Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. 99F01176
MORRISON , J.
A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a), § 189), finding that he personally discharged a firearm in the commission of the offense (Pen. Code, § 12022.53, subd. (d)) and murdered a peace officer in the performance of his duties (Pen. Code, § 190, subd. (c)). The trial court sentenced defendant to state prison for a term of life without parole for the murder, and to 25 years to life for defendant’s use of a firearm. Defendant appeals, raising various claims of evidentiary and instructional error. He also challenges the sufficiency of the evidence to support the murder verdict, contends the court erred in denying his change of venue motion, maintains he was deprived of due process when his sentence was increased based on an enhancement that was not alleged in the information, and contends his sentence and the lack of a trial on mitigating circumstances violate equal protection. We shall affirm the judgment.
FACTS
On February 9, 1999, defendant was a “parolee at large,” with a warrant out for his arrest based on his failure to report to his parole agent. As conditions of his parole he could not possess any weapons and was required to submit to monthly drug testing. On November 2, 1998, defendant gave a urine sample and told his parole officer he was not sure it would be clean. Defendant did not contact his parole agent as required after the test. In February 1999, the parole agent saw defendant at the Arden Fair Mall and told him to come to the parole office and work it out. It was “not a big deal.”
Two days later, on February 9, 1999, defendant, while in possession of a firearm, rented an Oldsmobile Cutlass from Robert Mapp. He used cocaine as payment. Mapp gave defendant a written note confirming that he had rented the car to defendant. Minutes after defendant drove away with the car, Mapp heard gunshots. Defendant had fatally shot Sacramento Police Officer William Bean, Jr., while Bean was on patrol in Del Paso Heights.
The evening of February 9, 1999, Officers David Hogge and Bean were working a routine shift in Del Paso Heights and had spent much of the evening running the license plate numbers of various vehicles to see if they were stolen. At 8:17 p.m., they observed a car being driven by defendant, ran the license plate number and discovered the vehicle was not stolen; it belonged to a couple in Elverta. Suspicious, Hogge looked for equipment violations and noticed that the windshield was cracked, and that the crack extended from the driver’s side across toward the passenger’s side. Based on the windshield crack, the officers decided to stop the vehicle.
Hogge, who was driving, turned on the overhead lights and defendant pulled over. Hogge approached defendant while Bean provided cover. Hogge asked defendant who owned the car, and defendant replied he had permission from a friend to drive it and showed Hogge the note from Mapp. Defendant identified himself as Christopher Wright and denied having any identification or a driver’s license. The officers asked defendant to get out of the car. When Hogge took a step back to give defendant room to exit, defendant slammed the gearshift into drive and sped away.
The officers ran back to their car and gave chase, activating their lights and siren, and notifying dispatch that they were involved in a pursuit. Hogge noticed that defendant’s car was slowing down; it coasted through a stop sign. Suspecting that defendant might have stalled the car, Hogge turned off the siren to listen for defendant’s motor. It sounded as if the engine was not running and defendant was attempting to restart the car.
The officers followed defendant until he pulled his vehicle next to an open field. Anticipating that they would have to chase defendant, Hogge asked Bean, “Do you got [sic] him Bill?” Hogge saw defendant open his car door and heard Bean cracking open his car door. Defendant had a gun in his hand, and Hogge yelled “gun” to alert Bean to the danger. Hogge, who thought he had placed the car into park, got out, stayed low and heard several shots to the right. He heard four to seven shots when defendant got out of his car. Hogge realized his car was not in park as it was still moving, which meant he could not use the car for cover. Hogge then noticed that Bean was lying on the ground on his back, pleading, “Oh God, oh God, help me.”
Hogge spotted defendant running northbound and began to chase him, shooting as he ran. He also used his hand radio to report that Bean had been shot and needed an ambulance. Hogge saw defendant run between a house and a vehicle before Hogge lost sight of him. He formed part of a perimeter by standing at a nearby corner and when other officers arrived, Hogge pointed out defendant’s last location. A sergeant informed Hogge that they needed to pull him from the scene.
When Sergeant Timothy Hunter responded to the scene, he discovered Bean was not moving and was unresponsive. He called for life flight. Bean’s gun was still in his holster and was fully loaded, indicating it had not been fired. Hunter testified Hogge was upset, but in control.
Around 1:30 a.m., Sergeant David Kidd and SWAT team members located defendant hiding in a backyard with a nine-millimeter Glock handgun at his feet.
Detective Toni Winfield was a lead investigator of the shooting. She interviewed Hogge around 11:45 p.m. the night of the shooting. She observed that Hogge was devastated; he had a difficult time with his words, was emotionless, and appeared to be in shock. When Winfield learned that a suspect had been apprehended, she took Hogge for an in-field identification. Hogge positively identified defendant as the man who shot Bean. Hogge told Winfield he shot while he was in the field, but he was confused and struggling. Another officer reported Hogge said, “Oh God, I don’t remember now for sure if I saw a gun or not.” It was unclear exactly the time frame to which Hogge was referring.
Hogge surrendered his Sig Sauer .226, nine-millimeter semiautomatic handgun and magazine to Sergeant Richard Gardella. Gardella determined that seven rounds were missing.
Winfield’s partner, Detective Jeffrey Gardner, was in charge of the crime scene investigation. When he arrived at the scene, he noticed that Hogge’s patrol car had come to rest against a street sign, and the lights were still on. The car was in drive. Defendant’s vehicle was stopped on the sidewalk and the front passenger door had a partially shattered window.
Gardner took control of the Glock handgun that had been found near defendant. It had a scratched out serial number, a live round in the chamber, and two other rounds in the magazine. Officers found nine shell casings; four were near defendant’s car and five were in the nearby field, three of which were on the north side of defendant’s car. According to Gardner, six casings came from Hogge’s gun and three were from the Glock. Of the three shots from the Glock, one bullet went through the window of defendant’s car, one went into a house across the street, and one killed Bean.
Defendant had gunshot residue on his right hand, which indicated he had fired a weapon or handled one that had recently been fired.
Bean died from a gunshot wound to the chest. The trajectory of the bullet was downwards. The bullet entered the back of Bean’s left tricep, went through the muscle to the thoracic cavity, fracturing a rib, then traveled to his lung lobe, severing the aorta and striking the spinal column. It then hit the azygos vein and traveled to the lower lung lobe, fracturing another rib. It was an unsurvivable injury. Once the cardio vascular system is breached, blood pressure drops to zero, and the patient has about 10 to 15 seconds of cerebral function and, in this case, instant paralysis from the waist down.
Bruce Moran, a criminalist and expert in firearms, tool marks, and crime scene reconstruction, opined three of the discovered shell casings were fired from the retrieved Glock. Due to the poor reproducing identifiable marks of polygonal rifled bores, he was unable to positively identify the Glock as the gun that fired the fatal shot, but it could not be eliminated. He was able to eliminate Hogge’s weapon as firing the fatal shot. Although he originally believed the Glock had been fired from inside the car, he ultimately concluded it was fired from outside. The most practical scenario was that the shot that hit defendant’s car was fired from about 12 feet away. Two shots from the Glock were fired close together; either the shooter was stationary or not moving much. The shell casing from what was probably the fatal shot was not found where it should be if the shooter had just stepped from the car, but the casing could have been inadvertently moved. Moran found nothing that was inconsistent with the defense theory that defendant got out of the car, ran into the field, Hogge fired four shots, defendant returned fire and fell, got up and fired twice more.
Hogge had been involved in a prior shooting of a man named Scott Allen in 1994. Hogge described the incident. He had his neighbor with him on a ride-along one night. Two white males drove by and the driver either “flipped [Hogge] off” or mouthed “F-you.” Hogge made a U-turn, saw an equipment violation, and attempted to pull the car over. The car sped off at a high rate of speed and eventually turned into a court where it ran into a mailbox cluster. When Hogge stepped out of his car, he saw a muzzle flash. He yelled “gun, shotgun” to his ride-along. The driver charged Hogge, firing. Hogge shot him several times, although he did not remember shooting. He was finally able to get his radio and call for backup. When Hogge returned to the scene later, it was not as he remembered it; he did not recall returning fire right away. Hogge explained that when someone is shooting at him, the adrenaline rush of police work is gone; he shuts down and his training takes over. He does not think; he simply reacts.
The defense called several people who lived near the shooting. They testified they heard three or four rapid shots that night. One neighbor testified she heard arguing, then shooting.
Defendant testified on his own behalf. He denied knowing that he was a parolee at large. He owned a nine-millimeter Glock although he knew he was not permitted to own weapons. At about 8:00 pm on February 9, he was driving down Grand Avenue when the police stopped him. He had the gun in his waistband. Hogge asked him who owned the car and defendant gave him the note. Bean said, “let’s go,” but Hogge was upset. He told Bean to cover him. Hogge said, “I could kill this motherfucker and it would be one less nigger society would have to deal with.” Bean said, “get the hell out of here.” When Hogge stepped back from the car, defendant took off.
At the second stop, the officers got out first. Defendant got out and walked towards the officers “to see what the problem was.” He heard screaming; Bean said to Hogge, “What the hell is your problem? What are you doing?” Defendant took off running. Hogge fired at him. Defendant ducked, pulled out his gun and fired. He ran into the field and fell, getting mud on his pants. He got up and ran. Hogge fired again and defendant returned two shots. Hogge fired two or three more times while defendant ran. Defendant did not mean to shoot anyone; he was positive that Hogge shot first.
John Thornton, a forensic scientist and expert on crime scene reconstruction, testified for the defense. He did an ejection pattern test on Hogge’s gun; the Sig Sauer had a more consistent ejection pattern than the Glock. Thornton agreed with Moran’s findings on the shell casings; three were from the Glock and six from the Sig Sauer. He believed the car defendant was driving was moved after the shooting, based on the location of the broken glass from the passenger window. In his opinion, the physical evidence was not consistent with Hogge’s testimony that he heard four to seven shots within one or two seconds after defendant got out of the car. One cartridge from the Glock was near a lamp post and two were in the field. If the neighbors’ testimony about three or four shots in rapid succession was true, he could rule out the Glock as the source of those shots. Thornton agreed the fatal shot came from the Glock. He could not say if four shots from the Sig Sauer were fired in rapid succession; there was some movement of the shooter. Thornton agreed there were a number of plausible explanations for where the shell casings ended up, including the possibility that someone kicked them.
The prosecution argued the case came down to whom the jury believed: Hogge or defendant. Although Hogge was mistaken about the number of shots defendant fired, the prosecutor argued he was more credible. Defendant’s version of events, especially that he walked towards the officers when he got out of his car, did not match the testimony of the defense expert Thornton.
The defense was self-defense, that Hogge fired first and then lied about what happened that night.
The jury deliberated over seven days. The jury asked several questions, and at one point appeared deadlocked. After further instruction and a few more days of deliberation, the jury reached its verdict.
DISCUSSION
I. Substantial Evidence of Second Degree Murder
Defendant contends there is insufficient evidence to support a conviction of second degree murder. Specifically, he contends there is insufficient evidence to establish malice because the prosecution failed to prove that defendant, not Hogge, fired first.
“To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. [Citations.]” (People v. Johnson (1993) 6 Cal.4th 1, 38.)
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice may be express or implied. Express malice requires a deliberate intention to kill unlawfully. (Pen. Code, § 188.) Malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.) Implied malice has both a physical and a mental component. The physical component requires an act dangerous to human life; the mental component requires defendant know his conduct endangers another, but acts with conscious disregard for life. (People v. Patterson (1989) 49 Cal.3d 615, 626.)
The Attorney General contends that Hogge’s testimony is sufficient to establish malice. Hogge testified that after the second stop, defendant fired first, killing Bean. Intentionally firing a shot at a victim at close range is an act dangerous to human life and presents a high probability of death, so it is sufficient to establish implied malice, even if the jury does not find an intent to kill. (People v. Woods (1991) 226 Cal.App.3d 1037, 1048; see also People v. Lee (1987) 43 Cal.3d 666, 679 [firing at armed police officers shows an intent to kill as defendant places himself in a “kill or be killed” situation].) The testimony of a single witness is sufficient evidence to support the verdict. (People v. Zavala (2005) 130 Cal.App.4th 758, 766.)
Defendant contends Hogge’s testimony does not provide substantial evidence because it is improbable. To be substantial, evidence must be “of ponderable legal significance . . . reasonable in nature, credible, and of solid value. [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.) Defendant contends Hogge’s testimony is improbable because it is inconsistent with the physical evidence. Hogge was wrong that defendant fired four to seven shots; only three shell casings from the Glock were found. These shell casings were not where they should have been if, as Hogge testified, defendant fired immediately upon getting out of the car.
That Hogge’s testimony was not completely consistent with the physical evidence found at the scene did not require that the jury disregard it entirely. The People conceded Hogge’s account of the number of shots fired at him and at Bean was incorrect. It is hardly surprising that one being fired at would recall more shots than were actually fired. Further, there was no indication that the scene of the killing was untouched before the crime scene investigators began their work. Dozens of police officers responded to the scene, as well as medical personnel from the life flight crew. Even the defense forensic scientist agreed the shell casings could have been inadvertently moved or kicked in the commotion. Neither Hogge’s nor defendant’s testimony matched perfectly the physical evidence. The jury was required to make a credibility determination between two different versions of events. The jury reasonably found Hogge more credible; substantial evidence supports the second degree murder verdict.
II. Exclusion of Peter Scharf’s Expert Testimony
Defendant contends the trial court’s refusal to permit defendant to introduce expert testimony relating to proper police procedures thwarted his ability to present a defense, depriving him of due process. He asserts the court’s ruling also violated defendant’s Sixth Amendment right to confrontation and to compulsory process to obtain witnesses in his favor. He further contends the trial court erred in relying on Evidence Code section 352 to exclude the evidence because the dangers of prejudice, confusion and the undue consumption of time did not outweigh the evidence’s probative value.
Defendant proposed to call Peter Scharf, Ed.D., a recognized expert in the parameter of the permissible use of force by law enforcement officers. Dr. Scharf would render opinions as to whether the tactics employed by Hogge and Bean were consistent with Peace Officers Standards and Training (POST); whether Hogge’s tactics were consistent with use of force standards; whether Hogge violated these standards in other encounters; whether Hogge and Bean received proper training; and whether the tactics used contributed to Bean’s death.
At the beginning of trial, the parties disputed the relevance of Dr. Scharf’s testimony. The trial court deferred ruling on the admissibility of Dr. Scharf’s testimony until after presentation of the People’s case.
After the People’s case, the trial court held a hearing pursuant to Evidence Code section 402 to determine the admissibility of Scharf’s testimony. Defendant made an offer of proof that Scharf would testify whether the police tactics used were consistent with POST and the National Law Enforcement Professional Standards. Counsel identified the improper tactics on which he would seek an opinion: (1) absence of a radio call concerning the initial stop; (2) Bean jumping from a moving car; (3) failure to call in adequate back-up; (4) the failure to obtain supervisory guidance for the pursuit; (5) failure to develop a plan for the vehicle stop; (6) rushing the scene and escalating the situation at the second stop; (7) Hogge allegedly firing first; (8) Hogge making derogatory remarks to defendant at the first stop; and (9) Hogge using deadly force when defendant ran.
The prosecutor argued this evidence was not relevant. Defense counsel countered it was relevant to impeach Hogge. Hogge had testified that when shooting began his mind shut down and he reverted to his training. The defense wanted to show Hogge overreacted and fired first; he was now lying to cover up shooting without a proper justification. For this defense, they needed an expert to testify as to what an officer should do. Further, Hogge’s use of excessive force gave defendant a justification to use force; it might not rise to self-defense, but it was relevant to imperfect self-defense.
The trial court stated the jury would be instructed on proper police standards in the context of a detention or arrest, and it was improper for the jury to receive an expert opinion on that. The court noted that many of the POST standards address officer safety; these standards have nothing to do with the case or with the use of excessive force. They might be relevant in a civil liability case, but not a criminal case. The court found attacking Hogge’s credibility by showing that he violated standards had little probative value and would likely confuse and mislead the jury as to the proper standard to evaluate the parties’ behavior. The slight relevance of Dr. Scharf’s testimony was outweighed by the potential for confusion and the prejudicial effect of the evidence.
Later defendant asked the court to reconsider its ruling. The court confirmed its earlier ruling that any probative value of Dr. Scharf’s testimony was outweighed by its potential for prejudice and confusion.
Defendant contends the trial court erred in its ruling because Scharf’s testimony was relevant evidence and essential to the defense. It was relevant on the issue of whether the officers were engaged in the performance of their duties. It is a long-standing rule that one “cannot be convicted of an offense against a peace officer ‘engaged in . . . the performance of . . . duties’ unless the officer was acting lawfully at the time. [Citations.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, italics in original.) In arguing the trial court abused its discretion in excluding Dr. Scharf’s testimony, defendant relies on People v. McDonald (1984) 37 Cal.3d 351, overruled on another point in People v. Mendosa (2002) 23 Cal.4th 896, at page 914, which held the trial court prejudicially abused its discretion in excluding a defense expert from testifying about the psychological factors which affect the accuracy of eyewitness identifications.
“A trial court has broad discretion in determining whether to admit expert testimony and its ruling will be reversed on appeal only where the record reveals an abuse of discretion. [Citations.]” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1205.) We find no abuse of discretion.
Expert opinion testimony is admissible if it relates “to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) “[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (People v. Cole (1956) 47 Cal.2d 99, 103.)
While in the abstract proper police procedures may be beyond common experience, here the jury was given detailed instructions on the subject. The extensive scope of the instructions distinguishes this case from McDonald, in which the trial court gave only the standard instruction on discrepancies in testimony which did not mention the specific data on eyewitness identification on which the expert proposed to testify. (People v. McDonald, supra, 37 Cal.3d at p. 372.)
The court instructed on reasonable and excessive force by a peace officer and the defendant’s right to use reasonable force in response to excessive force. The phrase “in the performance of his duties” was defined for the jury. The court defined the reasonable cause necessary for an arrest and the standards for a lawful detention. The jury was further instructed that it is not a crime to resist nonviolently an unlawful police action, but that if during such flight the person commits a new and distinct crime, the officer may legally detain or arrest him. The court detailed four different Vehicle Code violations, fleeing a pursuing officer, failing to obey a traffic signal, exhibiting speed, and operating a motor vehicle with a defective windshield that impairs the driver’s vision.
The court instructed the jury: “A peace officer is not engaged in the performance of his duties if he makes or attempts to make an unlawful arrest or detention or uses unreasonable or excessive force in making or attempting to make the arrest or detention. [¶] If you have a reasonable doubt that the peace officer was making or attempting to make a lawful arrest or detention or using reasonable force in making or attempting to make the arrest or detention, and thus a reasonable doubt that the officer was engaged in the performance of his duties, you must find the defendant not guilty of any allegation which includes an element that the peace officer was engaged in the performance of his duties. [¶] If you have a reasonable doubt that Officer Hogge was acting in an unlawful manner or was using unreasonable force in the performance of his duties, then you must find that Officer Bean and Officer Hogge were acting unlawfully in the performance of their duties at that time.”
The court also instructed fully on perfect and imperfect self-defense.
Far from depriving defendant of his defense, the trial court fully instructed on every aspect of that defense. The jury was given the standards to determine if Hogge was acting in performance of his duties and was told of defendant’s right to self-defense and to use reasonable force in the face of excessive police force. The issues defendant sought to raise were completely before the jury. Defendant’s claim that his constitutional rights to present a defense were violated fails.
In exercising its discretion, the trial court was properly concerned that Dr. Scharf’s testimony could confuse the jury as to the proper standards to apply. Some of the police tactics Dr. Scharf criticized addressed officer safety, such as getting out of the car before it fully stopped and failing to radio in the initial traffic stop. These tactics could not be construed as unlawful actions that would negate a finding the officers were engaged in the performance of their duties, and thus were irrelevant to any issue in the case.
Defendant further contends Dr. Scharf’s testimony was relevant to impeach Hogge’s testimony that once there was actual shooting he relied on his training in the situation. Hogge was the prosecution’s only percipient witness to the shooting and attacking his credibility was fundamental to the defense.
The trial court found little probative value in this use of Dr. Scharf’s testimony. We agree. Some of the alleged violations of procedure had little, if any, impeachment value. Hogge admitted he would criticize a rookie officer for failing to call in the initial stop. Further, Hogge testified he fell back on his training when “it has turned into someone actually shooting at me.” Dr. Scharf’s criticisms of Hogge’s actions from the point shots were fired were based on defendant’s version of events, that Hogge fired first while defendant ran. The two competing versions of events, and the legal consequence if Hogge fired first, were before the jury.
“When expert testimony is offered, much must be left to the trial court’s discretion. [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 403.) In carefully considering the relevance and possibility of confusion of Dr. Scharf’s testimony, given the full instructions on the issue and Dr. Scharf’s reliance on officer safety rules as procedural violations, the trial court did not abuse its discretion in excluding Dr. Scharf’s testimony.
III. Exclusion of David Miller’s Expert Testimony
Defendant contends the trial court erred in excluding the expert opinion testimony of David Miller, a law professor. Professor Miller proposed to offer an opinion as to whether Bean and Hogge were lawfully engaged in the performance of their duties that night.
In an offer of proof, defendant indicated Professor Miller would offer opinions as to whether Hogge and Bean were lawfully engaged in the performance of their duties; the application of the Fourth Amendment to vehicle stops; and whether the vehicle stop in this case was legal. In a report prepared for the defense, Professor Miller found there was no objective basis to stop defendant based on the suspicion the car was stolen. The other justification offered was that the car had a cracked windshield. Professor Miller conceded this basis presented factual questions for the jury, but noted that Hogge did not mention the requirement that the crack impair the driver’s vision in his statement and did not ask defendant about the windshield during the stop.
Defense counsel argued this testimony “is really the cornerstone of the defense in this case.” He analogized it to a prosecution expert testifying that drugs are possessed for sale.
The trial court rejected the defense analogy and found the evidence “inappropriate.” The court reasoned it was the court, not Professor Miller, who decides what the law is and there should be no misunderstanding as to whether the jury should follow Professor Miller’s testimony or the legal instructions given by the court. The question of whether the officers acted reasonably was a jury question to be decided based on the law given to them; it did not require unique expertise.
The analysis set forth above concluding the trial court properly exercised its discretion in excluding Dr. Scharf’s testimony applies with even more force to the court’s ruling on Professor Miller’s testimony. The jury was fully instructed on the legal requirements for a detention, including the requirements for a stop based on a cracked windshield. As Professor Miller recognized, the legality of the stop for a cracked windshield was essentially a factual question for the jury. The trial court did not err in retaining control of the law presented to the jury and excluding Professor Miller’s testimony.
IV. Adequacy of Instructions on “Performance of Duties” Principles
Defendant contends that under the facts of this case, in light of the defense and the issues presented by disputed evidence, the instructions on performance of duties principles were insufficient. Specifically, he contends the CALJIC No. 8.81.8 instruction was deficient in two areas. It did not inform the jury that a traffic stop may not be prolonged beyond the time necessary to address the violation. Second, it failed to state that all discretionary law enforcement decisions may be challenged as based on invalid criteria, such as race.
The trial court instructed the jury as follows: “The phrase ‘in the performance of his duties,’ as used in these instructions means: [¶] Any lawful act or conduct while engaged in the maintenance of the peace and security of the community or in the investigation or prevention of crime; [¶] . . . [¶] Lawfully detaining or attempting to detain a person for questioning or investigation; [¶] Using reasonable force to effect a lawful arrest or detention. [¶] A lawful arrest may be made by a peace officer without a warrant of arrest whenever the officer has reasonable cause to believe that the person arrested has committed an infraction or a misdemeanor in the officer’s presence. [¶] The term ‘reasonable cause’ as used in this instruction means such a state of facts or circumstances confronting the officer at the time of the arrest as would lead an officer of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that the person arrested had committed an infraction or misdemeanor. [¶] . . . [¶] The decision to stop an automobile is reasonable and within the performance of a peace officer’s duty if the peace officer has reasonable cause or probable cause to believe that a Vehicle Code violation has occurred. [¶] Reasonable or probable cause to stop an automobile means such a state of fact or circumstances observed by the peace officer as would lead a peace officer of ordinary caution or prudence in the same circumstances to believe and conscientiously entertain a strong suspicion that the driver of the automobile committed a Vehicle Code violation. [¶] A peace officer may lawfully detain and question a person when the circumstances are such as would indicate to a reasonable peace officer in a like position that such a course of action is within the proper discharge of his duties. [¶] Temporary detention for questioning permits reasonable investigation without the necessity of making an arrest. Although peace officers have the power to detain and question, there must be reasonable cause to detain. [¶] Probable or reasonable cause to detain requires that there be some unusual or suspicious circumstance or other demonstrable reason warranting the investigation. Time, location, number of people, demeanor, conduct of a suspect, a recently reported crime, and the gravity of the crime are among the factors that you may consider. [¶] In order for a peace officer to have reasonable cause to detain: [¶] 1. There must be a reasonable suspicion by the peace officer that some activity out of the ordinary has taken place or is occurring or is about to occur; [¶] 2. Some indication must exist to connect the person under suspicion with that unusual activity; and [¶] 3. There must be some suggestion that the activity is related to a crime. [¶] Regardless of whether a peace officer subjectively believes that the driver of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible and a peace officer is acting within the performance of his duties as long as a reasonable officer in the same circumstances would have reasonable or probable cause to stop the car for a suspected Vehicle Code violation.”
“‘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.’ [Citations.] Included within this duty is the ‘. . . obligation to instruct on defenses, . . . and on the relationship of these defenses to the elements of the charged offense . . .’ where ‘. . . it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense . . . .’ [Citation.]” (People v. Stewart (1976) 16 Cal.3d 133, 140.)
During a traffic stop, a peace officer may detain a motorist “for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop.” (People v. McGaughran (1979) 25 Cal.3d 577, 584.) The officer may examine the motorist’s driver’s license and registration, carry out any appropriate equipment inspection and tests, and satisfy himself that the motorist fully understands the conduct to be avoided. (Ibid.) The detention may not be longer than necessary to carry out these duties. (Id. at p. 586.)
While it is true the court did not instruct the jury on the law pertaining to prolonged detentions, such an instruction was unnecessary in this case. At the initial traffic stop, defendant was detained while Hogge asked him whose car it was, his name, and for identification. When Hogge asked him to step outside the car, defendant took off. Since Hogge had not completed the routine steps for a traffic stop, the detention was not prolonged. Defendant makes much of the fact that Hogge did not immediately mention the cracked windshield. Defendant cites no authority to support the proposition that a detention is prolonged if a peace officer fails to address the Vehicle Code violation before he ascertains the identity of the motorist and has assured officer safety. We are aware of no such requirement. There was no error in failing to instruct on a prolonged traffic detention; the evidence did not warrant such an instruction.
It was the defense position at trial that the initial stop was due to racial profiling; the officers became suspicious because a Black male in a beanie was driving a better than average car. Hogge testified that although the car was not reported as stolen, he was suspicious and then looked for equipment violations. Defendant argues the trial court should have instructed that it is constitutionally impermissible to stop a car based on an inappropriate criteria such as race.
Defendant relies on Justice Brown’s dissent in People v. McKay (2002) 27 Cal.4th 601, 628-642, for support. Justice Brown recognized the practice of traffic stops based on race. “The practice is so prevalent, it has a name: ‘Driving while Black.’” (Id. at p. 640.) She argued such stops were inherently unreasonable under the Fourth Amendment. (Id. at p. 640, fn. 6.)
In Whren v. United States (1996) 517 U.S. 806 [135 L.Ed.2d 89], the United States Supreme Court, in a unanimous opinion, made clear that the actual motivations of the individual officers in a traffic stop are irrelevant to the constitutional reasonableness of the stop. The petitioners, who were both Black, argued that because traffic violations could be used as a pretext for a stop actually based on impermissible factors, such as race, the standard ought to be whether a reasonable officer would have made the stop for the reason given. (Id. at p. 810 [135 L.Ed.2d at p. 96].) The high court rejected this argument; if the officers have probable cause to believe there is a violation of the traffic code, the stop is reasonable. (Id. at p. 819 [135 L.Ed.2d at p. 101].)
The court addressed petitioners’ concern about racially motivated traffic stops. “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” (Whren v. United States, supra, at p. 813 [135 L.Ed.2d at p. 98].)
The trial court’s instruction was consistent with the United States Supreme Court’s decision in Whren. The court instructed the jury: “a traffic stop is permissible and a peace officer is acting within the performance of his duties as long as a reasonable officer in the same circumstances would have reasonable or probable cause to stop the car for a suspected Vehicle Code violation.” There was no error in instructing in the language of CALJIC No. 8.81.8.
V. Refusal to Instruct with Modified CALJIC No. 9.27
Defendant contends the trial court erred in rejecting his proposed modification to CALJIC No. 9.27. He asserts the modification was proper because it was an accurate statement of the law and pinpointed the defense. He contends the error was prejudicial because the other instructions did not sufficiently cover the issue.
Defendant proposed modifying CALJIC No. 9.27 by the addition of the following two paragraphs: “A police officer may not stop a motor vehicle based on a suspicion or hunch that the vehicle was stolen. If you believe that Officer Hogge and Officer Bean stopped the vehicle driven by the defendant based on a hunch or suspicion that the vehicle was stolen then you may find that said Officers were not acting within the lawful performance of their duties. [¶] Vehicle Code section 26710 states that it is unlawful to operate any motor vehicle upon a highway when the windshield is in such defective condition as to impair the driver’s vision either to the front or the rear. However, there is no law against having a cracked windshield. Operation of a vehicle with a cracked windshield is unlawful in California only if the crack ‘impairs the driver’s vision.’ Therefore in order to justify the stop of the vehicle driven by the defendant either Officer must have seen something that reasonably appeared to be a crack in the windshield and must have determined that the crack reasonably appeared to be one that would impair the driver’s vision. If you believe that the Officer did not 1) see the crack and 2) determined [sic] that the crack impaired the driver’s vision -- then you must conclude that the Officers were not acting in the lawful performance of their duties.”
The prosecution objected to the modification because the defense was attempting to make the initial stop the decisive moment for determining the validity of the officers’ conduct. The prosecution theory was that even if the jury found the initial stop unlawful, defendant’s subsequent unlawful acts (exhibition of speed, running a stop sign, fleeing from officers) allowed the officers to detain or arrest him.
The trial court rejected the modification. It found the instruction argumentative and the first part was wrong as a matter of law. If the officer had a reasonable, objective basis to stop the car, it did not matter that he had an ulterior motive under Whren v. United States, supra, 517 U.S. 806 [135 L.Ed.2d 89].
The trial court instructed the jury on stopping a car for a cracked windshield as follows: “Vehicle Code 26710. It is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the driver’s vision either to the front or the rear.”
A defendant is entitled to an instruction that pinpoints the theory of the defense. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) The trial court, however, must determine that the proffered instruction is an accurate statement of the law. (See People v. Thompkins (1987) 195 Cal.App.3d 244, 257.)
The trial court did not err in rejecting the proposed modification; the first paragraph was an inaccurate statement of the law. As discussed above, under Whren v. United States, supra, 517 U.S. 806 [135 L.Ed.2d 89], the officer’s subjective intent for making a traffic stop is irrelevant for Fourth Amendment purposes; the stop is reasonable if there is probable cause to believe the traffic law has been violated. The instruction was inaccurate because it suggested the stop was unlawful if based on a hunch, regardless of whether there was a reasonable cause for the stop.
Defendant contends the modification was not argumentative because it did not “improperly imply the conclusion to be drawn from that evidence.” (People v. Harris (1989) 47 Cal.3d 1047, 1098, fn. 31.) At the very least, the second paragraph of the modification was repetitive and artless. The court instructed on the law as to driving with a cracked windshield, including the requirement that the defect impair the driver’s vision. Defendant has not shown how the instruction given was inadequate.
The trial court did not err in rejecting defendant’s proposed modification to CALJIC No. 9.27.
VI. Refusal to Instruct on Duress and Necessity
Defendant contends the trial court erred in rejecting his request for instructions on duress and necessity. He contends these instructions were supported by the evidence and relevant to implied malice, his right to leave after the initial stop, and whether the officers were engaged in lawful performance of their duties. He contends the error requires reversal.
Defendant requested that the trial court instruct on CALJIC 4.40 (duress) and CALJIC No. 4.43 (necessity). The court refused the instructions, finding them “inappropriate” in a murder case.
The requested instructions were: “A person is not guilty of a crime [other than _______] when [he] [she] engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances: [¶] 1. Where the threats and menaces are such that they would cause a reasonable person to fear that [his] [her] life would be in immediate danger if [he] [she] did not engage in the conduct charged, and [¶] 2. If this person then actually believed that [his] [her] life was so endangered. [¶] This rule does not apply to threats, menaces, and fear of future danger to [his] [her] life[,] [nor does it apply to the crime[s] of (crime punishable by death) ].” (CALJIC No. 4.40)
Defendant contends the instructions were relevant to the issue of implied malice. He recognizes that duress is not a defense to any form of murder. (People v. Anderson (2002) 28 Cal.4th 767, 780.) Duress does not reduce murder to manslaughter; that is a policy decision for the Legislature. (Id. at pp. 782-784.) Nor is necessity a defense to murder. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100-101 [“‘[i]t is not acceptable for a defendant to decide that it is necessary to kill an innocent person in order that he [or she] may live’”].)
Nonetheless, defendant seizes upon language in Anderson to support his argument. “Although duress is not an affirmative defense to murder, the circumstances of duress would certainly be relevant to whether the evidence establishes the elements of implied malice murder. The reasons a person acted in a certain way, including threats of death, are highly relevant to whether the person acted with a conscious or wanton disregard for human life. [Citation.] This is not due to a special doctrine of duress but to the requirements of implied malice murder.” (People v. Anderson, supra, 28 Cal.4th at pp. 779-780.)
Defendant contends his testimony that at the first stop Bean told him to leave while Hogge threatened to kill him, supports instructions on duress and necessity to evaluate implied malice. We disagree. The act that would show implied malice was defendant shooting at the officers. There is no evidence to support a theory that defendant’s shooting was the result of duress or necessity. The language in Anderson was in response to a hypothetical of an innocent person forced at gunpoint by fleeing armed robbers to drive recklessly, and who is charged with murder when a fatal accident occurs. (People v. Anderson, supra, 28 Cal.4th at p. 779.) There is nothing similar here. Even if the jury accepted that defendant was forced to flee recklessly after the initial stop, the law did not excuse his shooting based on duress or necessity.
Defendant also contends duress and necessity are relevant in evaluating his right to leave after the initial stop and thus whether the officers were lawfully engaged in the performance of their duties when they continued to pursue him. Defendant suggests duress or necessity were defenses to the subsequent Vehicle Code violations -- fleeing the police, exhibition of speed, and failing to stop at a stop sign -- which the prosecution argued validated the second stop, even if the jury found the first stop unlawful. This convoluted argument fails. Under defendant’s version of events, he left after the initial stop in a lawful manner. Defendant testified he did not break traction when he left. He was purposefully driving slowly, thinking the patrol car was responding to an emergency, and then voluntarily stopped and approached the officers. Under Hogge’s version, there is no evidence that defendant was forced to run a stop sign by duress or necessity. Hogge testified defendant coasted through the stop sign after his car stalled.
Furthermore, the requested instructions would have been confusing as they stated duress and necessity were defenses to crimes and the only crime defendant was charged with was murder to which neither duress nor necessity is a defense. It is not error to refuse confusing or incomplete instructions. (See People v. Diedrich (1982) 31 Cal.3d 263, 286; People v. Campanella (1941) 46 Cal.App.2d 697, 703.)
The trial court did not err in refusing instructions on duress and necessity.
VII. Special Instruction: Flight after Unlawful Police Action
Defendant contends the trial court erred in giving the prosecution’s special instruction No. 3 over defense objection. He contends the second paragraph of the special instruction incorrectly or incompletely stated the law.
The trial court gave the prosecution’s special instruction No. 3 as follows: “It is no crime to nonviolently resist the unlawful action of a police officer. Therefore, if a person flees in direct response to an unlawful police action, a peace officer does not engage in lawful action in subsequently detain[ing] or arresting the person merely because the person has taken flight from the initial unlawful police action.
“However, if during the flight from the unlawful police action the officer observes that person committing a new and distinct crime, the officer does engage in lawful police conduct in subsequently detaining or arresting the person for that new and distinct crime.”1`zaq
Defendant’s argument concerning this instruction is a reiteration of his previous contention challenging the refusal to instruct on duress and necessity. He contends duress and necessity principles affect the determination of the lawfulness of his flight after the initial stop. We construe defendant’s argument to be that the special instruction should have included the principles of duress and necessity. Since we have rejected the argument that the court had to instruct on these legal principles, we reject this contention as well.
Quoting People v. Mower (2002) 28 Cal.4th 457, 483-484, defendant also asserts the court must correctly instruct on the allocation and weight of the burden of proof. In Mower, the California Supreme Court held defendant bore the burden of proof to assert a medical marijuana defense, but that burden only required him to raise a reasonable doubt as to the facts underlying the defense. (Id. at p. 481.) Since we have concluded the trial court did not err in refusing to instruct on duress and necessity, it was not error to fail to instruct on the allocation of the burden of proof for these defenses.
VIII. Denial of Motion for Change of Venue
Defendant contends the trial court erred in denying his motion for a change of venue. He contends there was no evidence to contradict the defense expert’s well-founded opinion that there was a reasonable probability that defendant could not receive a fair trial in Sacramento. In a supplemental brief, defendant contends that if defendant is deemed to have forfeited this contention by failing to renew the motion for change of venue after voir dire, the issue should still be addressed on its merits to forestall a claim of ineffective assistance of counsel.
When a trial court denies a motion for a change of venue without prejudice, the defendant must renew the motion after voir dire of the jury to preserve the issue for appeal. (People v. Maury (2003) 30 Cal.4th 342, 388-389.) Defendant contends counsel was deficient in failing to renew the motion. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Since a determination of whether defense counsel was deficient in failing to renew the motion requires consideration of the merits of the motion, we address the issue on its merits.
In determining the reasonable likelihood that defendant cannot receive a fair trial in a particular county, courts examine several factors: “(1) the nature and extent of the publicity; (2) the size of the population of [the county]; (3) the nature and gravity of the offense, (4) the status of the victim and of the accused, and (5) whether political overtones are present.” (Williams v. Superior Court (1983) 34 Cal.3d 584, 588, fn. omitted.)
In moving for a change of venue, defendant relied upon a public opinion poll survey conducted in the summer of 2002 by the National Jury Project and the testimony of Edward Bronson, a college professor who was an expert in change of venue. Professor Bronson prepared a comparative analysis of the effect of the number of newspaper articles on whether a motion for change of venue was granted. Of the 37 appellate cases that stated the number of articles, where there were 26 or more articles, a change of venue was granted almost half (42 percent) of the time.
Professor Bronson testified there was extensive publicity about this case. He identified 87 newspaper articles, which included letters to the editor that did not mention either the case or defendant. Almost all of the articles appeared in 1999 and 2000, except for one in 2002; most focused on the victim. Television coverage was concentrated in the first weeks after the shooting. The coverage was emotional; the victim was always portrayed positively and the defendant negatively.
There was extensive coverage of Bean’s funeral. Five thousand people attended and people were lined up shoulder to shoulder as the motorcade passed. The governor, the mayor, and the chief of police all spoke at the funeral.
The media coverage mentioned defendant’s criminal record and drugs. Television reports mentioned a history of violence, although newspaper reports correctly reported defendant had no history of violence. The chief of police held press conferences at which he held up defendant’s rap sheet.
The population of Sacramento County was about one million persons.
Professor Bronson testified this case was special because it involved the first police officer killed in the line of duty in Sacramento County in 25 years. The reaction to Bean’s death was a sort of hero worship. There were special memorials at the police department and in Del Paso Heights, where the shooting occurred; this predominantly Black community mourned Bean’s death. Bean’s football jersey was retired at his high school, his college, and at the Pig Bowl, an annual football game between the police and the sheriff’s department. Professor Bronson believed Bean became a prominent person after his death.
In contrast, media coverage stereotyped defendant as a parolee with a life of crime. Defendant was described as criminal, dangerous and threatening.
Professor Bronson testified the case raised political issues about the availability of guns, the sufficiency of bullet-proof vests, and the backlog of parole warrants, although these were minor factors.
The survey indicated there was a 56 percent recognition rate for this case. That rate was not high for one of the many cases on which Professor Bronson worked; only four of his cases had a lower recognition rate. Of the 56 percent who recognized the case, 58 percent said defendant was definitely or probably guilty, as did 38 percent of those who did not recognize the case. On cross-examination, Professor Bronson admitted the recognition rate did not provide strong support for a change of venue.
In a 22-page opinion that analyzed each of the Williams factors, the trial court denied the motion for a change of venue. The court found the nature and extent of the publicity was not atypical, contrasting it with the extensive, continual and repetitive publicity in Williams v. Superior Court, supra,34 Cal.3d 584, 589. It found only 59 items mentioned defendant, the victim, or the case; of these, 46 were news articles and 13 were letters to the editor. The vast majority appeared in the first two months after the shooting. Only one article appeared after September 16, 2000; it appeared February 9, 2002. Most of the broadcasts were in February or March 1999.
The change of venue motion was heard by a different judge (Judge Norbert Ehrenfreund) than the judge who presided at trial (Judge Lloyd Connelly).
The court found the opinion survey did not support a change of venue. The survey was lacking in an important aspect; it did not ask if people had formed an opinion as to guilt and whether they could put that opinion aside. Further, it asked for an on-the-spot judgment of guilt, not if the respondent was predisposed towards guilt. The recognition factor of 56 percent was not particularly high, as Professor Bronson admitted. The follow-up question describing the case was suggestive of guilt and thus flawed.
The gravity of the crime weighed in favor of a change of venue, as it was the most serious crime and the prosecution sought the death penalty. As to the nature of the offense, the court noted it had no sexual overtones and was not an execution style murder. The racial aspect of the case was neutralized by the fact the Black community mourned the white officer’s death.
The victim had a certain status in the community compared to defendant, but the victim’s status as a police officer was insufficient alone for a change of venue. The hostility towards “cop-killers” would follow defendant to any county. The court found no political overtones, rejecting the suggestion that the victim’s status as a police officer raised political implications.
In conclusion, the court found the nature and extent of publicity did not prejudice a large portion of potential jurors. Most of the publicity occurred in the past. The survey was flawed in failing to ask if respondents could put aside what they heard and be impartial. Sacramento was a large county, the nature of the crime was not particularly inflammatory, and there were no political overtones. The gravity of the offense was the highest and the victim was a police officer, but courts did not routinely transfer cases where an officer was killed.
The court noted the motion could be renewed at the time of voir dire.
A change of venue shall be ordered “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (Pen. Code, § 1033, subd. (a).) On appeal, we independently review the trial court’s determination of the reasonable likelihood of an unfair trial. (People v. Pride (1992) 3 Cal.4th 195, 224.) “On postconviction review, we must also examine the voir dire of prospective and actual jurors to determine whether pretrial publicity did in fact have a prejudicial effect. [Citation.]” (People v. Balderas (1985) 41 Cal.3d 144, 177.)
Our independent review of the factors set forth in Williams v. Superior Court, supra, 34 Cal.3d at page 588, leads us to agree with the trial court that no change of venue was required. Publicity about the crime was extensive when it occurred, but news reports had dropped off significantly. There was only one in the prior two years. “Time dims all memory and its passage serves to attenuate the likelihood that early extensive publicity will have any significant impact at the time of trial.” (Odle v. Superior Court (1982) 32 Cal.3d 932, 943.) This is not a case like Williams v. Superior Court, supra, where the coverage was continual and repetitive. In Williams, the coverage remained static, with weekly or biweekly news coverage of the case and the preceding trial of defendant’s brother, a codefendant. (Williams v. Superior Court, supra, at pp. 589-590.)
The effect of the passage of time is reflected in the voir dire. Although many prospective jurors had heard of the case, most could recall only the barest details, that a police officer was shot. Of the twelve jurors seated, nine had been exposed to pretrial publicity, but five of those could not remember what they heard or read. One had heard about a park being dedicated to Bean. Two had heard or read something about jury selection beginning. One had heard about the case “years ago.” This juror had heard defendant’s mother proclaim defendant’s innocence to a television reporter in the court hallway.
The actual jurors’ lack of familiarity with the case is similar to that in People v. Balderas, supra, 41 Cal.3d 144, 180. As in Balderas, defendant had not used all his 26 peremptory challenges (Pen. Code, § 1070) when he accepted the jury. “These facts are strong indicators that the jurors were fair, and that the defense itself so concluded. [Citations.]” (People v. Balderas, supra, at p. 180.) The passage of time weighs heavily against a change of venue. (People v. Edwards (1991) 54 Cal.3d 787, 808.)
The size of the relevant community is a material factor. “The larger the local population, the more likely it is that preconceptions about the case have not become imbedded in the public consciousness. [Citation.]” (People v. Balderas, supra, 41 Cal.3d 144, 178.) Sacramento County had over one million residents at the time of jury selection and was the eighth most populous county in the state. This factor weighs against a change of venue. (People v. Pride, supra, 3 Cal.4th 195, 224.)
“The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its ‘nature’; the term ‘gravity’ of a crime refers to its seriousness in the law and to the possible consequences to an accused in the event of a guilty verdict.” (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582.) Special circumstance murder is the gravest offense (Williams v. Superior Court, supra, 34 Cal.3d at p. 593), but this factor alone is not dispositive. (People v. Jennings (1991) 53 Cal.3d 334, 360.) The nature of the offense was not as sensational as that in Williams, the rape and murder of a young white virgin by two Black men. Here, there were no sexual overtones or suggestion of an execution-style or tortuous killing. (Compare People v. Jennings, supra, at p. 360; Martinez v. Superior Court, supra, at p. 582.)
The status of the victim and defendant do not weigh in favor of a change of venue. The victim became prominent only as a result of media coverage of the killing. (See People v. Daniels (1991) 52 Cal.3d 815, 852.) “Communities undoubtedly have special hostility toward ‘cop-killers,’ but that aspect of the case would follow [defendant] to whatever community in which venue ultimately resides.” (Odle v. Superior Court, supra, 32 Cal.3d at p. 942.) While defendant was portrayed as a criminal, he was not “a stranger to and friendless in the community[.]” (Williams v. Superior Court, supra, 34 Cal.3d at p. 594.)
Political overtones contributing to the need for a change of venue have been found where the prosecutor and defense counsel are political rivals (Maine v. Superior Court (1968) 68 Cal.2d 375, 387); where the case led to a political conflict between the mayor and police chief of Los Angeles (Powell v. Superior Court (1991) 232 Cal.App.3d 785, 798-802); where the bribery indictment at issue became a contentious issue in a political campaign (Smith v. Superior Court (1969) 276 Cal.App.2d 145, 148-149). No such political overtones are present in this case.
The trial court did not err in denying defendant’s motion for a change of venue.
Defense counsel exercised only two peremptory challenges to excuse jurors from the panel and only three challenges to excuse alternate jurors. “‘The failure to exhaust peremptories is a strong indication “that the jurors were fair, and that the defense itself so concluded.” [Citation.]’ [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 524.) “We will not second-guess counsel’s preference for this particular jury over another, unknown jury panel. [Citations.]” (People v. Maury, supra, 30 Cal.4th 342, 391.) Defense counsel was not deficient in failing to renew the motion after voir dire.
IX. Firecracker Instruction
Defendant contends the trial court erred and denied him due process and the right to an unanimous jury when, after three days of jury deliberation, the court instructed the jury pursuant to People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1120. He contends this “firecracker instruction” violated the principles set forth in People v. Gainer (1977) 19 Cal.3d 835, that there be no coercion of a juror to reach a verdict and the individual decisionmaking role of each juror not be diminished.
On the third day of jury deliberations, the jury foreman sent a note which said: “It is the concences [sic] of the jury that we have one juror whom we believe is incapable of making a decision one way or the other, and is not able to follow the instructions and law as directed by the court. This juror cannot separate evidence in order to come to a conclusion on one simple point. Please advise us on how to precede [sic].”
The next day, after consulting with counsel, the trial court called the jury foreman in for questioning. The foreman indicated the note had been read aloud before being sent to the judge and 11 jurors agreed with it. The foreman believed one juror had a wrong interpretation or incorrect analysis of the law and her failure to come to closure was due to a failure of logic and analysis. It was the consensus of the other jurors that this juror was very confused and unable to separate individual testimony and physical evidence in order to reach a conclusion.
The trial court suggested giving the instruction set forth in People v. Moore, supra, 96 Cal.App.4th 1105. Defense counsel objected because it singled out one juror. The trial court decided to give the instruction and rejected the modification proposed by the defense.
The court instructed the jury: “It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at a verdict.
“To assist you in your further deliberations the Court is going to further instruct you as follows.
“Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh, and evaluate all the evidence presented at the trial, to discuss your views regarding the evidence and to listen to and consider the views of your fellow jurors.
“In the course of your deliberations you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine theirs.
“You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.
“Fair and effective jury deliberation requires a frank and forthright exchange of views.
“As the Court previously instructed you, each of you must decide the case for yourself. And should do so only after a full and complete consideration of all of the evidence with your fellow jurors.
“It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.
“Both the People and the defendant are entitled to the individual judgment of each juror.
“As the Court previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate.
“The Court suggests that since you have not been able to arrive at a verdict using the methods that you have chosen that you consider changing the method you have been following at least temporarily and try new methods. For example, you may wish to consider having different jurors leave [sic-lead] the discussion for a period of time, or you may wish to experiment with reverse role playing by having those who on one side of an issue represent or present an[d] argue the other side’s position and vice versa. This might enable you to understand the other’s position.
“By suggesting you should consider changes in your methods of deliberation, I want to stress the Court is not dictating or instructing you as to how to conduct your deliberations.
“The Court merely finds that you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
“The Court also suggests you reread CALJIC 1.00 on page 1 and 1A; CALJIC instruction 17.40 on page 82 and CALJIC instruction 17.41 on page 83.
“These instructions pertain to duties as your jurors and make recommendations on how you should deliberate. The integrity of a trial requires the jurors at all times during their deliberations conduct themselves as required by the instructions.
“CALJIC instruction 1.00 defines the duties of a jury. The decision the jury renders must be based on the facts and the law.
“You must determine what facts have been proved from the evidence received in the trial and not from any other source.
“A fact is something proved by the evidence or by stipulation.
“Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your verdict.
“You must accept and follow the law as I state it to you regardless of whether you agree with the law.
“If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
“CALJIC 17.40 defines the jury’s duty to deliberate.
“The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court.
“These are the matters this instruction[] requires you to discuss for the purpose of reaching a verdict.
“CALJIC 17.41 is an instruction which recommends how jurors should approach their task.
“You should keep in mind the recommendations this instruction suggests when considering the additional instructions, comments and suggestions I have made in the instructions now presented to you.
“I hope my comments and suggestions may have some assistance to you.
“You are ordered to continue your deliberations at this time. If you have other questions, concerns, requests or any communications you desire to report to me, please put those in writing on the form my court attendant has provided to you.
“Have them signed and dated by your foreperson and please notify the Court attendant. A copy of the instructions which I have just read will be made available to you shortly.
“You are to continue your deliberations.”
This instruction is almost identical to the one at issue in People v. Moore, supra, 96 Cal.App.4th 1105, 1118-1120. That instruction was challenged as coercive and improper. (Id. at p. 1120.) This court rejected the contention and commended the trial judge “for fashioning such an excellent instruction.” (Id. at p. 1122.)
The Moore court noted that in Allen v. United States (1896) 164 U.S. 492, 501-502 [41 L.Ed. 528, 531], the Supreme Court approved an instruction which encouraged jurors in the minority to reexamine their views in light of those expressed by the majority, noting that the case must be decided at some time. (People v. Moore, supra, 96 Cal.App.4th at p. 1120.) The California Supreme Court, however, disapproved an Allen charge in People v. Gainer, supra, 19 Cal.3d 835. The Gainer court found directing the minority jurors to rethink their position in light of the majority views was improper because it encouraged them to abandon a focus on the evidence as the basis of their verdict. (People v. Moore, supra, at pp. 1120-1121.) Further, it was inaccurate and improper to direct the jury that the case must be decided at some point because it was possible the case might not be retried. (Id. at p. 1121.)
The Moore court found the instruction at issue was not an improper Allen charge because the court did not instruct that the case must be decided at some point and nothing was designed to coerce the jury into returning a verdict. (People v. Moore, supra, 96 Cal.App.4th at p. 1121.) Rather, the instruction told the jurors to consider, weigh and evaluate all the evidence and that their duty was “to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.” (Italics added.) The Moore court found nothing in the instruction that was coercive or an attempt to pressure the jury to reach a verdict. (Ibid.)
We agree with this court’s decision in People v. Moore, supra, 96 Cal.App.4th 1105, and find nothing improper in the instruction the trial court gave. Defendant’s contentions that the instruction was coercive or directed the jury that it was expected to reach a verdict are answered by the discussion in Moore.
Defendant contends it was error to give the instruction because it was not clear the jury was at an impasse. The court did not determine whether any votes had been taken or question any juror other than the foreman. Previously, a juror had reported the jury was at a deadlock and needed assistance. Penal Code section 1140 grants the trial court discretion to determine whether there is a reasonable probability the jurors can agree on a verdict. (People v. Moore, supra, 96 Cal.App.4th at p. 1122.) That the jury was eventually able to reach a unanimous verdict shows the trial court properly exercised its discretion.
Defendant also complains there was an error in the instruction as read to the jury. The court suggested “you may wish to consider having different jurors leave the discussion for a period of time.” The printed version, which was given to the jury, correctly stated “lead” rather than “leave.” Defendant contends if the jurors followed the oral instruction, there may have been periods when all 12 were not deliberating.
The court had previously instructed the jury that deliberations could occur only when all 12 jurors were together and assembled in the jury room.
“‘It is generally presumed that the jury was guided by the written instructions.’ [Citations.] The written version of jury instructions governs any conflict with oral instructions. [Citations.] Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions. [Citations.]” (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113.)
X. Failure to Plead Second Degree Murder Enhancement
Defendant contends he was denied the due process right to notice of the potential penal consequences of the Penal Code section 190, subdivision (c) enhancement because it was not alleged in the information. He contends this uncharged enhancement must be stricken.
Penal Code section 190, subdivision (c) provides for a life sentence without the possibility of parole for every person guilty of second degree murder of a peace officer killed in the performance of his duties, when the defendant knew, or should have known, the victim was a peace officer engaged in the performance of his duties. The jury must find the defendant intended to kill the peace officer, intended to inflict great bodily injury on the peace officer, personally used a dangerous or deadly weapon, or personally used a firearm. (Pen. Code, § 190, subds. (c)(1)-(4).)
The amended information alleged two special circumstances for first degree murder: the victim was a peace officer engaged in the performance of his duties (Pen. Code, § 190.2, subd. (a)(7)) and the murder was committed to avoid or prevent an arrest or to perfect or attempt an escape from lawful custody (Pen. Code, § 109.2, subd. (a)(5)). The penalty if either of these special circumstances is found true is death or imprisonment for life without the possibility of parole. (Pen. Code, § 190.2, subd. (a).) The amended information further alleged an enhancement under Penal Code section 12022.53, subdivision (d) for defendant’s personal use of a firearm.
Defendant objected to the instruction on the second degree murder enhancement because it was not alleged in the information. The trial court overruled the objection, finding an amendment to the information was not necessary because the Penal Code section 190, subdivision (c) enhancement was not a separate crime. The jury found the enhancement true.
Defendant concedes the 190.2, subdivision (a)(7) special circumstance and the firearm enhancement gave him notice of the facts the prosecution would seek to prove, that he used a gun to kill a peace officer in the performance of his duties. Thus, he was given a reasonable opportunity to prepare his defense and not be taken by surprise at trial. (People v. Lohbauer (1981) 29 Cal.3d 364, 368.)
Defendant contends, however, that he was denied a second aspect of due process, notice of the consequences of proof of the fact the prosecution seeks to prove. He further contends Penal Code 190, subdivision (c) requires the facts supporting the enhancement be “charged and found true.”
Penal Code section 1170.1, subdivision (e) requires that all enhancements be alleged in the accusatory pleading. The Attorney General agrees that an uncharged enhancement cannot be imposed, but contends here the enhancement was alleged factually; the only error was that the proper Penal Code section was not cited. The Attorney General contends the enhancement need not be stricken because defendant was on notice of the facts sought to be proved, that a murder enhancement was sought, and the consequences of the enhancement were life imprisonment without the possibility of parole or death.
This case is similar to People v. Neal (1984) 159 Cal.App.3d 69. In Neal, defendant was charged with various sex crimes and one-year weapon enhancements under Penal Code section 12022, subdivision (b). After the jury convicted defendant and found the use enhancement true, the trial court sentenced him under Penal Code section 12022.3, a more specific, three-year weapon enhancement for certain sex offenses. On appeal, defendant contended the enhancement must be modified to the lesser enhancement charged. The Neal court rejected the contention. “We believe that where the information puts the defendant on notice that a sentence enhancement will be sought, and further notifies him of the facts supporting the alleged enhancement, modification of the judgment for a misstatement of the underlying enhancement statute is required only where the defendant has been misled to his prejudice. [Citations.]” (Id. at p. 73.) The California Supreme Court has approved this reasoning as “the proper analysis.” (People v. Thomas (1987) 43 Cal.3d 818, 830.)
In this case, the trial court sentenced defendant under a less harsh sentencing enhancement than the one alleged in the information based on the same facts as alleged in the information. Defendant had notice of both the facts the prosecution sought to prove and the potential consequences if those facts were proved. There was no prejudice and the trial court did not err in sentencing defendant under Penal Code section 190, subdivision (c).
XI. Equal Protection Challenge to Sentence
In a supplemental brief, defendant contends his sentence of life without the possibility of parole for second degree murder violated equal protection and due process because it is a harsher sentence than that imposed for many first degree murders. He asserts a sentencing scheme that punishes less serious conduct more harshly is arbitrary and irrational.
Defendant did not object to his sentence below on equal protection grounds. Generally, the failure to object at sentencing forfeits the claim of sentencing error on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.) Defendant contends he has not forfeited the claim because his constitutional challenge presents a pure question of law and does not rely on factual findings. (In re Sheena K. (2007) 40 Cal.4th 875, 888; People v. Smith (2001) 24 Cal.4th 849, 852.)
We find defendant’s equal protection claim fails on the merits because there is a rational basis for the statutory classification.
We begin our analysis by reviewing the sentencing for murder. Murder is classified in two degrees. (Pen. Code, § 189.) First degree murder is a willful, deliberate and premeditated killing or a killing perpetrated by means showing such deliberation and premeditation, such as poison, torture or lying in wait, or a killing committed in the perpetration or attempted perpetration of certain inherently dangerous felonies. (Pen. Code, § 189.) All other kinds of murder are of the second degree. (Ibid.)
First degree murder is punishable by death, life in prison without the possibility of parole, or 25 years to life in prison. (Pen. Code, § 190, subd. (a).) The first two punishments are available only if special circumstances are found true. (Pen. Code, § 190.2, subd. (a).) The penalty for second degree murder is generally 15 years to life in prison, with certain exceptions. (Pen. Code, § 190, subd. (a).) Two of the exceptions are where the victim was a peace officer engaged in the performance of his duties and the defendant knew, or should have known, the status of the victim. The general punishment for second degree murder of a peace officer is 25 years to life in prison. (Pen. Code, § 190, subd. (b).) Where certain aggravating factors are present, the sentence is life imprisonment without the possibility of parole. (Pen. Code, § 190, subd. (c).) The aggravating factors are: specific intent to kill or inflict great bodily injury, or personal use of a dangerous or deadly weapon, or use of a firearm. (Ibid.) Defendant was convicted of second degree murder of a peace officer, with the aggravating factor of personal use of a firearm and he was sentenced to life in prison without the possibility of parole.
Defendant contends his sentence violates equal protection because he is being punished more severely than some first degree murders, those who commit first degree murder without a special circumstance, and that result is irrational. Defendant argues first degree murder is always more blameworthy because it requires a more culpable mental state, either premeditation and deliberation or the intent to commit an inherently dangerous felony. He argues a defendant who premeditates and deliberately kills a peace officer when the officer is off duty would receive a lesser punishment although his actions are more blameworthy.
As defendant recognizes, his contention was rejected by the court in People v. Rhodes (2005) 126 Cal.App.4th 1374. The Attorney General urges this court to follow Rhodes. The Rhodes court found defendant failed to establish the first prerequisite of a meritorious equal protection claim, that the state adopted a classification that affects two or more similarly situated groups in an unequal manner. (Id. at p. 1383.) Second degree murder of a peace officer in the performance of his duties with an aggravating factor differed in essential elements from other forms and degrees of homicide. (Id. at p. 1384.) Defendant was comparing his punishment to that imposed on distinctly different homicides. “[T]he comparative gravity of criminal offenses and the commensurate punishment to be selected for them is not an assessment either defendant or this court is entitled to undertake.” (Id. at p. 1385.)
Defendant argues Rhodes should not be followed, declaring “this notion” of no judicial review of criminal classifications was soundly rejected by the California Supreme Court in People v. Hofsheier (2006) 37 Cal.4th 1185. In Hofsheier, the court held the mandatory lifetime registration requirement for one convicted of oral copulation with a 16-year-old violated equal protection because there was no registration requirement for one convicted of unlawful sexual intercourse with a 16-year-old. (Id. at pp. 1206-1207.) The Attorney General had argued persons convicted of oral copulation were not similarly situated with those convicted of unlawful sexual intercourse. The Supreme Court rejected this view. “It may well be that in most cases, as the Attorney General contends, persons who commit different crimes are not similarly situated, but there is not and cannot be an absolute rule to this effect, because the decision of the Legislature to distinguish between similar criminal acts is itself a decision subject to equal protection scrutiny. ‘The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. [Citation.] It also imposes a requirement of some rationality in the nature of the class singled out.’ [Citations.]” (Id. at p. 1199.)
The Hofsheier court found the two offenses at issue differed only by the nature of the sexual act and were sufficiently similar to merit some level of scrutiny to determine whether the distinctions justified unequal treatment. (People v. Hofsheier, supra, 37 Cal.4th 1185, 1200.) The defendant in Hofsheier, as defendant here, argued there was no rational basis for the distinction. The high court required “a serious and genuine judicial inquiry into the correspondence between the classification and legislative goals;” the statutory classification must bear a rational relationship to a realistically conceivable legislative purpose. (Id. at p. 1201, internal quotation marks omitted.)
We need not guess at the purpose for treating second degree murder of a peace officer with an aggravating factor more severely. More severe punishment for second degree murder of a peace officer was first enacted by legislative initiative, Proposition 67, in 1988. That initiative measure amended Penal Code section 190, to provide a sentence of 25 years to life, without credits to reduce prison time, for every person guilty of second degree murder of a peace officer engaged in the performance of his duties who knew or should have known the victim was a peace officer. The argument in favor of the proposition argued that killings of peace officers “are an assault upon the very fabric of a free and lawful society. . . . Law enforcement officers are the public’s last line of defense. We ask these men and women to take enormous risks on our behalf. We owe it to them to punish their killers to the fullest extent of the law.” (Ballot Pamp., Primary Elec. (June 7, 1988) argument in favor of prop. 67, p. 10.) The argument against the proposition made the same argument that defendant makes here, that unplanned second degree murder could be punished more severely than first degree murder. (Id., rebuttal to argument in favor of Prop. 67, p. 10.)
We take judicial notice of portions of the California Primary Election Pamphlet prepared for the June 2, 1988 primary election pertaining to Proposition 67, and the June 2, 1998 primary election pertaining to Proposition 222, including the ballot measure summary, analysis by the legislative analyst, arguments pro and con, and the text of the proposed law. (In re Varnell (2003) 30 Cal.4th 1132, 1144, fn. 7.)
Ten years later, another legislative initiative, Proposition 222, endorsed a law enacted in 1997 (Stats. 1997, ch. 413, § 1), that increased the punishment for second degree murder of a peace officer to life imprisonment without parole if the murderer specifically intended to kill or greatly injure the peace officer, or used a firearm or other dangerous weapon. Proponents argued those who murdered peace officers should never be released on parole. “Peace officers lay their lives on the line for us every day and night serving and protecting the public. They deserve our support and protection.” (Ballot Pamp., Primary Elec. (June 2, 1998) argument in favor of prop. 222, p. 15.)
The passage of these two propositions reflects the legislative determination, endorsed by the electorate, that murdering a peace officer is an especially heinous crime that deserves the harshest punishment possible. It is common to impose harsher punishment for crimes against peace officers. (E.g., Pen. Code § 148.10; § 243.) The purpose of these laws is to protect peace officers in the performance of their duties by providing enhanced punishment. (People v. Corey (1978) 21 Cal.3d 738, 746; People v. Superior Court (Ferguson) 132 Cal.App.4th 1525, 1535.) The Legislature also provides harsher punishment for use of a firearm to deter the use of firearms and protect lives. (People v. Mason (2002) 96 Cal.App.4th 1, 12 and cases cited.)
Singling out those who commit second degree murder of a peace officer with an aggravating factor of intent to kill or gravely injure or use of a firearm or other deadly weapon bears a rational relationship to the legislative goal of protecting peace officers and deterring the use of firearms. Indeed, the Rhodes court found the same. Although Rhodes found defendant failed to show two similarly situated groups, it also found a rational basis for the classification. It noted that the severity of punishment is not predicated solely on the mental state of the perpetrator; other circumstances may be considered. (People v. Rhodes, supra, 126 Cal.App.4th 1374, 1386.) “We conclude that a rational basis exists to punish the aggravated form of second degree murder committed by defendant in the same manner as a first degree murder committed without aggravating circumstances. The Legislature reasonably determined that the murder of a peace officer with a firearm is a particularly egregious form of homicide, even absent premeditation or deliberation, that requires the harsh punishment of life without possibility of parole to adequately promote the sentencing objectives of deterrence, protection of the public, and retribution. The increase in the severity of defendant's punishment for the offense of second degree murder of a peace officer, enhanced by his use of a firearm, is neither irrational nor arbitrary, and therefore did not deny defendant equal protection under the law. [Citations.]” (Id. at p. 1387.)
We agree with Rhodes on this point. The harsh punishment of life imprisonment without parole for second degree murder of a peace officer with an aggravating factor is not irrational. Defendant’s equal protection argument fails.
XII. Lack of Trial on Mitigating Circumstances
In the supplemental brief, defendant also contends he was denied due process and equal protection because he did not receive a trial on mitigating circumstances, and the chance for a sentence of 15 years to life. A defendant convicted of second degree murder with a prior prison term for murder is entitled to such a trial under Penal Code section 190.05. Defendant contends this distinction bears no rational relationship to treating more serious murders more harshly.
A defendant convicted of second degree murder of a peace officer with an aggravating factor is sentenced to life imprisonment without the possibility of parole. (Pen. Code, § 190, subd. (c).) One convicted of second degree murder with a prior prison term for murder faces two possible sentences: life imprisonment without the possibility of parole or 15 years to life. (Pen. Code, § 190.05, subd. (a).) Neither penalty has precedence and the choice is determined by a penalty phase trial. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1145; Pen. Code, § 190.05, subd. (h).)
Relying on People v. Olivas (2004) 17 Cal.3d 236, defendant argues that because the distinction at issue involves a fundamental liberty interest, strict scrutiny analysis is appropriate. He contends no compelling state interest justifies the distinction. In Olivas, the court considered an equal protection challenge to a law that permitted juvenile misdemeanants to be confined longer than an adult. The court concluded that personal liberty was a fundamental interest and subject to the strict scrutiny standard. (Id. at p. 251.)
We apply the rational basis test to the distinction between Penal Code section 190, subdivision (c) and Penal Code section 190.05. “The language in Olivas could be interpreted to require application of the strict scrutiny standard whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to ‘personal liberty’ of the affected individuals. Nevertheless, Olivas properly has not been read so broadly.” (People v. Wilkinson (2004) 33 Cal.4th 821, 837 [applying rational basis test to an equal protection challenge to a sentence].) A defendant “does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.” (People v. Flores (1986) 178 Cal.App.3d 74, 88.) “Where as here the question is not whether to deprive [defendant] of his liberty but for how long, we believe rational basis review, not strict scrutiny, is the appropriate test to resolve an equal protection challenge.” (People v. Hernandez (3005) 134 Cal.App.4th 474, 483.)
Defendant further contends the distinction at issue does not even pass the rational basis test. He argues second degree murder of a peace officer with an aggravating factor is not substantially more serious than second degree murder with a prior prison term for murder. Indeed, he contends it is more blameworthy to kill two persons than one and the protection of society requires harsher punishment for the repeat murderer. Defendant asserts there is no justification for the disparate treatment of the two crimes.
This issue was before the court in People v. Rhodes, supra, 126 Cal.App.4th 1374. The Rhodes court found no irrationality in classifying murder of a peace officer with a firearm as the more serious offense. “We also discern in the distinct characteristics of the two crimes a rational basis for the legislative decision to adopt a mandatory life term for second degree murder of a peace officer with a firearm, but grant discretion for a parole alternative for a violation of section 190.05: the former crime is much more specific in nature, and thus does not lend itself to the need for the exercise of sentencing discretion; the offense of second degree murder with a prior prison term for murder takes into account a more varied category of both current and prior offenses that demands an examination of mitigating and aggravating factors to properly determine the seriousness of the crime and the appropriate punishment.” (Id. at p. 1388.)
We agree with Rhodes on this point. The more specific nature of Penal Code section 190, subdivision (c), with its requirement that defendant knew or should have known the victim was a peace officer, warrants a uniform and severe sentence and reduces the need for flexibility in sentencing. Defendant’s claim that denying him a trial on mitigating factors violated his equal protection and due process rights fails.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., CANTIL-SAKAUYE , J.
“A person is not guilty of a crime when [he] [she] engages in an act, otherwise criminal, through necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely: [¶] 1. The act charged as criminal was done to prevent a significant and imminent evil, namely, [a threat of bodily harm to oneself or another person] [or] [_______]; [¶] 2. There was no reasonable legal alternative to the commission of the act; [¶] 3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided; [¶] 4. The defendant entertained a good-faith belief that [his] [her] act was necessary to prevent the greater harm; [¶] 5. That belief was objectively reasonable under all the circumstances; and [¶] 6. The defendant did not substantially contribute to the creation of the emergency.” (CALJIC No. 4.43.)