Opinion
A139354
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. CLAUDE STEVEN WASHINGTON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR280865)
Claude Steven Washington, Jr., (appellant) appeals from a judgment entered after a jury convicted him of second degree murder (Pen. Code, § 187, subd. (a) ), three counts of second degree robbery (§ 211), carrying a loaded and unregistered firearm (§ 12031, subd. (a)(1)), and carrying a concealed weapon in a vehicle (§ 12025, subd. (a)(3)). He contends the trial court: (1) erred in denying his motion to sever; (2) committed instructional error; and (3) erred in admitting the testimony of a witness who testified pursuant to his plea agreement. Appellant has also filed a supplemental brief in which he contends that based on new legislation that gives trial courts discretion to strike or dismiss certain enhancements, the matter must be remanded "to permit the sentencing judge to exercise its new statutory discretion to strike the firearm enhancements imposed in this case." We reject each of the contentions for the reasons set forth below, and shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On March 21, 2011, an information was filed charging appellant with murder (§ 187, subd. (a), count one); three counts of second degree robbery (§ 211, counts two to four); carrying a loaded and unregistered firearm (§ 12031, subd. (a)(1), count five); and carrying a concealed weapon in a vehicle (§ 12025, subd. (a)(3), count six). As to counts one through three, the information alleged that appellant personally used a firearm, and as to count one, that he intentionally discharged a firearm. (§§ 12022.53, subds. (b)-(d), 12022.5, subd. (a)(1).) The information further alleged that all six offenses were committed while appellant was out of custody on bail (§ 12022.1).
On March 9, 2012, the trial court denied appellant's motion to sever the robbery charges from the remaining charges, and a jury trial began. On April 11, 2012, the jury found appellant guilty of second degree murder, found him guilty on all remaining counts, and found true all allegations. In a bifurcated proceeding, the court found true all on-bail allegations. The court denied probation and sentenced appellant to state prison for a total term of 40 years to life plus 21 years. The sentence included a 25-year enhancement under section 12022.53, subdivision (d), in connection with his second degree murder conviction, as well as one 10-year enhancement and one three-year, four-month enhancement under section 12022.53, subdivision (b), in connection with his robbery convictions.
Prosecution's Case — Robberies
At about midnight or 12:30 a.m. on October 4, 2010, Donald Harrison returned from work to his house in Fairfield and noticed there was a Dodge Charger "nosed in" behind his pickup truck, which was parked in front of his house. Both doors of the Charger and the front driver's side door of Harrison's truck were open. Harrison saw someone "retrieving items" from his truck so he yelled something like, "Hey, leave my stuff alone." As Harrison approached the Charger, another person "popped out" from the driver's side, pointed a gun at him, and yelled, "What are you going to do about it?'" Harrison ran away, and the man with the gun chased him. As he ran, Harrison heard the other person yell at the man with the gun, "Leave him alone. He's not worth it."
Harrison kept running around the corner and hid behind some bushes, at which point the man with the gun walked back towards the Charger. Harrison watched as the Charger left the scene, and used his cell phone to call police. A recording of Harrison's 911 call was played for the jury.
About 20 or 30 minutes after arriving at the scene, police officers took Harrison to Vacaville to show him a vehicle, which Harrison identified as the Charger he had seen at his house that night. Harrison identified a built-in stereo, an air compressor, hose, and a nail gun case as property that had been taken from his truck. He also identified a man as the person who had pointed a gun at him. At trial, Harrison identified appellant as the man with the gun. Harrison did not know appellant and had not given him permission to take anything from his truck.
According to Fairfield Police Officer Martin Morgan, the man Harrison identified was Quincy Chrisman, not appellant.
After midnight on October 4, 2010, Kristin Flores, who had just finished her work shift, was walking to her home on Aegean Way in Vacaville with her fiancée Ricky Lee when they saw a Dodge Charger drive by. The Charger pulled over near the couple on the "wrong side" of the street and a passenger got out and held a handgun at Lee's head. The driver also got out, came over to Flores, and told her "to get on the ground and give him [her] purse and [her] cell phone." Flores complied and emptied out her purse on the ground. The man with the gun told Lee " 'to get down on the ground and to give him his wallet, to empty out our pockets.' " Lee complied and handed over his wallet, as the man with the gun stood over him with the gun still pointed at Lee.
After Lee handed over his wallet, the man with the gun hit Lee on his right eye with the gun "for no apparent reason." The two men took the two wallets, left Flores's cell phone on the ground, and sped off in the Charger, with the man with the gun driving, and the other man in the front passenger's seat.
Flores and Lee immediately called 911 and described the two men to police as " 'two black males in a silver Dodge Charger.' " Lee, who was bleeding heavily, was taken to the hospital by ambulance. Flores was taken by police to a location in Vacaville where she identified a Charger as the vehicle she had just seen. Flores identified a man named Quincy Chrisman as the one who had "attended" to her; he was not the one who held the gun at Lee. Lee also identified Chrisman as the robber who did not have a gun.
Minutes after Flores called police, Vacaville Police Officer Jeremy Johnson heard a broadcast detailing the vehicle and suspect descriptions involved in the robbery, and attempted to stop a silver Dodge Charger near Aegean Way. The driver of the Charger ignored the patrol car's emergency lights and made a turn onto Sussex Circle. The Charger then stopped on Sussex Circle; two black males exited and ran "towards the front of the" car and "crisscrossed" each other. The man who had exited the passenger's front seat then got into the driver's seat and drove off. The other man was last seen running towards the fence separating the homes at 330 and 336 Sussex Circle. Shortly thereafter, after running several stop signs and a red light, the Charger crashed. The driver exited the car and ran across a nearby parking lot where police apprehended him and identified him as Quincy Chrisman. Two cell phones were found inside the Charger, and one on Chrisman's person. One of the phones was an iPhone; the name associated with that phone was " 'Claude shit bitch.' "
Around 9:00 a.m. on the morning after the robberies, Nadine Van Buskirk, who lives at Sussex Circle, was in her backyard when she saw a man—later identified as appellant—"pop" over the fence. Appellant asked if Buskirk had seen "a tall blond guy run through [her] backyard." He said "that guy had stole[n] his son's bike and he was trying to retrieve" it. Hours before this, at about 2:00 a.m., police had arrived at Buskirk's home to search her backyard. During the search, police had discovered a single "black Air Jordan shoe" in the backyard of the house that bordered Buskirk's house.
Quincy Chrisman testified at trial that around midnight on October 4, 2010, appellant called to tell him that he and his friend "knew where they could come up on a whole lot of weed and that they needed a ride." Chrisman picked appellant up in Fairfield, and appellant told Chrisman to drive to a truck that was parked in front of a house. Appellant got out of the car and directed Chrisman "to pop the trunk and to turn [his] headlights off." When appellant walked over to the truck, Chrisman noticed a .45 caliber automatic firearm on the front passenger's seat where appellant had been sitting.
Appellant called to Chrisman "to help him grab something out [of] the truck." Chrisman grabbed the gun and put it in the pocket of his "hoody." He then helped appellant move "some type of air pump" from the truck to Chrisman's trunk. At that point, "a white man" pulled up and parked behind the truck, and appellant "jumped back in [Chrisman's] car into the driver's seat and pulled up the street[.]" When the "white man" "rushed" towards Chrisman, asking "What the hell are you guys doing?," Chrisman "pulled the gun on him." The man ran away, and Chrisman and appellant fled.
Chrisman returned the gun to appellant and followed appellant's direction on "how to get to his friend's house." In Vacaville, appellant told Chrisman to turn the car around and pull up next to a couple "walking down the street." When Chrisman stopped the car, appellant "jumped out" with the gun in his hand. Chrisman saw appellant point the gun at a man's head, and heard him demand money and order the couple to "the ground." Chrisman took the woman's purse and wallet, and when the man told appellant he had no money, appellant "hit him in the face with the gun." Appellant then got into Chrisman's car and started driving away; Chrisman "chased after the car and jumped in the passenger's seat." After discovering there was no money in the purse or wallet, Chrisman threw the items out of the window. A witness testified he found a woman's wallet on the Highway 80 entry ramp in Vacaville.
Vacaville Police Officer Mark Fereira testified that on October 9, 2010, Chrisman called to ask him to come to the county jail to talk to him. During the conversation, Chrisman admitted that he and another person committed the robberies in Fairfield and Vacaville, and eventually identified his accomplice as "Brah Stevie." Appellant's nickname was "Stevie." Chrisman also told Ferreira that the iPhone found in the Charger belonged to appellant.
Prosecution's Case — Murder
On or about October 9, 2010, Danyelle Daniels was at her friend Raymia Leaks's house when she got into a verbal argument with Shamar Sims. The next day, Daniels and Sims got into another argument at Leaks's house. Daniels tried to leave as the argument escalated, but Sims followed her outside, attacked her, and tried to steal her purse, causing her to fall to the ground. Daniels's boyfriend Jamal Thornton took Daniels to the doctor because Daniels could not move her right arm as a result of Sims's attack.
Because of the incident between Daniels and Sims, Thornton and Sims agreed they would engage in a fistfight at Armijo High School on October 11, 2010. On October 11, 2010, Daniels and Thornton picked up Leaks and Leaks's friend and headed over to the high school; when they arrived, Sims was already there with at least one "female and two other males."
Shortly after Sims and Thornton began to fight, Sims stopped to adjust bandages he had wrapped around his hands, telling Thornton to "Hold on." Thornton said, "There ain't no hold on in the fight." A man wearing a black "hoody" came out of the crowd of onlookers, walked up to Thornton and said, "Didn't you hear my friend. [¶] He said hold on." When Thornton responded, "Shut your bitch ass up, because you can get it too[,]" the man walked up to Thornton and said, "What did you say?" After Thornton repeated himself, the man pulled out a gun he had been holding behind his back and shot Thornton in the head. The shooter then walked over to where Thornton lay on the ground, stood over him, and fired three to five shots at him before leaving the scene.
At trial, Leaks identified appellant as the shooter. After viewing a photographic lineup, bystander Radleigh Benning told police that he was "30 percent certain" that appellant was the shooter. Later, when he was shown a lineup that included a more recent photograph of appellant, Benning said "he was almost certain that [appellant was] responsible for the shooting[.]" During an autopsy, four bullet slugs were removed from inside Thornton's body—one each from his neck and head, and two from his upper back.
At about 12:35 a.m., on November 3, 2010, Fairfield Police Officer Brent Pucci stopped a car just outside a McDonald's restaurant in Fairfield; appellant was in the front passenger seat. There were three McDonald's bags in the car—one near a back seat passenger, and two in the center console area, with one touching appellant's left leg. Inside the bag that was touching appellant's leg was a loaded "Springfield Armory compact .45 caliber semiautomatic handgun" with a round in its chamber and a magazine in the gun.
According to two Department of Justice criminalists, the five casings found near Thornton's body at Armijo High School were fired from the gun that was found next to appellant. Cell phone records for a cell phone used by appellant showed that for the half hour before and just after Thornton was killed, the phone was in the area near Armijo High School.
Defense Case
Mitchell Eisen, Ph.D., a memory expert, testified that there are "limits on our attentional capacity," i.e., "limits on how much information we can take in at once and how perfectly we can hold on to it over time." Sometimes, people "use inferences to fill in the gaps," which can lead to them remembering things inaccurately. Stress and trauma are "enormous distraction[s]" and can preoccupy "our senses so much" that they can also affect memory. The presence of a weapon, for example, can prevent people from "forming good memories" or identifying suspects, because they are "so preoccupied with the threat."
A pre-lineup admonishment can help a person understand that the suspect is not necessarily in the lineup, but it is essentially "just a legal instruction" that some people may not take to heart. Witnesses who do not recognize anyone in a lineup may "still press forward" "to find the picture that's closest or most similar" because they "want to get the bad guy." A witness who misidentifies someone as the suspect is likely to continue making the same misidentification in subsequent lineups simply because "it has familiarity." This is known as the "carryover effect," i.e., "the [familiar] face carries over to the next identification test." "Unconscious transference" can also happen in identification; this means that a witness mistakenly selects a bystander as the perpetrator because the bystander was at the scene and therefore looks familiar.
DISCUSSION
Motion to Sever
Appellant contends the trial court abused its discretion in denying his motion to sever the murder and firearm charges from the three robbery charges. We disagree.
Before trial, appellant moved to sever the murder and firearm charges from the three robbery charges. The trial court denied the motion, stating, "I think joinder is proper, given the class of crimes and the type of crimes that are alleged. All of these crimes really are connected in their commission . . . [¶] There's some cross-admissibility of evidence, vis-à-vis the phone and the gun. . . [¶] The joinder is not going to be permitting the admissibility of otherwise inadmissible evidence. Like a prior felony conviction or something of that nature, that might come in under one count versus another. [¶] And there's some longstanding Supreme Court cases . . . talking about crime sprees and how, generally, joinder is proper in those kinds of cases. And we have . . . all these events occurring at a fairly close period of time, I think within a couple of weeks, start to finish."
Section 954 provides: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." Where the requirements for joinder are satisfied, a defendant can predicate error only on a clear showing of potential prejudice. (People v. Johnson (1988) 47 Cal.3d 576, 587; People v. Bean (1988) 46 Cal.3d 919, 938 ["The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried"].)
The trial court's ruling on a motion to sever is judged by the information available to the court at the time it heard the motion, and is reviewed for abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th 353, 409; People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.) Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) some of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.) Where the counts are properly joined, " 'the difficulty of showing prejudice from denial of severance is so great that courts almost invariably reject the claim of abuse of discretion.' " (People v. Matson (1974) 13 Cal.3d 35, 39, quoting Witkin, Cal. Criminal Procedure, p. 288.)
"[T]he first step in assessing whether a combined trial was prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled." (People v. Balderas (1985) 41 Cal.3d 144, 171-172, superseded on other grounds by Code Civ. Proc. § 223.) Complete, or "two-way" cross-admissibility is not required. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221.) Moreover, "even the complete absence of cross-admissibility does not, by itself, demonstrate prejudice from a failure to order a requested severance. We repeatedly have found a trial court's denial of a motion to sever charged offenses to be a proper exercise of discretion even when the evidence underlying the charges would not have been cross-admissible in separate trials." (Ibid., italics omitted.)
Here, because appellant was charged with three counts of robbery and one count of murder—which were the same class of crimes—the statutory requirements for joinder were satisfied. (See People v. Walker (1988) 47 Cal.3d 605, 622 [robbery, murder, and assault with intent to commit murder all assaultive crimes against the person and are properly joined].) Accordingly, appellant can establish error only upon a clear showing of potential prejudice. (Ibid; People v. Osband (1996) 13 Cal.4th 622, 666.)
Applying the four factors set forth above, we conclude the trial court did not abuse its discretion in denying appellant's severance motion. Evidence of the robberies would have been admissible at a separate trial on the murder. For example, the iPhone found in Chrisman's car after the robberies linked appellant to the robberies, and cell records indicated the phone was used at Armijo High School right around the time of the murder. Further, Fairfield and Vacaville police departments shared information on the crimes in order to determine both the identity of Chrisman's accomplice in the robberies and the identity of the shooter in the homicide. Thus, at the time of the severance motion, the court could reasonably believe that officers from both departments would need to testify at separate trials. (See People v. Balderas, supra, 41 Cal.3d at p. 174 [where common police investigation of two incidents was conducted, "it was reasonable to assume that there would be common police witnesses" at trial].)
Appellant argues there was no cross-admissible evidence, because at the time the trial court ruled on the severance motion there was no reason to believe that Chrisman would testify at appellant's trial. The record, however, shows that as early as December 17, 2010—nearly a month before the preliminary hearing—the prosecutor had advised the trial court that Chrisman might very well "become a witness in Mr. Washington's matter."
The robberies and murder were also committed within a week of each other, and were presumably committed with the same gun; they therefore shared elements of substantial importance. (See Alcala v. Superior Court, supra, 43 Cal.4th at p. 1218 [charges connected together in their commission if they share element of substantial importance; this requirement may be satisfied "even though 'the offenses charged "do not relate to the same transaction and were committed at different times and places . . . against different victims." ' "].) Trying the two cases together in light of this common evidence was also expeditious. (See People v. Johnson, supra, 47 Cal.3d at p. 590 ["In weighing its discretionary power to order separate trials, the trial court could consider this interplay of evidence between the [various] occurrences."].)
Further, even assuming there was insufficient evidence of cross-admissible or cross-linked evidence, we conclude the trial court did not abuse its discretion because none of the remaining factors favored severance. None of the charges was unusually likely to inflame the jury against appellant. (See, e.g, People v. Balderas, supra, 41 Cal.3d at p. 174 [where charged crimes did not include "'gang warfare' evidence" or charges of child molestation, "there was no charge or evidence particularly calculated to inflame or prejudice a jury"].) Further, none of the cases was significantly weaker or stronger than the others, such that the "spillover" effect of aggregate evidence on the three charges might alter the outcome of some or all of the charges; rather, there was strong evidence pointing to appellant's guilt as to each count. (See Belton v. Superior Court of Los Angeles (1993) 19 Cal.App.4th 1279, 1284 [the defendant failed to show potential for prejudicial spillover effect where there was no "extreme disparity" between strength of evidence].) Finally, joinder of these charges did not turn this into a capital case.
We also note the trial court properly instructed the jury on the elements of murder and robbery, the burden of proof to convict appellant, and that each count charged a distinct offense the jury was to decide separately. (CALCRIM Nos. 103, 220 [Presumption of Innocence and People's Burden of Proof/Reasonable Doubt], 520, 521 [First and Second Degree Murder], 1600 [Robbery], 3515 [Multiple Counts: Separate Offenses].) These instructions mitigated the risk of any prejudicial spillover from one case to the other as the jury is presumed to have understood and followed them. (People v. Coffman (2004) 34 Cal.4th 1, 83.)
To the extent appellant claims his due process rights were violated by the joinder of the three charges, we reject his claim. Even if the trial court's ruling was proper when made, the reviewing court must reverse if the defendant "shows that joinder actually resulted in 'gross unfairness,' amounting to a denial of due process." (People v. Arias (1996) 13 Cal.4th 92, 127.) "Gross unfairness" in violation of due process is an error of federal constitutional proportion. (See People v. Rogers, supra, 39 Cal.4th at p. 850.) To make such a showing, the defendant must show there were no permissible inferences the jury could draw from the challenged evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) " 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." ' " (People v. Albarran, supra, at pp. 229-230.) Appellant has made no showing that this is one of those "rare and unusual occasions" in which gross unfairness occurred. (See ibid.; see also People v. Sapp (2003) 31 Cal.4th 240, 259-260 ["Having concluded that defendant suffered no prejudice from the joint trial of the three murder counts, we also reject his contention that the joint trial violated his due process rights"].)
Jury Instructions
CALCRIM No. 371 - Awareness of Guilt
Appellant contends the trial court erred in failing to instruct the jury with CALCRIM No. 371, Alternative C. Appellant forfeited the issue by failing to request the instruction below. (People v. Moore (2011) 51 Cal.4th 1104, 1144.) We also conclude the court had no sua sponte duty to give the instruction, and that appellant suffered no prejudice.
CALCRIM No. 371, Alternative C, provides: "If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his/her guilt, but only if the defendant was present and knew about that conduct, or, if not present authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
At trial, several witnesses to the homicide testified they were afraid of retaliation. Appellant acknowledges the testimony was admissible, and that the trial court instructed the jury that the testimony could be considered only as evidence of the witness's state of mind, not for its truth. He nevertheless argues the court had a sua sponte duty to give the above instruction because this is an "extraordinary" situation. He claims the jury could have inferred from his gun use during the robberies of Flores and Lee that he must have participated in any attempts to intimidate witnesses who testified against him. (Citing People v. Lang, supra, 49 Cal.3d at p. 1020 [the court may have a sua sponte duty to give a limiting instruction in the "occasional extraordinary case" in which the challenged evidence is minimally relevant and highly prejudicial].) He argues the jury could have also inferred his consciousness of guilt.
We disagree that any "extraordinary" circumstances existed in this case. As noted, the challenged evidence was not admitted for its truth, and the trial court properly instructed the jury as to the limited nature of this testimony. (See People v. Danielson (1992) 3 Cal.4th 691, 722 [we presume the jury understood and followed the court's instructions], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) Moreover, there was no evidence that appellant authorized any intimidation attempts against any of the witnesses in this case, and there were no claims or argument made at trial that the challenged testimony reflected consciousness of guilt. Under these circumstances, the court did not have a sua sponte duty to give the instruction.
Even assuming the trial court should have sua sponte given the instruction, we conclude there was no prejudice. As noted, the court expressly instructed the jury on the limited nature of this testimony at the time the relevant witnesses testified, and reiterated the point during closing instructions. There was no evidence that appellant authorized the intimidation of any witnesses in this case, or that he was aware of such intimidation. Moreover, the evidence supporting the charges was overwhelming. As to the robberies, the jury heard Harrison's testimony and in-court identification, Buskirk's testimony about seeing appellant in her backyard after the robberies, and Chrisman's testimony regarding appellant's role in the robberies, and the presence of appellant's cell phone inside Chrisman's car. As to the murder, Leaks and Benning identified appellant as the shooter, and appellant was stopped by police just a few weeks after the murder, in possession of the murder weapon. Cell phone records showed he was at the scene of the murder just before and after the murder occurred. It is not reasonably probable the verdict would have been more favorable to appellant had the court given the instruction. (People v. Watson (1956) 46 Cal.2d 818, 836.)
CALCRIM No. 521 - Second Degree Murder
Appellant contends the trial court erroneously instructed the jury with CALCRIM No. 521 as to second degree murder. Specifically, he argues that because the court defined "willfully" as the intent to kill, it led the jury to erroneously believe "that, if it did not find he intended to kill, he nevertheless was guilty of second-degree murder." We reject the contention.
In determining whether instructional error has occurred, the reviewing court must consider the record as a whole, including the specific language challenged, other instructions given, and the arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36-37.) Unless there is a reasonable likelihood the jury misunderstood the challenged instruction in a manner that violated defendant's rights, the court must uphold the court's charge to the jury. (Ibid.) The court must assume jurors are intelligent persons, capable of understanding and correlating all jury instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
Preliminarily, we note that because CALCRIM No. 521 contains a correct statement of the law (see, e.g., People v. Perez (1992) 2 Cal.4th 1117, 1123), appellant's failure to request amplification or clarification forfeits his claim on appeal. (People v. Andrews (1989) 49 Cal.3d 200, 218.) In any event, the trial court's definition of "willfully" as "intent to kill" was proper. (People v. Moon (2006) 37 Cal.4th 1, 29 ["A willful murder is an intentional murder, and malice is express when there is an intent to unlawfully kill a human being"].) Moreover, in view of the entire charge to the jury, it is not reasonably likely the jury misunderstood the instruction as to second degree murder.
Appellant claims the trial court instructed the jury with a modified version of CALCRIM No. 521, and further argues that the final paragraph of the instruction should have read as follows: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." Appellant, however, is citing to the 2014 version of CALCRIM No. 521, which was not yet in effect at the time appellant's trial took place in the spring of 2012. The record shows the court properly instructed the jury with the version that was in effect at the time of trial.
The trial court instructed the jury with CALCRIM No. 520 as to the general principles of murder, including defining both express and implied malice, and instructed the jury in the last paragraph: "If you decide that the defendant committed murder, you must then decide whether or not it is murder of the first or second degree." The court also instructed the jury with CALCRIM No. 521, as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death. Any murder that does not meet these requirements for first degree murder is second degree murder. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
Appellant claims the jury was "forced" to convict him of second degree murder rather than voluntary manslaughter, but the instructions made clear that the jury had to find appellant committed murder—e.g., that he harbored express or implied malice—before it could move on to the next step of determining whether it was murder in the first or second degree. We also note the trial court properly instructed the jury on heat of passion manslaughter with CALCRIM Nos. 522 and 570. Pursuant to these instructions, if the jury found that appellant had been provoked, and that as a result of that provocation had "acted rashly and under the influence of intense emotion that obscured his reasoning or judgment" and that the "provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment[,]" appellant was guilty only of voluntary manslaughter. These instructions were proper. (See People v. Bryant (2013) 56 Cal.4th 959, 968 ["A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life—and therefore would normally constitute murder—is nevertheless reduced or mitigated to manslaughter"].) We are satisfied the jury understood the legal principles and its duties.
Even assuming the jury misunderstood the instruction as to second degree murder, we conclude it is not reasonably likely the verdicts would have been more favorable because there was ample evidence to support the jury's verdict of second degree murder. In addition to Leaks's and Benning's identification of appellant, the cell phone evidence, and appellant's possession of the murder weapon just weeks after the murder, the evidence showed that appellant shot Thornton in the head, then stood over him and fired several additional shots as Thornton lay on the ground. The evidence was sufficient to support a finding that appellant killed Thornton with malice aforethought. (See e.g., People v. Gaulden (1974) 36 Cal.App.3d 942, 952 [number of wounds on victim's body constituted "circumstantial evidence of malice upon defendant's part"].)
In contrast, there was minimal evidence of heat of passion manslaughter. After appellant said, "didn't he say hold on?" Thornton told appellant "Shut your bitch ass up, because you can get it too." "The use of words commonly employed to taunt another, however grievous, does not ordinarily drive a reasonable person to such passion as would reduce an unlawful killing to manslaughter." (Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 236 (3), p. 1059.) Thus, the fact that the victim was " 'talking all sorts of shit' " to rival gang members was insufficient provocation in People v. Enraca (2012) 53 Cal.4th 735, 743, 759. In People v. Manriquez (2005) 37 Cal.4th 547, 585-586, the victim's acts of calling the defendant a " 'mother fucker' " and taunting him to use a weapon were "plainly . . . insufficient" to constitute provocation.
Similarly, the statements Thornton made to appellant during the fight were insufficient to constitute provocation. There was also no evidence that appellant "acted rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.) Rather, the evidence showed that appellant walked up to Thornton, and after making and receiving certain comments, calmly and deliberately shot Thornton several times. It is not reasonably probable the verdict would have been more favorable to appellant had the trial court instructed the jury as urged by appellant. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Chrisman's Testimony
Appellant contends the trial court denied his due process rights by allowing Chrisman to testify because Chrisman's plea agreement was coercive, and his testimony was unreliable. Appellant forfeited this claim by failing to object below. (People v. Cua (2011) 191 Cal.App.4th 582, 591 [forfeiture of due process claim by failing to assert the claim below].) We conclude the contention also fails on the merits.
" ' "[A] defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion. Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police, or that his testimony result in the defendant's conviction, the accomplice's testimony is "tainted beyond redemption and its admission denies the defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid. . . . These principles are violated only when the agreement requires the witness to testify to prior statements regardless of their truth, but not when the truthfulness of those statements is the mutually shared understanding of the witness and the prosecution as the basis for the plea bargain." ' " (People v. Homick (2012) 55 Cal.4th 816, 862-863, internal citations omitted.)
The defendant has the burden of showing that a witness or codefendant's testimony was involuntary. (People v. Williams (2010) 49 Cal.4th 405, 453.) The question of coercion is a factual inquiry that is determined by looking at the totality of the circumstances. (People v. Quiroz (2013) 215 Cal.App.4th 65, 78-79.)
Appellant complains that the first paragraph of the plea agreement provided: "While in custody, QUINCY CHRISMAN gave a truthful statement to Vacaville Police Department Detective Ferreira, detailing his involvement and the involvement of [his] co-defendant in the crimes they committed on October 4, 2012." According to appellant, because this paragraph "defined the truth as that which Chrisman told [Detective] Ferreira] in the statement he gave[,]" Chrisman's testimony at trial was "tainted beyond redemption."
Appellant's claim mischaracterizes the highlighted paragraph and takes it out of context because it simply provides that Chrisman gave a truthful statement to Ferreira. The plea agreement states at least six other times that a condition of the agreement is for Chrisman to testify truthfully. Thus, this is not a case like People v. Medina (1974) 41 Cal.App.3d 438, in which the court held the defendants were denied fair trials because two key witnesses had testified pursuant to a plea agreement requiring that they not materially or substantially change their testimony from the tape-recorded statements they had earlier given to police.
Rather, this case is more like People v. Allen (1986) 42 Cal.3d 1222, 1251-1252 (Allen) in which the California Supreme Court rejected a nearly identical claim to the one made here. The Supreme Court in Allen cited to the case of People v. Fields (1983) 35 Cal.3d 329 (Fields), in which the court held that defendant's sister's testimony was not coercive where her plea agreement required her to testify "as to the truth." Although the sister testified at trial that she had agreed to testify in accord with her last statement to police, she also stated in response to the prosecutor's questions that she had only agreed to tell the truth. (Fields, supra, 35 Cal.3d at p. 361.) The Supreme Court quoted this portion of the Fields case with approval: "We recognize that a witness in [the sister's] position is under some compulsion to testify in accord with statements given to the police or the prosecution. The district attorney in the present case obviously believed that [the sister's] last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. But despite this element of compulsion, it is clear, and the cases so hold, that an agreement which requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain. We believe the requirements of due process . . . are met if the agreement thus permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account." (Allen, supra, 42 Cal.3d at pp. 1252-1253.) Similarly, here, Chrisman's plea agreement required only that he testify truthfully, and was not unduly coercive.
Moreover, even assuming the trial court erred when it allowed Chrisman's testimony into evidence, we conclude any error was harmless. Although Chrisman's testimony was important to support the robbery charges, the prosecution's case did not depend substantially on his testimony. As noted, the jury heard Harrison's testimony, which included detailed facts about the robbery, his identification of the Charger and stolen items shortly after the robbery occurred, and his identification of Chrisman at the scene, and of appellant at trial. Flores and Lee testified regarding the robberies and attack, and their testimony included identification of the Charger, a general description of the suspects, and identification of Chrisman. Chrisman's testimony was also supported by appellant's cell phone being found in his car right after the robberies, and by Buskirk's testimony that appellant was in or near her backyard shortly after Chrisman's accomplice fled from the area. "In view of the abundant 'corroborating circumstances' showing [Chrisman] testified truthfully, . . . there was no reversible error in allowing the testimony." (People v. Morris (1991) 53 Cal.3d 152, 191-192, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Firearm Enhancements
Appellant contends that based on new legislation that gives trial courts discretion to strike or dismiss certain enhancements, the matter must be remanded "to permit the sentencing judge to exercise its new statutory discretion to strike the firearm enhancements imposed in this case." We reject the contention.
At noted, appellant's sentence included a 25-year enhancement under section 12022.53, subdivision (d), in connection with his second degree murder conviction, as well as one 10-year enhancement and one three-year, four-month enhancement under section 12022.53, subdivision (b), in connection with his robbery convictions. At the time appellant was sentenced, the trial court was prohibited from striking or dismissing a firearm enhancement under section 12022.5. If the allegation was found true, imposition of the enhancement was mandatory. (Former § 12022.5, subd. (c).)
As amended, section 12022.5, subdivision (c), now provides: "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." Appellant argues—and the Attorney General (respondent) concedes—that the amendments apply retroactively to this case. We agree. The discretion to strike a firearm enhancement under section 12022.5 may be exercised as to any defendant whose conviction is not final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 745-748.)
Respondent argues, however, that the record demonstrates the trial court would not have exercised its discretion to lessen appellant's sentence, and that remand is therefore unnecessary. (Citing People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand warranted where the record contains a clear indication of the sentencing judge's intent—e.g., the defendant is "the kind of individual the law was intended to keep off the street as long as possible"—and no purpose would be served by remand].) Appellant argues that in his case, the record does not unequivocally show that the court would not have exercised its discretion to strike the firearm enhancements.
We agree with respondent that no purpose would be served by remand. In arguing for a more lenient sentence, defense counsel asked the trial court to take into consideration the various "legislative commandments"—including mandatory firearm enhancements—in coming up with a "fair sentence" and a "number of years in prison" that is overall "the right conclusion." The court in this case, knowing full well that any sentence would be increased due to the then-mandatory firearm enhancements, nevertheless imposed aggravating and consecutive terms. The court acknowledged the lengthiness of a "40 years to life" sentence, but explained as to the robberies: "we have the robbery of Mr. Harrison first in Fairfield, and we have just that vicious, cruel, callous behavior by the defendant towards Mr. Lee. Striking him on the head with a gun, even though Mr. Lee said he had no money." [¶] We have those two victims that are particularly vulnerable. They're just walking down the street when the car pulls up. I just have a hard time getting past those." In imposing a consecutive sentence, the court acknowledged it has discretion to impose a concurrent sentence but stated that both robberies were violent felonies and that "consecutive sentencing is appropriate, based upon the testimony that I heard." The court told appellant in closing that he had caused "an incredible amount of harm to others." On this record, we have no doubt the court would not find it in the interests of justice to strike the firearm enhancements.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------