Opinion
A150895
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH TYRONE YOUNG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H58664A)
On the night of March 27, 2015, defendant Kenneth Young was in a van with co-defendant Gary Gates in the parking lot of The Spot nightclub in Union City when Tjorn Magee and Anthony Boyd, driving Young's gold Lexus, pulled up beside them. In the confrontation that followed, Young shot and killed Magee. A jury convicted Young of first degree murder and of being a felon in possession of a firearm, and found true the special allegation that he had used a firearm during the commission of the offense causing great bodily injury or death. Young argues that the jury's finding of premeditation and deliberation is not supported by the evidence, that the prosecutor committed misconduct by introducing Young's invocation of his right to counsel, that the trial court erred in finding Boyd unavailable and permitting his preliminary hearing testimony to be read to the jury, that numerous alleged instructional errors require reversal, and that he is entitled to resentencing under legislation enacted while this appeal was pending. We will remand for resentencing, but otherwise affirm.
FACTUAL BACKGROUND
We describe the facts and testimony at trial only for context and as relevant to the issues on appeal.
A. Young's Relationship with Elizabeth Jones
Elizabeth Jones met Young through a mutual friend while they were both living in East Palo Alto. The two had a relationship which Jones described as "friends with benefits." Young owned a gold Lexus, which he let Jones use and which was parked at her apartment. Young would spend several days at a time at Jones's apartment.
Jones testified that she met Young "[l]ike 2013, somewhere around that time," while Young testified that he met Jones in late 2011 and lived with her from April of 2012 until February of 2015.
In February of 2015, Jones ended her relationship with Young and began a "friends with benefits" relationship with Tjorn Magee, who lived in her apartment complex. After Young found out about Jones's relationship with Magee, he was angry. At one point, he came to her apartment, called her a "bitch," and spat in her face. Jones then told Young something to the effect that she "didn't want to deal with him."
Around March 20, 2015, Jones was giving Anthony Boyd, a friend of Magee's, a ride in the Lexus when she saw Young pull up to the gate of her apartment complex. Young yelled in her direction. As Jones pulled out of the apartment complex, Young followed her and eventually pulled up beside her. Jones drove in a different direction and Young became stuck in traffic. Later, Young told Jones "that if Mr. Magee would have been in that car he would have shot up the car."
On March 22 and 23, Young sent Jones several text messages expressing that he was upset about the end of their relationship, telling her he felt "very empty inside an that dont feel good at all" and that "I Really loved you beth you killed me yesterday." Other text messages stated "dont like to be kickd by people I lov or loved" and "Im gonna be ownest im mad because u aint fuckg with me okay." Young also requested several times that Jones return his gold Lexus to him, including in several text messages.
At some point, Jones told Magee that Young "was pissed off and that he came to [her] house," and she gave Magee Young's phone number. On March 23, Young texted Jones: "Dont ever hav a nigga call me u hella dum just giv my car up bitch." That same day, Young also sent Magee a text message: "Nigga, don't let a bitch get you fuck up. I never said anything about you, but since you called me, it's all bad." B. March 27 , 2015 Shooting of Tjorn Magee
Around 10:00 p.m. on the night of March 27, 2015, Magee and his cousin Lillie Ware were at a birthday party at The Spot in Union City. At some point thereafter, Magee left the party.
Sometime after 11:30 p.m., Jesse Asis was working as a bouncer at The Spot and was standing at the entrance to the club. Asis saw a white van pull into the parking lot close to where he was standing, back up into the entrance of the lot, and then drive toward the larger parking lot next door. Asis recognized the driver of the van as Gary Gates. Shortly thereafter, Asis heard at least eight gunshots in a "straight string" with a "couple of small gaps." Asis told the other bouncer to shut down the bar and call 911, and then headed toward the larger parking lot. Once there, he saw the white van come towards him and then exit from the lot "at a fast pace." Asis again recognized Gates as the driver of the van. As the van exited the parking lot, Asis was able to note part of the van's license plate number, which he relayed to a 911 dispatcher along with the van's description. When Asis reached the larger parking lot, he saw Magee's body lying face down close to a gold Lexus, which had its door open and its lights on. Police recovered eight .32-caliber casings and one bullet on the ground at the scene. No weapons were found in the Lexus or on Magee's person. It was later determined that Magee died from multiple gunshot wounds.
Shortly after the shooting, at about 11:46 p.m., Fremont Police Officer Kurtis Romley was driving towards the 880 freeway when he heard a dispatcher report the description of the white van provided by Asis. Officer Romley saw a vehicle matching the description on the off-ramp for southbound 880. He followed the vehicle until additional officers arrived and then activated his lights and sirens. After he turned his lights on, Officer Romley saw items being thrown out of both the van's driver side and passenger side windows. Once the van was stopped, he determined that Gates was the driver and Young the passenger.
An officer assigned to look for the items thrown from the vehicle located a small caliber black and silver semiautomatic handgun near where the van was stopped. A firearms examiner later determined that all eight casings and the bullet found at the scene were fired from this handgun. The parties stipulated that the gun held one round and the magazine an additional seven rounds, so that when fully loaded the gun and magazine held a total of eight rounds.
After his arrest, in a call placed from the Fremont jail on March 29, 2015, Young told his daughter that "I ain't trippin'. At all. I'd do it again" and "[f]uckers thought I was playing. I don't fuckin' (unintelligible) I don't play." C. Anthony Boyd's Statement and Testimony
As will be discussed in further detail below, Boyd did not testify at trial.
The police conducted a videotaped interview with Boyd at his residence on April 28, 2015. According to Boyd, he and Magee parked next to the white van and "before [Magee] could even put the car in park the passenger of the van was already out" causing Boyd to conclude "[t]hat shit was rehearsed." Boyd identified the passenger as Young and stated: "So when he got out the van-straight to the driver-straight to the driver door handle-opened up the car. Told [Magee], 'Nigga you got a lot of nerve pulling up in my car.' " Boyd concluded that Young "[s]een my legs and must assumed I was [Jones] or whoever gave him tips that [Magee] was there." Boyd stated that after Young shot Magee he got in the passenger side of the van, backed out, and left. Boyd also described the prior incident in which Young chased Jones and Boyd in Jones's car as they left her apartment complex. Finally, Boyd identified Young in a photo lineup.
At the preliminary hearing, Boyd testified that Magee was one of his best friends and that they had known each other for about 20 years. On March 27, 2015, Magee called Boyd and asked him if he wanted to go to a party that night, and Boyd agreed. Magee picked Boyd up that night in a gold Lexus and drove him to The Spot in Union City. Less than 30 seconds after they parked and while the car was still on, "[s]omebody walked up to the driver's side and started shooting." Magee's door was already open, and he "muscled his way out of the car." Boyd testified that the gunman continued shooting as Magee got out and stood in front of the car. Boyd got out of the car, "kneeled down and backpedal[ed] away." He heard Magee "asking for his life" and then saw him fall to the ground. He saw the white van leaving the parking lot and recognized it as belonging to Gates. At the hearing, Boyd acknowledged having identified Young in a photo lineup during his interview with police, but claimed he never saw the shooter. D. Young's Testimony
Young testified in his own defense regarding the night of the shooting as follows. On March 27, 2015, Young had a couple of drinks, parked his car at Gates's house, and got into Gates's van so that they could attend a party at the Spot in Union City. On the way, they stopped at a liquor store in Palo Alto and purchased additional drinks. When they arrived and parked at The Spot, Young and Gates stayed in the van drinking and using "some marijuana, some cocaine powder, and a little heroin on a plate" for "maybe 20 or 30 minutes." Young then heard music and looked to the right to see that Magee and Boyd had pulled up next to the van in his gold Lexus. Young got out of the van and Magee, whose window was down, said "I'm wrong. I'm wrong about everything I did to you." The door of the Lexus then opened "pretty fast and hard," hitting Young and causing him to fall toward the ground. As he fell, Young saw Magee reach for something that he thought was a weapon. Young admitted firing his gun eight times at Magee, but stated that he was "kinda blacked out" and "felt like [he] was in a black hole."
PROCEDURAL BACKGROUND
On April 11, 2016, the Alameda County District Attorney filed an information charging Young with the murder of Magee (Pen. Code, § 187, subd. (a)) (count 1) and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (count 2), and Gates with being an accessory after the fact (Pen. Code, § 32) (count 3). In connection with count 1, it was further alleged that Young personally and intentionally discharged a firearm causing great body injury or death (Pen. Code, § 12022.53, subd. (d).)
After trial, on November 17, 2016, a jury found Young guilty of first degree murder and possession of a firearm by a felon, the special circumstances allegations true. Gates was found not guilty. The trial court sentenced Young to 25 years to life term on count 1, a consecutive 25 years to life term for the firearm enhancement pursuant to Penal Code section 12022.53, subdivision (d), and a determinate term of 8 months (one-third the midterm) on count 2, for a total term of 50 years and 8 months to life. This appeal followed.
DISCUSSION
Young argues that: (1) substantial evidence does not support the jury's finding of premeditation and deliberation; (2) the prosecution committed misconduct by introducing evidence that Young asked to speak to a lawyer after his arrest; (3) the trial court prejudicially erred in admitting Boyd's testimony at the preliminary hearing; (4) the jury instructions on voluntary intoxication were erroneous; (5) the jury instructions improperly foreclosed consideration of Young's voluntary intoxication with respect to the subjective elements of heat of passion and imperfect self-defense voluntary manslaughter; (6) the jury instructions failed to specify the mens rea required for voluntary manslaughter; (7) the jury instructions on flight or suppression of evidence were erroneous; (8) that he is entitled to resentencing under recently enacted Senate Bill No. 620; and (9) the cumulative effect of the above errors requires reversal. I. Substantial Evidence Supports the Jury's Finding of Premeditation and Deliberation A. Applicable Law
" 'When a defendant challenges the sufficiency of the evidence, " '[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' [Citation.] 'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' [Citation.] 'Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
" ' "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. ([Pen. Code,] § 189 ['willful, deliberate and premeditated killing' as first degree murder].) 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.]" [Citation.] " ' "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." ' " ' (People v. Casares, supra, 62 Cal.4th at p. 824.) To prove a killing was ' "deliberate and premeditated," ' it is 'not . . . necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.' (Pen. Code, § 189.)" (People v. Disa (2016) 1 Cal.App.5th 654, 664-665.)
The jury was instructed with CALCRIM No. 521, as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
In People v. Anderson (1968) 70 Cal.2d 15, the Supreme Court provided guidelines "for the kind of evidence which is sufficient to sustain a finding of premeditation and deliberation." (Id. at p. 26.) Such evidence "falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (Id. at pp. 26-27.)
"Our high court has cautioned that Anderson ' "did not refashion the elements of first degree murder or alter the substantive law of murder in any way." [Citation.] In other words, the Anderson guidelines are descriptive, not normative. "The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." ' [Citation.] Thus, the Anderson 'factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] However, "[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained." ' [Citation.]" (People v. Disa, supra, 1 Cal.App.5th at p. 665.)
The question thus is "whether, in light of the whole record, there is substantial evidence from which rational jurors could have found that defendant's killing of [Magee] was the result of preexisting thought and the careful weighing of considerations." (People v. Boatman (2013) 221 Cal.App.4th 1253, 1270.) B. Analysis
While not overwhelming, there was some evidence of planning activity before the jury. In his interview with police, Boyd stated that "pictures on Instagram show that [Magee] was in the party before he left and came and got me," and that someone "gave [Young] tips that [Magee] was there," suggesting that Young anticipated Magee's arrival. Boyd also stated that "before [Magee] could even put the car in park the passenger of the van was already out" and that Young "walked up to the driver's side and started shooting." Boyd concluded that the shooting was planned because of "how fast it happened" and that "[t]hat shit was rehearsed." Substantial evidence thus supports an inference that Young anticipated Magee's arrival, or at least considered his actions and planned to confront and shoot him. (See People v. Sanchez (1995) 12 Cal.4th 1, 34 ["[P]lanning activity occurring over a short period of time is sufficient to find premeditation."].)
A transcript of Boyd's videotaped statement to police was entered into evidence.
As to motive, there was sufficient evidence of Young's motive to kill Magee, including his unhappiness over the end of his relationship with Jones and her beginning a relationship with Magee, and his anger regarding Jones's failure to return the car he had lent her. (See People v. Disa, supra, 1 Cal.App.5th at p. 666 [finding that depression over end of a relationship and jealousy over new relationship can support finding of motive].)
With respect to the nature of the killing, substantial evidence likewise supports a finding of premeditation and deliberation. Boyd's testimony was that less than 30 seconds after Magee parked the Lexus and while it was still running, "[s]omebody walked up to the driver's side and started shooting." The murder weapon held eight rounds, and Magee had 10 entrance wounds on his body, suggesting that Young fired every bullet in the weapon and hit Magee with every shot. Gates testified that he heard two shots, followed by a break, followed by six more shots. Certain entrance wounds were consistent with Magee having been shot while he was still inside his car, while entrance wounds in Magee's back and in his leg were consistent with having been shot while he was already lying on the ground. Boyd testified that he heard Magee "asking for his life." These facts, together with the fact that Magee was unarmed, support a finding that Young killed intentionally and with a preconceived design. (See, e.g., People v. Silva (2001) 25 Cal.4th 345, 369 ["The manner of killing—multiple shotgun wounds inflicted on an unarmed and defenseless victim who posed no threat to defendant—is entirely consistent with a premeditated and deliberate murder"]; People v. Manriquez (2005) 37 Cal.4th 547, 578 [firing multiple shots at close range at an unarmed victim's back supports a finding of premeditation and deliberation]; People v. Morris (1988) 46 Cal.3d 1, 23 ["The fact that defendant shot the victim twice from close range could reasonably support an inference by the jury that the manner of killing was ' "particular and exacting." ' "], disapproved on another ground by In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
Finally, Young's conduct after the killing also tended to support the jury's finding of premeditation and deliberation, including Young's telephone call from jail to his daughter in which he told her: "Fuckers thought I was playing. I don't . . . play" and his statement that he would "do it again." (See People v. Perez (1992) 2 Cal.4th 1117, 1128 [conduct after the killing "would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing"]; People v. Disa, supra, 1 Cal.App.5th at p. 667 [similar].) We conclude that substantial evidence supports the jury's finding of premeditation and deliberation. II. The Prosecution Did Not Commit Misconduct or Doyle Error A. Additional Background
During the prosecution's case-in-chief, the prosecutor was questioning Union City Police Officer Brian Baumgartner regarding the transcript of a recording made of Young and Gates while they were seated in Officer Baumgartner's patrol car subsequent to their arrest:
"Q. What does he say about his charges?
"A. Defendant Gates?
"Q. Yes.
"A. He says: 'They got me charged with murder too.'
"Q. And how does Defendant Young respond to that?
"A. He says: 'Don't worry, bro. I gotcha. Only thing I said, "That guy shouldn't be here, and I want to talk to a lawyer." '
"Q. So as far as you know, as far as you could tell, that conversation was about Mr.
"THE COURT: Let's take a recess for a moment."
The jury and the witness were then excused from the courtroom. The trial court and the prosecutor discussed the statement, and in particular Young's statement regarding his request to speak with a lawyer, a discussion which concluded with the following colloquy:
"THE COURT: Well, the horse is out of the barn, but, Counsel, what I'm going to do in terms—the horse is out of the barn. There should have been an objection.
"MR. THOMPSON [counsel for Gates]: Well, making an objection of course is to preserve the record, and preservation is important, but there's also strategic terms in terms of amplifying the importance. And also it's not to my client, because it's not my client's invocation. It's as to Mr. Johnson. I didn't want to appear
"THE COURT: I don't want any more.
"MR. MARIN [prosecutor]: That's it. That was the last question I had.
"THE COURT: Well, Mr. Johnson, what do you want to do?
"MR. JOHNSON [counsel for Young]: Let me think about it, your Honor.
"THE COURT: You have to decide now. I think it compounds it if we take any more time. I just didn't want any more coming in.
"MR. JOHNSON: Well, I fully understand the Court's position in regards to this. And when I initially looked at it, I was of the opinion that it was not necessarily harmful for Mr. Young in the sense that he was not incriminating himself. But now I'm fully—after the Court has brought it out to my attention and so forth, I mean I can see what the Court is saying. . . ."
Defense counsel and the trial court further discussed Young's statement. Then:
"THE COURT: The horse is out of the barn.
"MR. JOHNSON: The horse is out of the barn. My thinking is a long as there's nothing subsequent to what the jury already heard, that we cut it off at that point and leave it.
"THE COURT: In the future you should object. They could put in what he said and then cut off the part: 'Then I said I want to talk to a lawyer.' That's not appropriate, and it's dangerous, and it could cause a reversal. Please bring in the jury."
Later on, outside the presence of the jury, the prosecutor stated that he would "encourage [Young's counsel] to consider" requesting a cautionary instruction regarding the statement, "[a]nd if he doesn't . . . I would ask that he put on the record why he doesn't want to give a cautionary instruction, just so the record is clear; he had that opportunity, and the reasons he didn't want to." Young's counsel then stated that he "would be remiss if I didn't ask for the cautionary instruction," and the trial court said "[t]he question is whether it highlights it a second time." The trial court encouraged Young's counsel to "think about it before you make a decision now." Counsel indicated he would.
Still later, the trial court and the prosecutor discussed and agreed on the precise language of a cautionary instruction. Young's counsel interjected to state that he was "satisfied with the way the Court has stated it . . . I think since there's an attempt to deal with the issue, I'm satisfied with that." And that he was "okay with" the final instruction. And so, before Young took the stand, the jury was instructed:
"THE COURT: . . . One evidentiary issue. On Monday there was recorded conversation played between Defendant Gates and Defendant Young. Officer Baumgartner was the witness when this was admitted yesterday—or not yesterday, Monday.
"At one point in the recording, Defendant Young stated to Defendant Gates, quote: 'Don't worry, bro. I gotcha. Only thing I said was "That guy should not be here and I want to talk to a lawyer." '
"That part of the statement, quote: 'I want to talk to a lawyer,' unquote, is stricken. You're to treat that part of the statement as if you had never heard of it." B. Analysis
Young claims that the admission of his statement that he told the police he "want[ed] to talk to a lawyer" was prejudicial error under Doyle v. United States (1991) 426 U.S. 610 (Doyle), which held that impeachment use of a defendant's post-arrest and Miranda warning silence violates the due process clause. (Doyle at pp. 619-620.) We disagree.
Miranda v. Arizona (1966) 384 U.S. 436.
First, as the history given above makes clear, Young's claim of error is forfeited by failure to object below. Defense counsel did not object to the statement when it was elicited, or at any point. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1238 [" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (quoting People v. Valencia (2008) 43 Cal.4th 268, 281)], abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1219; People v. Kipp (2001) 26 Cal.4th 1100, 1130 [" 'To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' " (quoting People v. Price (1991) 1 Cal.4th 324, 447)].) Nor did Young seek a mistrial based on what he now contends was structural error. And he did not object to, and in fact twice affirmatively indicated he was satisfied with, the cautionary instruction that was ultimately given to the jury regarding the statement.
Young argues in the alternative that if his claim is forfeited, his counsel was ineffective in failing to raise an objection early enough to prevent the statement's admission or to move for a mistrial. Even assuming defense counsel's performance was deficient, we find no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
The relevance of the statement was Young's opinion that Gates, his codefendant, "should not be here," and had nothing to do with Young's statement that he had asked to speak to a lawyer. The prosecution did not mention Young's invocation during closing statement or rely on it in any other way. (See People v. Thomas (2012) 54 Cal.4th 908, 936 [no violation of Doyle where "the prosecutor did not attempt and was not permitted to use the comment against defendant by inviting the jury to draw any adverse inferences from the remark"].) In addition, as noted, the statement was stricken and the jury was expressly instructed to completely disregard it, and we presume they followed those instructions. (See People v. Edwards (2013) 57 Cal.4th 658, 723.) We conclude that there was no reasonable probability of a different result. III. The Trial Court Did Not Err in Finding Boyd Unavailable and Admitting His Prior Testimony
Young argues that the trial court erred in finding Boyd unavailable to testify within the meaning of Evidence Code section 1291 and that he did not have an adequate opportunity to cross-examine him when he testified at the preliminary hearing. A. Additional Background
As noted, Boyd gave a videotaped statement to the police on April 28, 2015, and testified at the preliminary hearing on March 9, 2016.
Inspector Robert Davila testified as follows regarding his efforts to secure Boyd's testimony at trial. Around September 30, 2016, Davila located three addresses for Boyd and visited each one. At the first address, he spoke with and gave his business card to a neighbor who thought the address in question was vacant. Davila then visited a second address in Mountain View and spoke with a man who told him that Boyd no longer lived at that location. Davila then visited a third address in East Palo Alto and made contact with Boyd's ex-wife Rhonda Crooks. Davila left a subpoena and his business card with Crooks; about two hours later, he received a phone call from Boyd indicating he had received the subpoena and was aware of it.
On October 17, 2016, the date Boyd was to appear, he came to court and was ordered back on October 31, 2016. On that date, he appeared again but was ordered back on November 2, 2016; on that date, he was ordered back on November 3. On November 3, Boyd appeared in the morning but was ordered to return that afternoon. Later that day, Boyd spoke with the district attorney's office and "said at one point he was on his way, and then he had some childcare issues and just flat didn't show up." Still later that same day, the district attorney's office again spoke with Boyd, who indicated that he would go to the East Palo Alto Police Department to pick up a subpoena. Ultimately, Boyd did not do so.
The next day, November 4, the district attorney's office spoke with Boyd and requested that he return to court, and he responded that "he had too much going on and wasn't going to do it." A warrant was then issued for his arrest. On Sunday, November 6, Davila contacted the East Palo Alto Police Department and was told that they had been looking for Boyd but had been unable to locate him. Davila again visited Rhonda Crooks's house and left his business card when he found she was not home. About an hour later, Crooks called Davila and told him she would try to call Boyd and tell him to contact Davila, but Boyd never called.
On November 7, Davila received information that Boyd might be at an address in East Palo Alto, and the East Palo Alto Police went by the address but were unable to locate him. Davila's partner also contacted four local hospitals in an unsuccessful attempt to locate Boyd. Nor was Boyd anywhere in custody.
On November 8, the trial court found that Boyd was unavailable to testify. The next day, November 9, before Boyd's preliminary hearing testimony was read to the jury, the prosecution recalled Davila to the stand. He testified that after his testimony the previous day, he had developed another possible address for Boyd in Gilroy. Davila, his partner, and four members of the Santa Clara County Sheriff's Department went to that address, a "very large" ranch covering several acres and containing "multiple houses." Davila was told by people on the property, who were "not very cooperative," that "they thought he probably had left and gone to the store." Davila testified that they unsuccessfully "searched the whole area looking for" Boyd. According to Davila, the location "was a fairly large area with multiple vehicles [and] all kinds of places" in which Boyd could have been hiding. Later that day, Boyd's testimony from the preliminary hearing was read to the jury. B. The Trial Court Properly Found Boyd Unavailable
Evidence Code section 1291, subdivision (a)(2) provides that former testimony is admissible where the declarant is "unavailable as a witness" and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." Under Evidence Code section 240, subdivision (a)(5), a witness is unavailable when he or she is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." The term "[r]easonable diligence, often called 'due diligence' in case law, ' "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." ' " (People v. Cogswell (2010) 48 Cal.4th 467, 477.) Considerations relevant to the due diligence inquiry "include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored." (People v. Wilson (2005) 36 Cal.4th 309, 341.) In this regard, "California law and federal constitutional requirements are the same." (People v. Valencia (2008) 43 Cal.4th 268, 291-292.)
We defer to the trial court's factual findings that are supported by substantial evidence, but we "independently review whether the facts demonstrate prosecutorial good faith and due diligence." (People v. Herrera (2010) 49 Cal.4th 613, 623.)
Young argues that the prosecution did not exercise reasonable diligence in attempting to procure Boyd's attendance because the prosecution should have made "further attempts to get word to him through his ex-wife" and should have "wait[ed] and search[ed] longer" at the Gilroy ranch, including the "store or store(s) where he was." We are not persuaded.
As noted above, with respect to Boyd's ex-wife, Davila testified that on Sunday, November 6, he went to her house and left a business card, and spoke with her on the phone about an hour later, during which conversation she stated that she would call Boyd and have him call Davila. It is unclear what Davila could have done to further follow up with Crooks. With respect to Davila's search of the ranch, Davila did testify that the people at the ranch "thought [Boyd] probably had left and gone to the store," but he also testified that they did not give any further information as to his location and were "not very cooperative." The ranch itself covered several acres, contained multiple buildings and vehicles, and officers "searched the whole area looking for him." Under these circumstances, and in light of the long history of the prosecution's attempts to locate Boyd detailed above, we agree with the trial court that the prosecution exercised due diligence in attempting to secure his attendance. C. Young Had An Adequate Opportunity to Cross-Examine Boyd
Young also argues that he did not have an adequate opportunity to cross-examine Boyd at the preliminary hearing because former defense counsel's cross-examination took only "two pages" and was limited to the issue of identification.
Contrary to Young's contention, his former counsel's failure to explore certain areas on cross-examination does not render Boyd's testimony inadmissible under Evidence Code section 1291. "As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. [Citations.]" (People v. Zapien (1993) 4 Cal.4th 929, 975; People v. Smith (2003) 30 Cal.4th 581, 611 ["[I]t is the opportunity and motive to cross-examine that matters, not the actual cross-examination"].) Moreover, "the admission of . . . testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective." (People v. Samayoa (1997) 15 Cal.4th 795, 851 (citing People v. Zapien, supra, 4 Cal.4th at p. 975).)
While former defense counsel's cross-examination did not focus on the issues of mitigation and intoxication that later became Young's defense at trial, defense counsel certainly had a similar interest and motive to cross-examine Boyd regarding those issues at the preliminary hearing, and Young offers no argument otherwise. Young's argument that Boyd's testimony was improperly admitted fails. IV. The Jury Was Properly Instructed on Voluntary Intoxication
Young argues that the jury instructions on voluntary intoxication, by providing that the jury "may" consider intoxication evidence instead of "must" consider it, lightened the prosecution's burden of proof and thereby deprived him of due process and a fair trial.
The jury was instructed with the standard form of CALCRIM No. 625, given as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose."
We do not find any error in the instructions as a whole. The jury was also instructed with CALCRIM No. 220, providing that "you must impartially compare and consider all the evidence that was received throughout the entire trial." Together with the instruction that the jury "may" consider intoxication evidence only for certain purposes, the instructions made clear that the jury should consider the intoxication evidence, but only for certain purposes. (See People v. Lucas (2014) 60 Cal.4th 153, 291 ["It is pure speculation to believe the jury ignored certain evidence simply because an instruction advised the jury that it 'should' or 'may' consider that evidence, instead of commanding the jury to consider that evidence"], disapproved on another ground by People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.)
In addition, Young's counsel made extensive and repeated use of the intoxication evidence in closing argument, telling the jury that the intoxication evidence could weigh against a finding of premeditation and deliberation, that "[i]t is the defense's position that Mr. Young acted with an unclear mind, in a fogged state based on ingestation [sic] of drugs and maybe alcohol," and that Young "was in a deep fog," his "mind was unclear," and he was "not quite sure what happened after the first shot." Considering the instructions as a whole, together with the arguments of counsel, we are satisfied that the jury understood how properly to consider the intoxication evidence. (See People v. Mills (2012) 55 Cal.4th 663, 680 [in evaluating claims of instructional error "we view the record as a whole, and consider the instructions in context" including other correct instructions and the arguments of counsel].)
Young relies on People v. Stevenson (1978) 79 Cal.App.3d 976, to argue that proper instructions tell a jury it "must" consider the effect of intoxication, but that reliance is misplaced. In Stevenson, the court considered whether it was proper to limit the jury's consideration of voluntary intoxication to the defendant's generalized mental state and not as it related to specific intent to commit the charged crimes. (Id. at pp. 982-983, 987.) The court's statement that instructions that the jury "must" consider the intoxication evidence should be used instead of instructions providing the jury "should" consider it was included to guide the trial court on remand. (Id. at p. 987.) It was not essential to the holding and was not based upon any analysis of the adequacy of the standard instructions. It is, in short, dictum that does not convince us that the instructions as given here were erroneous. V. The Voluntary Intoxication Instructions Did Not Prevent Consideration of the Malice Negating Effect of Intoxication
Young next argues that by providing that the intoxication evidence could be considered only with respect to premeditation and deliberation, intent to kill, and unconsciousness, and not "for any other purpose," the voluntary intoxication instruction improperly foreclosed consideration of intoxication with respect to the mental state required for imperfect self-defense and heat of passion voluntary manslaughter. This limitation is based on Penal Code section 29.4 (formerly Penal Code section 22), subdivision (b), which provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." Young asserts that the limitation contained in this section and reflected in CALCRIM No. 625 is unconstitutional.
Young acknowledges that at least two Court of Appeal cases have considered and rejected the argument he now raises. (See People v. Timms (2007) 151 Cal.App.4th 1292, 1298-1302 [rejecting due process and equal protection challenges to former Penal Code section 22]; People v. Martin (2000) 78 Cal.App.4th 1107, 1115-1117 [rejecting due process challenge to former Penal Code section 22]; see also People v. Carlson (2011) 200 Cal.App.4th 695, 707-708 [upholding former Penal Code section 22 against due process and equal protection challenges].) After Young's opening brief was filed, our Supreme Court approved these cases in People v. Soto (2018) 4 Cal.5th 968, 980-981:
"This court has not considered a due process challenge to section 29.4. Three Courts of Appeal have done so and, relying primarily on Montana v. Egelhoff [(1996)] 518 U.S. 37, each upheld the statute. (People v. Carlson (2011) 200 Cal.App.4th 695, 707-708; People v. Timms, supra, 151 Cal.App.4th at pp. 1298-1301; People v. Martin, supra, 78 Cal.App.4th at pp. 1115-1117.) The most recent of these opinions provides a good summary of why the courts have upheld section 29.4:
" 'Montana v. Egelhoff [, supra,] 518 U.S. 37. . . rejected the claim of a defendant convicted of purposely or knowingly causing the death of a person that he was denied federal due process by a state law that barred consideration of voluntary intoxication " 'in determining the existence of a mental state which is an element of [a criminal] offense.' " (Id. at p. 40.) Four justices concurred in an opinion holding the rule that "intoxication may be considered on the question of intent . . . was [not] so deeply rooted . . . as to be a fundamental principle which th[e Fourteenth] Amendment [has] enshrined." (Id. at p. 48.) Justice Ginsburg concurred in upholding the statute. Declaring " '[a] state legislature certainly has the authority to identify the elements of the offenses it wishes to punish,' . . . and to exclude evidence irrelevant to the crime it has defined' (id. at p. 57 (conc. opn. of Ginsburg, J.), citation omitted), she distinguished between invalid laws 'designed to keep out 'relevant, exculpatory evidence' " (ibid. (conc. opn. of Ginsburg, J.) ) and valid laws that merely "redefin[e] . . . the mental-state element of the offense" (ibid. (conc. opn. of Ginsburg, J.) ), and concluded the Montana statute fell into the latter category (id. at pp. 57-59 (conc. opn. of Ginsburg, J.) ).
" 'California appellate courts have followed Egelhoff in upholding the current version of [former] section 22 [i.e., the substance of section 29.4] against due process attacks. People v. Martin, supra, 78 Cal.App.4th 1107 stated, "[t]he 1995 amendment to [former] section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited," and "nothing in the enactment . . . deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt . . . ." (Id. at p. 1117.) People v. Timms, supra, 151 Cal.App.4th 1292, declared, "Like the Montana statute, the California Legislature could also exclude evidence of voluntary intoxication in determination of the requisite mental state. [¶] . . . In short, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard. Therefore, it does not lessen the prosecution's burden of proof or prevent a defendant from presenting all relevant defensive evidence." (Id. at pp. 1300-1301.)' (People v. Carlson, supra, 200 Cal.App.4th at pp. 707-708.)
"We agree with these cases. The Legislature has decided, for policy reasons, that evidence of voluntary intoxication is irrelevant to proof of certain mental states. The Legislature may validly make that policy decision." (People v. Soto, supra, 4 Cal.5th at pp. 980-981.)
On reply, Young acknowledges that People v. Soto forecloses the constitutional challenges he brings here, but states that he continues to assert them "for purposes of exhaustion of state remedies." We are bound by People v. Soto, and accordingly we reject Young's argument. VI. The Jury Instructions Were Not Erroneous In Failing To Explain the Malice-Negating Effect of Provocation or the Need for Self-Defense
Young argues that the instructions on the lesser included offenses of voluntary manslaughter based on heat of passion or imperfect self-defense erroneously failed to expressly explain that provocation or the belief in the need for self-defense serve to negate the malice element of murder, nor did they expressly define the mens rea required for voluntary manslaughter.
Young did not object to these instructions or request that they be modified at trial, but since he argues in the alternative that his counsel was ineffective in failing to do so, we will address the merits of his argument.
The jury was given standard instructions for voluntary manslaughter based on heat of passion and imperfect self-defense (CALCRIM Nos. 570 & 571). These instructions do not explicitly discuss the mental state required for voluntary manslaughter, but instead explain that a "killing that would otherwise be murder is reduced to voluntary manslaughter" if the defendant acted in the heat of passion or in imperfect self-defense.
As Young acknowledges, the Court of Appeal has considered and rejected this argument in People v. Genovese (2008) 168 Cal.App.4th 817 (Genovese). There, as here, the jury was given the standard instructions on murder (CALCRIM Nos. 500, 505, and 520), as well as the standard instruction on voluntary manslaughter under a theory of imperfect self-defense. (Id. at pp. 826-829.) There, as here, the defendant argued that the instruction was erroneous because it failed to explain the malice negating effect of imperfect self-defense. (Id. at p. 825.) The court rejected this argument, with language equally applicable here: "[I]t does not matter that the CALCRIM instructions failed to inform the jury that imperfect defense of another would eliminate malice. As we have set forth above, the jury was told, in a series of instructions, what different kinds of acts and situations would reduce the crime from murder to voluntary manslaughter. It is immaterial that the jury was not informed that, in fact, what was going on was that the jury was finding an 'absence of malice.' As Justice Corrigan has explained in her Preface to the CALCRIM jury instructions, 'our work reflects a belief that sound communication takes into account the audience to which it is addressed.' (Judicial Council of Cal., Crim. Jury Instns. (2008) Preface, p. xi.) 'Malice is another word of multiple meanings in criminal law . . . .' (1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, § 11, p. 213.) The definition of malice may be interesting to lawyers and judges and law professors, but it does not aid the task of lay jurors to inform them that, when the defendant acts in an honest but unreasonable belief in the need to defend another, he is acting without malice. Consequently, the CALCRIM instructions are not erroneous in their failure to tell the jury the role that malice (or lack of malice) plays in reducing murder to voluntary manslaughter." (Genovese at pp. 830-831.) We agree with Genovese.
The defendant in Genovese also argued, as Young does here, that the instructions were defective in failing to inform the jury that voluntary manslaughter can be found even where the defendant had the intent to kill or a conscious disregard for life. (Genovese, supra, 168 Cal.App.4th at p. 831.) Genovese rejected this argument as well:
"The killing could not 'otherwise be murder' unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed in the instruction defining murder (i.e., that to prove murder, the prosecution must prove defendant acted with malice aforethought, and there are two kinds of malice aforethought—express, which requires intent to kill, and implied, which requires conscious disregard for human life).
"Thus, the instructions did let the jury know that a killing in imperfect self-defense (or heat of passion, etc.), whether intentional or in conscious disregard of life, is voluntary manslaughter.
"Defendant argues the language, 'killing that would otherwise be murder,' was faulty for failing to inform the jury that voluntary manslaughter could be found despite the existence of an intent to kill or conscious disregard for life. This argument is not well taken. Defendant says intent to kill or conscious disregard for life used to be expressly stated as an essential element of voluntary manslaughter in former CALJIC No. 8.40, which defined voluntary manslaughter and said that every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, was guilty of voluntary manslaughter. Language similar to former CALJIC No. 8.40 now appears in CALCRIM No. 572, which defines voluntary manslaughter when murder is not charged. (CALCRIM No. 572.) Here, voluntary manslaughter was a lesser offense of murder. Defendant argues that, since no instruction tracking former CALJIC No. 8.40 was given in this case, once the jury determined that express or implied malice was present in defendant's case, they were given no instructions telling them that even if they found this to be true, they could still find defendant guilty of voluntary manslaughter if they believed he acted in heat of passion or in reasonable/unreasonable defense []. But defendant's argument is defeated by the plain language of the instructions as given to the jury, that '[a] killing that would otherwise be murder is reduced to voluntary manslaughter' if defendant acted in imperfect defense of another or sudden quarrel or heat of passion." (Genovese, supra, 168 Cal.App.4th at pp. 831-832.) Young offers no response to Genovese, except to assert without elaboration that it was wrongly decided. We disagree. Young's claim of error fails. VII. The Instructions on Consciousness of Guilt Were Not Erroneous
The jury was instructed with CALCRIM No. 372 regarding consciousness of guilt, which provides:
"If a defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that a defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Young argues that this instruction was improper because any flight "said nothing about the nature or degree of his guilt or about which crime(s) he was fleeing from."
In the first place, because defense counsel did not object to this instruction before the trial court, Young's argument is forfeited. (See People v. DeHoyos (2013) 57 Cal.4th 79, 120-121.) It is also meritless. The idea that the jury somehow inferred that Young was guilty on the murder charge because he was fleeing the possession of a firearm by a felon charge, or vice versa, strains credulity. With respect to the degree of the murder charge, which depended entirely on Young's mental state, our Supreme Court has "repeatedly rejected the argument that instructions on consciousness of guilt, including instructions regarding the defendant's flight following the crime, permit the jury to draw impermissible inferences about the defendant's mental state, or are otherwise inappropriate where mental state, not identity, is the principal disputed issue." (People v. Martinez (2009) 47 Cal.4th 399, 450 (quoting People v. Zambrano (2007) 41 Cal.4th 1082, 1160); see People v. Jackson (1996) 13 Cal.4th 1164, 1224 [" 'The [flight] instructions do not address the defendant's mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard hereto.' " (quoting People v. Crandell (1988) 46 Cal.3d 833, 871)].) There was no instructional error. VIII. Young Is Entitled to a Remand Under Senate Bill No. 620
On October 11, 2017, while this appeal was pending, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.). The legislation provides that effective January 1, 2018, Penal Code section 12022.53, subdivision (h) is amended to permit the trial court to strike, in its discretion, a firearm enhancement under that section. As noted, Young was charged with a firearm enhancement under Penal Code section 12022.53, subdivision (d) in connection with the murder charge, the jury found the firearm allegation true, and the trial court imposed a sentence enhancement of 25 years to life. Young argues, and the People agree, that because his appeal was not final as of January 1, 2018, the amended Penal Code section 12022.53 applies retroactively to his sentencing. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) The People do not offer any argument against a remand for the trial court to exercise its newfound discretion. Accordingly, we will remand for the trial court to determine whether to exercise its discretion to strike the firearm enhancement in the first instance. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428 ["Here, a remand [under Senate Bill 620] is proper because the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements."].) IX. There Is No Cumulative Error
The amended Penal Code section 12022.53, subdivision (h) provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2.)
Finally, Young argues the cumulative effect of the alleged errors at his trial requires reversal of his conviction, even if none alone were individually prejudicial. As we have found no substantial error in any respect, this argument must be rejected. (See People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following the exercise of that discretion, to resentence Young accordingly. In all other respects, the judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.