Filed 3/25/24 P. v. Welch CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082220
Plaintiff and Respondent,
v. (Super. Ct. No. FVI17000756)
KENNETH SCOTT WELCH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernadino
County, Debra Harris, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff
and Respondent.
Kenneth Scott Welch went on a three-day crime spree during which he
fatally shot a man from his car, shot two other individuals in their vehicles
while driving, robbed a gas station convenience store, and shot a deputy
sheriff. Prior to trial, Welch pled guilty to two counts of being a felon in
possession of a firearm (Pen. Code,1 § 29800, subd. (a)(1); counts 6 & 7).
A jury convicted him of first degree murder (§ 187, subd. (a); count 1),
attempted murder (§§ 664, 187, subd. (a); count 2), two counts of shooting at
an occupied motor vehicle (§ 246; counts 3 and 4), and second degree robbery
(§ 211; count 5). With respect to count 1, the jury found true the special
allegation that the murder was intentional and perpetrated by discharging a
firearm from a motor vehicle with the intent to inflict death (§ 190,
subd. (a)(21)). On counts 1 through 4, the jury also found true that Welch
intentionally and personally discharged a firearm causing death or great
bodily injury (§ 12022.53, subd. (d); counts 1-4). Finally, as to count 2, the
jury found true the special allegations that Welch acted willfully,
deliberately, and with premeditation in the commission of the attempted
murder and that said crime was directed at a peace officer.
The trial court sentenced Welch to an aggregate sentence of life without
the possibility of parole, an indeterminate term of 115 years to life, and a
determinate term of 11 years, consisting of the following: (1) life without the
possibility of parole on count 1; (2) 15 years to life on count 2; (3) seven years
on count 3; (4) one year and eight months on count 4; (5) one year on count 5;
(6) eight months each for counts 6 and 7; and (7) 25 years to life for each of
the four firearm enhancement allegation. The trial court also imposed
various fines and fees.
1 Statutory references are to the Penal Code unless otherwise specified.
2
Welch asserts seven contentions of error on appeal.2 Specifically, he
argues: (1) the trial court abused its discretion in denying his mistrial
motion; (2) the trial court erred by failing to instruct on the lesser included
offense of voluntary manslaughter based on heat of passion; (3) the
prosecution committed misconduct by inquiring about an appellate opinion
given to Welch by his attorney that he then discussed with his mother on the
telephone; (4) section 190.2, subdivision (a)(21) is unconstitutionally
overbroad on its face and as applied in this case; (5) section 190.2,
subdivision (a)(21) is unconstitutionally vague; (6) the trial court erred by not
dismissing three of the four section 12022.53, subdivision (d) enhancements
pursuant to section 1385, subdivision (c)(2)(B); and (7) if we find he forfeited
claims 3 or 6, we must alternatively find his trial counsel provided ineffective
assistance.
We conclude the trial court did not err and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Prosecution
A. March 14, 2017 Freeway Shootings
1. Count 3
On the evening of March 14, 2017, Victor H. was driving his Chevy
Silverado truck on the 210 freeway from Fontana to San Bernadino. Traffic
slowed, and a dark car pulled up even with his truck in the lane to his left.
The driver, who Victor described as “a white person” with some beard growth,
stretched his right arm out and pointed a handgun at Victor through the
2 Welch also challenged a parole revocation fine in his opening brief, but
he subsequently conceded there was no error in the trial court’s imposition of
the fine and withdrew the argument.
3
lowered passenger window. The man then started shooting, breaking Victor’s
driver’s side window six or seven times. Bullets also passed through Victor’s
left forearm and grazed his abdomen. Victor pulled off the freeway and
eventually was taken to a hospital where he was treated for about three
hours and then released.
2. Count 4
On the same evening, Rosa Z., her friend Laura V., and her boyfriend,
Alberto G., were driving back to California from Arizona on the 210 freeway.
Rosa was driving, Laura was in the front passenger seat, and Alberto was in
the rear passenger seat. Suddenly, Alberto’s phone, which had been sitting
on the rear passenger door armrest, “exploded.” A few seconds later, Alberto
said, “I think I got shot” and then pointed to a car and said, “It was that car.
So step on it.”
Rosa sped up and the other car moved to her left and pulled up next to
her. She described the car as dark with paper license plates and said the
driver was a white male who was wearing glasses. The driver pulled out a
handgun and pointed it at them, and Rosa immediately slammed on her
brakes. The other car kept driving and exited the freeway. Rosa believed the
driver shot at them several times.
Laura called 911, and they pulled to the side of the road. Rosa saw that
a bullet had passed through Alberto’s upper right thigh. As a result of his
injuries, Alberto was out of work for two years.
B. March 15, 2017 Murder (Count 1)
Valerie H. lived in San Bernadino with her three children, their father,
and his uncle, Mario F. On the morning of March 15, 2017, Mario drove his
nephew to work in Rialto. Valerie and her eighteen-month-old son rode
along. After dropping off his nephew, Mario took the 210 freeway and then
4
exited to head toward home. As they approached their apartment complex,
Valerie noticed that her uncle3 passed the first gate to their building and
said, “Oh, you’re going to pass it.” In response, Mario told her, “I think we
are getting followed or something.”
They looped around the block and returned to the entrance to their
complex, at which point Mario pulled over to the right side of the road. The
dark car that was following them pulled up behind Mario’s car.
Mario told Valerie he was going to see what the person in the dark car
wanted and then got out and walked back toward the other car. According to
Valerie, Mario did not have a weapon and was not holding anything. The
dark car pulled forward toward him and, as Valerie watched through the
back window, she saw the driver of the car that was less than 15 feet from
her reach behind the seat and grab something.
After the car pulled up next to Mario, Valerie saw him look down
through the car’s front passenger side window. She knew her uncle was
upset that they were being followed but said Mario did not say anything to
the driver. She also did not see the driver say anything to him and said she
did not believe there was enough time for them to exchange any words.
Seconds later, she heard a gunshot and saw Mario fly back and fall to the
ground. The driver then drove away.4
3 Valerie also referred to Mario as her uncle.
4 After refreshing her recollection by reviewing her 2017 statement to
police, Valerie said she remembered telling a detective her uncle probably
asked the driver if he needed something, but she did not hear the
conversation and could not tell if they spoke. She reiterated that “[i]t was
just so fast.”
5
Valerie carried her son over and touched Mario’s chest to check for a
heartbeat. She then tried to walk to the opposite side of the street but said
she could not feel her legs and had to crawl over to the curb with her son on
her hip. She later provided the police with a description and partial license
plate number.
Meanwhile, R.H. was standing just inside her front door across the
street and was looking out the window when Mario pulled up followed by the
other car. She saw a man get out of the first car and walk quickly toward the
other car behind him. She said he did not have anything in his hands. As he
approached the other car, R.H. thought the man might have put his arms up
as if to say, “what’s up, or what’s going on,” but she was not sure. She also
did not know for certain if they talked to each other because she was on the
telephone at the time. However, she said it did not seem like they were
fighting. She then heard a gunshot and saw the man fall. She described the
whole incident as having happened “so fast” and said the time from when the
man went to the car to when she heard the gunshot was “almost
immediately.”
R.H. confirmed that the other car pulled away right afterward. A
woman then got out of the front car with a child and hopped in a red car that
had pulled up. She said they drove away but then came right back.
C. March 16, 2017 Robbery (Count 5) and Attempted Murder (Count 2)
Several days prior to the robbery and shooting charged in counts 2
and 5, the manager of a Chevron gas station recalled seeing Welch
purchasing sodas and flirting with a cashier. Welch tried several times to
pay with his credit card, but it did not work, so eventually another customer
paid for the items.
6
On March 15, 2017, Welch came to the store to buy cigarettes and paid
cash. He returned just before midnight and requested to purchase a vape
device, vape batteries, vape juice, and a phone charging cable. After the
attendant placed the items on the counter, Welch took them and started to
walk away. The attendant told him he had to pay, to which Welch responded,
“No. I don’t pay nothing.” The attendant asked him repeatedly to return the
items or pay for them, but Welch refused, tried to hit him, and then walked
away, at which point the attendant said he was going to call the police.
Before leaving, Welch responded, “Fuck you and fuck the police” and warned
“I’m going to come back for you.” The attendant saw Welch get into a black
Chrysler and leave.
He then called 911 and Deputy Higgins responded. The attendant
explained what had happened and showed the officer the video.5 After the
deputy left, the black Chrysler returned and parked in front of the entrance.
The attendant pressed the emergency button. Another employee, who was
standing outside, told Welch he could not go back into the store. Welch said,
“I want to pay for stuff,” to which the employee responded, “We
already . . . called the police. We can’t accept nothing that you want to bring
back.”
Shortly thereafter, Deputy Higgins returned and parked behind the
Chrysler. The deputy got out of his vehicle and told the other employee to go
inside. He then drew his firearm, identified himself, engaged the audio
recording device on his belt, and commanded Welch to exit his vehicle.
As he approached the vehicle, Deputy Higgins thought he might have
the wrong person and holstered his gun to deescalate the situation. However,
5 The Chevron station contained over 30 cameras and most of the events
were captured on video and shown to the police and jury.
7
when he began communicating with Welch, Deputy Higgins described him as
“[e]xtremely agitated” and ended up spraying him with pepper spray. Welch
responded by shooting Deputy Higgins in the lower left chest. Because the
deputy was wearing a protective vest, he sustained only soft tissue damage
and bruising to his left lung.
Deputy Higgins returned fire as he backed toward his vehicle to take
cover. Welch continued to shoot at him, with bullets coming within inches of
the deputy. After Welch drove away from the scene, Deputy Higgins
attempted to pursue him but was unable to locate Welch’s vehicle.
D. The Arrest and Investigation
Welch was arrested while walking his dog near his home. Officers
discovered a semiautomatic handgun loaded with 9mm caliber bullets tucked
into the back of his pants, under his shirt. They located Welch’s gray
Chrysler sedan with a temporary license plate parked next to his residence
behind a wooden gate. A tarp covered the rear window of the car, which had
been shattered, and there was a bullet hole near the rear license plate.
Welch admitted to shooting at Victor and described the truck he had
fired upon as a black Chevy with an Oakland Raiders sticker on the back.
A detective who inspected Victor’s truck testified that the tow hitch did look
somewhat like a Raiders emblem from a distance. Welch also admitted
shooting at a car prior to shooting at Victor’s truck. During a separate
interview, he admitted to shooting Mario in the head. He further admitted to
other detectives that he took items from the Chevron station without paying
for them and shot at Deputy Higgins.
During one of the interviews, Welch asked to call his mother. Welch
spoke to both of his parents on speaker phone in the detective’s presence and
8
the call was recorded. During the call, he told his parents he was responsible
for all of the shootings.
A criminalist with the San Bernardino County Sheriff’s Department
testified that bullet casings recovered from the gas station and the scene of
Mario’s murder were fired from Welch’s gun.
II.
Defense
A. Welch’s Mother
Welch’s mother testified that on Welch’s birthday in January she and
his father took him out to dinner and told him they could no longer pay for
the mobile home he had been living in. She described his reaction as stoic.
The weekend before he was arrested, she said Welch called at 1:00 p.m.
to say he was coming to visit their home, which was about four hours away.
She explained that he arrived much later than expected and seemed “off,”
“a little angry, a little abrupt, a little jittery.” He returned home the next day
and, the following Monday, he called them at 2:30 o’clock in the morning and
seemed “lost” and like he needed his parents.
B. Welch
Welch then testified in his own defense and acknowledged having told
his mother that he believed telling the truth was the right thing to do. He
explained that he had been under the influence of methamphetamine and
marijuana during the law enforcement interviews, had first used
methamphetamine when he was 14 years old, and had been using
methamphetamine intravenously every day since September or October 2016.
He acknowledged that it made him paranoid and led him to believe people
were sneaking into his house and following him.
9
On the night of the first shootings, he said he was on the road and
armed because the tracking system for his parents’ phones made him think
they had been kidnapped and he went to go find them. He left with a
10-round magazine loaded in his gun. As he was driving on the 210 freeway,
he said the passenger of a brown car made a gun sign out the window with
his fingers. Something told him to shoot the car, so he shot it. He then
pulled off the freeway and got on going the other direction.
When he got back on the freeway, he thought a man in a truck (Victor)
was chasing a woman in a car, so he shot into the truck to protect the woman.
He then went to church before going home. He also reloaded his gun before
heading out the next day.
Welch said at the time of Mario’s shooting, he thought everyone driving
around him knew him. When Mario turned his turn signal on and changed
lanes, Welch thought Mario was trying to lead him off the freeway and
wanted Welch to follow him. After both cars stopped, he said Mario came
back to his car with something in his hand and leaned down by the passenger
window, at which point Welch asked him, “Do you know who I am?” He said
Mario responded, “Do you know who I am?” Welch said “No” and then pulled
out his gun. He claimed he felt threatened and in fear for his life because
Mario was acting aggravated and angry. Welch testified that when he
pointed his gun at Mario, Mario laughed at him and “one of his arms
disappeared.” Welch thought Mario was going to get into his car or take his
gun from him, so he shot him. He then went home and again reloaded his
gun.
Welch described the first time he went to the Chevron station and said
that while he was trying to swipe his payment card, someone came up and
grabbed a card that was stuck in the chip slider at the bottom. After that, he
10
got paranoid and thought someone was able to drain his accounts. He said he
was “having auditory hallucinations really bad” the night he kept returning
to the Chevron6 and thought he heard messages on the radio about what to
do and where to go. As he walked out after buying cigarettes, he passed a
woman walking in and got the impression something bad was going to
happen to the woman in the store. He left, but then came right back and
went into the store as she was leaving. At that point, he admitted having
walked out with the vape supplies.
After driving away again, he said he returned because he felt bad and
wanted to pay for the merchandise he took. He also thought a black car was
leading him there. When he arrived, he told a store clerk he wanted to pay
for the things but was told they had already called the police. When he heard
the deputy speak, he got back in his car because the officer had his gun
drawn. He said he thought it was a fake police officer because he did not
think there were police on the streets anymore.
Welch testified that he told the deputy to put his weapon away, which
the officer did. However, the deputy then sprayed him with pepper spray.
He said he then pulled out his pistol and shot the deputy in the chest. The
deputy ducked down behind his vehicle and returned fire. Welch shot at the
officer’s front windshield and light to keep him undercover so Welch could
drive away. As he was backing out, he said he was shot in the back but that
the bullet did not penetrate.
6 Later he claimed to have suffered auditory hallucinations “all the time”
since his early 20s and indicated his mother had him involuntarily committed
for three days at one point.
11
When he got home, Welch said he parked his car behind the gate he
had recently built and then went in and went to sleep. When he woke up and
took his dog outside, officers arrested him.
On cross-examination, Welch admitted he did not mention during any
of the police interrogations that he was hallucinating, that he thought his
parents had been kidnapped, or that he was hearing voices instructing him
from the radio.
C. Licensed Clinical Psychologist
Laurel Mattos, a clinical psychologist, testified that she met with Welch
for a total of four hours in January 2022 and provided a mental health
evaluation. She diagnosed him with a stimulant use disorder (referring to
the methamphetamine use), a cannabis use disorder, and an alcohol use
disorder. Additionally, she diagnosed him as having an “unspecified
schizophrenia spectrum for other psychotic disorder.”
D. Forensic Toxicologist
A forensic toxicologist testified that methamphetamine was a central
nervous system stimulant that can cause paranoia, hallucinations, and
aggressive and violent behavior when used over a prolonged period or at high
doses. Based on a blood sample she tested that was taken from Welch on the
day of his arrest, the forensic toxicologist testified that he had
methamphetamine in his system and had used the drug no more than
24 hours prior to the blood draw.
III.
Stipulations
The parties stipulated that law enforcement recovered drug
paraphernalia, a small container of marijuana, and 0.35 grams of
methamphetamine from Welch’s home. They also stipulated that records
12
from Loma Linda University Behavior Medical Center showed that Welch
was admitted there as an inpatient from February 28, 2013, to March 2,
2013, pursuant to Welfare and Institutions Code section 5150 due to altered
thoughts and because he was a danger to others. The records further showed
that Welch was diagnosed with substance-induced psychotic disorder,
substance-induced mood disorder, alcohol dependence, methamphetamine
dependence and Attention Deficit/Hyperactivity Disorder.
DISCUSSION
I.
Welch’s Mistrial Motion
Welch contends the trial court abused its discretion by denying his
motion for a mistrial. Specifically, he argues a mistrial was warranted
because the prosecutor failed to properly disclose exculpatory evidence
relevant to Welch’s defense in violation of Brady v. Maryland (1963)
373 U.S. 83 (Brady) and section 1054.1.
A. Additional Facts
After trial commenced, the prosecution disclosed additional evidence to
the defense. In response, defense counsel filed a motion for a mistrial
arguing the prosecution had suppressed potentially exculpatory evidence and
had not produced evidence regarding the moral turpitude and impeachment
of potential witnesses. As relevant here, the motion specifically alleged the
prosecutor failed to disclose: (1) Mario’s autopsy protocol from 2017, which
included a toxicology screen showing he had methamphetamine in his system
at the time of his death; (2) the coroner’s investigative report showing Mario’s
correct middle name and contact information for his relatives; (3) Mario’s
13
criminal history; and 4) the fact that Valerie had an active warrant for her
arrest at the time of the trial.7
At the hearing on the motion, defense counsel argued the toxicology
screen conducted during Mario’s autopsy supported Welch’s claim that Mario
was acting in an aggressive manner prior to the shooting. She claimed that
earlier disclosure of the report would have allowed counsel to obtain an
expert on the effects of methamphetamine. With respect to the coroner’s
report reflecting Mario’s correct middle name, counsel reasoned that earlier
disclosure of the report would have helped her locate his criminal history,
which also could have led to the discovery of evidence showing he was an
aggressive individual. As to Valerie’s arrest warrant, counsel said she could
have cross-examined Valerie more effectively had she been aware of this
basis for questioning Valerie’s credibility.
In response, the prosecutor maintained that the presence of
methamphetamine in Mario’s system was not relevant because there was no
evidence that Mario provoked Welch. The prosecutor also asserted that he
had disclosed all moral turpitude evidence regarding the testifying witnesses
prior to trial.
During the mistrial motion hearing, the prosecutor provided defense
counsel with Mario’s rap sheet. The rap sheet reflected that over 25 years
prior to his murder, Mario was convicted of receiving stolen property and first
7 Although the mistrial motion alleged five other purported discovery
violations, which Welch lists in his opening brief, he does not base his
challenge to the ruling on the mistrial motion on these allegations so we do
not address them.
14
degree burglary, and, that he was convicted of second degree burglary over
20 years prior to his death8.
The trial court denied the motion for mistrial, stating that it did not see
how the delayed disclosures “eviscerated [the] defense.” Defense counsel
responded that she could not predict what evidence might have been
available had the evidence been disclosed earlier. The court noted that
defense counsel could call Valerie back to the stand. It also advised counsel
that now that Mario’s criminal history and positive test for
methamphetamine use were available to her, she should plan to call an
expert to testify as to the possible effects of methamphetamine on a person.
The prosecutor reminded the court that defense counsel had already
indicated she intended to call a toxicologist to testify about Welch’s
methamphetamine use, and thus, the same witness could testify about the
methamphetamine noted in Mario’s toxicology screen.
B. Legal Principles
“ ‘A trial court should grant a mistrial only when a party’s chances of
receiving a fair trial have been irreparably damaged.’ ” (People v. Clark
(2011) 52 Cal.4th 856, 990; People v. Dunn (2012) 205 Cal.App.4th 1086,
1094.) Determining whether a particular incident resulted in prejudice that
is “ ‘incurable by admonition or instruction’ ” (People v. Collins (2010)
49 Cal.4th 175, 198) “requires a nuanced, fact-based analysis,” which is best
performed by the trial court. (People v. Chatman (2006) 38 Cal.4th 344,
369–370.) We review a trial court’s order denying a motion for mistrial under
the abuse of discretion standard. (Clark, at p. 990.)
8 Mario was acquitted of robbery and petty theft during this proceeding.
15
C. Analysis
Under Brady, supra, 373 U.S. 83, and its progeny, “the prosecution has
a constitutional duty to disclose to the defense material exculpatory evidence,
including potential impeaching evidence. The duty extends to evidence
known to others acting on the prosecution’s behalf, including the police.”
(People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.)
“There are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued.”
(Strickler v. Greene (1999) 527 U.S. 263, 281–282 (Strickler).) “Prejudice, in
this context, focuses on ‘the materiality of the evidence to the issue of guilt
and innocence.’ [Citations.] Materiality, in turn, requires more than a
showing that the suppressed evidence would have been admissible [citation],
that the absence of the suppressed evidence made conviction ‘more likely’
[citation], or that using the suppressed evidence to discredit a witness’s
testimony ‘might have changed the outcome of the trial’ [citation]. A
defendant instead ‘must show a “reasonable probability of a different
result.” ’ ” (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).)
On appeal, it is the appellant’s burden to show a Brady violation.
(Strickler, supra, 527 U.S. at p. 289.) We independently review the record in
determining whether there was a Brady violation but, in so doing, give great
weight to trial court findings of fact that are supported by substantial
evidence. (People v. Masters (2016) 62 Cal.4th 1019, 1067.)
In this case, there is a significant question as to whether the
prosecution can be said to have suppressed evidence it was obligated to
disclose. But even assuming it did, Welch has not demonstrated that the
16
belatedly disclosed evidence was material to the issue of his guilt or
innocence.
Welch contends all the evidence was material to establish the defense
theory that Mario was the aggressor in the encounter with Welch and that
Welch responded spontaneously in either a reasonable or unreasonable belief
in the need to defend himself. But as it stood, the evidence did not show that
Mario was the aggressor. R.H. could see Mario’s whole body and testified
that he did not have anything in his hands, did not seem to be fighting with
Welch, and, if anything, had just approached Welch’s car with his hands up
as if to say “what’s up, or what’s going on.” There was no evidence or
suggestion that R.H., who simply lived across the street and happened to
observe the murder, knew any of the individuals involved or had any
incentive to be untruthful. Moreover, although Welch claimed Mario was
aggressive, he acknowledged during a police interrogation that it was Mario’s
act of laughing at him, not his allegedly aggressive behavior, that made him
“snap” and shoot him:
“Welch: Yeah, he laughed when I pulled my gun and I was
like I was going to do it and then I pulled it back, and I was
like ‘no’ I was going to stop, you know I wasn’t going to do
it. I was going to-
“Det. Chambers: But when he laughed it made you like
want to do it?
“Welch: (Laughter.) Yeah.
“Det. Stafford: Basically.
“Welch: Yeah, yeah. That’s when I did it.”
In other words, by his own admission, Welch did not shoot Mario as
“a reflexive response to [Mario’s] threatening and aggressive approach
toward [him]” as he claims in his reply brief. Instead, he acknowledged that
17
he stopped and reconsidered after Mario’s approach. He then changed his
mind and shot Mario because he was upset that Mario laughed at him. He
further belied any suggestion that fear based on Mario’s aggressive behavior
motivated the shooting by telling detectives he shot Mario “[b]ecause
something was telling me to.” Likewise, although he told detectives that
Mario had something in his hand, when one of them asked him “did he ever
threaten you with it?” Welch said, “No.”
Valerie likewise testified that, although she knew her uncle was upset
that they were being followed, she did not believe he said anything to Welch.
Also, like R.H., she said the whole thing happened very quickly, and she
testified that she did not think there was even enough time for them to have
exchanged words.
Welch has not shown that, had the prosecution timely disclosed the
challenged evidence, there was a reasonable probability of a different result.
Welch argues that if Valerie’s credibility had been impeached, it would have
affected the outcome because she was the sole percipient witness who
disputed Welch’s version of events. But that is not the case. As just
explained, R.H. also did not observe any threatening conduct by Mario. And,
to a large extent, Welch himself refuted his own self-defense theory. Thus,
even if defense counsel had impeached Valerie’s credibility, it was not
reasonably probable the jury would have believed Welch’s self-serving claim
of fear in the face of R.H.’s testimony and Welch’s own interview statements.
Likewise, Mario’s convictions for nonviolent felonies over 20 years ago
did not support a finding that he acted aggressively. The fact that he was
charged with the violent felony of robbery 20 years earlier also did not
support such a finding given that Mario was acquitted of that crime. Nor
would a showing that he had methamphetamine in his system support a
18
finding of aggressiveness, absent an explanation of how the drug could have
negatively impacted him. Although we may consider whether the
prosecutor’s failure had an adverse effect on the defense’s presentation of
their case (In re Brown (1998) 17 Cal.4th 873, 887), in this instance the late
disclosure does not appear to have impacted Welch’s opportunity to present
the necessary expert testimony to support his theory. The court gave counsel
an opportunity to offer such testimony and, given that counsel had already
arranged for a toxicologist to testify as to the effects of methamphetamine on
Welch, counsel could have elicited the toxicologist’s testimony with regard to
Mario. She chose not to, for whatever strategic reason, and thus, the
presence of methamphetamine in Mario’s system demonstrated little.
Finally, the defense’s contention that timely disclosure of the coroner’s
report listing his correct middle name would have allowed counsel to contact
family members regarding whether Mario had a propensity for aggression
provides nothing more than speculation as to what further investigation
might have uncovered. As previously noted, a claim that the evidence might
have changed the trial’s outcome does not rise to the level of demonstrating a
reasonable probability of a different result. (Salazar, supra, 35 Cal.4th at
p. 1043.)
Ultimately, the materiality inquiry is whether “ ‘the favorable evidence
could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.’ ” (Strickler, supra, 527 U.S. at p. 290.)
Even considering the late disclosed evidence as a whole, as we must, Welch
has not met his burden. Accordingly, we find no Brady violation.
For similar reasons, we reject Welch’s contention that the prosecution
violated section 1054.1, which requires the prosecutor to disclose, among
other things, “[a]ll relevant real evidence seized or obtained as a part of the
19
investigation of the offenses charged” that is “in the possession of the
prosecuting attorney” or known by the prosecuting attorney “to be in the
possession of the investigating agencies.” (§ 1054.1, subd. (c).) Even if Welch
demonstrated a violation of section 1054.1, a trial court’s ruling on a violation
of section 1054.1 is subject to the harmless-error standard set forth in
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Verdugo
(2010) 50 Cal.4th 263, 280.) Under Watson, an error is prejudicial only if “it
is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Watson, at p. 836.) As
we have already determined that there is not a reasonable probability of a
different result, we conclude that any section 1054.1 error by the prosecution
was harmless.
Having found the prosecution’s late disclosures did not violate Brady
and that any violation of section 1054.1 was harmless, we conclude the trial
court did not abuse its discretion in denying the mistrial motion.
II.
Heat of Passion Voluntary Manslaughter Instruction
Welch argues the trial court erred by failing to instruct on the lesser
included offense of voluntary manslaughter based on heat of passion.
When there is substantial evidence showing a defendant committed a
lesser included offense, the trial court has a duty to instruct the jury on it.
(People v. Cook (2006) 39 Cal.4th 566, 596 (Cook).) Specifically, “[t]he court
must, on its own initiative, instruct the jury on lesser included offenses when
there is substantial evidence raising a question as to whether all the
elements of a charged offense are present [citations], and when there is
substantial evidence that the defendant committed the lesser included
offense, which, if accepted by the trier of fact, would exculpate the defendant
20
from guilt of the greater offense.” (Ibid.) We review de novo the trial court’s
failure to instruct on a lesser included offense. (Ibid.; People v. Vasquez
(2018) 30 Cal.App.5th 786, 793.)
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) Voluntary manslaughter and involuntary
manslaughter are both lesser included offenses of murder. (People v. Thomas
(2012) 53 Cal.4th 771, 813.) “The lesser included offense of manslaughter
does not include the element of malice, which distinguishes it from the
greater offense of murder. [Citation.]” (Cook, supra, 39 Cal.4th at p. 596.)
“When a homicide, committed with malice, is accomplished in the heat
of passion or under the good faith but unreasonable belief that deadly force is
required to defend oneself from imminent harm, the malice element is
‘negated’ or . . . ‘mitigated’; and the resulting crime is voluntary
manslaughter, a lesser included offense of murder. [Citations.]” (People v.
Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)
Welch contends a voluntary manslaughter instruction was warranted
based on his statements, both at trial and to law enforcement, that Mario
approached his car in an aggressive manner. Welch claims Mario walked up
aggressively and said, “What the f!” and he feared Mario was going to get in
his car. He said his anxiety increased after he pointed his gun at Mario and,
in response, Mario laughed and moved his arm so Welch could no longer see
it. Welch contends these acts, which he describes as provocative, induced
fear and caused him to react reflexively and fire at Mario.
In our view, Welch’s argument on appeal is based on too selective a
reading of the record, which does not reveal substantial evidence that Welch
acted under the heat of passion. “Heat of passion has both objective and
subjective components. Objectively, the victim’s conduct must have been
21
sufficiently provocative to cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection.” (People v. Enraca
(2012) 53 Cal.4th 735, 759 (Enraca).) “To satisfy the subjective element of
this form of voluntary manslaughter, the accused must be shown to have
killed while under ‘the actual influence of a strong passion’ induced by such
provocation. [Citation.] ‘Heat of passion arises when “at the time of the
killing, the reason of the accused was obscured or disturbed by passion to
such an 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.” [Citations.]’ ” (People v. Moye
(2009) 47 Cal.4th 537, 550.)
In this case, there is insufficient evidence to support either the
objective or subjective components. Two witnesses, Valerie and R.H.,
observed the very brief interaction between Welch and Mario and neither
described Mario’s behavior as aggressive. Both said Mario did not have
anything in his hands, belying any suggestion he was armed. Thus, the
evidence did not show any objective basis for concluding an ordinary person
of average disposition would be sufficiently provoked by Mario’s behavior.
(Enraca, supra, 53 Cal.4th at p. 759.)
And, as discussed ante, Welch undercut his own testimony that he
subjectively felt provoked. He told officers that he was going to shoot Mario,
then decided not to, then changed his mind after Mario laughed at him.
Although the passion aroused “can be any ‘ “ ‘[v]iolent, intense, high-wrought
or enthusiastic emotion’ ” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 163),
Welch does not direct us to any authority suggesting that laughter
constitutes sufficient provocation. We think the opposite is true given that,
on analogous facts, our high court has repeatedly “rejected arguments that
22
insults or gang-related challenges would induce sufficient provocation in an
ordinary person to merit an instruction on voluntary manslaughter.”
(Enraca, supra, 53 Cal.4th at p. 759.) Furthermore, in suggesting he became
fearful that Mario might have a weapon when Mario’s arm moved out of view,
Welch ignores his prior statement to police that Mario never threatened him
with whatever he had in his hand. He also told officers he shot Mario not out
of fear, but “[b]ecause something was telling me to.”
Ultimately, Welch’s self-serving testimony at trial is the only evidence
that he acted reflexively out of fear, but even that description does not
support the conclusion that Mario’s actions caused Welch’s reason to be
“obscured or disturbed by passion to such an 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.” [Citations.]’ ” (Moye, supra, 47 Cal.4th at p. 550.) He testified
that right after asking each other if they knew the other, he interpreted
Mario’s tone and body language as aggressive and said he did not know what
Mario was going to do. But this evidence of provocation is minimal, at best,
and “[s]peculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.” (People v. Simon (2016)
1 Cal.5th 98, 132; see also Breverman, supra, 19 Cal.4th at p. 162 [explaining
that “the existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense”].) Regardless, even if he
demonstrated substantial evidence to satisfy the subjective prong, evidence of
the objective component is lacking, and both are required. (Enraca, supra,
53 Cal.4th at p. 759.)
23
Accordingly, we conclude Welch has not shown there was substantial
evidence in the record justifying a voluntary manslaughter instruction on a
theory of heat of passion. The trial court, therefore, did not err by not giving
one.
III.
Prosecutorial Misconduct
Welch next contends the prosecutor committed misconduct in
questioning him about his telephone call with his mother and their discussion
of a published legal opinion. Because the case Welch read related to
diminished capacity and other mental health defenses, and the implication
was that the case was given to him by his trial counsel, Welch contends the
prosecutor’s questions sought the disclosure of attorney work product. Welch
asserts that this misconduct violated his state and federal constitutional
rights to due process and counsel.
A. Additional Facts
During cross-examination, the prosecutor questioned Welch about a
certain opinion he had read regarding the defenses of diminished capacity,
voluntary intoxication, and insanity. Welch acknowledged he was given the
case to read, although he did not say by whom, and said he had read it five
times. The prosecutor then asked if he had told his mother about the case
during a monitored telephone call from jail, and Welch confirmed that he
had. Defense counsel objected to this line of questioning on relevance
grounds, but the court overruled the objection.
The prosecutor then went on to ask Welch whether the purpose of him
reading this appellate opinion was to prepare him to give evidence to support
an insanity or a voluntary intoxication defense. After a few more questions
regarding why Welch was reading the case, defense counsel asked to
24
approach the bench and objected that the questioning was intruding upon
attorney-client communication. The court said there was nothing wrong with
the prosecution creating an inference, and the prosecutor clarified that he
had been careful not to say who provided the case to Welch. He also
explained that he only knew about it because Welch had told his mother
about reading it during a call from the jail, thereby waiving attorney-client
privilege. With this additional information, defense counsel withdrew her
objection.
Sometime later, the prosecutor returned to the subject of the appellate
opinion, and defense counsel objected to the prosecution’s characterization of
the opinion. The court overruled the objection, and the prosecutor again
elicited testimony that Welch had discussed reading the case with his
mother, although he denied referring to diminished capacity in speaking with
her. The prosecutor then played a recording of the call. Thereafter, Welch
acknowledged he had mentioned diminished capacity during the telephone
conversation.
B. Analysis
The People assert that Welch forfeited this claim by failing to object on
prosecutorial misconduct grounds below. We agree.
“ ‘ “[A] defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety. [Citation.]” ’ ” (People v. Pearson
(2013) 56 Cal.4th 393, 426.) There is no question Welch’s counsel did not
object on misconduct grounds below or seek an admonition, and Welch
25
concedes as much.9 Nonetheless, he argues the failure should be excused
because the misconduct was so egregious that admonition of the jury would
not have cured the harm done. In other words, Welch submits that it would
be impossible to expect the jurors to ignore what they had heard.
It is not clear why this would be true. During trial, the prosecutor
began by eliciting Welch’s admission that his goal in testifying was to get the
jury to find him not guilty of the serious charges he was facing, and that one
of the ways he hoped to do so was by presenting evidence supporting a
diminished capacity, voluntary intoxication, or insanity defense. Only then
did the prosecutor say, “And I’m using these terms because they come from a
specific case that you had the opportunity to review, right?” to which Welch
responded, “Probably not.” Had defense counsel lodged a prosecutorial
misconduct objection at this point, resulting in an admonition to the jury, the
prosecutor would have stopped his line of questioning and the lingering
inference, at worst, would have been that his counsel gave him a case
explaining the defenses Welch had already admitted he sought to pursue.
And, even if the jury was unable to ignore this inference, Welch did, in fact,
then offer testimony from a toxicologist and a psychologist that he was
intoxicated by methamphetamine at the time of the crime and had various
mental health diagnoses. Under these circumstances, Welch has not
demonstrated that the harm overrode the forfeiture.
9 Welch also points out that the purpose of the forfeiture doctrine is to
ensure parties provide the trial court with an opportunity to address issues in
the first instance. He argues his counsel did so by raising attorney-client
privilege concerns during a sidebar. However, counsel did not ever mention
attorney work-product during these discussions and, therefore, did not afford
the trial court an opportunity to resolve the issue.
26
Welch further argues the failure to object and request an admonition
should be excused because his due process right to a fair trial and right to
counsel are at stake. However, although appellate courts have discretion to
review a forfeited claim, particularly when the claim involves an important
issue of constitutional law or a substantial right (In re Sheena K. (2007)
40 Cal.4th 875, 887, fn. 7 (Sheena K.)), the California Supreme Court has
made clear that “there is no constitutional basis for a work product privilege.”
(Izazaga v. Superior Court (1991) 54 Cal.3d 356, 381, fn. 18 [“find[ing]
untenable the proposition that the work product doctrine, created by the
Supreme Court in a civil case, is in actuality founded in the right to counsel
clause applicable only to criminal defendants”].) Nevertheless, Welch’s claim
also fails on the merits.
As an initial matter, it is not at all clear that attorney work product
was at issue in this situation. The parties initially dispute whether the
definition of work product in this context should be limited to the “core” work
product ordinarily protected in criminal cases, i.e., to any “writing that
reflects an attorney’s impressions, conclusions, opinions, or legal research or
theories.” (§ 1054.6 [limiting work product protection to the definition
provided in Code of Civil Procedure § 2018.030, subdivision (a)]; People v.
Zamudio (2008) 43 Cal.4th 327, 354–355.) But regardless of which definition
is applied, what Welch objects to is the fact that the questioning revealed the
defense’s trial strategy, which was not set forth in the appellate opinion
itself. There also is no indication the opinion contained any attorney notes or
highlighting evincing the attorney’s thoughts or theories of the case.
Although the act of the attorney giving the case to her client to read could
itself be protected, this protection would arise under the attorney-client
27
privilege, not work product. As our high court explained in Mitchell v.
Superior Court (1984) 37 Cal.3d 591, 600, the attorney-client privilege “covers
the transmission of documents which are available to the public, and not
merely information in the sole possession of the attorney or client. In this
regard, it is the actual fact of the transmission which merits protection, since
discovery of the transmission of specific public documents might very well
reveal the transmitter’s intended strategy.”
Even assuming work product protections were implicated, we conclude
Welch waived them by disclosing the material and the basis for his review of
it on a monitored jail line. Just like the attorney-client privilege, work
product protection can be waived. (Wells Fargo Bank v. Superior Court
(2000) 22 Cal.4th 201, 214; OXY Resources California LLC v. Superior Court
(2004) 115 Cal.App.4th 874, 891.) The fact that he disclosed it to his mother,
who may herself have had an interest in maintaining the confidentiality, did
not necessarily waive protection. (See Citizens for Ceres v. Superior Court
(2013) 217 Cal.App.4th 889, 914–917 [explaining that the common interest
doctrine, which is based on Evidence Code sections 912 and 952, provides
that disclosure to third parties does not waive work product protection if the
parties’ common interests are aligned and disclosures between them is
reasonably necessary to accomplish the purposes for which they are
consulting counsel]; OXY, at p. 891.) But this is immaterial because Welch
had no expectation of privacy when making a phone call to a non-attorney
from a jail phone, and the interests of anyone monitoring a jail phone would
most definitely not be aligned with Welch’s.
Welch argues he did not waive protection because he did not disclose
“a significant part of the communication” (Evid. Code, § 912, subd. (a)) to his
28
mother. However, given that Welch’s ultimate objection is to the prosecutor’s
attempt to inquire into attorney work product in the form of counsel’s theory
of the case as conveyed via a legal opinion provided to her client, it is difficult
to imagine what else would be significant other than the fact that she gave
him the case and he closely scrutinized the mental capacity defenses
described therein.
“A prosecutor’s misconduct violates the Fourteenth Amendment to the
United States Constitution when it ‘infects the trial with such unfairness as
to make the conviction a denial of due process.’ [Citations.] In other words,
the misconduct must be ‘of sufficient significance to result in the denial of the
defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that
does not render a trial fundamentally unfair nevertheless violates California
law if it involves ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ [Citations.]” (People v. Cole (2004)
33 Cal.4th 1158, 1202.) We will not reverse a conviction for prosecutorial
misconduct “unless it is reasonably probable that a result more favorable to
the defendant would have been reached without the misconduct.” (People v.
Crew (2003) 31 Cal.4th 822, 839.)
Here, because we conclude Welch waived any work product protection
that may have arisen from his attorney’s provision of the appellate opinion to
him, the prosecutor did not engage in “deceptive or reprehensible methods” or
other misconduct by inquiring about the case and Welch’s discussion with his
mother. Nor did he do so when, before he even referenced the case or the
conversation with Welch’s mother, he elicited an admission that Welch hoped
to get the jury to find him not guilty by presenting evidence of a diminished
capacity defense. Therefore, we conclude the prosecution’s actions did not
interfere with Welch’s right to counsel or deprive him of a fair trial.
29
IV.
Constitutionality of the “Shooting from a Motor Vehicle”
Special Circumstance
Welch challenges the constitutional validity of section 190.2,
subdivision (a)(21), otherwise known as the “shooting from a motor vehicle”
special circumstance for murder, as overinclusive on its face and as applied in
this case.10 In particular, he argues the provision violates substantive due
process because it reaches conduct that does not rationally relate to the
purpose of the statutory provision and it is overinclusive. He further argues
it runs afoul of the Eighth Amendment because it includes conduct such as
spontaneous and unpremeditated murder that does not warrant eligibility for
death or life imprisonment without the possibility of parole. In his view,
section 190.2, subdivision (a)(21) penalizes a factual characteristic of an
offense, being in a vehicle, which is not necessarily related to culpability,
resulting in more severe punishment for what might otherwise be treated as
second-degree murder.
10 The shooting from a motor vehicle special circumstance provides:
“(a) The penalty for a defendant who is found guilty of murder in
the first degree is death or imprisonment in the state prison for
life without the possibility of parole if one or more of the following
special circumstances has been found under Section 190.4 to be
true:
[¶] . . . [¶]
“(21) The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person or persons outside the vehicle with the intent to
inflict death. For purposes of this paragraph, ‘motor vehicle’
means any vehicle as defined in Section 415 of the Vehicle Code.”
(§ 190.2, subd. (a)(21).)
30
He also challenges this special circumstance as unconstitutionally
vague because it fails to distinguish between a shooting from a vehicle that
results in first degree murder (§ 189) and the type of discharge of a firearm
from a vehicle that qualifies a defendant for death or life without the
possibility of parole, thereby risking arbitrary and prejudicial enforcement.
A. Forfeiture
Welch did not challenge the shooting from a motor vehicle special
circumstance (§ 190.2, subd. (a)(21)) in the trial court. Ordinarily, a
defendant who does not raise a claim in the trial court forfeits his or her right
to assert the claim on appeal. (Sheena K., supra, 40 Cal.4th at pp. 880–881.)
An exception to the rule, however, allows consideration of a defendant’s
assertion that a statute is facially unconstitutional as a purely legal issue
that does not require review of the trial record. (Id. at p. 889; People v.
Navarro (2013) 212 Cal.App.4th 1336, 1347, fn. 9 [“Notwithstanding this rule
of forfeiture, courts generally consider constitutional challenges to penal
statutes for the first time on appeal where, as here, the arguments are legal,
based on undisputed evidence, and center on review of abstract and
generalized legal concepts”].) Accordingly, we will consider only his facial
challenges to the constitutionality of section 190.2, subdivision (a)(21), as
failure to object forfeits any as-applied challenge. (Sheena K., at
pp. 887–889.)
B. Overbreadth
Welch contends the shooting from a motor vehicle special circumstance
is overinclusive and unconstitutional under the due process clause of the
Fourteenth Amendment and the cruel and unusual punishment clause of the
Eighth Amendment.
31
To prevail in a facial challenge, the appellant “ ‘must establish that no
set of circumstances exists under which the [regulation] would be valid.’ ”
(Reno v. Flores (1993) 507 U.S. 292, 301 (Reno); see also New York v. Ferber
(1982) 458 U.S. 747, 768 [explaining that this “practice also fulfills a valuable
institutional purpose: it allows state courts the opportunity to construe a law
to avoid constitutional infirmities”].) As a result, “[a] facial challenge to a
legislative Act is . . . the most difficult challenge to mount successfully.”
(United States v. Salerno (1987) 481 U.S. 739, 745.) Additionally, the fact
that an act “might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid, since we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First
Amendment.” (Ibid.; see also United States v. Hansen (2023) 599 U.S. 762,
769–770 [143 S.Ct. 1932, 1939-1940] [continuing to recognize the overbreadth
doctrine as applicable only to statutes impinging upon free speech]; People v.
Rodriguez (1998) 66 Cal.App.4th 157, 169 (Rodriguez) [“this ‘overbreadth
doctrine’ is applicable primarily (if not exclusively) only when First
Amendment rights are implicated”].)
Given that Welch is not challenging section 190.2, subdivision (a)(21)
on First Amendment grounds, we find no support for his overbreadth
argument. Furthermore, he states that he “is not asking this court to second-
guess the wisdom of creating a shooting from a motor vehicle special
circumstance.” Rather, his concern is “with the manner in which the
language of the provision will inevitably be applied to reach conduct beyond
the evil sought to be remedied.” These statements imply that the statute is
constitutionally applied in some circumstances, which defeats his facial
challenge. (Reno, supra, 507 U.S. at p. 301.) The fact that he focuses on the
overbreadth of the statute further reflects his acknowledgement that there
32
are circumstances under which the regulation would be valid. (See
Rodriguez, supra, 66 Cal.App.4th at p. 172 [“Stating that a statute is merely
‘overinclusive,’ however, presupposes that parts of the statutory coverage
have been properly included”].) Accordingly, Welch has not met his burden of
demonstrating that section 190.2, subdivision (a)(21) is unconstitutionally
overbroad.
C. Vagueness
Alternatively, Welch mounts a facial attack on section 190.2,
subdivision (a)(21) on the grounds that it is unconstitutionally vague. He
contends section 190.2, subdivision (a)(21) is impermissibly vague because it
fails to distinguish between a shooting from a vehicle that results in a first
degree murder conviction (§ 189)11 subject to a sentence with the possibility
of parole, and the type of discharge of a firearm from a vehicle that qualifies a
defendant for death or life without the possibility of parole. Absent any
meaningful distinction between the criteria necessary to satisfy the two
statutes, Welch argues the special circumstance statute risks arbitrary and
prejudicial imposition of death or life without the possibility of parole.
11 Section 189 provides: “(a) All murder that is perpetrated by means of a
destructive device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison, lying in
wait, torture, or by any other kind of willful, deliberate, and premeditated
killing, or that is committed in the perpetration of, or attempt to perpetrate,
arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or
former Section 288a, or murder that is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict death, is murder of the first degree.” (§ 189,
subd. (a).)
33
Imprecise laws can be attacked on their face as overbroad or vague.
(City of Chicago v. Morales (1999) 527 U.S. 41, 52.) A criminal statute may
be so impermissibly vague as to violate due process guarantees if it “fails to
give ordinary people fair notice of the conduct it punishes” or is “so
standardless that it invites arbitrary enforcement.” (Johnson v. United
States (2015) 576 U.S. 591, 595–596; In re N.R. (2023) 15 Cal.5th 520, 554
[“ ‘The vagueness doctrine bars enforcement of “ ‘a statute which either
forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application.’ ” ’ ”].)
In Furman v. Georgia (1972) 408 U.S. 238, the Supreme Court
addressed the latter concern in relation to the death penalty. In so doing, the
Court “recognize[d] that the penalty of death is different in kind from any
other punishment imposed under our system of criminal justice” and, for this
reason, it held that the death penalty “could not be imposed under sentencing
procedures that created a substantial risk that it would be inflicted in an
arbitrary and capricious manner.” (Gregg v. Georgia (1976) 428 U.S. 153,
188.) Accordingly, any legislative scheme that prescribes the death penalty
“must include some narrowing principle that channels jury discretion and
provides a principled way to distinguish those cases in which the death
penalty is imposed from the many cases in which it is not.” (People v.
Bacigalupo (1993) 6 Cal.4th 457, 462; see also Tuilaepa v. California (1994)
512 U.S. 967, 972 [a death penalty law may not apply to every defendant
convicted of a murder].) When a death-eligibility criterion does not meet that
standard, it is considered impermissibly vague. (Bacigalupo, at p. 462.)
The California Supreme Court has previously considered and rejected
numerous challenges to the constitutionality of California’s death penalty law
34
and has repeatedly declined to reconsider its prior rulings. (See, e.g.,
People v. Thomas (2023) 14 Cal.5th 327, 408; People v. Scully (2021)
11 Cal.5th 542, 610; People v. Schultz (2020) 10 Cal.5th 623, 682.) The high
court recently concluded that “[s]ection 190.2, which sets forth the special
circumstances that render those convicted of murder death eligible,
adequately narrows the class of those eligible for the death penalty and is not
impermissibly broad in violation of the Eighth and Fourteenth Amendments.”
(Scully, at p. 610.) Moreover, our Supreme Court has concluded that “first
degree murder liability and special circumstances findings may be based
upon common elements without offending the Eighth Amendment.
[Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 158.) Accordingly, we are
not persuaded by Welch’s argument that the drive-by special circumstance is
constitutionally infirm solely because the elements are the same as those
required to find a defendant guilty of first degree murder.
Contrary to Welch’s selective reading of the opinion, we did not
conclude otherwise in rejecting a similar vagueness challenge to the felony-
murder special circumstance in People v. Andreasen (2013) 214 Cal.App.4th
70 (Andreasen). That case involved a fatal stabbing in a parking lot resulting
in a judgment convicting Andreasen of first degree murder, with a special
circumstance finding of murder during the commission of the attempted
robbery. (Id. at pp. 73–74.) Andreasen was sentenced to life without the
possibility of parole. (Id. at p. 79.) On appeal, Andreasen argued the special
circumstance enhancement was unconstitutionally vague because, “as
applied to the actual perpetrator of the killing (who need not have the intent
to kill), the special circumstance [was] indistinguishable from the felony-
murder offense, which imposes a life sentence with the possibility of parole
when there is no special circumstance finding.” (Ibid.) As a result, he
35
“posit[ed] this create[d] a constitutional infirmity because the prosecutor had
‘unfettered discretion’ to select the charge, and defendant had no way of
anticipating whether he would be subjected to the possibility of death or life
in prison without the possibility of parole, rather than life with the possibility
of parole.” (Ibid.)
Although Welch suggests we rejected the vagueness challenge only
because we were able to draw a distinction between the special circumstance
and the murder statute, that is not the case. Rather, what we concluded was
that the statutes “provided [the] defendant with notice that if he commits a
statutorily specified felony and kills someone during that felony, he could be
subjected to a sentence of 25 years to life with the possibility of parole, life
without parole, or death. [The d]efendant had notice as to the proscribed
conduct and potential punishment. The mere fact that the prosecution has
discretion to select which punishment it will seek does not render a statute
unconstitutionally vague or create an improper risk of arbitrary enforcement
of a criminal statute.” (Andreasen, supra, 214 Cal.App.4th at p. 80.) Only
then did we go on to explain that, “even assuming arguendo that
constitutional due process requires a distinction between the felony-murder
offense and the felony-murder special circumstance [citations], there is such a
distinction.” (Ibid., italics added.) That distinction was that “the felony-
murder offense is established merely upon a showing that the defendant
killed during the commission or attempted commission of the felony, whereas
the felony-murder special circumstance requires an additional showing that
the intent to commit the felony was independent of the killing.” (Ibid.)
Accordingly, we did not then, and we do not now, conclude we must draw a
distinction between the statutes in order to overcome a vagueness challenge.
36
V.
Firearm Discharge Enhancements
After finding Welch guilty on counts 1 through 4, the jury found true
allegations as to each count that he personally and intentionally discharged a
firearm causing death or great bodily injury pursuant to section 12022.53,
subdivision (d). The court sentenced him to 25 years to life for each of these
enhancements. Welch contends the court gave no indication it was aware of
its newly granted authority to strike some of the firearm enhancements
under amended section 1385, subdivision (c). On appeal, Welch argues the
trial court was required to dismiss three of the four section 12022.53,
subdivision (d) enhancements pursuant to section 1385, subdivision (c)(2)(B).
A. Forfeiture
The People contend Welch forfeited this claim by failing to object
during sentencing. Although Welch acknowledges his failure to object below
to the imposition of all four enhancement sentences, he insists the forfeiture
doctrine does not apply because the sentence is legally unauthorized.
As our high court confirmed in People v. Scott (1994) 9 Cal.4th 331, a
party may forfeit or waive “claims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices” by failing to
object below. (Id. at p. 353.) However, this rule does not apply when the
sentence is legally unauthorized. (People v. Gonzalez (2003) 31 Cal.4th 745,
751.) In this case, because Welch argues that section 1385,
subdivision (c)(2)(B) removes the trial court’s authority to exercise its
discretion at all in deciding whether to strike additional enhancements, we
cannot definitively state that this rule of forfeiture applies without
addressing the merits of his claim. Accordingly, we decline to decide the
issue on forfeiture grounds despite Welch’s failure to object below.
37
B. Analysis
Because Welch’s argument hinges on the proper construction of
section 1385, we review his claim de novo. (John v. Superior Court (2016)
63 Cal.4th 91, 95.)
Section 1385 has long permitted trial courts to dismiss sentence
enhancements, or the additional punishment associated with such
enhancements, if doing so is in furtherance of justice. (See former § 1385,
amended by Stats. 1986, ch. 85, § 2, eff. May 6, 1986.) In October 2021, the
Governor signed Senate Bill No. 81 (Senate Bill 81) that added a new
subdivision (c) to section 1385. Under this new subdivision, trial courts:
“ . . . shall dismiss an enhancement if it is in the
furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.
“(2) In exercising its discretion under this subdivision, the
court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating
circumstances in subparagraphs (A) to (I) are present.
Proof of the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement
would endanger public safety. ‘Endanger public safety’
means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other
serious danger to others.
[¶] . . . [¶]
38
“(B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single
enhancement shall be dismissed.”12
Because Senate Bill 81 by its express terms “appl[ies] to all sentencings
occurring after January 1, 2022” (§ 1385, subd. (c)(7)), it was in effect when
Welch was sentenced on August 26, 2022.
Welch contends the trial court’s sentence in this case violates current
section 1385, subdivision (c)(2)(B) because the use of the word “shall”
mandates the dismissal of all but one enhancement. In asserting this
contention, he acknowledges that recent cases have uniformly rejected
similar arguments after considering the totality of the statutory language.
(See People v. Mendoza (2023) 88 Cal.App.5th 287, 290–293 (Mendoza);
People v. Anderson (2023) 88 Cal.App.5th 233, 238–240, review granted
Apr. 19, 2023, S278786 (Anderson); People v. Lipscomb (2022) 87 Cal.App.5th
9, 15–21 (Lipscomb); People v. Walker (2022) 86 Cal.App.5th 386, 395–398,
review granted Mar. 22, 2023, S278309 (Walker).)
In Walker, the court considered whether section 1385,
subdivision (c)(2)(B) mandates the dismissal of all but one sentencing
enhancement in all cases. (Walker, supra, 86 Cal.App.5th at p. 396, review
granted.) The appellate court determined that it did not and explained, “the
text and purpose of section 1385 in general, and Senate Bill No. 81 in
particular, as well as the canons of statutory construction, counsel in favor of
12 Section 1385, subdivision (c)(2)(C) lists an additional factor containing
the same mandatory language as subdivision (c)(2)(B), namely: “The
application of an enhancement could result in a sentence of over 20 years. In
this instance, the enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(C).)
Although Welch does not directly rely on this additional mitigating factor,
many of the opinions discussed post jointly or separately address this
provision because it contains the same “shall be dismissed” language.
39
concluding that the [relevant statutory language] does not obligate trial
courts to automatically dismiss all but one enhancement.” (Walker, at
p. 396.) “The phrase ‘all enhancements beyond a single enhancement shall be
dismissed’ is not a standalone mandate of section 1385,” but rather one of
nine mitigating circumstances. (Id. at p. 397.) Further, the court noted that
“[s]ection 1385 explicitly instructs that the existence of a mitigating
circumstance—including the one for ‘[m]ultiple enhancements’—‘weighs
greatly in favor of dismiss[al]’ ” but, under the remaining statutory language,
the trial court retains its discretion “to evaluate whether dismissal is in the
furtherance of justice by weighing enumerated and unenumerated mitigating
factors against whether dismissal of an enhancement would ‘endanger public
safety.’ ” (Ibid., italics omitted.)
The court therefore concluded that section 1385, subdivision (c)(2)(B)
“means what it says—namely, that if a trial court determines that the
mitigating circumstance of ‘[m]ultiple enhancements . . . in a single case’
exists and that dismissal of the enhancements will not ‘endanger public
safety,’ then the court’s discretion to dismiss is somewhat constrained by the
phrase’s mandate that the court must dismiss all but one of those multiple
enhancements.” (Walker, supra, 86 Cal.App.5th at p. 397, review granted.)
Additionally, the court determined that “section 1385’s use of the additional
phrase ‘great weight’ ” “erects a presumption in favor of the dismissal of the
enhancement unless and until the court finds that the dismissal would
40
‘endanger public safety’ as that term is defined in section 1385.” (Id. at
pp. 398–399.)13
The court in Lipscomb addressed essentially the same issue in the
context of section 1385, subdivision (c)(2)(C). There, the trial court had
declined to dismiss a section 12022.53, subdivision (d) enhancement—which
resulted in imposition of an additional term of 25 years to life—based on a
finding that dismissal “ ‘would result in physical injury or serious danger to
others.’ ” (Lipscomb, supra, 87 Cal.App.5th at p. 13.) The defendant asserted
the dismissal was mandatory based on the “shall be dismissed” language in
section 1385, subdivision (c)(2)(C), but, as in Walker, the appellate court
concluded subdivision (c)(2)(C) did not compel dismissal in all cases.
(Lipscomb, at p. 21.) Rather, the court explained that the full language of the
statute, read in context, “expressly empower[s] the [trial] court to impose the
enhancement upon a finding that dismissing it would endanger public
safety.” (Id. at p. 19.)
In People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted
April 12, 2023, S278894 (Ortiz), the court declined to follow Walker to the
extent it would “require the trial court to dismiss an enhancement absent a
finding that dismissal would endanger public safety” because to do so “would
divest the trial court of its ultimate discretion under the statute to determine
what is in furtherance of justice, considering all relevant factors.” (Id. at
13 As noted, the California Supreme Court granted a petition for review in
Walker. Our high court specified that its review “is limited to the following:
Does the amendment to Penal Code section 1385, subdivision (c) that
requires trial courts to ‘afford great weight’ to enumerated mitigating
circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor
of dismissing an enhancement unless the trial court finds dismissal would
endanger public safety?” (People v. Walker, order granting review issued
March 22, 2023, S278309.)
41
p. 1098.) Such factors under “ ‘generally applicable sentencing principles’
relevant to a court’s determination of whether dismissal is in furtherance of
justice ‘relat[e] to matters such as the defendant’s background, character, and
prospects.’ ” (Id. at p. 1097 quoting People v. Williams (1998)
17 Cal.4th 148, 160.) “Those principles require consideration of
circumstances in mitigation (and aggravation) in the broader context of the
recognized objectives of sentencing, which are not limited to public safety.”
(Ortiz, at p. 1097 citing Cal. Rules of Court, rule 4.410).)
The People urge us to follow the reasoning of Ortiz. However, the Ortiz
decision addressed two different circumstances in mitigation: section 1385,
subdivision (c)(2)(D) (a current offense connected to mental illness) and (F)
(a current offense that is not a violent felony). (Ortiz, supra, 87 Cal.App.5th
at p. 1094, review granted.) In rejecting the Walker court’s rebuttable
presumption approach, the Ortiz court expressly noted that “a ‘connect[ion] to
mental illness’ does not, as a practical matter, lend itself to the one-size-fits-
all formalism of a presumption that may only be overcome by a danger to
public safety.” (Id. at p. 1097.) But, in so doing, it expressly distinguished
this mitigating circumstance from those “[a]t the other end of the spectrum,”
such as section 1385, subdivision (c)(2)(B) and (C) wherein “the Legislature
has unambiguously provided that the operative enhancement(s) ‘shall be
dismissed.’ ” (Id. at p. 1097, fn. 6.) It explained that these circumstances
“are unlike the other seven listed in that they are not mitigating in any
conventional sense—as to either the nature and circumstances of the current
offense or the defendant’s ‘background, character, and prospects’ [Citation]—
but only by operation of law.’ ” (Ibid.) This suggests that, if called upon to
interpret the language of section 1385, subdivision (c)(2)(B) and (C), the Ortiz
42
court might limit discretion only to a consideration of whether dismissal of
the enhancements would endanger public safety.
Subsequently, the Anderson court adopted somewhat of an amalgam
approach, concluding: “It is within these boundaries that section 1385 states
the court ‘shall’ dismiss all but one enhancement and/or enhancements
resulting in a sentence of more than 20 years. The dismissal shall occur but
only if, in exercising its discretion and giving great weight to certain factors,
the court finds dismissal is in the interests of justice or would not endanger
public safety.” (Anderson, supra, 88 Cal.App.5th at pp. 239–240, review
granted, italics added.)
In the most recent decision related to this issue, the Mendoza court
determined that, if the trial court found that dismissal of the enhancement
would endanger public safety, it need not go on to consider the mitigating
factors. (Mendoza, supra, 88 Cal.App.5th at p. 297.) And, because the trial
court in that case expressly found such endangerment present, the Mendoza
court concluded it did not need to analyze how the “shall be dismissed”
language of section 1385, subdivision (c)(2)(C) operates when a trial court
finds that dismissal of a firearm enhancement would not endanger public
safety. (Mendoza, at p. 297.)
The one point on which every single one of these decisions agree is that,
despite the “shall be dismissed” language of section 1385,
subdivision (c)(2)(B) and (C), the trial court retains discretion over the
decision to strike enhancements at sentencing. Absent further instruction
from our high court, we decline to find otherwise. Rather, we are persuaded
by the multitude of published cases concluding that section 1385,
subdivision (c)(2)(B) requires dismissal of a sentencing enhancement only
where the trial court concludes dismissal would not be in the furtherance of
43
justice and/or would endanger public safety.14 (§ 1385, subd. (c)(2).)
Accordingly, we reject Welch’s claim that the trial court erred.15
We are not persuaded otherwise by Welch’s argument that trial courts
already had discretion to dismiss enhancements in furtherance of justice and,
thus, Senate Bill 81 should be read to require courts to do something that
they previously only had discretion to do. Stated differently, Welch’s point is
that the Legislature ordinarily enacts a new statute to change something, not
to authorize it for a second time.
We disagree that Senate Bill 81 simply reauthorized trial courts to
exercise their existing discretion. Instead, this sentencing statute, like many
others, enumerates specific practices the Legislature finds objectionable and
which grounds for large sentences it would like to discourage. It puts these
issues on the sentencing judge’s radar and seeks to “fine tune how a court is
to exercise that discretion.” (Walker, supra, 86 Cal.App.5th at p. 395, review
granted.) As the Walker court stated, it may even, “place[ ] a thumb on the
scale that balances the mitigating circumstances favoring dismissal against
whether dismissal would endanger public safety.” (Id. at pp. 399–400.) But
14 Because Welch does not argue in the alternative that the trial court
abused its discretion in refusing to dismiss three of the four enhancements,
we need not decide which court’s construction of the statute to adopt, nor
must we evaluate the trial court’s justification for the sentence in this case.
15 Anticipating the People’s forfeiture arguments, Welch argued that,
should we conclude he forfeited his prosecutorial misconduct or firearm
enhancement sentencing claims, we alternately should find his attorney
provided constitutionally inadequate assistance of counsel. Because we
addressed both claims on the merits, we need not address his ineffective
assistance of counsel arguments.
44
it does not remove the judge’s discretion to determine what sentence is
appropriate in light of the specific facts presented in the case.
Welch’s argument that we must interpret statutory language as
written also does not alter our analysis. “ ‘As in any case involving statutory
interpretation, our fundamental task here is to determine the Legislature’s
intent so as to effectuate the law’s purpose.’ ” (Skidgel v. California
Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 14 (Skidgel).) “ ‘We
begin by examining the statutory language, giving it a plain and
commonsense meaning. [Citation.] We do not, however, consider the
statutory language in isolation; rather, we look to the entire substance of the
statutes in order to determine their scope and purposes. [Citation.] That is,
we construe the words in question in context, keeping in mind the statutes’
nature and obvious purposes. [Citation.] We must harmonize the various
parts of the enactments by considering them in the context of the statutory
[framework] as a whole. [Citation.] If the statutory language is
unambiguous, then its plain meaning controls. If, however, the language
supports more than one reasonable construction, then we may look to
extrinsic aids, including the ostensible objects to be achieved and the
legislative history.’ ” (Ibid.)
As other courts have observed, reading the “shall be dismissed”
language as mandatory requires us to consider it in isolation. (See, e.g.,
Walker, supra, 86 Cal.App.5th at p. 397, review granted [commenting that
“[i]f we were to read the phrase appended to the multiple enhancements
mitigating factor as automatically mandating dismissal of all but one
enhancement whenever multiple enhancements exist, then the existence of
multiple enhancements would not ‘weigh greatly’ in favor of dismissal—it
would weigh dispositively’ ”].) Further, such a construction violates the
45
direction to “ ‘harmonize the various parts of the enactments.’ ” (Skidgel,
supra, 12 Cal.5th at p. 14.) If a trial court was required to dismiss all
enhancements beyond a single enhancement in all cases, the language
regarding the court’s “discretion,” proof of the multiple enhancements
“weigh[ing] greatly,” and the court’s authority to consider whether “dismissal
of the enhancement would endanger public safety” would all be rendered
meaningless. Precedent has long made clear that “ ‘[a] construction making
some words surplusage is to be avoided.’ ”16 (People v. Valencia (2017)
3 Cal.5th 347, 357.)
Finally, we are not persuaded by Welch’s argument that subsequent
legislative actions wherein the Legislature declined to remove the “shall be
dismissed” language demonstrate its intent to make said language
mandatory. Under Senate Bill 81, the mitigating circumstance of more than
one enhancement was contained in section 1385, subdivision (c)(3), which
provided that “While the court may exercise its discretion at sentencing,
nothing in this subdivision shall prevent a court from exercising its discretion
before, during, or after trial or entry of plea.” Assembly Bill 200 (Stats. 2022,
ch. 58) amended section 1385 effective June 30, 2022 to delete
subdivision (c)(3) and move the nine mitigating circumstances under the
umbrella of subdivision (c)(2). But as both subdivisions explicitly reference
the court exercising its discretion, this legislative action does not support
16 We further note that construing section 1385, subdivision (c)(2)(B) as
remaining subject to the trial court’s discretion also harmonizes this statute
with section 12022.53, under which the enhancements were imposed. This
section provides, “The court may, in the interest of justice pursuant to
Section 1385 . . . strike or dismiss an enhancement otherwise required to be
imposed by this section” (§ 12022.53, subd. (h), italics added). In other words,
it too affords the trial court discretion to dismiss enhancements.
46
Welch’s argument that the Legislature did not intend the courts to have any
discretion at all.
The same is true with regard to Welch’s contention regarding the failed
passage of Assembly Bill No. 931 (2021-2022 Reg. Sess.), which would have
removed the requirement to dismiss enhancements when multiple
enhancements were present. Contrary to Welch’s selective reading of the bill
text’s description of existing law, it too couched the language within the
framework of the trial court’s discretion to dismiss enhancements.17 (See
People v. Cota (2023) 97 Cal.App.5th 318, 428 [concluding “the Legislature’s
failure to pass Assembly Bill No. 931 is not evidence that the Legislature
intended section 1385, subdivision (c)(2)(B) to mandate dismissal of any
enhancement”].)
17 Assembly Bill No. 931 provided, “Existing law requires a court, in
exercising its discretion to dismiss an enhancement, to consider and afford
great weight to evidence offered by the defendant to prove that specified
mitigating circumstances exist, including the allegation of multiple
enhancements in a single case and that the application of an enhancement
could result in a sentence of over 20 years. Existing law requires the
dismissal of all enhancements beyond a single enhancement and the
dismissal of all enhancements when the resulting sentence is over 20 years.”
(Italics added.)
47
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
48