People v. Carter

• Decision Date: 22 March 2018
• Docket Number: B278705
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CARTER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CARTER, Defendant and Appellant.

B278705

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

March 22, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA433568-01)

APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed in part; modified in part; remanded in part.

Edward H. Schulman, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Michael Carter appeals from a first degree murder conviction. (Pen. Code,¹ § 187, subd. (a).) The prosecution presented evidence that following a brief verbal exchange, defendant, a gang member, shot and killed Kapre Brown, a former rival gang member. Defendant shot Brown six times at close range while in the middle of a crowded Hollywood crosswalk. Surveillance video and cell phone records placed defendant in the area at the time Brown was shot. Multiple witnesses identified defendant.

The prosecution argued this was an intentional, gang-related killing. Defense counsel, while conceding defendant was in the area at the time, argued defendant had been misidentified as the perpetrator. Defense counsel further briefly argued the crime committed was voluntary manslaughter, not murder, because the shooter acted in rage after a sudden quarrel.

A jury convicted defendant of first degree murder. The jury further found true personal firearm use and criminal street gang enhancement allegations. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d).) The trial court sentenced defendant to 50 years to life in state prison.

On appeal, defendant contends: (1) the instructions on provocation reducing murder from first to second degree misinformed the jurors they should apply an objective rather than a subjective standard of reasonableness; (2) imposing the firearm enhancement violated California's multiple convictionrule as well as constitutional double jeopardy principles; (3) the trial court miscalculated defendant's presentence custody credit; and (4) this case should be remanded so that the trial court may exercise its discretion to dismiss the firearm enhancement under subdivision (h) of section 12022.53 as amended by Senate Bill No. 620 effective January 1, 2018. We remand to allow the trial court to exercise its discretion under section 12022.53, subdivision (h), as amended effective January 1, 2018, modify the judgment with respect to defendant's presentence custody credit, and otherwise affirm.

DISCUSSION

A. Jury Instruction on Provocation

Defendant contends the trial court's instructions on provocation reducing murder from first to second degree misinformed the jurors they should apply an objective rather than a subjective standard of reasonableness. (See People v. Jones (2014) 223 Cal.App.4th 995, 1000 ["a subjective test applies to provocation as a basis to reduce malice murder from the first to the second degree"]; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 ["If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder" (italics added)].) A trial court has a duty to instruct, even absent a request, "'on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.' [Citation.]" (People v. Townsel (2016) 63 Cal.4th 25, 58.) In addition, when a court,absent a sua sponte duty to do so, chooses to instruct on a particular legal point, it must do so correctly. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Once adequate and correct instructions are given, a trial court has no duty to give clarifying or amplifying instructions unless asked to do so. (People v. Mayfield (1997) 14 Cal.4th 668, 778; disapproved on another point in People v. Scott (2015) 61Cal.4th 363, 390, fn. 2.)

We review a claim that instructions were incorrect or misleading de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "'The relevant inquiry [when instructional error is claimed] is whether, "in the context of the instructions as a whole and the trial record, there is a reasonable likelihood that the jury was misled to defendant's prejudice." [Citation.] Also, "'"we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given."'"' [Citations.]" (People v. O'Malley (2016) 62 Cal.4th 944, 991.)

Defendant's argument was considered and rejected by our Division Four colleagues in People v. Jones, supra, 223 Cal.App.4th at pages 999-1003. And in People v. Hernandez, supra, 183 Cal.App.4th at pages 1331-1334, the Court of Appeal for the Fourth Appellate District rejected a similar claim—that CALJIC No. 522 was incomplete and misleading as it relates to second degree murder because it does not specify that heat of passion arising from provocation can negate the premeditation and deliberation necessary for first degree murder. We agree with the reasoning in Jones and Hernandez and reject defendant's claim for several reasons.

1. Defense counsel forfeited this argument

First, an instruction explaining that a subjective rather than objective test applies to reduce murder from first to second degree is a pinpoint instruction (People v. Rogers (2006) 39 Cal.4th 826, 877-878; People v. Jones, supra, 223 Cal.App.4th at p. 1001), and defense counsel's failure to request a pinpoint instruction explaining that the objective test did not apply to reduction of murder from first to second degree forfeited the argument. (People v. Jones, supra, 223 Cal.App.4th at p. 1001.) Notably, defendant's trial attorney never argued his client was guilty (if at all) only of second degree murder. And the prosecutor never argued that an objective test applied to reduce murder from first to second degree.

Defendant relies on the nonforfeiture rule in section 1259: "The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." However, because the jury was correctly instructed, there was no error affecting defendant's substantial rights. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 474-475.) And defendant's failure to request clarification of the otherwise correct instructions on murder and voluntary manslaughter forfeited his claim for purposes of this appeal. (People v. Whalen (2013) 56 Cal.4th 1, 81-82, disapproved on another point in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.)

2. The jury was correctly instructed

Second, even if defendant did not forfeit his argument, the trial court's instructions on murder (CALCRIM No. 520),² firstdegree murder (CALCRIM No. 521),³ provocation (CALCRIM No. 522)⁴ and voluntary manslaughter (CALCRIM No. 570)⁵ werecorrect. (People v. Jones, supra, 223 Cal.App.4th at p. 1001; People v. Hernandez, supra,183 Cal.App.4th at p. 1334.) "[The instructions] accurately inform[ed] the jury what is required for first degree murder, and that if the defendant's action was in fact the result of provocation, that level of crime was not committed.

CALCRIM Nos. 521 and 522, taken together, informed jurors that 'provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.' ([People v.] Hernandez, supra, 183 Cal.App.4th at p. 1334.) As the jury also was instructed, a reduction of murder to voluntary manslaughter requires more. It is here, and only here, that the jury is instructed that provocation alone is not enough for the reduction; the provocation must be sufficient to cause a person of average disposition in the same situation, knowing the same facts, to have reacted from passion rather than judgment." (People v. Jones, supra, 223 Cal.App.4th at p. 1001.) Considering the instructions as a whole, it is not reasonably likely the jurors thought they should apply an objective rather than a subjective standard of reasonableness in assessing provocation as a basis to reduce murder from first to second degree. The trial court did not err in instructing the jury pursuant to CALCRIM Nos. 520, 521, 522 and 570.

3. Defendant has not established ineffective assistance of counsel

Third, defendant cannot show his trial attorney was ineffective. "A criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailingprofessional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On...