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People v. Clark

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 11, 2020
No. F074394 (Cal. Ct. App. Feb. 11, 2020)

Opinion

F074394

02-11-2020

THE PEOPLE, Plaintiff and Respondent, v. TRAVELL CHARLES CLARK, Defendant and Appellant.

Christine Vento, 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, Lewis A. Martinez, Louis M. Vasquez, and Ian Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF159558A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Christine Vento, 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, Lewis A. Martinez, Louis M. Vasquez, and Ian Whitney, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Travell Charles Clark was convicted following a jury trial of first degree murder and other crimes and enhancements arising from an incident where he killed his ex-girlfriend's new romantic partner.

SEE CONCURRING AND DISSENTING OPINION

On appeal, appellant contends his murder conviction must be reversed because: (1) the evidence was insufficient to support the jury's finding of premeditation and deliberation; (2) the jury instructions did not adequately explain the difference between the standard required to reduce first degree murder to second degree murder and to reduce murder to manslaughter; (3) if we find forfeiture of the jury instruction issue, the failure to object to the instructions constituted ineffective assistance of counsel; and (4) the prosecutor committed misconduct by making alleged incorrect statements of law regarding provocation.

In supplemental briefing, appellant contends the matter should be remanded to allow the trial court to exercise its discretion whether to strike his firearm enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620) and his prior serious felony enhancement pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Appellant also requests that this court order the trial court not to impose any fines or fees absent a finding by the trial court that he has the ability to pay them, citing the recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, in supplemental briefing requested by this court, appellant contends this court should order the trial court to strike his prior prison term enhancement pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136).

We further note a clerical error appears in the indeterminate abstract of judgment.

We agree the matter should be remanded for the limited purpose of permitting the trial court to exercise its new discretion under Senate Bills 620 and 1393, to strike appellant's prior prison term enhancement pursuant to Senate Bill 136 and reject appellant's other contentions.

PROCEDURAL BACKGROUND

The jury returned a verdict finding appellant guilty of first degree murder with premeditation and deliberation (Pen. Code, § 187, subd. (a); count 1), felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), and felon in possession of ammunition (§ 30305, subd. (a)(1); count 3). The jury found true appellant personally used a firearm causing death (§ 12022.53, subd. (d)) in the commission of count 1. Appellant waived his right to a jury trial on prior allegations, and following a bifurcated court trial, the court found true appellant had a prior serious felony (§ 667, subd. (a)), two prior prison terms (§ 667.5, subd. (b)), and a prior strike offense (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).

All further undesignated statutory references are to the Penal Code.

As to count 1, the court sentenced appellant to 25 years to life, doubled to 50 years to life due to the prior strike offense, plus a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d). The court also imposed a five-year prior serious felony enhancement and a one-year prison prior enhancement. As to counts 2 and 3, the court stayed sentencing pursuant to section 654. Appellant was sentenced to a total term of 75 years to life plus a determinate term of six years. Appellant filed a timely notice of appeal.

FACTUAL BACKGROUND

Appellant was in a relationship with Jaleesa R. for approximately five years. They had a child together and resided with their child and Jaleesa's child from a previous relationship at multiple addresses over the course of their relationship. Appellant helped financially support Jaleesa and the children. In February 2015, appellant and Jaleesa had some relationship issues, which caused Jaleesa to move out of their shared residence and into her own residence. Appellant and Jaleesa continued to work on their relationship and appellant would visit. In the beginning of March 2015, Jaleesa ended her relationship with appellant. On March 11 or 12, Jaleesa began an intimate relationship with Michael Whatley.

Pursuant to California Rules of Court, rule 8.90, we refer to certain persons by their first names and/or initials. No disrespect is intended.

After the break-up, appellant and Jaleesa frequently argued about money and him seeing the children. He wanted to get back together with Jaleesa. Appellant began showing up at Jaleesa's residence unannounced. Right after they broke up, appellant went to the residence while Jaleesa was home and knocked on the door. When Jaleesa did not answer, appellant went to the back of the house and knocked on the window. Appellant went to Jaleesa's house unannounced a second time and kicked in the door to her bedroom, where she was with Whatley.

A few days to a week after appellant saw Whatley and Jaleesa together in her bedroom, on March 20, 2015, around 10:00 p.m., Jaleesa was at her residence with her children; her cousins, Jazmin G. and Shay G.; and Shay's child. Jaleesa had plans to go out with Shay G., while Jazmin would stay to watch the children. While Jaleesa was getting ready to go out, she received a text message from Whatley, and they made plans for him to come to her residence. Jaleesa then received a phone call from Whatley, and told Jazmin to get the door because Whatley had arrived. Jaleesa then heard a "pop," a pause of a few seconds, and then a few more "pops." Jaleesa had not invited appellant to her residence.

When Jazmin opened the door, she saw Whatley approaching the door and getting shot once. Whatley stumbled and grabbed his side and tried to go back to his vehicle. Jazmin heard Whatley say something like, "Why did you shoot me"? Jazmin grabbed her niece, ran back into the house and heard five to six more shots.

The police responded to the scene and observed Whatley lying on the ground not breathing. Medical personnel arrived and tried to revive him but were unsuccessful. The police observed appellant approaching the crime scene without a shirt on and detained him. Appellant gave a statement upon his arrest, the recording of which was played for the jury. Appellant admitted to shooting Whatley but said it was unintentional. Appellant said he went to Jaleesa's residence that night to give her $500 for her and the children because Jaleesa had told him earlier that day, if he brought her $500, they could start building a friendship and she would let him see the children. Appellant had his cousin drop him off by his friend's apartment who lives near Jaleesa and then walked to Jaleesa's residence. As appellant approached the side of the residence, he heard Jaleesa tell Jazmin that Whatley was arriving and saw Whatley drive by and stop. As Whatley walked up to the door, appellant walked up behind him. As Whatley got close to the front door, he turned around and looked at appellant. Appellant then shot Whatley. Appellant said Whatley then grabbed appellant to try to get by him and told appellant to "[c]hill." Appellant then shot him again, and Whatley fell. Appellant said he shot Whatley about three times. Appellant said he turned and ran. He threw the gun on top of a carport in a nearby apartment complex, took off his shirt because Whatley had grabbed him and blood was on it, and he threw away the shirt.

Appellant told the police he knew of Whatley and described him as "conniving" and as a "rat" and a "snake." Appellant was upset that Jaleesa chose to start a relationship with Whatley. Seeing Whatley the night of the incident walking up to the front door put "chills in [appellant's] body," and he "blacked out." Appellant told the police he did not usually carry a gun, and the reason he took one to Jaleesa's residence that night was because appellant "had a gut feelin' that she[] probably still do[es] talk to [Whatley]."

Appellant was seen running through nearby apartment complexes with a bloody shirt before returning to the scene. His shirt was found on the grass of a nearby apartment and the gun on top of a carport in another complex. Neighbors who heard the shots testified to the shot pattern. One neighbor heard a shot, a long pause, another shot, a very short pause, and several shots in quick succession. Another neighbor heard four shots, a pause and one more shot, and another testified he did not hear any yelling at the time of, prior to, or after the shots.

The medical examiner who performed Whatley's autopsy testified that Whatley sustained seven gunshot wounds, three to the posterior chest, two to the arms and hands, and two to the neck area. Several of the wounds were independently lethal and entered from the rear of the body.

No cash was found with appellant's belongings he had with him.

Appellant's defense was that he acted in the heat of passion. During cross-examination of Jaleesa, defense counsel elicited that Jaleesa had communicated with appellant on the day of the incident about him trying to get back together with her and money. Jaleesa testified she told appellant he has not given the children any money so stop calling. Defense counsel also elicited that Jaleesa had gone to a wedding with appellant and sent an explicit photo to him with the message, "It's all for you" as late as March 6, 2015. On redirect examination, Jaleesa testified she did not invite appellant to her residence and did not tell him to bring her $500 on the night of the incident.

DISCUSSION

I. Sufficiency of the Evidence

Appellant claims the evidence was insufficient to support the jury's finding that the murder was premeditated and deliberate. We disagree.

In assessing a claim of insufficiency of the evidence, we review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence encompasses circumstantial evidence and reasonable inferences based on that evidence. (People v. Pierce (1979) 24 Cal.3d 199, 210.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "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. Bean (1988) 46 Cal.3d 919, 932-933.) " ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' " (People v. Thomas (1992) 2 Cal.4th 489, 514.) Direct evidence of deliberate and premeditated purpose to kill is not required in prosecution for first degree murder; elements of deliberation and premeditation may be inferred from proof of such facts and circumstances as will furnish reasonable foundation for such inference. (People v. Miller (1969) 71 Cal.2d 459; People v. Dale (1936) 7 Cal.2d 156.) Reversal on insufficiency of the evidence is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

In the context of premeditated and deliberate murder, " 'premeditation means " 'considered beforehand' " [citation] and deliberation means a " 'careful weighing of considerations in forming a course of action ...' " [citation]. "The process of premeditation and deliberation does not require any extended period of time." ' " (People v. Salazar (2016) 63 Cal.4th 214, 245.) " '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. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363.) Ultimately, a finding of deliberation and premeditation requires the existence of "preexisting reflection, of any duration." (People v. Solomon (2010) 49 Cal.4th 792, 813.)

The California Supreme Court in People v. Anderson (1968) 70 Cal.2d 15 (Anderson) delineated three categories of evidence for reviewing courts to consider in evaluating whether a murder was committed with premeditation and deliberation: "(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)." (Id. at pp. 26-27.)

A verdict of premeditation and deliberation will typically be upheld when "there is evidence of all three types." (Anderson, supra, 70 Cal.2d at p. 27.) Alternatively, a verdict will be sustained when "there is extremely strong evidence of planning; or evidence of motive in conjunction with either (a) evidence of planning or (b) evidence of a manner of killing showing a preconceived design." (People v. Brito (1991) 232 Cal.App.3d 316, 323.) "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (People v. Pride (1992) 3 Cal.4th 195, 247.)

Appellant contends the record discloses only motive evidence, and no evidence of planning or manner of killing. We disagree. The record in this case discloses ample evidence of all three types of evidence from which it could be inferred that appellant acted deliberately and according to a "preconceived design" rather than from a rash impulse. Circumstantial evidence of planning included that appellant brought a gun specifically, by his own admission, because he thought Whatley might be present. He himself admitted he does not usually carry a gun, which was corroborated by Jaleesa and Jazmin's testimonies. Appellant proffers it could be inferred he brought the gun for self-defense, but we view all inferences in favor of the judgment, and, here, that inference is he brought it to use on Whatley in case he was there.

Other circumstantial evidence includes that appellant got dropped off at a location away from the residence and walked there, which could support the inference he had nefarious intent and did not want to be detected. Further, even if we assume he did not arm himself in order to shoot Whatley, he had time to premeditate the murder as he was walking by the side of the house and saw Whatley pull up. The record does not support the inference that appellant immediately and automatically shot Whatley upon sight of him. He knew Whatley had arrived, saw him walk up to the door, and decided to walk up behind him. This kind of action is evidence of planning, even when it takes place in a short amount of time.

People v. Harris (2008) 43 Cal.4th 1269 (Harris) is instructive. In Harris, the California Supreme Court upheld a premeditation and deliberation finding where a mother worked at a donut shop with her daughter and left the shop to get some supplies. (Id. at p. 1277.) When she returned, the mother tapped on the service door to signal the daughter to open it. As the daughter approached the door, she saw the defendant standing at the service window. The daughter attempted to open the door for her mother but could not because it was stuck closed, so the mother told the daughter to wait on the defendant. The daughter took the defendant's order and began to prepare it. While she was preparing the order, the defendant then went to the service door and attacked and killed the mother with a butcher knife. (Ibid.) The court held there was sufficient evidence of premeditation and deliberation and explained: "In the time it took for [the daughter] to go from the door to the service window, and to take and prepare defendant's order, there was ample time for him to deliberate and premeditate before attacking [the mother]." (Id. at p. 1287.) The facts in Harris indicate it was not the mere passage of time that was significant, but the fact the defendant's actions implied that he made the decision to kill while he was at the service window and then considered the decision as he walked to the door to commit the murder. Similarly, in this case, appellant had time to contemplate murdering Whatley. Appellant had a feeling Whatley might be there, which is why he armed himself with a gun, but beyond that he watched Whatley pull up and heard Jaleesa prepare for his arrival. Appellant left his position to follow Whatley to the door and commit the murder.

With regard to motive, appellant admits in his opening brief there was motive evidence. The clear motive here was jealousy and anger over Jaleesa's relationship with Whatley. In addition to being upset by seeing Jaleesa with someone else and not being able to get over the fact the relationship was over, appellant had a strong dislike of Whatley that existed prior to seeing him with Jaleesa Appellant did not respect Whatley's character and even suggested to the police he had concerns regarding Whatley being there with his children present. Appellant had motive to kill Whatley because he was an obstacle to his desire to be with Jaleesa, and he did not like the idea of Whatley being around his family.

There was also evidence of a deliberate manner of killing. Appellant fired seven shots at Whatley from a close range, several of which were independently lethal, and many witnesses testified to a pattern of shooting where one shot was fired, then a pause, then several more shots. This supports the inference that appellant had time to reflect and make sure Whatley was dead. Though premeditation and deliberation require more of a showing than simply the intent to kill, this type of killing is evidence of a preconceived plan and not simply a rash, impulsive reaction.

Though appellant asserts in his brief that a struggle ensued, there is no evidence in the record to support that. Witnesses did not hear any yelling prior to the shooting. Jazmin testified after Whatley was shot, he stumbled back and tried to get back to his car. Appellant himself stated he shot Whatley even after Whatley tried to get past appellant after the first shot was fired. Many of the shots entered Whatley's body from the rear, indicating Whatley was either walking away from appellant or face down on the ground while the shots were being fired. Courts frequently uphold premeditation and deliberation findings where the manner of killing is a close-range gunshot to a vital area of the body. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295) [evidence indicated deliberate manner of killing where the defendant shot one victim, and when the victim started to crawl away, shot him again; where another victim had been shot from behind while kneeling on the ground; and another victim had been shot seven times, including two fatal wounds to the head]; People v. Marks (2003) 31 Cal.4th 197, 206 [evidence indicated deliberate manner of killing where the defendant shot a taxi driver in the face in a taxi]; People v. Koontz (2002) 27 Cal.4th 1041,1082 [evidence indicated deliberate manner of killing where the defendant shot a man in the abdomen in a security guard office].)

Appellant compares his case with People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman), where the court reduced a first degree murder conviction to second degree murder based on insufficient evidence to support the premeditation and deliberation finding. In Boatman, a close-range shooting to the face was not considered a deliberate act. In that case, however, unlike the instant case, there was no planning or motive evidence. The defendant committed the murder at his home occupied with four people who could identify him. There was no evidence he left the room to get a gun, but that he took it away from his girlfriend just prior to the shooting. He was horrified and distraught after the shooting and told his brother to call the police and tried to resuscitate her. He could be heard in the 911 recording crying. Though there were text messages from the girlfriend to her friend indicating she and the defendant had been arguing, the appellate court held it could not be reasonably inferred the defendant was angry. Here, as discussed, there is ample evidence of planning and motive, and appellant did not shoot Whatley once, but seven times. Boatman is inapposite.

The finding that appellant acted with premeditation and deliberation is supported by sufficient evidence.

II. Instructional Error

Appellant contends the court instructing the jury with both CALCRIM No. 522 (provocation - effect on degree of murder) and CALCRIM No. 570 (voluntary manslaughter - heat of passion) misled the jury into concluding that the objective test of provocation it was instructed to apply to its analysis of whether to reduce murder to manslaughter also applied to determining the degree of murder. Appellant claims the court had a duty to instruct the jury sua sponte clarifying "provocation" in the context of second degree murder. That is, he claims the court had a duty to instruct the jury that the provocation necessary to negate premeditation and deliberation, and thus reduce first degree premeditated murder to second degree murder, is a subjective standard of provocation that differs from the objective standard of provocation necessary to reduce murder to voluntary manslaughter. We conclude the court's instructions were proper, and it had no sua sponte duty to further define provocation.

As appellant points out, the provocation necessary to reduce first degree murder to second degree murder is based on a subjective standard. "To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.] If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).) In contrast, the provocation necessary to reduce any murder to voluntary manslaughter requires more. "For that, an objective test ... applies: the provocation must be so great that, in the words of CALCRIM No. 570, it 'would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.' " (People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001 (Jones).)

The jury was instructed on murder, that murder requires malice, and that if the jury decided appellant committed murder, it was second degree murder unless the People proved the murder was first degree murder; that is, whether it was premeditated and deliberate. (CALCRIM Nos. 520, 521.) The jury was instructed that appellant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill; that premeditation means a decision to kill before commission of the act that caused death; and a "decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premediated." (CALCRIM No. 521.)

The jury was further instructed pursuant to CALCRIM No. 522 that "[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that [appellant] committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether [appellant] committed murder or manslaughter."

The jury was also instructed on voluntary manslaughter based on heat of passion as a lesser included offense to murder. CALCRIM No. 570 told the jury that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed because of a sudden quarrel or in the heat of passion; that the defendant killed because of a sudden quarrel or in the heat of passion if (1) the defendant was "provoked;" (2) "[a]s a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;" and (3) "[t]he provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."

Specifically, appellant suggests the last sentence of CALCRIM No. 522 implies that the test given in CALCRIM No. 570 also applies to the consideration of whether provocation was sufficient to determine the murder was second degree rather than first.

A nearly identical claim to appellant's was considered and rejected by the Second Appellate District in Jones. As in Jones, the jury below was instructed pursuant to CALCRIM Nos. 520, 521, 522, and 570. These instructions, according to the appellate court in Jones, "accurately inform[ed] the jury [of] what is required for first degree murder, and that if the defendant's action was in fact the result of provocation, that level of crime was not committed. CALCRIM Nos. 521 and 522, taken together, informed jurors that 'provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.' [Citation.] As the jury also was instructed, a reduction of murder to voluntary manslaughter requires more." (Jones, supra, 223 Cal.App.4th at p. 1001.)

We agree with the analysis in Jones. Nothing in CALCRIM No. 522 indicated that the provocation necessary to reduce murder to manslaughter was the same provocation necessary to reduce first degree murder to second degree murder. CALCRIM No. 570 specifically indicated it applied to the determination of whether appellant committed murder or manslaughter. Taken as a whole, there is no implication, as appellant suggests, that the jury was to apply the same standard to both determinations. The jury was instructed to "[p]ay careful attention to all of the[] instructions and consider them together" (CALCRIM No. 200), and we assume the jury followed all of the court's instructions (People v. Boyette (2002) 29 Cal.4th 381, 431). Thus, it is not likely that the jury conflated the provocation necessary for second degree murder with the provocation necessary for voluntary manslaughter. (Hernandez, supra, 183 Cal.App.4th at p. 1332 [in determining whether instructions were incorrect or misleading, appellate court inquires whether there is a reasonable likelihood the jury understood the instructions in the manner the defendant claims].)

Appellant's claim regarding the lack of further guidance on how provocation can negate premeditation and deliberation is, in essence, a complaint about the absence of a pinpoint instruction. (Jones, supra, 223 Cal.App.4th at p. 1001.) An instruction that " 'relates the evidence of provocation to the specific legal issue of premeditation and deliberation ... is a "pinpoint instruction" ..., and need not be given on the court's own motion.' " (People v. Nelson (2016) 1 Cal.5th 513, 541-542.) Thus, the trial court did not commit instructional error.

Appellant attempts to distinguish Jones because he relied on the "heat of passion" defense, whereas the defendant in Jones did not. In Jones, one of the reasons the court found no error was because provocation was scarcely mentioned at all. (Jones, supra, 223 Cal.App.4th at p. 1001.) We first note that this was only one of the reasons the appellate court in Jones rejected the defendant's argument. In Jones, the appellate court concluded the instructions were correct statements of law and were not error before it noted that the defendant did not rely on provocation as a defense. (Ibid.) Nonetheless, the distinction appellant points out among the two cases does not alter our conclusion.

Though the issue of provocation was discussed at length in the instant case, appellant's counsel focused specifically on the objective standard of provocation in order to persuade the jury to return a manslaughter verdict. Counsel argued: "The defense is arguing that in this case, malice has been negated." She went on: "So far as provocation, I want to talk a little bit about that. The law of provocation focuses on what's emotionally reasonable. Whether [appellant's] outrage, whether or not [appellant's] passion was reasonable. It does not focus on whether or not his action was reasonable." She spoke at length about CALCRIM No. 570. Counsel went on to argue that appellant's emotional responses were reasonable under the circumstances. "Is it fair to say that a person can have absolutely no response? That's what the prosecutor is asking you to do by virtue of asking you to indicate that [appellant] is guilty of Count 1. [¶] Is it reasonable for the reasonable man, for the reasonable woman, to have a response when you see the same guy ...? The act of provocation doesn't have to be physical." Defense counsel's strategy was clearly to downplay the availability of the second degree murder conviction and focus on obtaining a voluntary manslaughter conviction, which leads to appellant's next argument.

As an alternative to his claim the court committed instructional error, appellant alleges ineffective assistance of counsel based on his trial attorney's failure to request additional instructions on provocation to support a theory of second degree murder. To prevail on such a claim, he must establish that (1) the performance of his trial attorney fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland ); People v. Anderson (2001) 25 Cal.4th 543, 569.) As we explain, the first prong of the Strickland test is not satisfied.

"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.) "All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.)

As discussed, we find the instructions given adequately addressed the interplay between provocation and premeditation and deliberation, and we must presume the jury followed the instructions. (People v. Rogers (2006) 39 Cal.4th 826, 880; Hernandez, supra, 183 Cal.App.4th at pp. 1333-1334.) Counsel could have reasonably concluded the instructions, which correctly stated the law, were adequate to address the issue, and appellant fails to show that there could be no conceivable reason for trial counsel not to request such a clarifying instruction. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1051-1052.) Moreover, the record affirmatively shows counsel had a rational tactical purpose for not requesting a clarifying instruction on provocation or emphasizing second degree murder to the jury. As discussed, counsel's trial strategy was ostensibly to obtain a verdict on voluntary manslaughter. This was a reasonable strategy under prevailing professional norms.

Even if we were to assume the first prong of the Strickland test was satisfied, however, it was not prejudicial. Prejudice in the context of an ineffective assistance of counsel claim means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.) The case against appellant regarding premeditation and deliberation was strong. Thus, we find no reasonable probability appellant would have obtained a more favorable result had counsel requested the pinpoint instructions, and we reject his ineffective assistance of counsel claim.

III. Prosecutorial Misconduct

Appellant claims the prosecutor committed misconduct when he said in his closing argument: "Was there provocation from [Whatley]? There was none. The law states that the defendant's personal circumstances is personal. The ones that are specific to the defendant are not reasonable provocation." Appellant contends this was a misstatement of the law because the jury could have considered appellant's personal circumstances in determining whether provocation could reduce first degree murder to second degree murder.

A prosecutor's misconduct constitutes a federal constitutional violation " ' " 'when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.) To determine whether there is prosecutorial misconduct under state law, " ' " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " ' " (People v. Linton (2013) 56 Cal.4th 1146, 1205; People v. Morales (2001) 25 Cal.4th 34, 44.) Challenged statements to the jury must be reviewed "in the context of the argument as a whole." (People v. Cole (2004) 33 Cal.4th 1158, 1203.)

While the remarks appellant points out would be a misstatement if the prosecutor expressly said appellant's personal circumstances could not be considered when considering the degree of murder, that is not the situation here. The remarks do not expressly make clear whether the prosecutor was referring to provocation meant to negate premeditation or deliberation or reduce a murder charge to manslaughter. Rather, it can be inferred that he was speaking directly to provocation required for manslaughter because he uses the word "reasonable." At worst, the statements are vague. Further, they were fleeting in the context of the prosecutor's entire argument, which focused on the pieces of evidence that supported a premeditation and deliberation finding; that is, affirmative reasons the jury should return a first degree murder verdict.

The statements were not so egregious as to amount to a denial of due process. (People v. Thomas, supra, 54 Cal.4th at p. 937.) As the Supreme Court has explained, "it 'is not enough that the prosecutors' remarks were undesirable or even universally condemned.' [Citation.] The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Nor would the statements require reversal under state law because there appears no reasonable likelihood that the jury relied on the prosecutor's remarks to appellant's detriment. As discussed, the trial court properly instructed the jury with CALCRIM Nos. 522 and 570. We presume the jury followed the court's instructions over any misstatements of law by the prosecutor. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Even if the prosecutor's comments may have engendered some confusion, in the context of his full argument and the court's instructions, they were not so severe as to deprive appellant of a fair trial.

Finally, any error was harmless. In returning a verdict of first degree murder, the jury expressly found that appellant premeditated and deliberated the killing of Whatley, and the evidence strongly supported the jury's conclusion. Such a "state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion—even if that state of mind was achieved after a considerable period of provocatory conduct—and clearly demonstrates that defendant was not prejudiced" by any misstatements of law by the prosecutor. (People v. Wharton (1991) 53 Cal.3d 522, 572.)

To the extent appellant is challenging the prosecutor's statement that there was "no provocation," we are not persuaded by that claim. "A prosecutor is given wide latitude to vigorously argue ... her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence." (People v. Ledesma (2006) 39 Cal.4th 641, 726.)

We reject appellant's claim of prosecutorial misconduct.

IV. Resentencing Pursuant to Recent Legislation - Senate Bills 620 and 1393

Appellant contends we must remand his case to the trial court in light of two laws that became effective after his initial sentencing but before his case became final. Senate Bills 620 and 1393 both give trial courts discretion they previously did not have to impose more lenient sentences. Senate Bill 620, which went into effect January 1, 2018, in part, amended section 12022.53 (Stats. 2017, ch. 682, § 2) to allow the trial judge to strike or dismiss enhancements imposed pursuant to section 12022.53, subdivision (d). At the time appellant was sentenced, section 12022.53, subdivision (d) mandated a consecutive enhancement of 25 years to life. Similarly, Senate Bill 1393, which went into effect January 1, 2019, amended sections 667 and 1385 (Stats. 2018, ch. 1013, §§ 1-2) to eliminate the statutory prohibition on a trial court's ability to strike a five-year enhancement imposed pursuant to section 667, subdivision (a)(1). Respondent concedes these laws apply retroactively to appellant's case, and that a remand is appropriate. We accept respondent's concession without further analysis.

V. Senate Bill 136

In October 2019, the Legislature passed Senate Bill 136 (Stats. 2019, ch. 590, § 1), amending section 667.5, subdivision (b). Prior to these amendments, "[i]n sentencing a defendant for a new felony offense, a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied 'for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.' " (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for the defendants who had remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Ibid.)

Senate Bill 136 amends section 667.5, subdivision (b) to state that a one-year term under that section shall be imposed "for each prior separate prison term for a sexually violent offense ...." Thus, Senate Bill 136 eliminates the prior prison term enhancement except in cases involving sexually violent offenses.

We requested supplemental briefing from the parties to address whether the amendment is retroactive to appellant and if so, what is the proper disposition in this case. The parties contend, and we agree, the amendment applies retroactively to appellant.

Appellant's prior conviction was not for a sexually violent offense. Accordingly, under section 667.5, subdivision (b), as amended, appellant would not qualify for the imposition of the one-year enhancement for his prior prison term.

Senate Bill 136 is effective January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).) As of that date, appellant's conviction will not yet be final, and the remittitur will not have issued. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [" 'for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed' "].)

Section 667.5, subdivision (b), as amended, applies retroactively to appellant, because the amended statute leads to a reduced sentence. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745, 748 [for a nonfinal conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"].)

VI. The Court's Imposition of Fines and Fees

At the sentencing hearing, appellant was sentenced to 75 years to life plus six years. The court ordered appellant to pay the statutory minimum restitution fine of $300 (§ 1202.4) and imposed and stayed a $300 parole revocation fine (§ 1202.45). The court also imposed a court security fee of $120 (§ 1465.8), and criminal conviction assessments of $60 (Gov. Code, § 70373). Appellant did not object to any of these amounts.

Appellant contends the court improperly imposed these fines and fees without determining whether he had the ability to pay those amounts in violation of his due process rights, and the matter must be remanded for the court to conduct a hearing on his ability to pay. Appellant's due process argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. (Id. at pp. 1164, 1167; see also People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano).)

We disagree and find the matter need not be remanded on this issue.

First, as we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to appellant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Id. at p. 1072.)

Next, to the extent Dueñas applies to this case, appellant did not forfeit review of the issue since he lacked the statutory ability to object to the fines, fees, and assessments imposed at the sentencing hearing. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court ordered appellant to pay the statutory minimum restitution fine of $300 under section 1202.4, subdivision (b). Since the court imposed the minimum restitution fine, appellant lacked the statutory ability to object under the governing law at the time of his sentencing hearing. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)

However, even if we agreed with Dueñas and Castellano, we would still reject appellant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)

" 'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)

We can infer from the instant record that appellant has the ability to pay the aggregate amount of $480 imposed in this case from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas, supra, 39 Cal.App.4th at p. 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) There is nothing in the record to show that appellant would be unable to satisfy the fines and fees imposed by the court while serving his long prison term, even if he fails to obtain a prison job. At the time of the sentencing hearing, appellant was 30 years old and had been employed as a solar panel installer and at various oilfields from 2013 to 2015.

While it may take appellant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)

We thus conclude that based on the record before this court, appellant has the ability to pay the statutory minimum restitution fine and the mandatory fees and assessments he was ordered to pay. Appellant's circumstances in this case are vastly different from the probationer's situation in Dueñas.

Having reached these conclusions, we affirm the court's imposition of the fines and fees in this case and find that appellant may not raise these issues when the matter is remanded for resentencing. (See, e.g., Aviles, supra, 39 Cal.App.5th at p. 1077.)

VII. Clerical Error in the Abstract of Judgment

There is a clerical error in the indeterminate abstract of judgment. Appellant was sentenced to 50 years to life on count 1. This was double the statutory term of 25 years to life (§ 190) because he had suffered a strike prior pursuant to section 667, subdivisions (b)-(i). Box 8 on page 1 of the indeterminate abstract of judgment is not checked. An appellate court may order correction of clerical errors contained in the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) Accordingly, upon remand, we order the indeterminate abstract of judgment to be corrected to conform with the court imposing a sentence doubled pursuant to section 667, subdivisions (b)-(i).

DISPOSITION

The matter is remanded to the trial court to determine whether to strike the enhancements under sections 12022.53, subdivision (d) and 667, subdivision (a)(1) and, if the enhancements are stricken, to resentence appellant. The trial court is also directed to strike the one-year prior prison term enhancement under section 667.5, subdivision (b).

We further order the indeterminate abstract of judgment be corrected by checking box 8 on page 1 to reflect that appellant was sentenced pursuant to section 667, subdivisions (b)-(i). The court shall prepare an amended abstract of judgment and forward it to the appropriate authorities.

In all other respects, the judgment is affirmed - including all fines, fees, and assessments imposed by the trial court

/s/_________

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

I concur with the majority in all aspects except for its decision to affirm the trial court's imposition of a restitution fine (Pen. Code, § 1202.4), court security fee (Pen. Code, § 1465.8), and criminal conviction assessment (Gov. Code, § 70373). The majority rejects appellant's contention that his right to due process was violated by the imposition of such fines and fees without a determination he had the ability to pay them, in reliance on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The majority holds that Dueñas was wrongly decided and that an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case should be imposed, citing People v. Aviles (2019) 39 Cal.App.5th 1055, a case decided by a different panel of this court. The majority also holds any error harmless beyond a reasonable doubt, concluding that it may be inferred from the record appellant has the ability to pay the fines and fees because he may make payments from "either prison wages or monetary gifts from family and friends during his prison sentence" and concludes "appellant may not raise these issues when the matter is remanded for resentencing." (Maj. opn., ante, at pp. 21-24.)

Respectfully, I would not take such an approach. Because this matter is being remanded for resentencing, I would not address appellant's due process claims on the merits and find such claims moot. If appellant can carry the burden in the first instance of showing he does not have the ability to pay the fines and fees imposed upon him (see People v. Castellano (2019) 33 Cal.App.5th 485, 490), he should be permitted to do so. I do not believe this would be overly burdensome on judicial resources.

In all other respects, I concur with the majority.

/s/_________

DE SANTOS, J.


Summaries of

People v. Clark

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 11, 2020
No. F074394 (Cal. Ct. App. Feb. 11, 2020)
Case details for

People v. Clark

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TRAVELL CHARLES CLARK, Defendant…

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

Date published: Feb 11, 2020

Citations

No. F074394 (Cal. Ct. App. Feb. 11, 2020)