Filed 2/2/22 P. v. Castillo CA3
Opinion following rehearing
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091329
Plaintiff and Respondent, (Super. Ct. No. 17FE001870)
v. OPINION ON REHEARING
LUIS ALFONSO CASTILLO, JR.,
Defendant and Appellant.
Defendant Luis Alfonso Castillo, Jr., and his codefendant brother Emilio Angelo
Castillo were involved in a shootout in front of the Capitol Casino in Sacramento. A
bullet fired by defendant struck and killed Nicholas Broadway, a casino patron who was
outside waiting for a ride home when the shooting started. Defendant was convicted by
jury of second degree murder and possession of a firearm by a convicted felon. The jury
also found that defendant intentionally and personally discharged a firearm causing death.
After declining to strike defendant’s firearm enhancement in the interest of justice, the
1
trial court sentenced him to serve an aggregate indeterminate prison term of 40 years to
life plus a consecutive determinate term of three years.
On appeal, defendant contends: (1) the trial court prejudicially erred by providing
an inadequate response to a jury question regarding what would happen if the jury could
not unanimously agree that the prosecution had proved defendant was not acting in
imperfect self-defense; (2) the prosecutor engaged in prejudicial prosecutorial
misconduct during the closing and rebuttal arguments by misstating the law and arguing
defendant’s bad character; and (3) the trial court prejudicially abused its discretion by
declining to dismiss the firearm enhancement in the interest of justice.
We filed an opinion affirming the judgment on November 12, 2021. Thereafter,
defendant filed a petition for rehearing arguing two statutory enactments signed by the
Governor on October 8, 2021, Senate Bill No. 567 (2021-2022 Reg. Sess.; hereafter
Senate Bill 567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.; hereafter Assembly
Bill 124), would become effective before this appeal became final, and that both new
laws must be applied retroactively to defendant’s case under In re Estrada (1965) 63
Cal.2d 740 (Estrada).1 We granted rehearing, vacated our initial opinion, and ordered
supplemental briefing from the parties. Having reviewed their submissions, we accept
their agreement that these enactments apply retroactively to this case and require remand
for resentencing. In all other respects, we affirm the judgment. As we shall explain,
defendant’s complaint about the trial court’s response to the jury’s question is forfeited
by his trial counsel’s acquiescence in that response. The prosecutor’s closing and rebuttal
arguments did transgress the bounds of proper argument, but these missteps do not
1 Defendant’s petition for rehearing also asserted our initial opinion omitted a
material fact when reciting the underlying facts of this case. While we do not consider
the omitted fact particularly material, we nevertheless add it to our recitation of facts
below.
2
require reversal. Finally, the trial court did not abuse its discretion in declining to dismiss
defendant’s firearm enhancement in the interest of justice.
FACTS
On November 5, 2016, defendant and his brothers, Emilio and Armando,
celebrated their cousin’s birthday at their grandmother’s house. That night, they went to
a nightclub with the cousin, her boyfriend, and several others. Emilio’s girlfriend,
Alejandra Bravo, joined them at the club. Around 1:00 a.m., they decided to leave the
club and get some food at Capitol Casino.
The casino’s surveillance camera shows defendant and Armando arriving first
with their cousin’s boyfriend, followed shortly thereafter by the cousin, and then Emilio
and Bravo. Defendant was wearing a black T-shirt with black pants and black shoes with
black soles. Armando was wearing a beige, red, and black check pattern button-up shirt
over a black T-shirt with black pants and black shoes with white soles. Emilio was also
wearing a black T-shirt, black pants, and black shoes with white soles. He was carrying a
gray backpack that contained two handguns.
Upon their arrival, they went into the bar area. The two couples sat at the bar and
ordered food. Defendant and Armando went back outside, where they exchanged words
with another group of young men in the parking lot. A fist fight broke out about a minute
later. Defendant was knocked down during the fight and the other young men went
through his pockets while he was on the ground, apparently taking some of his
belongings. Armando then ran back into the casino and yelled to Emilio: “Come out.”
Emilio could not hear what was said, but understood there was a problem. He got up and
followed his brother outside with the backpack.
Officer Michael Smith of the Sacramento Police Department was stationed in the
casino lobby when Armando ran inside to get his brother. He immediately got up and
went out into the parking lot, following Armando and Emilio out the door. Two security
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guards followed, as did Bravo, the cousin and her boyfriend, and various other casino
patrons.
Surveillance video shows the group of young men who were involved in the fight
with defendant and Armando heading away from the casino entrance while defendant and
his brothers came out with the officer and security guards. As Emilio explained during
his trial testimony, the other group was standing behind a black sport-utility vehicle
(SUV) when they got outside. An exchange of words resumed between the groups,
causing Officer Smith to position himself between them, standing behind a white pickup
truck that was parked between the SUV and the casino entrance. One of the security
guards described the scene as “really chaotic.” He approached defendant’s group and
told them they had to leave.
Defendant’s group walked towards 16th Street, the main street providing access to
the casino. The other security guard followed the group in order to escort them off of the
property. There was a lot of arguing and yelling, both between the groups and within
defendant’s group, the latter consisting of aggressive “let’s do this” and “let’s get them”
from male voices in the group, intermingled with “don’t do this” and “let’s just leave”
from female voices in the group.
Defendant was “a little hyped up” as they walked towards 16th Street and grabbed
Emilio’s backpack. Officer Smith described, “I could see them struggling over the
backpack” and “trying to get into [it].” Concerned that the backpack might contain a
weapon, the officer yelled for the security guard nearest 16th Street to “get back.” He did
so.
Emilio testified that he lost possession of the backpack during the struggle, after
which defendant handed him one of the firearms that was inside, a Glock semiautomatic
handgun. Based on all of the evidence, defendant retained possession of the other
firearm, a .40-caliber Smith and Wesson semiautomatic handgun, and used it to initiate
the shootout that followed.
4
Officer Smith testified that he saw a Hispanic male with tattoos on his arms pull a
handgun out of the backpack and fire two rounds in his direction.2 Based on the muzzle
flash, he could tell the shots were not directed at him, but rather about 30 feet to his side,
apparently at the other group of young men near the black SUV. The officer returned
fire, getting off five rounds before taking cover behind the white truck as multiple
additional rounds were fired in his direction. These rounds struck both the truck and the
SUV as the officer crouched behind the truck’s rear passenger side tire.
From the surveillance video, it appears that the victim, Nicholas Broadway, was
struck by one of the first rounds fired. Broadway was simply trying to leave the casino.
A casino employee used her Uber app to order him a ride and accompanied him into the
parking lot to try to find the vehicle sent to pick him up. That vehicle was parked on 16th
Street. As Broadway followed the employee out towards his ride, the employee saw a
young man wearing black pants and a black shirt pull out a handgun and open fire as a
young woman was pulling on his other arm, “trying to drag him away and pull him away
to just leave.” Broadway ran towards the casino entrance and can be seen on the
surveillance video diving behind a parked car near the entrance as Officer Smith returned
fire.
The security guards also ran towards the casino entrance when the shooting started
and crouched behind parked cars. When Broadway got to them, they could see he was
bleeding and laid him down on the ground while they put pressure on his wound. As they
did so, additional shots were fired from a car traveling down a side street towards 16th
Street.
2 Prior to trial, the officer identified Emilio as the person he believed fired these
rounds. The officer was “pretty sure.” However, both defendant and Emilio appear to
have tattoos on their arms in the surveillance video. They were also dressed nearly
identically.
5
Broadway was hit by a bullet fired by a .40-caliber Smith and Wesson
semiautomatic handgun. He died from his injuries.
After the shootout, defendant’s group walked fairly casually around the casino
along 16th Street, crossed a side street, and continued though an adjacent parking lot,
picking up the pace through the parking lot as Emilio ran to a dumpster and threw his
Glock handgun inside. The group then backtracked towards the casino, as multiple
police vehicles arrived, before heading their separate ways for the night.
The Glock handgun Emilio threw in the dumpster was recovered during the
investigation that followed. Thirteen shell casings fired by this weapon were found at the
scene near 16th Street. Seven shell casings fired by a .40‑caliber Smith and Wesson
handgun were also found interspersed with these casings near 16th Street. As mentioned,
the bullet that killed Broadway was fired by this type of weapon. While it was never
recovered, defendant’s ex-girlfriend testified that she bought a .40-caliber Smith and
Wesson handgun about a year prior to the shooting. She bought the gun with defendant
while living with him. About a month before the shooting, she and defendant broke up.
She moved out without taking the gun with her.
Ten additional shell casings were also found at the scene. Five were fired by
Officer Smith’s Sig Sauer service pistol. The other five were fired by a fourth weapon,
apparently associated with the other group of young men, and possibly fired from the car
the security guard saw driving down the side street as he tried to prevent Broadway from
bleeding to death.
Defendant and Emilio were eventually arrested for their involvement in the
shooting.
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DISCUSSION
I
Response to the Jury’s Question
Defendant contends the trial court prejudicially erred by providing an inadequate
response to a jury question. The contention is forfeited.
A.
Additional Background
Defendant and Emilio were tried together. They were each charged with
Broadway’s murder and the attempted murder of Officer Smith. Defendant was
additionally charged with possession of a firearm by a convicted felon. Various firearm
enhancement allegations were attached to the murder and attempted murder counts. The
jury was fully and accurately instructed on the law applicable to these crimes and
enhancements. Defendant does not argue otherwise.
During their deliberations, the jury sent the following question to the trial court:
“Please clarify outcome if jury is not unanimous in deciding guilty of the lowest level
crime. For example, page 38, last paragraph says, If the People have not met this burden,
you must find the defendant not guilty of murder. Jurors are confused as to this meaning,
A, hung jury, or B, defendant must be not guilty.”
The trial court conferred with the parties regarding how best to respond. The trial
court began the discussion: “If you go to 38, that’s the instruction on imperfect self-
defense. And like all the self-defense instructions, it will say, in the last paragraph, if the
People haven’t met their burden of proving the defendant didn’t do something, then you
must find him not guilty. This is in the context, though, of reducing a murder to a
voluntary manslaughter because of the not-negated presence of imperfect defense, I guess
would probably be the best way to say it. [¶] So in the question, they first say if the -- in
quoting, If the People have not met their burden, you must find the defendant not guilty
of murder, then it says, The jurors are confused as to this meaning, hung jury or
7
defendant must be not guilty, period. [¶] You know, I’ve always learned to don’t over-
read these things. I mean, kind of read them for the least -- you know, so my question is
that -- but it’s purely a guess -- that you have somebody that looks at a murder might be
reduced to a manslaughter or voluntary manslaughter if the People haven’t negated
imperfect self-defense, and if -- read that, somebody saying, well, that must mean he’s
not guilty, not just of murder, but not guilty period, versus you’ve got a hung jury.”
The trial court asked for comments. Defendant’s trial counsel stated that if the
People had not negated imperfect self-defense, defendant and Emilio would be “not
guilty of murder and they would be guilty of voluntary manslaughter.” The trial court
interjected: “Well, they -- they could say not guilty of that too but --” Defendant’s
attorney agreed. The trial court continued: “But the absence of imperfect self-defense
doesn’t compel that, that’s all.”
The prosecutor suggested referring the jury back to CALCRIM No. 640, providing
detailed instructions for filling out the verdict forms. The prosecutor also suggested “it
might be a case where you would ask the jury if they would want to hear further
argument of five minutes each on that issue.”
Emilio’s trial counsel then provided a “slightly different” interpretation of the
jury’s note, the details of which need not be recounted here.
The trial court proposed responding to the jury’s note by directing the jury to
CALCRIM No. 3550, regarding their duty to deliberate and try to agree on a verdict if
possible, CALCRIM No. 640, set forth in greater detail below, and pointing out that the
portion of CALCRIM No. 571 quoted in the jury’s question specifically deals with the
issue of whether a defendant is guilty of the greater crime of murder as opposed to
voluntary manslaughter.
Defendant’s trial counsel responded: “My sense is that I think the Court’s
approach is a good one. I don’t have any objection to what the Court is posing and to try
8
that. We’re not giving them any new information, but we’re clarifying and directing
them.”
Further discussion between the trial court, the prosecutor, and Emilio’s trial
counsel followed, with the latter objecting to any instruction because he feared “sending
them down a rabbit hole” without knowing exactly “what their confusion is.” The trial
court proposed adding a line to the end of the response asking the jury to advise the court
if the response did not address their concern. Defendant’s counsel added: “I think it’s a
cautious sort of step-by-step approach.”
The trial court ultimately responded to the jury’s question with the following:
“As set forth in instruction 3550, it is your duty to talk with one another and to
deliberate in the jury room. You should try to agree on a verdict if you can. Each of you
must decide the case for yourself, but only after you have discussed the evidence with the
other jurors. Do not hesitate to change your mind if you become convinced that you are
wrong. But do not change your mind just because other jurors disagree with you.
“Instruction 640A sets forth a range of determinations that you may make with
respect to the crime charged in Count One and the relevant lesser included offenses.
These potential determinations include findings that a defendant is guilty, not guilty, or
that you cannot come to a unanimous agreement with respect to a crime or lesser
included offense. Please review that instruction to determine if it is responsive to your
question.
“In further response to your question regarding instruction number 571 on page 38
of the instructions, please note that this instruction pertains only to circumstances under
which Imperfect Self-Defense may reduce Murder to Voluntary Manslaughter.
“Please review the foregoing to determine if you have a remaining question on this
topic.”
The jury did not ask any further questions regarding this issue.
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B.
Forfeiture
“When the trial court responds to a question from a deliberating jury with a
generally correct and pertinent statement of the law, a party who believes the court’s
response should be modified or clarified must make a contemporaneous request to that
effect; failure to object to the trial court’s wording or to request clarification results in
forfeiture of the claim on appeal.” (People v. Dykes (2009) 46 Cal.4th 731, 802.)
Defendant acknowledges his trial counsel did not object to the trial court’s
response to the jury’s question, but argues the issue is nevertheless preserved for review
because Penal Code3 section 1259 permits us to “review any instruction given, . . . even
though no objection was made thereto in the lower court, if the substantial rights of the
defendant were affected thereby.” Defendant also argues Emilio’s trial counsel’s
objection to the trial court’s response adequately “preserved the issue on this record.”
We are not persuaded.
The jury asked the trial court to clarify what the outcome would be if the jury
could not unanimously agree that defendant was guilty of voluntary manslaughter and
expressed confusion about the last paragraph of CALCRIM No. 571. That paragraph
states: “The People have the burden of proving beyond a reasonable doubt that the
defendant was not acting in [imperfect self-defense]. If the People have not met this
burden, you must find the defendant not guilty of murder.” (CALCRIM No. 571.) The
jury asked whether the failure to unanimously agree that the People proved defendant
was not acting in imperfect self-defense would result in a “hung jury” or a verdict of “not
guilty.”
3 Undesignated statutory references are to the Penal Code.
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Because the jury expressed the possibility of being unable to reach a unanimous
verdict, the trial court referred the jury to CALCRIM No. 3550 and emphasized their duty
to try to reach a unanimous verdict. The trial court also referred the jury to CALCRIM
No. 640 regarding the “range of determinations” that could be made with respect to the
murder count and its lesser included offenses. As delivered to the jury, this instruction
provides in relevant part:
“1. If all of you agree that the People have proved beyond a reasonable doubt
that a defendant is GUILTY of first degree murder, complete and sign that verdict form.
Do not complete or sign any other verdict forms for Count One.
“2. If all of you cannot agree whether a defendant is guilty of first degree
murder, inform me that you cannot reach an agreement and do not complete or sign any
verdict forms for Count One.
“3. If all of you agree that a defendant is NOT GUILTY of first degree murder
but also agree that a defendant is GUILTY of second degree murder, complete and sign
the form for NOT GUILTY of first degree murder and the form for GUILTY of second
degree murder. Do not complete or sign any other verdict forms for Count One.
“4. If all of you agree that a defendant is NOT GUILTY of first degree murder
but cannot agree whether a defendant is guilty of second degree murder, complete and
sign the form for NOT GUILTY of first degree murder and inform me that you cannot
reach further agreement. Do not complete or sign any other verdict forms for Count One.
“5. If all of you agree that a defendant is NOT GUILTY of first degree murder
and NOT GUILTY of second degree murder, but also agree that a defendant is
GUILTY of voluntary manslaughter, complete and sign the forms for NOT GUILTY of
first degree murder and NOT GUILTY of second degree murder and the form for
GUILTY of voluntary manslaughter. Do not complete or sign any other verdict forms
for Count One.
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“6. If all of you agree that a defendant is NOT GUILTY of first degree murder
and NOT GUILTY of second degree murder, but cannot agree whether a defendant is
guilty of voluntary manslaughter, complete and sign the forms for NOT GUILTY of first
degree murder and NOT GUILTY of second degree murder and inform me that you
cannot reach further agreement. Do not complete or sign any other verdict forms for
Count One.
“7. If all of you agree that a defendant is NOT GUILTY of first degree
murder, NOT GUILTY of second degree murder, and NOT GUILTY of voluntary
manslaughter, complete and sign the verdict forms for NOT GUILTY of each crime. Do
not complete or sign any other verdict forms for Count One.”
Read together, this response would have informed the jurors that they were
required to try to reach a unanimous verdict, if possible. In order to reach a unanimous
verdict of guilty, each juror had to agree that the People proved guilt beyond a reasonable
doubt. If they so agreed with respect to first degree murder, they were to sign that verdict
form. If they unanimously agreed the People had not carried the burden of proving first
degree murder beyond a reasonable doubt, they were to sign the verdict form for not
guilty. If they could not unanimously agree on the matter, they were to sign nothing and
inform the trial court of their impasse. Similarly, with respect to second degree murder,
if after finding defendant not guilty of first degree murder, they unanimously agreed the
People proved beyond a reasonable doubt that he was guilty of second degree murder,
they were to also sign that verdict form. If, however, they unanimously agreed the
People had also not carried this burden, they were to sign the verdict form for not guilty.
Again, if they could not unanimously agree on the matter, they were to sign no other
verdict forms and inform the trial court of their failure to agree as to second degree
murder. Only if the jury unanimously agreed that defendant was not guilty of both first
and second degree murder would they be signing a voluntary manslaughter verdict form.
And again, if they unanimously agreed the People proved his guilt beyond a reasonable
12
doubt, they would sign that verdict form. If they unanimously agreed the People had not
carried this burden, they would sign the not guilty verdict form. And if they could not
unanimously agree, they would sign no further verdict forms and inform the trial court.
Finally, the trial court also informed the jury that CALCRIM No. 571 pertained
only to reducing murder to voluntary manslaughter. This instruction begins: “A killing
that would otherwise be murder is reduced to voluntary manslaughter if . . . .”
(CALCRIM No. 571.) The instruction then goes on to define the circumstances of
imperfect self-defense that operate to reduce a murder to involuntary manslaughter and
informs the jury that the People had the burden of proving beyond a reasonable doubt that
those circumstances did not exist.
From all of this, the jury would have understood that it could return the verdict
that it did, i.e., guilty of second degree murder, only if the jurors unanimously agreed the
People had not carried the burden of proving first degree murder beyond a reasonable
doubt, but that the People did carry this burden with respect to second degree murder, i.e.,
by proving the elements of murder beyond a reasonable doubt and also proving by the
same standard that defendant was not acting in imperfect self-defense.
We conclude this information adequately responded to the jury’s question. If
defendant wanted further clarification of the People’s burden of proof on the murder
charge, as he argues in his appellate briefing, “defense counsel should have requested . . .
[such] clarification” from the trial court. (People v. Dykes, supra, 46 Cal.4th at p. 803.)
Failure to do so results in forfeiture of the issue on appeal.
II
Prosecutorial Misconduct
Defendant also claims the prosecutor engaged in prejudicial prosecutorial
misconduct during the closing and rebuttal arguments by (1) misstating the law, and
(2) arguing defendant’s bad character. We conclude there was prosecutorial error, but it
was harmless.
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A.
General Legal Principles
“ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.’ [Citation.] When a claim of misconduct is based on the prosecutor’s
comments before the jury, as all of defendant’s claims are, ‘ “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.” ’ [Citation.]” (People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 305.)
“Advocates are given significant leeway in discussing the legal and factual merits
of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to
misstate the law . . . .’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th 659, 666.)
Nor may a prosecutor urge “the jury [to] draw inferences concerning defendant’s guilt
from conclusions regarding defendant’s general bad character.” (People v. Dykes, supra,
46 Cal.4th at p. 774.) “To establish such error, bad faith on the prosecutor’s part is not
required. [Citation.] ‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer
to the extent that it suggests a prosecutor must act with a culpable state of mind. A more
apt description of the transgression is prosecutorial error.’ [Citation.]” (Centeno, at
pp. 666-667.)
With these legal principles in mind, we turn to defendant’s specific objections to
the prosecutor’s argument.
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B.
Misstatements of Law
As defendant notes in his appellate briefing, his defense counsel argued that he, at
most, “committed manslaughter, having been in fear for his life and/or provoked because
of the violent attack.”
Addressing this argument, the prosecutor stated during the rebuttal argument: “As
far as manslaughter, I touched on it just briefly. Now, the defendant was actually
provoked? You could say, yeah. I mean, you’re knocked to the ground. That would be
provocation. Intense emotion, you could argue that [defendant] would have it at that
point. But does it -- is it an intense emotion that obscures his reasoning and judgment?”
The prosecutor argued defendant was not “under the direct and immediate influence of
the provocation” because of the separation of time between the initial fist fight in the
parking lot and the shooting. After arguing that a reasonable person standard applied to
the question of provocation, the prosecutor continued: “So a person of average
disposition, are they going to run and grab the gun out, or are they going to go talk to that
officer or security [guard] and point the people out? Or maybe run over and continue the
fight once the brothers are with them? Is a person of average disposition going to take
that gun out and then conceal it and walk out to the street?”
Defense counsel objected that the argument misstated the law. The trial court
overruled the objection, stating: “I don’t think it misstates the law necessarily. Each side
has their interpretations. The jury’s heard the evidence. They’ve got the instructions. [¶]
Go ahead.” The prosecutor continued: “[I]t talks about a person with an average
disposition, are they going to act a certain way?”
As our Supreme Court explained in People v. Beltran (2013) 56 Cal.4th 935:
“Heat of passion is a mental state that precludes the formation of malice and reduces an
unlawful killing from murder to manslaughter. Heat of passion arises if, ‘ “at the time of
the killing, the reason of the accused was obscured or disturbed by passion to such an
15
extent as would cause the ordinarily reasonable person of average disposition to act
rashly and without deliberation and reflection, and from such passion rather than from
judgment.” ’ [Citation.] Heat of passion, then, is a state of mind caused by legally
sufficient provocation that causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of thought is required to
form either an intent to kill or a conscious disregard for human life, [i.e., express or
implied malice,] a person who acts without reflection in response to adequate provocation
does not act with malice.” (Id. at p. 942, fn. omitted.) Thus, “[t]he proper focus is placed
on the defendant’s state of mind, not on his particular act. To be adequate, the
provocation must be one that would cause an emotion so intense that an ordinary person
would simply react, without reflection. . . . [P]rovocation is not evaluated by whether the
average person would act in a certain way: to kill. Instead, the question is whether the
average person would react in a certain way: with his reason and judgment obscured.”
(Id. at p. 949.)
Here, the prosecutor’s rebuttal argument misstated the law by incorrectly
informing the jury that provocation is sufficient to reduce a murder to manslaughter only
if a person with an average disposition would have done what defendant did, i.e., grab a
gun, walk out to the street, and use the gun to fire upon his adversaries. Similar remarks
were made and rebuked in People v. Forrest (2017) 7 Cal.App.5th 1074. As in that case,
“[a]lthough such remarks amount to a misstatement of the legal standard regarding
provocation under Beltran, . . . we nevertheless find that the statements do not require
reversal in this case.” (Id. at p. 1085.)
Because we conclude in the following section that the prosecutor also erred in
making improper reference to defendant’s status as an ex-felon, we address prejudice
cumulatively later in this opinion.
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C.
Arguing Defendant’s Bad Character
For purposes of proving the charge of possession of a firearm by a convicted
felon, the parties stipulated to the fact that defendant was previously convicted of a
felony. Defendant takes issue with the following comments made by the prosecutor
during closing argument after referring to this stipulation.
The prosecutor began by urging the jury to “consider, in knowing that he was
convicted of that felony, think about some of the circumstances that led him to possess
that gun” and “the mindset of this person . . . as he goes through that night.” The
prosecutor continued: “And what’s important to know is this is the person that is already,
from the time [his ex-girlfriend is] getting that gun, circumventing the law. He doesn’t
care at this point. He’s having this gun, she’s purchasing it, but he has access to it. He
takes it when she’s gone, and on the night when they’re just going out on the town to the
bar, he thinks, the ex-felon, I’m going to bring a handgun with me. So keeping that
mentality in mind of what kind of person, who’s already been convicted of a felony,
knows he cannot possess a gun, but decides to bring it out for a night on the town,
whether or not he’s going to be a rule-follower. Whether or not he’s going to stop when
someone disrespects him.”
Defense counsel objected to this line of argument as “character evidence.” The
trial court allowed the prosecutor to continue, stating “I think we’re talking about what
reasonable inferences can be drawn from the evidence.” The prosecutor continued: “It’s
clear that a reasonable inference for anybody that takes a gun in a backpack out to a bar is
ready to use that gun.”
Had the prosecutor simply argued that bringing a loaded gun to a bar supported a
reasonable inference that defendant was ready and willing to use it, there would be no
problem. But he did not so limit his argument. Instead, he asked the jury to consider
defendant’s “mindset” as an “ex-felon,” and to keep in mind the “mentality” of that “kind
17
of person,” suggesting that such a person would not “stop when someone disrespects
him.” As we stated long ago: “It is well settled that the guilt of a defendant on trial for
an alleged crime cannot be established by proof of general bad character or of other
crimes or wrongful acts which have no relevancy to the crime charged . . . .” (People v.
Adams (1926) 76 Cal.App. 178, 184.) In accordance with this long-standing rule, the
jury was instructed not to consider the fact that defendant was previously convicted of a
felony for any purpose other than determining whether he was guilty of violating section
29800. And yet the prosecutor urged the jury to do just that. This was error. (See, e.g.,
People v. Grant (2003) 113 Cal.App.4th 579, 589-590 [prosecutor erred in urging jury to
draw impermissible inference that defendant committed one crime based on evidence that
he committed another crime].)
We now turn to the question of prejudice.
D.
Prejudice
We conclude the prosecutor’s errors in misstating the law of provocation and
improperly referring to defendant’s status as an ex-felon did not render defendant’s trial
fundamentally unfair in violation of the Fourteenth Amendment to the federal
Constitution. We therefore apply the state law standard for harmless error—i.e., whether,
based on the totality of the evidence, it is reasonably probable a result more favorable to
defendant would have occurred absent these prosecutorial errors. (People v. Castillo
(2008) 168 Cal.App.4th 364, 386; People v. Watson (1956) 46 Cal.2d 818, 836.)
The evidence supporting defendant’s guilt was very strong. That defendant fired
the fatal shot was not disputed. The contested issues at trial involved whether defendant
fired in self-defense, perfect or imperfect, and whether his reason was obscured by such
passion as would cause an ordinarily reasonable person of average disposition to act
rashly and without deliberation and reflection. The self-defense theory was undercut by
evidence, set forth in greater detail above, that defendant was the first to open fire. The
18
heat of passion theory was undercut by the fact that the initial fistfight had ended by the
time Armando ran inside the bar area to get Emilio and the two returned to the parking lot
with the firearms in the backpack. Officer Smith and two security guards followed them
out, the officer positioning himself between the groups of young men while the security
guards attempted to get defendant’s group to leave. The young women in defendant’s
group also tried to deescalate the situation and convince defendant and his brothers to
leave. Instead, defendant struggled with Emilio over possession of the backpack, pulled
out the .40-caliber handgun, handed Emilio the other Glock handgun, and opened fire.
On these facts, the jury was more than justified in concluding defendant did not fire in
self-defense and no reasonable person in defendant’s position would have reacted with
his reason and judgment obscured by the fistfight that was already over.
Moreover, the trial court properly instructed the jury on the provocation required
to mitigate a murder to voluntary manslaughter on a heat of passion theory. The jury was
also properly instructed not to consider defendant’s prior felony conviction for any
purpose other than proving he violated section 29800. “The court’s instructions, not the
prosecution’s argument, are determinative, for ‘[w]e presume that jurors treat the court’s
instructions as a statement of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Mayfield
(1993) 5 Cal.4th 142, 179.)
We conclude there is no reasonable probability that defendant would have
received a more favorable outcome had the prosecutor not committed the errors set forth
above.
III
Denial of Defendant’s Request to Dismiss the Firearm Enhancement
We also reject defendant’s assertion that the trial court prejudicially abused its
discretion by declining to dismiss his firearm enhancement in the interest of justice.
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Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) amended
section 12022.53 to provide: “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682.
§ 2.) Sentencing in this case occurred after this provision went into effect.
Defendant urged the trial court to exercise its discretion to strike his firearm
enhancement, arguing: “In this matter, there are sufficient grounds for the court to strike
the section 12022.53[, subdivision ](d) enhancement. The psych report filed under seal
indicates problems with post-traumatic stress due to [defendant] witnessing a violent
crime against a family member. It is believed that the incident negatively influenced his
life and made him fearful, presenting a life challenge to [defendant] early in his life.
[Defendant] has prospects for rehabilitation, including a close-knit family that will
continue to provide emotional support to him during his incarceration. [Defendant] also
has children who he is close to and who depend on him. Although [defendant] has a prior
felony, he has no prior juvenile offenses, indicating that issues with criminality are not
deeply rooted or influenced by his family. The probation report indicates that at the time
of his arrest he was employed full-time and was paying child support. If the court strikes
the firearm enhancement, [defendant] will still have an indeterminate 15 to life term to
serve, and could one day be eligible for parole provided he demonstrates sufficient
rehabilitation. Due to the foregoing, it is requested that the court consider exercising its
authority to strike the enhancement.”
After hearing oral argument on the matter, the trial court denied the request. The
trial court explained that it was required to consider defendant’s “background, character,
and prospects” in determining whether to strike the enhancement in the interest of justice
and indicated it had reviewed the probation report and the psychological report noted
above. The trial court acknowledged defendant’s family had attended and supported him
throughout the trial. The trial court also noted defendant’s prior felony conviction for
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assault with a deadly weapon, as well as multiple prior misdemeanor convictions,
including false imprisonment. The trial court further noted the probation report indicated
defendant had “attack[ed] another inmate . . . without provocation” while at the jail. The
trial court then noted defendant was 32 years old at the time of the current offense and
provided a brief overview of the facts of this case, noting “a common element” shared by
the current offense, defendant’s jailhouse conduct, and two of his prior convictions, i.e.,
“violence against someone else.” The trial court then stated: “The flip side of this, as
you know, and it’s entitled to some consideration is that [defendant] is a relatively young
person and we like to think that anyone can change over time.” The trial court then noted
the loss suffered by the victim and his family and concluded: “The Court can’t find that
in the interest of justice that the enhancement should be stricken, so the Court’s going to
deny that motion.”
“ ‘ “[A] court’s discretionary decision to dismiss or to strike a sentencing
allegation under section 1385 is” reviewable for abuse of discretion.’ [Citation.] ‘In
reviewing for abuse of discretion, we are guided by two fundamental precepts. First,
“ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.’ ” [Citation.] Second, a “ ‘decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial judge.” ’ ” [Citation.]
Taken together, these precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.’ [Citation.]” (People v. Pearson (2019) 38 Cal.App.5th 112, 116.)
Defendant argues the trial court’s decision declining to strike his firearm
enhancement amounted to an abuse of discretion because “the fight precipitating the
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shooting was a significant factor in mitigation of the current offense,” his “prior
convictions were sparse,” only one of which involved violence, and other “particulars of
[his] background, character and prospects” noted in the psychological report (“chronic
posttraumatic stress disorder” and “extremely low” scores for “verbal comprehension and
perceptual reasoning”) also “supported the conclusion [defendant] should not have been
subject to the additional penalty of the firearm enhancement.” We are not persuaded.
Even assuming all of these circumstances weighed in favor of striking the firearm
enhancement, they do not, as defendant contends, so “manifestly support[] the striking of
the firearm enhancement in this case [that] no reasonable minds could differ.”
We conclude the trial court did not abuse its discretion in declining to strike
defendant’s firearm enhancement in this case.4
4 In the alternative, defendant suggests the trial court was unaware of its discretion
to reduce the firearm enhancement, as opposed to simply striking it, and asks us to
remand the matter to the trial court for an exercise of that discretion. In support of this
argument, defendant points to People v. Morrison (2019) 34 Cal.App.5th 217, a recent
decision from the First Appellate District, holding that a court exercising its discretion to
strike an enhancement under section 1385 can instead opt to impose a lesser enhancement
in the interest of justice. (Morrison, at p. 222.) Our Supreme Court recently held
“Morrison correctly described the scope of a trial court’s sentencing discretion under
section 12022.53.” (People v. Tirado (Jan. 20, 2022, S257658) ___ Cal.5th ___, ___
[2022 Cal. Lexis 149, *9].) However, we need not determine whether or not the trial
court was aware of this aspect of its discretion when it declined to strike defendant’s
firearm enhancement. This is because we must remand for resentencing for a retroactive
application of Senate Bill 567 and Assembly Bill 124, as we explain immediately below.
During that resentencing, the trial court may reconsider all sentencing choices previously
made. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.) Thus, the trial court will
be able to reconsider whether or not to strike defendant’s section 12022.53, subdivision
(d) enhancement at that time. Following Tirado, if the trial court decides to strike this
enhancement, it may instead impose one of the lesser enhancements.
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IV
Retroactive Application of Senate Bill 567 and Assembly Bill 124
In addition to an indeterminate term of 40 years to life for the murder and firearm
enhancement, defendant was sentenced to a consecutive determinate sentence of three
years for possession of a firearm by a convicted felon, the upper term for that crime. The
upper term was selected “because the crime involved great violence, great bodily harm
and the threat of great bodily harm.” At the time of defendant’s sentencing, section 1170,
subdivision (b) provided the trial court with discretion to choose between the lower,
middle, or upper term, after considering the record in the case, the probation report, other
reports, statements in aggravation or mitigation, and any other evidence introduced at the
sentencing hearing, based on which term, “in the court’s discretion, best serves the
interests of justice.” (Former § 1170, subd. (b).) This changed, however, on January 1,
2022, when Senate Bill 567 and Assembly Bill 124 went into effect. (Stats. 2021, ch.
731, § 1.3 [Senate Bill 567]; Stats. 2021, ch. 695, § 5 [Assembly Bill 124].)
Senate Bill 567 “amends section 1170 and 1170.1 to establish a sentencing
procedure consistent with the decisions of the United States Supreme Court in Apprendi
v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S.
296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham), when
a trial court seeks to impose the upper term of custody.” (Couzens, Selected Changes to
California Sentencing Laws Effective 2022 (Barrister Press 2021) p. 6.)
Section 1170, subdivision (b) now provides in relevant part: “(1) When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall, in its sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2). [¶] (2) The court may
impose a sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated to by
23
the defendant, or have been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial. Except where evidence supporting an aggravating
circumstance is admissible to prove or defend against the charged offense or
enhancement at trial, or it is otherwise authorized by law, upon request of a defendant,
trial on the circumstances in aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements. The jury shall not be informed of
the bifurcated allegations until there has been a conviction of a felony offense. [¶]
(3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury. This paragraph does not apply to
enhancements imposed on prior convictions.” (Italics added.)
Assembly Bill 124 also amended section 1170, adding paragraph (6) to
subdivision (b). This paragraph provides: “Notwithstanding paragraph (1), and unless
the court finds that the aggravating circumstances outweigh the mitigating circumstances
that imposition of the lower term would be contrary to the interests of justice, the court
shall order imposition of the lower term if any of the following was a contributing factor
in the commission of the offense: [¶] (A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence. [¶] (B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of the offense. [¶] (C)
Prior to the instant offense, or at the time of the commission of the offense, the person is
or was a victim of intimate partner violence or human trafficking.” (§ 1170, subd.
(b)(6).)
The Attorney General concedes these changes in the law are ameliorative and
apply retroactively to defendant’s case, requiring remand for resentencing. (See Estrada,
supra, 63 Cal.2d 740.) We accept the concession and order the appropriate remand.
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DISPOSITION
Defendant’s convictions and enhancement finding are affirmed. The sentence
imposed is vacated and the matter is remanded for resentencing.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
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