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People v. Barrientos

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 13, 2020
F073613 (Cal. Ct. App. Feb. 13, 2020)

Opinion

F073613

02-13-2020

THE PEOPLE, Plaintiff and Respondent, v. ENCARNACION BARRIENTOS, Defendant and Appellant.

Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto, and Matthew Kearney, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF137677A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto, and Matthew Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant was sentenced to 38 years in prison after a jury convicted him of active participation in a criminal street gang and heat-of-passion voluntary manslaughter as a lesser included offense of murder. The jury foreman signed the "guilty" verdict form provided for heat-of-passion voluntary manslaughter; the clerk read the verdict in open court; and the jury affirmed it.

However, the jury also rendered a verdict of "not guilty" on a separate verdict form for imperfect self-defense voluntary manslaughter. This verdict was also read in open court and affirmed by the jury.

Defendant raises several claims of prejudicial error relating to the use of two verdict forms for the single crime of voluntary manslaughter. He also argues the court should not have instructed the jury at all on heat of passion.

We reject these contentions and affirm the judgment.

STATEMENT OF THE CASE

In an information filed in September 2011, the Kern County District Attorney charged defendant with the premeditated murder of Cruz Martinez (count 1; Pen. Code, §§ 187, subd. (a), 189) with the gang special circumstance (§ 190.2, subd. (a)(22)) and a gang enhancement (§ 186.22, subd. (b)(1)(C).) In count 2, defendant was charged with active participation in a criminal street gang (§ 186.22, subd. (a). Finally, the information also alleged a prior prison term enhancement (§ 667.5, subd. (b)); and that one of defendant's prior convictions constituted a strike (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)) and a serious felony (§ 667, subd. (a).)

All further statutory references are to the Penal Code unless otherwise stated.

Defendant was initially convicted of second degree murder and active participation in a criminal street gang. That conviction was reversed by this court, and defendant was retried.

On March 11, 2016, the jury rendered the following verdicts: not guilty as to second degree murder; guilty as to "[v]oluntary manslaughter, heat of passion, in violation of Section 192(a) of the Penal Code, a lesser but necessarily included offenses in the crime charged in the first count"; not guilty as to "[v]oluntary manslaughter, imperfect self-defense, in violation of Section 192(a) of the Penal Code, a lesser but necessarily included offense in the crime charged in the first count"; and guilty as to active participation in a criminal street gang.

In a bifurcated proceeding, the court found true the strike prior, serious prior felony, and prior prison term enhancements.

The court sentenced defendant to a total fixed term of 38 years in prison. The sentence was comprised of the following: the upper term of 22 years on count 1, plus 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(c)), plus five years for the prior serious felony enhancement (§ 667, subd. (a)), plus 1 year for the prior prison term enhancement (§ 667.5, subd. (b)), plus a stayed term (§ 654) of six years on count 2.

FACTS

On November 15, 2010, Cruz Martinez (aka "Bam Bam") was found stabbed to death near the front door of a residence in Bakersfield. A trail of blood led from the body to the sliding glass door of another residence a few doors down.

Joseph Ramirez's Testimony

Joseph Ramirez (aka "Tallboy") was Martinez's friend. They both considered themselves members of "South Gate Lil Locs." Martinez thought the "South Side" - apparently a reference to South Gate Lil Locs - was the best gang in town.

Ramirez initially referred to South Gate Lil Locs as a "neighborhood."

In the early morning of November 15, 2010, Ramirez was driving Martinez and another friend, Cesar Durado, around southwest Bakersfield. While driving around, they saw two men standing at a corner. Ramirez did not initially recognize the men. Martinez said, "Who are these fools?" Martinez then yelled out of the window, "Nutty Nutty South." Martinez told Ramirez to turn the car around. Ramirez assumed the two men must have thrown their hands up, which is what made Martinez want to go back. Ramirez initially resisted, but since Martinez was older, Ramirez complied.

Ramirez said this phrase represented their neighborhood.

Ramirez drove back to the corner where the two men were. Martinez exited the vehicle. One of the men recognized Ramirez and shook his hand, saying, "Wassup?" Ramirez recognized the man as Vicente Adam Perez (aka "Worm"). While Ramirez and Perez were talking, Martinez pulled out a gun. Ramirez said, "Bam, what the f[**]k you doing? Get in the car." Martinez pointed the gun at the second man, who was identified as defendant.

Ramirez later returned to the same corner, alone. He intended to apologize. However, Perez and defendant were mad and kicked the car Ramirez was driving. It looked like defendant began "reaching for something," so Ramirez drove away. As Ramirez drove off, Perez said, "You guys f[**]ked up. That's a big homie. He has Kern County." Ramirez understood that to mean all Sureños in Kern County "answer[ed] to" defendant, who in turn answered to a "higher authority" in the gang hierarchy.

Later that day, Ramirez received a phone call from Luis Montenegro (aka "Playboy"). Montenegro said that Ramirez and Martinez had "f[**]ked up," and they had "two hours to report or they're gonna green-light the South Side." Ramirez understood that to mean there would be violence between gangs. At some point, Ramirez asked someone - he "think[s]" it was Montenegro - where they were to report. Montenegro told him to go to a specific residential address in Bakersfield.

Ramirez went to pick up Martinez. Ramirez yelled at Martinez: "What the f[**]k you doing? You messed up, bro. Like, they want to talk to you now. It's a [sic] old homie. It gets deeper than what you know, so we gotta go try to make this right." Ramirez believed Martinez did not understand the "politics" and "how serious it got."

Montenegro again called Ramirez and told him, "Look. Look, Tallboy. I know you. We done business in the past. Nothing is gonna happen. We just need to talk to him so we can make it right. We're all on the same team." By saying, "We're all on the same team," Montenegro was referring to the fact that they were all Sureños. Montenegro reiterated that if they did not show up, "they're gonna green-light the South Side." Ramirez agreed to go and asked who would be there. Montenegro said he, defendant, and Perez would be there. Ramirez said he would come and bring his uncle Alberto Rodriguez (aka "Bobo"), Durado, and Martinez. Montenegro then told Ramirez he could not bring weapons. Ramirez responded that he could not do that. Montenegro said, "Look, my boy. You have my word, my palabra. My word. Varrio Bakers aren't gonna bring no weapons. We just want to talk. We don't want it to be that type of problem." Ramirez then agreed not to bring weapons.

Martinez wanted to bring his gun. Ramirez told Martinez he had given his word that they would not bring weapons.

Ramirez, Martinez, Rodriguez, and Durado went to the address Montenegro had provided. They went into a back bedroom, where they saw defendant, Montenegro, Perez, Adam Velasquez (aka "Mumbles") and "two other dudes." When Ramirez saw Velasquez and the two other people, he thought "it was gonna go all bad."

Martinez walked up to defendant and apologized. He said, "Dispensa. I don't know who you are. You are who you are, but I'm out here gangbanging." Ramirez testified "dispensa" means "I'm sorry" or "I apologize."

Defendant said, "What? You don't fight?" Martinez responded, "Yeah, I fight. I'm Bam Bam. I'm undefeated in my hood." Ramirez told defendant, "I apologize for my boy. He doesn't really know how deep it really is, and he's gonna - he's here to apologize, to make it right."

Perez then called Ramirez outside. Perez lifted up his shirt to show he had no weapons. Ramirez apologized again for Martinez. Perez told him not to worry and that they were all "on the same team." Perez and Ramirez then made an agreement that they were going to "check" Martinez for 13 seconds. Ramirez's side also needed to "pay two guns ... [m]aybe like a thousand dollars and a couple ounces of dope." Ramirez understood these requirements to be coming from a "higher authority" and therefore agreed in order to avoid a "green light" being placed on his neighborhood.

"Checking" refers to "punching" in this context.

After about a minute, Rodriguez came running out of the room and pushed two "dude[s]." Then "they" pulled out guns and pointed them at Ramirez's group. Ramirez "think[s]" one of the men who pulled out a gun was Velasquez, and the other was one of the two "dudes" he did not know. Ramirez pushed Perez out of the way and started running. Ramirez later learned Martinez had been stabbed.

Rodriguez later told Ramirez the following: During the meeting, Martinez had said he was not a Sureño, but instead was a "South Gater." Defendant then asked Martinez if the South Side "is Sureños." Rodriguez said they were all Sureños. Defendant responded, "Well, he just said he's not a Sureño." Rodriguez asked Martinez if that's indeed what he had said. At that point, Martinez began to turn around, and then defendant stabbed him.

Other Witnesses

Alberto Rodriguez

Rodriguez "think[s]" he heard Martinez say "something like": "I'm not a Sureño, but I run the South Side." Rodriguez said that was "[m]ost likely" a disrespectful thing for Martinez to say to a Sureño.

Towards the end of the meeting, Rodriguez heard a "click" that sounded like a gun cocking. He told Ramirez, "They got a gun," and then ran to a nearby alley.

Jamie Perez

Vicente Adam Perez's sister, Jamie, testified. She said that when Martinez came to the residence for the meeting, he said, "I'm Bam Bam. South Side Loc" and then walked away. He "never shut up after that" and kept saying things like, "South Side Loc. South Side."

After all the attendees went in to the back room, someone locked and closed the door. Jamie sat on a nearby washing machine where she could hear some of what was being said. She heard Martinez say, "I run the South Side. This is how it's gonna go." Defendant said, "What do you mean you run the South Side?" Martinez replied, "I run the South Side, but I'm not a Sureño." Defendant and Montenegro asked Martinez what he meant by saying he's not a Sureño. Then Rodriguez chimed in, "He is. He is a Southerner. He is a Southerner." "Right after" Rodriguez said that, everyone ran out of the room. When Martinez ran out of the room, he was still screaming, "South Side Loc."

Eventually, Jamie picked up defendant and others in a vehicle. She did not see any injuries or blood on defendant.

Defendant's Interrogation

Detectives interrogated defendant after his arrest. At several points, defendant used vague pronouns and a passive voice. Defendant said "they" came to him and asked "somebody" to "step in" on a "little meeting" between the South Side and the Varrio. Defendant further explained,

The South Side Bakers and Varrio Bakers are each Sureño subsets.

"[T]he Varrio boys felt one of the South Side boys disrespected somebody by pulling the gun out on somebody and shooting him but the gun didn't go off. Uh and he felt, you know he wanted to get back at him. But, he wanted to seriously do some damage to this guy and I thought, I was trying to make it, I was trying to get to where it's like (unintelligible) you know. No harm done, that's it. Leave it alone fool."

Defendant told detectives, "But I guess when the guy came in acting real aggressive and (unintelligible) other people's faces and that's when it got out of hand." "Somebody hit the guy and everybody took off running."

Defendant denied being the murderer and denied that he was the person Martinez had pointed the gun at earlier that morning. Defendant also claimed that Martinez's disrespectful comments at the meeting were not directed at him, saying "[i]t didn't have anything to do with me."

Defendant's January 17, 2011, Jail Call to Perez's Mother

The prosecutor played for the jury a recording of a jail phone call between defendant and Perez's mother, Jeanette, on January 17, 2011. On the call, defendant says he heard some people had been calling him a "rat." He said that was inaccurate because he only implicated himself and did not incriminate anyone else. Defendant then said, "You know those, those that were out there (unintelligible) my name up and talking shit about me and I'm a rat whatever, those people better stick to their words because when the smoke clears and everything is said and done .... [¶] I'm, I'm just gonna do everything, everything in my power. I'm gonna talk to whoever it is that I need to talk to and a lot of people are gonna get hurt."

Later, the two began speaking about Rodriguez. The following exchange occurred:

"[Defendant]: Yeah because see if there's any way that maybe he [Rodriguez] can be found...

"Jeanette: Uh huh.

"[Defendant]: ...uh, that all he has to do- huh? Make it five. Uh, uh, for him, for him to come in and, and tell the truth. You know. All he has to do is come in and tell the truth and all the charges will be dismissed on all of us because it was a self-defense."

"Jeanette: Yeah.

"[Defendant]: You know. And all he has to do is come in and say (unintelligible) you know, exactly what happened that as I was walking out of the room, I turned around to say "that's your homeboy you deal with it" and Bam Bam attacked me. I had no other choice but to defend myself."

Defendant's Interview on January 21, 2011

On January 21, 2011, detectives interviewed defendant in custody. One of the detectives said he received a note that defendant wanted to talk to him.

A detective Mirandized defendant near the beginning of the interview.

Defendant told detectives that "they passed by in a PT Cruiser.. [¶] ... and they yelled out their neighborhood and I flipped them off cause I found that very disrespectful." Then, "they came back and Bam tried to shoot me."

Defendant told "one of the guys" that if they did not have Martinez at a certain house by a particular time, "I'll put a green light on your whole neighborhood."

Defendant said the plan was to "discipline[]" Martinez at the meeting. The plan was not to stab him, but to give him "an ass whipping." Defendant further explained that at the meeting later that day, "Bam" came in, "screaming and hollering and disrespectful and all this shit."

The following exchange occurred:

"[Defendant:] And, and when he came in I was sitting in the chair and he come and he just starts burning off his mouth. You know and I tried to tell him, "You can't be doing that stuff man." He's like, "I'm (inaudible) I do what I do and"- (inaudible) you know I told him as a Sureno, as a Sureno there's rules you know that you have to abide by, you know. There's a certain way that you have [to] carry yourself."

"[Detective:] Right.

"[Defendant:] And, and he's "Well I'm not a Sureno." And I'm like oh f[**]k. You know and I told his homeboy (inaudible).

"[Detective:] Why would he say he's not a Sureno?

"[Defendant:] I have no idea.

"[Detective:] That's disrespectful to bring in the room right?

"[Defendant:] Yeah that's, yeah that's when I, I told- you know I looked at one of his friends. I said "Hey what's up?" And his friend says, "Hey, hey man you're not a Sureno?" And he's like, "No, no." And that's when I was like, "You know what I'm done." And I went to walk out of the house, out of the house. I was like, "Hey man, you know, that's your homeboy. You deal with it." And that's when he came. I don't know if he was coming at me or if he was just trying to get- but he came at me. He was (inaudible) with me and that's when I just swung and hit- you know, he had tried to kill me earlier in the day man, you know, and I, and I,
you know, I seriously thought he was gonna you know, so I just swung it one time[]"

At another point in the interview, defendant offered the following narration:

"But when he said he wasn't a South Sider, that's when I said, "You know what, I'm washing my hands of this and get the f[**]k out of here." I'll let his homeboys deal with it and that's what I did. I went to walk out and said "That's your homeboy, you deal with it." But I had the knife in my hand. It wasn't open but it was in my hand. [¶] And, as I, as I was walking out the door this way I was coming, I was going out like this and I go "That's your homeboy, you deal with it." And that's when he came at me and I just turned to the side like this and I flipped, when I turned to the side, I flipped it open and just went like that one time to the chest. And just, I mean I just swung it. I wasn't trying to hit him anywhere. That's just where it hit him."

At several points during the interview, detectives would ask defendant about the involvement of other individuals, but defendant would give responses such as, "I'm just gonna tell you what I did."

At the current trial, defense counsel read into evidence portions of the prior testimony of one of the detectives who interviewed defendant on January 21, 2011. The detective confirmed that he used "ruses" during the interview. In other words, he told defendant things that were not true.

Defendant's Testimony at the Prior Trial

Some of defendant's testimony from the prior trial was read into evidence. We summarize that testimony below.

Defendant admitted he is a Sureño gang member.

Defendant was "very upset" about what Martinez had done earlier in the day. He felt disrespected and was angry. Defendant wanted to "seriously do some damage" to Martinez. Defendant was still thinking about those prior events when Martinez came at him immediately before the stabbing. Defendant had "no idea" whether Martinez was moving towards him to attack or to just try to get out of the door. Defendant admitted Martinez never got close enough to hit defendant.

Defendant testified that Martinez was supposed to get an "ass-whoopin' " if he did not apologize. Martinez did apologize during the meeting, so everything was "quashed." However, Martinez later said he was not a Sureño. As a result of that comment, the "ass-whoopin' " was "back on."

Defendant testified that he did not see any weapons in Martinez's hand before stabbing him.

Defendant's Phone Call

While the present trial was ongoing, defendant made a phone call from jail to unidentified individuals. On the call, defendant said "Tallboy" (Ramirez) and "Droopy Mellow" (Edward Salvador) were going to testify. Defendant told the listener to tell defendant's brother to "gather up all the f[**]ken big heads of family or, or friends and like Vero and, and, all, I want everybody in there looking at him while he's on the stand doing what he's doing." One of the listeners said later, "I'll put the word out there right now."

Law enforcement understood defendant to be requesting that witnesses be intimidated while they testified. As a result, one uniformed member of the Bakersfield Police Department was stationed inside the courtroom for the hearing, and three additional police officers were stationed outside the courtroom. Fortunately, the extra security proved unnecessary as no one showed up to intimidate the witnesses.

Stipulation Concerning Martinez's Blood Sample

The parties stipulated that the coroner's toxicology screening indicated that Martinez's "blood sample revealed that [he] had the following drugs in his system:" 60 nanograms per milliliter of amphetamine, 920 nanograms per milliliter of methamphetamine and 66 nanograms per milliliter of Delta-9 THC. The parties further stipulated that blood levels of 200 to 600 nanograms per milliliter of methamphetamine has "been reported in methamphetamine abusers who exhibited violent and irrational behavior. High doses of methamphetamine can also elicit restlessness, confusion, hallucinations, circulatory collapse, and convulsions."

Gang Evidence

The parties stipulated that on November 15, 2010, defendant actively participated in the Sureño criminal street gang. The parties further stipulated that when defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity.

The prosecution also offered additional gang evidence, including the testimony of experts Edward Salvador and Officer Shane Shaff. Because defendant does not raise any appellate challenges specific to gang evidence, we do not include that testimony here.

Salvador testified in exchange for immunity, $900, and a burger. In the past, Salvador received cash and meals in exchange for testimony and other help to law enforcement.

Verdict Forms

Immediately before instructing the jury, the court and counsel discussed various issues outside the presence of the jury. Defense counsel said he "wasn't requesting [CALCRIM No.] 570..." - which is the instruction on heat-of-passion voluntary manslaughter. The court said it was going to give the instruction anyway "because I believe I have a duty to give it."

The court and counsel proceeded to discuss other instructions. The discussion then turned to the verdict forms. The court asked defense counsel whether there was, "Any objection to the verdict form other than the defense doesn't want me to give the instruction as to heat of passion?" Defense counsel replied, "No, your Honor."

The jury was subsequently given two verdict forms pertaining to voluntary manslaughter. One of the verdict forms pertained to "Voluntary Manslaughter: Heat of Passion, in violation of Section 192(a) of the Penal Code, a lesser but necessarily included offense in the crime charged in the first count of the Information." Another verdict form pertained to "Voluntary Manslaughter: Imperfect Self-Defense, in violation of Section 192(a) of the Penal Code, a lesser but necessarily included offense in the crime charged in the first count of the Information."

Jury Instructions

The court gave the following instructions to the jury, among others:

"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

"The defendant killed someone because of a sudden quarrel or in the heat of passion if:

"1. The defendant was provoked.

"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and:

"3. The provocation would have caused a person of average disposition to act rashly without due deliberation, that is, from passion rather than from judgment.

"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it.

"While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

"It's not enough that the defendant was simply provoked. The defendant is not allowed to set up his own standard of conduct.

"You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than from judgment. If enough time passed between the provocation
and the killing for a person of average disposition to, quote, "cool off,' unquote, and regain his clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on that basis.

"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.

"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.

"If you conclude that the defendant acted in complete self-defense, his action was lawful, and you must find him not guilty of any crime.

"The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable.

"The defendant acted in imperfect self-defense if:

"1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and:

"2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but:

"3. At least one of those beliefs was unreasonable."

Verdicts

On March 11, 2016, the jury rendered the following verdicts: not guilty as to second degree murder; guilty as to "Voluntary manslaughter, heat of passion, in violation of Section 192(a) of the Penal Code, a lesser but necessarily included offenses in the crime charged in the first count"; not guilty as to "Voluntary manslaughter, imperfect self-defense, in violation of Section 192(a) of the Penal Code, a lesser but necessarily included offense in the crime charged in the first count"; and guilty as to active participation in a criminal street gang. These verdicts were reflected on written verdict forms signed by the jury foreman, pronounced on the record by the clerk, and affirmed by the jury in open court. Defense counsel declined to poll the jurors individually.

DISCUSSION

I. The Trial Court Did Not Err in Instructing the Jury on Heat of Passion

Defendant contends the court erred in instructing the jury on heat of passion (and providing a heat-of-passion verdict form) because the facts providing a basis for heat of passion also provide a basis for complete self-defense. We disagree.

A. Law

"[T]rial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (People v. Gonzalez (2018) 5 Cal.5th 186, 196.)

Consequently, when there is substantial evidence the defendant killed in the heat of passion, the trial court must instruct on heat-of-passion voluntary manslaughter as a lesser included offense of murder. (See People v. Breverman (1998) 19 Cal.4th 142, 153-164.)

In People v. Wickersham (1982) 32 Cal.3d 307 (Wickersham), disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201, the Supreme Court stated, "[A] trial court should not instruct on heat-of-passion voluntary manslaughter where the same facts would give rise to a finding of reasonable self-defense." (Id. at pp. 327-328, italics added, fn. omitted.)

In support of this observation, the court cited to several cases, including People v. Mitchell (1939) 14 Cal.2d 237, 241-242. In Mitchell, the court had found the defendant's testimony did not support a heat-of-passion theory but possibly supported self-defense.

B. Analysis

Defendant relies heavily on Wickersham in arguing that, in the present case, the "same facts provide the basis for heat-of-passion and self-defense."

However, we read the court's statement in Wickersham as precluding heat-of-passion instructions where the only plausible provocation would have necessarily supported self-defense. In Wickersham itself, there was no evidence of provocation except for the victim grabbing a nearby gun immediately before the killing. (Wickersham, supra, 32 Cal.3d at p. 327.) The court held that even if that conduct could be considered a "provocation" of some sort, it would also necessarily "give rise to a finding of reasonable self-defense." (Id. at p. 328, fn. omitted.) Therefore, a heat-of-passion instruction was not appropriate.

Wickersham's point, we believe, is that the jury cannot circumvent the doctrine of complete self-defense by finding that the victim's act that completely justified a responsive self-defense killing was also a provocation establishing heat-of-passion manslaughter. Otherwise, the jury could convict a defendant of voluntary manslaughter even when he or she acted in complete self-defense. So, when the only "provocation" at issue is one that would justify a killing in complete self-defense, the jury should not be instructed on heat-of-passion manslaughter.

Here, there was some evidence consistent with self-defense. For example, defendant said Martinez "came at" him. However, there was also evidence of provocation which would support heat-of-passion voluntary manslaughter but not necessarily self-defense. Evidence at trial supported the following inferences: Defendant felt disrespected by Martinez earlier that morning. He was angry and wanted to do "some serious damage" to Martinez. So, he demanded that Martinez come to a house within 60 minutes, unarmed, or else Martinez's neighborhood would have a "green light" placed on it. At the "meeting," Martinez was screaming, hollering and being "disrespectful" towards defendant, a superior in the Sureño gang hierarchy. Martinez denied even being a Sureño, yet claimed he ran the "south side." According to defendant, Martinez's disrespectful comments meant that Martinez's "ass-whoopin' " was "back on." The stabbing occurred shortly thereafter.

Defendant argues the "evidence did not show that [he] was acting in response to the initial incident of disrespect when he stabbed [Martinez]." Not so. In the prior testimony read to the jury, defendant was specifically asked: "At the time that Mr. Martinez was coming at you, did you still have in your mind what had happened on the street?" Defendant responded, "Yes."

Therefore, this case is quite different from Wickersham where there was "virtually no evidence of provocation" except conduct completely justifying a self-defense killing. Wickersham does not control here. Instead, we uphold the court's instruction under the usual rule that a court must instruct on heat-of-passion voluntary manslaughter where substantial evidence supports it. (See People v. Breverman, supra, 19 Cal.4th at pp. 153-164.) II. Defendant Waived or Forfeited Any Error with Respect to the Verdict Forms

Defendant contends the court erred in giving the jury two verdict forms for voluntary manslaughter; one for heat-of-passion voluntary manslaughter and one for imperfect self-defense voluntary manslaughter.

The Attorney General contends the issue was forfeited by failure to object below. We agree.

"An objection to jury verdict forms is generally deemed waived if not raised in the trial court." (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558.) Here, defense counsel did not raise the issue of multiple verdict forms for voluntary manslaughter. Indeed, when specifically asked if he had any objection to the verdict form (apart from a prior objection on the heat-of-passion instruction), defense counsel said, "No, your Honor." Therefore, the issue has not been preserved for review. (See People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin, supra, 18 Cal.4th at p. 330; People v. Webster (1991) 54 Cal.3d 411, 446.) III. Defendant has Not Established the Elements of Ineffective Assistance of Counsel

Section 1259 does permit review of certain "instruction[s] given, refused or modified" without objection below. (§ 1259.) However, defendant's claim concerning the verdict forms is not one that seeks review of an "instruction given, refused or modified." (Ibid.)
As for defendant's claim of instructional error, we address the merits of that contention. (See, supra, Discussion, part I.)

Defense counsel did object to the court instructing the jury on heat of passion. But he did not object to the use of two verdict forms for voluntary manslaughter.
In his appellate brief, defendant claims his counsel requested that the court provide a single voluntary manslaughter verdict form to the jury. However, his citation to the record does not support this claim. Defendant acknowledges that his counsel "did not separately object to the dual verdict forms."
Defendant also quotes his counsel at sentencing saying: "[I]t seems that if it were not guilty of imperfect self-defense, then they would have found him not guilty of everything because that would be a justified killing." Defendant argues this statement constituted an "objection." Accepting for the moment defendant's characterization of counsel's statement as an objection, we still find forfeiture. Forfeiture occurs when a defendant fails to object to a verdict form "either at the time the court proposed to submit it or when the jury returned its finding." (People v. Bolin (1998) 18 Cal.4th 297, 330; see also People v. Jones (1997) 58 Cal.App.4th 693, 715 [requiring defendant object to verdict forms "at trial"]; People v. Gonzales (1960) 187 Cal.App.2d 769, 772 [forfeiture found when counsel did not request alternate verdict form be submitted to jury nor object to the verdict forms "at the time" they were "submitted to the jury"].) Objecting for the first time at sentencing, well after anything can be done to avoid a second trial, is too late. And even if the purported objection at sentencing were not untimely, we would reject the claim on the merits. It is a technical defect that can be disregarded because the jury's intent to convict on heat-of-passion manslaughter was unmistakably clear. (See People v. Bolin, supra, at p. 331.)

Defendant contends his counsel was ineffective for failing to object to the "dual" verdict forms.

To establish prejudicial ineffective assistance of counsel, defendant must show "that counsel's performance was deficient" and that "the deficient performance prejudiced the defense." (In re Valdez (2010) 49 Cal.4th 715, 729.)

Establishing prejudice on a claim of ineffective assistance of counsel requires a showing that there is a reasonable probability the outcome would have been different without counsel's errors. (In re Valdez, supra, 49 Cal.4th at p. 729.)

"A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 670, accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)

Here, defendant cannot show prejudice from the purported failure to object because "[t]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice." (People v. Jones (2003) 29 Cal.4th 1229, 1259.) Here, the jury's intent to convict defendant of heat-of-passion voluntary manslaughter is unmistakably clear. The foreman signed the "guilty" verdict form for heat-of-passion voluntary manslaughter. The clerk of the court read the guilty verdict for heat-of-passion voluntary manslaughter in open court. The jury verbally affirmed the verdict to the court.

Defendant argues the court improperly "accepted" the jury's guilty verdict "over" the not-guilty verdict. Defendant contends the court effectively chose the verdict, rather than the jury. Defendant offers no citations to legal authorities in support of this argument. The guilty verdict on heat-of-passion voluntary manslaughter was clearly the jury's verdict, not a verdict rendered or "chosen" by the trial judge.

The jury's "not guilty" verdict on imperfect self-defense voluntary manslaughter means exactly what it suggests: the jury concluded the elements of imperfect self-defense were not satisfied. It does not negate the jury's clear conclusion that the prosecution did prove the elements of heat-of-passion voluntary manslaughter beyond a reasonable doubt.

Defendant argues that if the court had not instructed on heat-of-passion and "gave only a single generic voluntary manslaughter verdict form, the finding that the homicide was justified by self-defense would have resulted in only one determination by the jury - not guilty of voluntary manslaughter." Defendant's premise is faulty; the jury never made a "finding" that the homicide was justified by self-defense. Rather, the jury unmistakably concluded that defendant had committed heat-of-passion voluntary manslaughter and not imperfect self-defense manslaughter.

Similarly, defendant argues that because the jury found the homicide legally justified, the court was required to discharge him. (See § 199.) Because we conclude the jury did not find the homicide legally justified, we also reject this claim. And because section 199 does not apply, we need not delve into exceptions to the inconsistent verdict rule.

Indeed, the fact that the jurors convicted defendant of heat-of-passion manslaughter shows they did not find the homicide justified by self-defense. The jury was specifically instructed not to convict defendant of any crime if they found the killing was justified by self-defense. Yet, they convicted defendant of heat-of-passion voluntary manslaughter. Because "we presume jurors understand and follow the instructions they are given" (People v. Buenrostro (2018) 6 Cal.5th 367, 431), it is clear the jury rejected defendant's claim of complete self-defense.

Because the jury's intent to convict defendant of heat-of-passion voluntary manslaughter was "unmistakably clear," any technical defects in the verdict forms are ignored. (People v. Jones, supra, 29 Cal.4th at p. 1259.) Consequently, defendant cannot establish prejudice.

For these reasons, we will affirm the judgment. IV. We Remand the Matter for the Court to Exercise its Discretion Under Senate Bill No. 1393

Defendant contends that upon a reversal, he could not be retried. Because we do not reverse the judgment, we do not address double jeopardy.

In supplemental briefing, defendant argues the matter should be remanded for the court to have an opportunity to exercise its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.; SB 1393.)

"Prior to 2019, trial courts ha[d] no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). SB 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.) The legislation became effective January 1, 2019." (People v. Jones (2019) 32 Cal.App.5th 267, 272.) SB 1393 applies retroactively to all defendants whose judgments were not final as of January 1, 2019. (Id. at p. 273.)

Defendant was sentenced on April 14, 2016. The court imposed five years in prison for the section 667, subdivision (a) enhancement.

Standard for Remand

" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

This standard has prevailed over the one initially offered by People v. Almanza (2018) 21 Cal.App.5th 1308 (Almanza I). Almanza I framed the remand standard relating to Senate Bill No. 620 (2017-2018 Reg. Sess.; SB 620) as "whether there [was] any reasonable probability the trial court would exercise its discretion to strike the enhancements so as to justify remanding the matter." (People v. McDaniels (2018) 22 Cal.App.5th 420, 426, italics added.) Important here, Almanza I "concluded that there was no such probability, and that remand was therefore unnecessary, after considering three factors: the egregious nature of the defendant's crimes, the defendant's recidivism, and the fact that the trial court had imposed consecutive sentences." (McDaniels, supra, at p. 426.)

Opinion vacated by People v. Almanza (2018) 24 Cal.App.5th 1104 (Almanza II).

The same standard is applied to SB 1393. (See, e.g., People v. Garcia (2018) 28 Cal.App.5th 961, 973, fn. 3.)

Even the Almanza I court abandoned this approach in Almanza II. Almanza II agreed with McDaniels that the standard is, in fact, that "[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (Almanza II, supra, 24 Cal.App.5th at p. 1110.) Almanza II, acknowledged that trying to discern what a trial court might do on remand based on its original sentencing choices is "speculation" that does not satisfy the "clearly indicated" standard. (Id. at pp. 1110-1111.)

Here, the Attorney General observes that the sentencing court considered "factors in aggravation and mitigation," but also noted that appellant "has a long criminal history." The court then sentenced defendant to "the maximum sentence" of 38 years in prison, including the upper term for voluntary manslaughter. Accordingly, the Attorney General argues that "[g]iven the trial court's sentencing choices ... the record clearly indicates that the trial court would not have dismissed the prior serious felony enhancement even if it had discretion to do so."

Certainly, the court's sentencing choices militate in favor of the Attorney General's speculation that the court will not strike the enhancement on remand. However, "speculation about what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence." (Almanza II, supra, 24 Cal.App.5th at pp. 1110-1111.)

Therefore, we will remand the matter for the court to consider its discretion under SB 1393 in the first instance. V. Defendant's Prior Prison Term Enhancement is Stricken

In supplemental briefing, defendant argues, and the Attorney General concedes, that we should strike defendant's prior prison term enhancement pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.). We accept the concession and order the enhancement stricken.

DISPOSITION

The prior prison term enhancement (§ 667.5, subd. (b)) is stricken. The matter is remanded for the court to consider its discretion under SB 1393. In all other respects, the judgment is affirmed.

/s/_________

POOCHIGIAN, Acting P.J. I CONCUR: /s/_________
SMITH, J. DETJEN, J., Concurring and Dissenting.

I concur in the majority's holdings: (1) that the trial court did not err in instructing the jury on heat of passion, (2) that defendant forfeited any error regarding the verdict forms, (3) that no prejudice was shown from defense counsel's purported failure to object to the voluntary manslaughter verdict forms, and (4) to strike the prior prison term enhancement. I do not, however, agree remand is appropriate for the trial court to consider its discretion to strike the serious felony enhancement (Pen. Code, § 667, subd. (a)(1).)

Further statutory references are to the Penal Code. --------

Defendant Encarnacion Barrientos was convicted by jury of voluntary manslaughter (§ 192, subd. (a)) and of participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true the enhancement allegation that the voluntary manslaughter was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court found true the allegation defendant had committed a prior voluntary manslaughter, a serious felony (§ 667, subd. (a)(1)), and the allegation defendant had a separate prior prison term (§ 667.5, former subd. (b)).

The range of punishment for voluntary manslaughter is three, six, or 11 years in state prison. (§ 193, subd. (a).) At sentencing, the trial court knew defendant had "a long criminal history." When defendant was a juvenile, he accumulated multiple adjudications, probation violations, a commitment to the California Youth Authority, and parole violations. As an adult, defendant had multiple convictions and two prior prison commitments, the latest one being for voluntary manslaughter. The court also knew defendant's prior killing of a human being was done "in the same fashion" as his current killing of a human being. The trial court exercised its discretion to impose the maximum term allowed by law.

The range of punishment for participation in a criminal street gang is one year in the county jail or imprisonment in state prison for 16 months, two, or three years. (§ 186.22, subd. (a).) Again, the trial court exercised its discretion to impose the maximum term allowed by law.

I do not agree with the majority that the original sentence does not clearly indicate the trial court's position. (Maj. opn. ante, at pp. 20-22.) I believe it does. Ordering a remand is not appropriate.

/s/_________

DETJEN, J.


Summaries of

People v. Barrientos

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 13, 2020
F073613 (Cal. Ct. App. Feb. 13, 2020)
Case details for

People v. Barrientos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ENCARNACION BARRIENTOS,…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 13, 2020

Citations

F073613 (Cal. Ct. App. Feb. 13, 2020)