Filed 3/10/22 P. v. Hickman CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C093638
Plaintiff and Respondent, (Super. Ct. No.
STKCREFE20190007145)
v.
ALAN WAYNE HICKMAN,
Defendant and Appellant.
A jury found defendant Alan Wayne Hickman guilty of the first degree murder of
his wife, Susan Hickman. The jury also found true allegations that defendant personally
and intentionally discharged a firearm causing great bodily injury or death in the
commission of the offense. The trial court sentenced defendant to an aggregate term of
50 years to life in state prison.
Defendant appeals, arguing: (1) the trial court should have instructed the jury sua
sponte on subjective provocation under CALCRIM No. 522 or, in the alternative, his trial
counsel was ineffective for failing to request the instruction; (2) the trial court abused its
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discretion in declining to strike the firearm enhancement and impose a lesser
enhancement; and (3) the trial court erred in imposing various fines, fees, and
assessments without determining his ability to pay. We reject these contentions and
affirm the judgment.
I. BACKGROUND
Susan went missing in May 2019. A concerned coworker called police. Stockton
Police Officer James Farthing went to Susan’s residence to conduct a welfare check.
There, Farthing encountered defendant, who agreed to let him look around. Farthing
found Susan’s phone on a porch or patio outside the house. He went inside and found a
revolver on a ledge in the hallway. The revolver was fully loaded, except for two spent
shell casings in the cylinder. Farthing took possession of the revolver and led defendant
outside to wait for backup. As they walked, defendant admitted that he had used the
revolver to kill Susan.
Officer Farthing was soon joined by other members of the Stockton Police
Department and the San Joaquin County Sheriff’s Department, which would eventually
take over the investigation. Defendant was detained in a patrol car. Farthing went back
inside the house and found Susan dead on the floor in a front room.
Defendant was transported to the San Joaquin County Sheriff’s Department.
Detectives Antonio Cortez and Robert Cleary conducted an interview, which was
recorded and would later be played for the jury. Cortez and Cleary began the interview
by asking why defendant thought they were talking. Defendant responded, “I suppose
you want to know why I killed my wife.” Defendant explained that he and Susan had
been married for 10 years. The marriage was unhappy, and the couple frequently argued.
Defendant recalled that Susan had come home from work several days earlier.
They argued about a footstool that had been left outside in the rain. Defendant explained
that the dog had urinated and defecated on the footstool, “and it was soaking and nasty.”
Defendant said he had tried to throw the soiled footstool away, placing the object in the
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garbage can on three separate occasions. But Susan repeatedly retrieved the footstool
from the garbage. When Susan returned from work on the day of the murder, defendant
asked, “What are you doing? . . . Why do you want to keep a hold of this thing?”
According to defendant, Susan replied, “there’s a lot more urine than that in the house.”
Defendant explained that Susan was interested in coprophilia and had taken to
urinating on dishes and wearing adult diapers to work. Defendant said he learned about
Susan’s interest in coprophilia six months earlier. Defendant added that he purchased the
revolver from a friend around the same time. Defendant could not say whether he bought
the revolver to shoot Susan. However, he admitted threatening Susan with the revolver
on a near-daily basis, warning that he would shoot her if she did not curb her behavior.
He also admitted loading the revolver because he planned to shoot Susan, though he was
not sure whether he would be able to go through with it. He recalled asking his friend to
buy the revolver back, before he could use it to shoot Susan. Defendant said his friend
thought he was joking.
Defendant explained that Susan’s response to his question about why she wanted
to keep the footstool “just blew [his] mind.” He recalled that Susan said something about
a bag of urine, which “set off [his] buzzer.” It was then, defendant said, that he retrieved
the revolver from a cabinet in the hallway. He then returned to the doorway, where
Susan was standing.
Defendant fired, striking Susan in the shoulder. According to defendant, Susan
said, “I can’t believe you shot me.” Defendant recalled being surprised that Susan was
surprised, since he had been warning her for months that he would shoot her if she did
not change her behavior. As defendant would later explain, “I shot her in the shoulder
and she said I can’t believe you shot me. Which is amazing because I’ve been telling her
I was going to do it from the beginning of six months. I was, like, it’s not out of the
blue.” Defendant then shot Susan a second time. The second bullet penetrated Susan’s
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glasses and caused her to collapse. Defendant dragged Susan’s body to the front room,
where Officer Farthing would later find her.
Defendant was arrested and charged by information with first degree murder (Pen.
Code, § 187, subd. (a)).1 The information further alleged that defendant personally and
intentionally discharged a firearm causing great bodily injury and death to Susan within
the meaning of section 12022.53, subdivision (d). Defendant pled not guilty and denied
the allegation.
Defendant was tried before a jury in October 2020. The prosecution’s witnesses
testified substantially as described ante. Defendant did not testify or present any
witnesses. The jury found defendant guilty as charged and found true the allegation that
he personally and intentionally used a firearm causing Susan’s death.
The trial court sentenced defendant to 25 years to life for first degree murder, with
an additional 25 years for the firearm enhancement (§ 12022.53, subd. (d)), for an
aggregate term of 50 years to life in state prison. This appeal timely followed.
II. DISCUSSION
A. CALCRIM No. 522
Defendant argues the trial court erred by failing to instruct the jury sua sponte with
CALCRIM No. 522, which addresses the effect of provocation on the degree of murder.
Had the jury been so instructed, defendant says, he likely would have been found guilty
of second degree murder, rather than first degree murder. Defendant further contends
that, if the trial court did not have a sua sponte duty to give CALCRIM No. 522, then his
trial counsel was ineffective for failing to request the instruction. We reject these
contentions.
1 Undesignated statutory references are to the Penal Code.
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1. Additional Background
During an instructions conference, the trial court said that the jury would be given
CALCRIM Nos. 520 and 521 on the elements of first and second degree murder. The
trial court then said the jury would receive CALCRIM No. 570 on voluntary
manslaughter. The trial court confirmed with defendant’s trial counsel that the defense
position was “not murder of any kind, [but] voluntary manslaughter, right?” Defendant’s
trial counsel agreed.
Jurors were instructed with CALCRIM No. 520 that, if they decided defendant
committed murder, it was murder in the second degree, “unless the People have proved
beyond a reasonable doubt that it is murder in the first degree as defined in [CALCRIM
No.] 521.” Jurors were instructed with CALCRIM No. 521 that, “The defendant is guilty
of first degree murder if the People have proved that he acted willfully, deliberately, and
with premeditation.” Jurors were further instructed with CALCRIM No. 521 that, “A
decision to kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated.”
Jurors were also instructed with CALCRIM No. 570, which explains how
provocation can reduce murder to voluntary manslaughter. As relevant here, CALCRIM
No. 570 explained that, “A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in
the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in
the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the
provocation, the defendant acted rashly and under the influence of intense emotion that
obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have
caused a person of average disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment.”
Defendant’s trial counsel did not request CALCRIM No. 522, which would have
instructed jurors that, “Provocation may reduce a murder from first degree to second
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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 the defendant
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 the defendant committed murder or manslaughter.]” (CALCRIM No. 522.)
2. No Sua Sponte Duty to Instruct
Defendant argues the trial court erred by failing to sua sponte instruct the jury with
CALCRIM No. 522. He argues the jury was left with an incomplete understanding of the
law of homicide, because jurors were not specifically instructed that subjective
provocation could reduce first degree murder to second degree murder. We perceive no
error.
“Provocation may indeed reduce murder from first to second degree. (People v.
Thomas (1945) 25 Cal.2d 880, 903 [provocation might ‘be adequate to negative or raise a
reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as
murder of the second degree’].) But an instruction that provocation may be sufficient to
raise reasonable doubt about premeditation or deliberation, such as CALJIC No. 8.73 or
CALCRIM No. 522, is a pinpoint instruction to which a defendant is entitled only upon
request where evidence supports the theory. (People v. Rogers (2006) 39 Cal.4th 826,
877-880 [(Rogers)].) The trial court is not required to give such an instruction sua
sponte. (Id. at pp. 878-879 [‘Because CALJIC No. 8.73 relates the evidence of
provocation to the specific legal issue of premeditation and deliberation, it is a “pinpoint
instruction” . . . and need not be given on the court’s own motion’].)” (People v. Rivera
(2019) 7 Cal.5th 306, 378 (Rivera).)
Defendant acknowledges that CALCRIM No. 522 has been held to be a pinpoint
instruction but urges us to conclude otherwise in the circumstances of this case. (Rogers,
supra, 39 Cal.4th at pp. 877-880; Rivera, supra, 7 Cal.5th at p. 378.) We decline
defendant’s invitation to depart from the case law construing CALCRIM No. 522 and its
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predecessor, CALJIC No. 8.73. We are bound by our Supreme Court’s holdings in
Rogers and Rivera. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455
[“Courts exercising inferior jurisdiction must accept the law declared by courts of
superior jurisdiction. It is not their function to attempt to overrule decisions of a higher
court”].) Accordingly, we conclude that defendant was required to request CALCRIM
No. 522, and his failure to do so waives any claim of error on appeal.
Defendant argues the alleged instructional error affected his substantial rights and
lowered the prosecution’s burden of proof. We will therefore consider the merits of
defendant’s claim.
We review a claim of instructional error de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.) “The trial court has a sua sponte duty to instruct the jury on the
general principles of law relevant to the issues raised by the evidence. (People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1331.) “Review of the adequacy of
instructions is based on whether the trial court ‘fully and fairly instructed on the
applicable law.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In
determining whether error has been committed in giving jury instructions, we consider
the instructions as a whole and assume jurors are intelligent persons, capable of
understanding and correlating all jury instructions which are given. (Ibid.)
“ ‘Instructions should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.’ ” (Ibid.)
“First degree murder is an unlawful killing with malice aforethought,
premeditation and deliberation. [Citation.] Malice may be express (intent to kill) or
implied (intentional commission of life-threatening act with conscious disregard for life).
[Citation.] Second degree murder is an unlawful killing with malice, but without the
elements of premeditation and deliberation which elevate the killing to first degree
murder. [Citation.] To reduce a murder to second degree murder, premeditation and
deliberation may be negated by heat of passion arising from provocation. [Citation.] If
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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. [Citation.] If the provocation would cause a reasonable person to
react with deadly passion, the defendant is deemed to have acted without malice so as to
further reduce the crime to voluntary manslaughter.” (People v. Hernandez, supra, 183
Cal.App.4th at p. 1332.) The jury was adequately instructed on these concepts.
The jury was fully instructed on the prosecution’s burden of proof beyond a
reasonable doubt and the requirements for proving first and second degree murder.
(CALCRIM Nos. 520 and 521.) The jury was specifically told that first degree murder
was not proved unless the prosecution met the burden of proving beyond a reasonable
doubt that defendant acted willfully, deliberately, and with premeditation. (CALCRIM
Nos. 520 and 521.) Although jurors were not expressly instructed on subjective
provocation, they were plainly told that, “[a] decision to kill made rashly, impulsively, or
without careful consideration is not deliberate and premeditated.” (CALCRIM No. 521.)
These instructions adequately conveyed that actions in the heat of passion could negate
defendant’s ability to premeditate and deliberate, and thereby reduce first degree murder
to second degree murder. That CALCRIM No. 521 does not specifically include the
words “heat of passion” or “subjective provocation,” and instead refers to acts “made
rashly, impulsively, or without careful consideration,” does not suggest the jury was not
properly instructed on the applicable principles. The absence of an instruction under
CALCRIM No. 522 did not reduce the prosecution’s burden of proof or preclude defense
counsel from arguing that subjective provocation played a role in preventing defendant
from premeditating and deliberating. (Rogers, supra, 39 Cal.4th at p. 880 [omission of
provocation instruction for second degree murder not misleading where, “the jury is told
that premeditation and deliberation is the factor distinguishing first and second degree
murder,” and the manslaughter instruction “does not preclude the defense from arguing
that provocation played a role in preventing the defendant from premeditating and
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deliberating; nor does it preclude the jury from giving weight to any evidence of
provocation in determining whether premeditation existed”].)
Even assuming arguendo the trial court erred in failing to give CALCRIM No.
522, any such error was harmless. The evidence showed that defendant purchased a
revolver around the same time as he learned about Susan’s interest in coprophilia and
threatened her with the loaded gun on a near-daily basis for six months. The evidence
also showed that defendant retrieved the revolver from the hallway before shooting
Susan, was surprised at her reaction to the first shot, and then shot her a second time, this
time fatally. Although defendant said Susan’s comments about urine in the house “blew
[his] mind” and “set off [his] buzzer,” the evidence was overwhelming that the shooting
was “not out of the blue,” but was instead the result of premeditation and deliberation.
On the record before us, we perceive no reasonable probability that defendant would have
received a more favorable outcome had jurors been instructed with CALCRIM No. 522.
3. No Ineffective Assistance of Counsel
Defendant argues in the alternative that defense counsel was ineffective in failing
to request a pinpoint instruction on subjective provocation. We find no ineffective
assistance of counsel.
“To establish ineffective assistance of counsel, a defendant must show that (1)
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was prejudicial,
i.e., there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” (People v. Scott (1997) 15 Cal.4th 1188, 1211-
1212; see Strickland v. Washington (1984) 466 U.S. 668, 687-694.) “We presume that
counsel rendered adequate assistance and exercised reasonable professional judgment in
making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) We will
reverse on the ground of ineffective assistance of counsel “ ‘only if the record on appeal
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affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
We have already found that the failure to request CALCRIM No. 522 was
harmless. We further find that defendant has failed to demonstrate that there could be no
rational tactical purpose for defense counsel’s failure to request the instruction.
CALCRIM No. 522 would have instructed the jury to determine whether defendant
committed second degree murder because he was subjectively provoked. But the defense
strategy was to seek a verdict of voluntary manslaughter on the grounds that an ordinary
person of average disposition would have been provoked by Susan’s conduct. Defense
counsel said as much to the trial court, and embraced this strategy in closing argument,
stating, “Voluntary manslaughter fits the facts of this case.” Defense counsel concluded
her argument by urging the jury to “return a guilty [verdict] on voluntary manslaughter,
the charge that my client is guilty of.” From the foregoing, we are satisfied that defense
counsel chose to argue to the jury that defendant was only guilty of voluntary
manslaughter, and not to argue that he was guilty of second degree murder. Defense
counsel’s failure to ask for CALCRIM No. 522 was consistent with this rational tactical
decision. Defendant’s claim of ineffective assistance of counsel fails.
B. Firearm Enhancement
Defendant’s sentence included an enhancement of 25 years to life for personal and
intentional discharge of a firearm causing great bodily injury or death under section
12022.53, subdivision (d). Defendant argues remand is required because the trial court
failed to recognize its discretion to strike the greater firearm enhancement under section
12022.53, subdivision (d) and impose a lesser firearm enhancement under subdivision (b)
or (c). We are not persuaded.
1. Additional Background
As noted, the jury found true the allegation that defendant personally and
intentionally used a firearm causing great bodily injury or death within the meaning of
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section 12022.53, subdivision (d). During the sentencing hearing, defense counsel urged
the trial court to exercise its discretion to strike the firearm enhancement in view of
defendant’s minimal criminal history, advancing age, and health challenges. Defense
counsel did not ask the trial court to impose a lesser firearm enhancement under section
12022.53, subdivision (b) or (c). The trial court declined to exercise its discretion to
strike the firearm enhancement, stating, “On the enhancement, under section
12022.53(d), I believe it’s appropriate to sentence the defendant on that enhancement
given the grim facts of the case.”
2. Analysis
Defendant’s argument for remand rests on People v. Morrison (2019) 34
Cal.App.5th 217 (Morrison), in which the court held that section 12022.53, subdivision
(h) allows a trial court, in the exercise of its discretion, to strike a greater firearm
enhancement and impose an uncharged lesser enhancement in the interests of justice
pursuant to section 1385. (Morrison, supra, at pp. 220-223.) We need not reach this
issue, however, as we conclude that defendant has forfeited his appellate claim of error
by failing to request imposition of a lesser firearm enhancement in the trial court.
Claims involving a trial court’s failure to properly make discretionary choices are
forfeited if counsel fails to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331,
353-354.) So long as the parties are clearly apprised of the sentence and the reasons
supporting the choices, and were given a meaningful opportunity to object, the failure to
lodge an objection to a trial court’s sentencing choices at the hearing constitutes a
forfeiture of the issue on appeal. (Id. at p. 356.)
Here, the trial court entertained argument concerning the firearm enhancement and
expressly asked defense counsel whether she had any further comments. Defense
counsel requested only that the trial court strike the firearm enhancement; she did not ask
the court to reduce it. By failing to first seek in the trial court relief he now claims was
authorized by then-existing authority (the validity of which we do not address here),
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defendant has forfeited his ability to seek that relief on appeal. (See People v. Yanez
(2020) 44 Cal.App.5th 452, 460, rev. granted Apr. 22, 2020, S260819.)
C. Fines, Fees, and Assessments
Finally, defendant challenges the imposition of various fines and fees, including:
a $1,000 restitution fine (§ 1202.4), a $40 court security fee (§ 1465.8), a $30 criminal
conviction assessment (Gov. Code, § 70373), and a $100 “surcharge.” Relying
principally on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues
the trial court violated his constitutional rights by imposing these fines and fees without
determining his ability to pay. We are not convinced that Dueñas was correctly decided.
Our Supreme Court is now poised to resolve this question, having granted review
in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019,
S257844, which agreed with the Dueñas court’s conclusion that due process requires the
trial court to conduct an ability to pay hearing before imposing court facilities and court
operations assessments under section 1465.8 and Government Code section 70373, but
not restitution fines under section 1202.4. (People v. Kopp, supra, at pp. 95-96.) In the
meantime, we join those courts that have concluded the principles of due process do not
require determination of a defendant’s present ability to pay before imposing the fines
and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019)
41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v.
Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant’s
Dueñas challenge.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
I concur:
/S/
DUARTE, J.
I concur; as to part II.C of the Discussion, I concur in the result.
/S/
MAURO, Acting P. J.
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