fire and thus easily could have suffered a mortal wound. (Smith, supra, 37 Cal.4th at p. 742 ["[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice"].) No evidence offered at trial undercut the force of this inference. Defendant testified that he was not the shooter and did not attend the house party where the shooting occurred. The jury did not believe him. The evidence presented at trial does not support his claim on appeal that there was insufficient evidence to establish that he intended to kill Swift.
II
Alleged Instructional Error
Defendant contends the trial court prejudicially erred in refusing his request to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion as a result of provocation. He argues there was sufficient evidence from which a jury could have reasonably concluded that he committed this offense. We disagree.
A. Applicable Legal Principles
"[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury." (People v. Booker (2011) 51 Cal.4th 141, 181.) However, " '[a]n instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense, but not the greater, charged offense.' " (People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).) "Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed." (People v. Simon (2016) 1 Cal.5th 98, 132; see People v. Benavides (2005) 35 Cal.4th 69, 102 [evidence is substantial if a reasonable jury could find it persuasive].) "The 'substantial evidence requirement is not satisfied by " 'any evidence . . . no matter how weak' " ' " (Nelson, at p. 538), and "[s]peculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (Simon, at p. 132). We independently review whether the trial court improperly failed to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.) We review the evidentiary support for a lesser included offense instruction in the light most favorable to the defendant. (People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "Manslaughter is the unlawful killing of a human being without malice." (§ 192, subd. (a).) "Manslaughter is a lesser included offense of murder, and a defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (Nelson, supra, 1 Cal.5th at p. 538.) Just as voluntary manslaughter is a lesser included offense of murder, so too is attempted voluntary manslaughter a lesser included offense of attempted murder. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709; People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.) The crime of attempted voluntary manslaughter requires a specific intent to kill a human being and at least one direct but ineffective step toward killing the person. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550; CALCRIM No. 603.)
Our Supreme Court has explained: "A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' " (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) " 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.' " (Id. at pp. 549-550.) " [T]he 'proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.' " (Nelson, supra, 1 Cal.5th at p. 539 [" 'provocation is sufficient not because it affects the quality of one's thought processes, but because it eclipses reflection' "].) " ' "[N]o specific type of provocation [is] required," ' " and "the passion aroused need not be anger or rage, but can be any ' " '[v]iolent, intense, high-wrought or enthusiastic emotion' " ' [citations] other than revenge [citation]." (People v. Breverman (1998) 19 Cal.4th 142, 163.) " 'The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]' " (People v. Gutierrez (2009) 45 Cal.4th 789, 826.)
As for the subjective element of voluntary manslaughter based on provocation, our Supreme Court has explained that the defendant "must be shown to have killed while under 'the actual influence of a strong passion' induced by [adequate] provocation." (Moye, supra, 47 Cal.4th at p. 550.) Our high court has emphasized that "it is not sufficient that a person 'is provoked and [then] later kills.' " (Nelson, supra, 1 Cal.5th at p. 539.) Rather, the killing must occur " 'suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' " (People v. Daniels (1991) 52 Cal.3d 815, 868.)
B. Analysis
Defendant argues there was sufficient evidence to support instructing the jury on this offense because the record shows that the shooting occurred "probably five to 15 minutes" after the host of the party pointed a gun at him during an argument. According to defendant, a jury could have reasonably concluded that the gunshots were intended for the host of the party and were fired in the heat of passion as a result of provocation. We disagree.
As an initial matter, we note that defendant does not direct us to any evidence in the record as to the details of the altercation that preceded the shooting. Contrary to defendant's contention, it is not clear from the record that the host of the party actually pointed his gun directly at defendant. Further, there is no evidence indicating that the host and defendant had an exchange of words. The record does not disclose that the host verbally taunted defendant, challenged him to a fight, or expressly threatened to harm him or anyone else in his group. Rather, the record simply reflects that the host pulled a gun on a group of people, which included defendant, and told them to get out of his house because he did not like the aggressive manner in which they entered. The host also told everyone else at the party to leave his house. We do not see in this fact pattern substantial evidence to permit a jury to reasonably conclude that the provocative conduct attributed to the host of the party was sufficient to cause a person of average disposition to become so inflamed as to lose reason and judgment. (See People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling the defendant "a 'mother fucker' " and taunting him by "repeatedly asserting that if defendant had a weapon, he should take it out and use it" "plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment"].) Indeed, the record discloses that defendant acted out of a desire for revenge rather than rashly due to legally adequate provocation, which "cannot satisfy the objective requirement for provocation." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301.)
But even were we to assume the objective element of the offense was satisfied, the evidence adduced at trial was insufficient to satisfy the subjective element. There is no evidence demonstrating that the shooting occurred while defendant was under " 'the actual influence of a strong passion' induced by [adequate] provocation." (Moye, supra, 47 Cal.4th at p. 550.) Defendant's state of mind was never at issue or argued by the defense, and no evidence of provocation was offered. The defense theory was that defendant was not the shooter. When defendant testified, he claimed that he was not the shooter and did not attend the house party where the shooting occurred. There was no evidence presented as to his state of mind during or after the altercation with the host of the party. There was no testimony showing that defendant was acting under an intense emotion during the initial altercation or when he returned to the scene in Martin's car. Under the circumstances of this case, the subjective requirement clearly was not satisfied. " 'A trial court need not . . . instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime (for example, when the only issue at trial is the defendant's identity as the perpetrator). Because in such a case "there is no evidence that the offense was less than that charged" [citation], the jury need not be instructed on any lesser included offense.' " (People v. Gutierrez, supra, 45 Cal.4th at pp. 825-826.) Here, the record reflects, as defendant concedes, that the shooting occurred at least five minutes after the altercation with the host of the party.
Nor does the record reflect that the shooting was the result of unconsidered reaction to provocation. To the contrary, the record demonstrates, as the jury found, that the shooting was willful, deliberate, and premeditated. The evidence shows that, following the altercation with the host of the party, defendant walked away from the area, eventually got into the front passenger seat of Martin's car, put on his mask, pulled out his gun, and then fired numerous gunshots from a semiautomatic handgun in the direction of Swift. The gunshots were fired after Martin's car drove by the house that was hosting the party and then circled back so that the house was on defendant's side of the car. No evidence supported the instruction at issue here. Because we find no instructional error, we need not and do not address defendant's claim of prejudice.
III
Firearm Enhancement
Defendant contends the matter must be remanded for resentencing because the trial court was unaware of its discretion to impose a lesser firearm enhancement. We disagree.
A. Additional Background
As relevant here, a jury found defendant guilty of willful, deliberate, and premeditated attempted murder (§§ 664, 187; count one) and discharging a firearm at an inhabited dwelling house (§ 246; count two). In connection with these offenses, the jury also found true the firearm enhancement allegations under section 12022.53, subdivisions (b), (c), and (d). Prior to sentencing, the probation officer filed a presentence report that stated, in relevant part: "The 12022.53(b), (c), and (d) P.C. enhancements were found true. Section 12022.53(f) P.C. indicates the Court shall impose the term for the enhancement with the longest term of imprisonment. Therefore, in regard to the 12022.53(d) P.C. enhancement, an additional twenty five (25) years to Life is recommended." The probation officer's recommendation as to the firearm enhancements under section 12022.53 was the same for both counts one and two. Defendant did not file a sentencing memorandum or a motion to strike or dismiss the firearm enhancements.
At the outset of the sentencing hearing in September 2019, the trial court stated that it had read and considered the presentence report filed by the probation officer. The court then announced the sentence it intended to impose, which included a consecutive sentence of 25 years to life on counts one and two for the firearm enhancements under section 12022.53, subdivision (d). The court indicated that it would impose but stay sentence on the lesser firearm enhancements (§ 12022.53, subds. (b), (c)) pursuant to section 12022.53, subdivision (f), and that the sentence on count two would run concurrent to the sentence imposed on count one. After the parties made a few comments, the court imposed sentence in accordance with its stated intention. Defendant did not object. Nor did defendant request the trial court exercise its discretion to strike or dismiss the firearm enhancement under section 12022.53, subdivision (d) and impose a lesser enhancement or no enhancement at all.
B. Applicable Legal Principles
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Section 12022.53 sets forth escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies: a 10-year prison term for use of a firearm (id., subd. (b)); a 20-year term for discharge (id., subd. (c)); and a 25-year-to-life term for causing great bodily injury or death (id., subd. (d)). "For these enhancements to apply, the requisite facts must be alleged in the information or indictment, and the defendant must admit those facts or the trier of fact must find them to be true." (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124-1125.) Section 12022.53, subdivision (f) provides that "[i]f more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment."
Effective January 1, 2018, Senate Bill No. 620 amended subdivision (h) of section 12022.53 to provide, in relevant part: "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." (Stats. 2017, ch. 682, § 2.) "Courts now may 'strike or dismiss' an enhancement under section 12022.53, subdivision (d) in the interests of justice under section 1385. In a case where the jury had also returned true findings of the lesser enhancements under section 12022.53, subdivisions (b) and (c), the striking of an enhancement under section 12022.53, subdivision (d) would leave intact the remaining findings, and an enhancement under the greatest of those provisions would be mandatory unless those findings were also stricken in the interests of justice." (People v. Morrison (2019) 34 Cal.App.5th 217, 222 (Morrison); see People v. McDaniels (2018) 22 Cal.App.5th 420, 428.)
C. Analysis
As an initial matter, we agree with the People that defendant has forfeited his claim. " 'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial.' " (People v. Sperling (2017) 12 Cal.App.5th 1094, 1100; see People v. Scott (1994) 9 Cal.4th 331, 353.) Here, section 12022.53, subdivision (h), as amended, became effective on January 1, 2018. Defendant was sentenced on September 13, 2019. At sentencing, defendant did not ask the trial court to exercise its discretion and strike or dismiss any firearm enhancement. As a consequence, defendant forfeited his contention that remand for resentencing is warranted.
In any event, defendant's claim is without merit. At the time of sentencing, which occurred more than a year and nine months after the effective date of the amendment to section 12022.53, subdivision (h), we assume the trial court was aware that striking the 25-years-to-life firearm enhancement under section 12022.53, subdivision (d) "would leave intact the remaining findings, and an enhancement under the greatest of [the] provisions [under subds. (b) & (c)] would be mandatory unless those findings were also stricken in the interests of justice." (Morrison, supra, 34 Cal.App.5th at p. 222; see also § 12022.53, subd. (f); People v. Gutierrez, supra, 58 Cal.4th at p. 1390 ["Absent evidence to the contrary, we presume that the trial court knew and applied the governing law"].) We decline to depart from "the usual presumption that a sentencing court correctly applied the law." (Morrison, supra, 34 Cal.App.5th at p. 225; People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion"].) Here, the trial court expressly chose the greater enhancement while imposing but staying sentence on the lesser enhancements. Defendant has not pointed to anything in the record demonstrating that the trial court misunderstood its sentencing discretion. Accordingly, remand for resentencing on the firearm enhancement is not warranted. (People v. Lee (2017) 16 Cal.App.5th 861, 867 [where "the record is silent, . . . the defendant has failed to sustain his burden of proving error, and we affirm"].)
Although defendant argues, without quoting any specific language, that the probation report classified the enhancement as "mandatory," we do not see that language in the cited section of the report. In any event, defendant has provided no authority for the argument that if the probation officer makes a mistake, it signals a misunderstanding by the trial court of its discretionary choices.
Defendant's reliance on Morrison is misplaced. We need not decide whether Morrison was correctly decided because it is readily distinguishable. In that case, the trial court declined to strike a section 12022.53, subdivision (d) firearm enhancement. (Morrison, supra, 34 Cal.App.5th at p. 220.) Unlike this case, in which the jury found true three different charged firearm enhancements under section 12022.53, subdivisions (b), (c), and (d), in Morrison the information only charged, and the jury only found true, a single firearm enhancement under subdivision (d). (Morrison, at p. 221.) The Morrison court held that the trial court had the discretion to impose a lesser, uncharged firearm "enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome was found to be in the interests of justice under section 1385." (Morrison, at p. 223.) Because the record in Morrison did not reflect that the trial court understood this option was available, and, at the time of sentencing, "no published case had held an uncharged lesser firearm enhancement could be imposed in lieu of an enhancement under section 12022.53, subdivision (d) in connection with striking the greater enhancement," the matter was remanded for resentencing. (Morrison, at p. 224.) Critically, Morrison's holding permitting the imposition of uncharged lesser firearm enhancements was explicitly limited to "cases where those enhancements have not been charged in the alternative and found true." (Id. at p. 225, italics added.) Further, the Morrison court was clear that a trial court need not consider reduction to a lesser enhancement unless the defendant asks. As to this point, the court stated: "Additionally, the 'lesser firearm enhancement' issue only arises when the court has been asked to strike a greater enhancement under section 12022.53." (Id. at p. 225, italics added.) Moreover, the Morrison court expressly stated: "And after the publication of our decision today, the usual presumption that a sentencing court correctly applied the law will apply and will ordinarily prevent remand where the record is silent as to the scope of a court's discretion." (Ibid.) Morrison was decided in April 2019. Defendant was sentenced in September 2019. Thus, under Morrison, the presumption that the sentencing court applied the law applies here and we must reject defendant's contention. Thus, contrary to defendant's contention, Morrison is of no assistance to him.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Murray, J.