Filed 9/28/18 P. v. Davis CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury found defendant Jerome Markel Davis guilty of various offenses related to three separate shootings, including the attempted murder of Q.B., and found several alleged firearm enhancements true. He was sentenced to a total aggregate term of 17 years three months plus 25 years to life in state prison.

Defendant raises two issues on appeal: (1) the matter should be remanded to allow the trial court to exercise newly granted discretion over whether to strike the firearm enhancements, and (2) the court erred in failing to instruct the jury sua sponte on attempted voluntary manslaughter based on unreasonable or imperfect self-defense as a lesser included offense to attempted murder.

We conclude that the recent legislative amendments giving trial courts discretion to strike firearm enhancements apply retroactively to defendant and we shall remand the matter to the trial court to determine whether to exercise its discretion under the new law. We further conclude that insufficient evidence supported giving an imperfect self-defense instruction. We therefore affirm defendant’s convictions, and remand the matter for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

A September 2016 amended and consolidated information charged defendant with the attempted murder of Q.B. (Pen. Code, § 664/187, subd. (a)—count one),[1] discharge of a firearm at an occupied motor vehicle (§ 246—count two), grossly negligent discharge of a firearm (§ 246.3—count three), assault with a firearm on J.W. (§ 245, subd. (a)(2)—count four), and discharge of a firearm at an inhabited dwelling (§ 246—count five). The information alleged that defendant committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant personally used a firearm (§ 12022.53, subd. (b)),[2] personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) during the offense. For the assault with a firearm offense, it was alleged that defendant personally used a firearm. (§ 12022.5, subd. (a).) The evidence at trial showed the following:

The March 3, 2015 Shooting of Q.B.

Q.B. lived in an apartment with his mother in Sacramento. Defendant’s mother lived in the same apartment complex; her apartment was located across from Q.B.’s apartment. Q.B. had seen defendant several times at the apartment complex, including sitting in a white car with his girlfriend, Cassandra Patterson.

The apartment complex was located near a shopping center with a Taco Bell restaurant and a pizza parlor. At one point, defendant and Patterson both worked at the Taco Bell.

Although Q.B. and defendant crossed paths occasionally, their interactions were limited. Defendant would sometimes give Q.B. free drinks at Taco Bell. One time defendant asked Q.B. for a cigarette. Another time Q.B. passed defendant on the street while walking toward the Taco Bell. Defendant was in his uniform, and Q.B. asked him how he was doing and if he had just gotten off work. Defendant responded, “Don’t worry about when I’m getting off work. I don’t want nobody knowing my schedule.” Q.B. responded that he did not want any problems, and the two men continued walking in opposite directions.

On another occasion, Q.B. was in a store waiting to purchase an ice cream. Defendant walked in and stood right behind him. According to Q.B., defendant did not purchase anything and was “mean mugging” him. After Q.B. purchased his ice cream, defendant followed him outside.

In early March 2015, Q.B. and his cousin, R.M., walked to pick up a pizza from the Round Table near his mother’s apartment. Defendant pulled up in a white car with tinted windows and hopped out. He repeatedly demanded to speak with Q.B. When Q.B. declined, defendant continued to follow Q.B. and his cousin back to the apartment. R.M. felt threatened, and told Q.B. to go into his mother’s apartment. Defendant pointed at Q.B. and said, “You ain’t from Oak Park. UZ. UZ.” Q.B. was not in a gang and was unfamiliar with the term UZ, which the prosecutor’s gang expert explained stood for Underworld Zilla, a subset of the Oak Park Bloods. According to R.M., defendant said, “on UZ blood” that it was not over and that he would see Q.B. again. Q.B. did not know of any reason why defendant would have a problem with him. Defendant eventually left.

On March 3, 2015, a few days after defendant followed Q.B. and his cousin from the pizza parlor, Q.B. visited his grandmother at her apartment on Munson Way in Sacramento. While standing outside talking on the phone, Q.B. saw defendant drive by in the white car he had previously seen him in with his girlfriend. Defendant’s girlfriend was in the front passenger seat leaning back. Defendant passed by Q.B., backed up, rolled down the passenger window, pointed a red laser light at Q.B., and fired multiple shots. Q.B. tried to dodge the red light but was struck by a bullet in the chest, causing severe injuries. Before he was transported to the hospital by emergency personnel, Q.B. told an officer that his cousin, R.M., knew the guy who shot him since he had followed them a few days earlier. R.M. learned of the shooting a short time later, and directed officers to the apartment complex where defendant’s mother and Q.B. lived.

As a result of the shooting, Q.B. was hospitalized for several weeks and underwent nine surgeries. After he was released from the hospital, Q.B. positively identified defendant as the shooter in a photographic lineup.

Several neighbors also witnessed the shooting. Each described seeing a white car pass by, back up and then start shooting toward the apartments.

The April 25, 2015 Shots-fired Incident

The next month, on April 25, 2015, an officer responded to an area in Sacramento near Riverside Boulevard after receiving multiple calls of shots fired. The officer found several .40-caliber shell casings in the street that had likely been expended from a moving car. The shells were booked in the police evidence warehouse.

The April 27, 2015 Shooting of J.W.

Two days later, on April 27, 2015, defendant fired several shots into an apartment shared by J.W. and Jermaine Mosby, defendant’s cousin. Both J.W. and Mosby were home at the time. A bullet struck J.W. in the shoulder. According to J.W., defendant and Mosby were very close and there were no issues between them. J.W. also got along well with defendant, describing their relationship as “cool.”

Defendant’s Arrest

In early May 2015, Patterson, defendant’s girlfriend, called police to report that defendant had her car and that there were guns inside the car. While Patterson spoke with an officer behind the Taco Bell where she worked, defendant drove up in Patterson’s car and approached them. Defendant was arrested, and the car was searched. Officers located two loaded handguns underneath the driver’s seat: a .40-caliber handgun and a .38-caliber revolver. Defendant’s wallet, loose ammunition, a gun holster and a loaded magazine were also found in the car. Defendant’s fingerprints were on the magazine, and the magazine fit the .40-caliber handgun found in the car.

Patterson’s Police Interview

The day of defendant’s arrest, police interviewed Patterson. Because she refused to testify during trial,[3] her recorded police interview was played for the jury.

During the interview, Patterson explained that defendant originally wanted to kill Q.B. during the encounter near the pizza parlor but there were too many people around. Several days later, while driving her car, defendant saw Q.B. standing outside an apartment complex and shot at him. She was in the front passenger seat at the time. Patterson said that defendant thought people, including Q.B., were after him. She also said defendant was an Oak Park Blood gang member and a member of its subset, Underworld Zillas.[4]

Patterson was also present in the car when defendant shot at two vehicles on April 25. Defendant thought his cousin, Jermaine Mosby, was in each of the cars he targeted. Defendant threw the spent shell casings out of the window while Patterson was driving.

Patterson told the officer that defendant also wanted to kill Mosby. On the morning of April 27, defendant had Patterson drop him off near Mosby and J.W.’s apartment. Defendant told Patterson that he went up to their apartment, saw his cousin’s car in the parking lot, knocked on the door, and started shooting when he heard footsteps inside the apartment. He shot at the door and side window. When defendant returned to Patterson’s car, she saw him eject the bullet casings from a revolver and wipe them down before dumping them out of the car’s window at another location.

Patterson eventually led the detective to the area where defendant dumped the bullet casings. Four .38-caliber casings were found.

The shell casings defendant dumped after he shot J.W. were matched to the .38-caliber revolver found in Patterson’s car. The shell casings collected after the April 25 shots-fired incident were matched to the .40-caliber handgun found in Patterson’s car.

Defendant’s Testimony at Trial

Against the advice of his counsel, defendant testified on his own behalf. He denied committing any of the shootings.

According to defendant, he and Q.B. were on good terms. They never had any problems; defendant gave Q.B. free food for his family when he worked at Taco Bell, and sometimes bought marijuana from him. Although he admitted responding rudely to Q.B. one time when they passed on the street, he said he had had a bad day at work and was frustrated. He further testified that the day he followed Q.B. and R.M. back to Q.B.’s apartment from the pizza parlor was so that he could buy marijuana from him. He said he had no reason to believe, nor did he believe that his cousin, Jermaine Mosby, was in cahoots with Q.B. to get him. He denied shooting Q.B. in front of his grandmother’s apartment.

Defendant also said he was close with his cousin, Mosby, and considered him his brother. He never had any problems with Mosby or with his girlfriend, J.W. He denied shooting at their apartment.

Defendant denied the shooting that occurred near Riverside Boulevard on April 25. According to him, there was no reason for him to do something like that.

Defendant also denied any current gang affiliations, although he knew a lot of people in gangs. When confronted with several recordings from jail phone calls or jail visits he had with Patterson while awaiting trial, defendant denied trying to convince Patterson not to testify against him.

Defendant claimed he borrowed Patterson’s car on the day he was arrested without knowing the two firearms were underneath the driver’s seat. He discovered the firearms when he adjusted the seat. He immediately drove to Patterson’s workplace because he did not want to be in the car with two guns. He said none of the statements Patterson made during her police interview were true.

The jury found defendant guilty of attempted murder (count one), grossly negligent discharge of a firearm (count three), assault with a firearm (count four), and discharge of a firearm at an inhabited dwelling (count five). The jury also found the gang enhancement attached to count one and the firearm enhancements attached to counts one and four true. Defendant was found not guilty of discharging a firearm at an occupied motor vehicle (count two).

The trial court chose the attempted murder conviction as the principal term and imposed the low term of five years, plus 10 years for the gang enhancement, and 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. For count four, the court imposed a consecutive one-third the midterm of one year plus one year three months for the section 12022.5, subdivision (a) firearm enhancement. The court imposed concurrent terms of eight months (one-third the midterm) for count three and one year six months (one-third the midterm) for count five. Defendant’s total aggregate term was 17 years three months plus 25 years to life. Defendant timely appealed.

DISCUSSION

1.0 Firearm Enhancements

Defendant contends recent legislative amendments require remand for the trial court to consider whether to exercise newly granted discretion to strike the firearm enhancements attached to count one and count four. The People concede the legislation applies retroactively to defendant, and that remand is proper under the circumstances. We agree.

As previously noted, defendant’s sentence in this case included two firearm enhancements: a term of one year three months for personally using a firearm when he assaulted J.W. (§ 12022.5, subd. (a)), and a term of 25 years to life for personally and intentionally discharging a firearm causing great bodily injury when he attempted to murder Q.B. (§ 12022.53, subd. (d)). When he was sentenced, the trial court had no discretion to strike the firearm enhancements. Recent amendments to section 12022.5 and section 12022.53, which became effective January 1, 2018, now give trial courts the discretion “in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).)

We agree the statutory amendments apply retroactively to defendant as explained in People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091. We also agree with defendant that the trial court must be afforded the opportunity to exercise this sentencing discretion. Unless the record reveals a clear indication that the trial court would not have dismissed or stricken the firearm enhancement even if at the time of sentencing it had the discretion to do so, remand is required. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.) Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, here, we cannot say “the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.” Rather, the trial court indicated it had “particular difficulty with this case for two reasons.” The first was defendant’s youth (“[y]ou’re a very young man”) and the second was the court’s belief that “there’s a mental health aspect to the crimes that ha[s] not been addressed.” The court concluded: “I do not believe you should spend the rest of your life in prison. I considered sentencing structures to the best the law allows. I’m afraid, however, that your crime spree has left me with few alternatives.”

Defendant should have an opportunity to argue to the trial court that it should exercise its informed discretion to strike the firearm enhancements. We therefore remand for this purpose.

2.0 Sua Sponte Duty to Instruct on Lesser Included Offense of Attempted Voluntary Manslaughter

Defendant contends the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter under the theory of imperfect self-defense. The absence of the instruction, he argues, violated his federal and state constitutional rights. The trial court did not err.

“A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.’ [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. . . . [T]he court need instruct the jury on a lesser included offense only ‘[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of’ the lesser offense.” (People v. Shockley (2013) 58 Cal.4th 400, 403-404.) A trial court errs in failing to instruct on a lesser included offense supported by the evidence “ ‘ “even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 114.)

The doctrine of imperfect self-defense is “ ‘narrow.’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 581.) “ ‘It requires without exception that the defendant must have had an actual belief in the need for self-defense. . . . Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. “ ‘[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.’ ” ’ ” (Ibid.)

On appeal, we apply a de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.) After examining the record, we conclude it is devoid of evidence suggesting that when defendant shot Q.B. he harbored an actual belief in the need for self-defense against an imminent danger to life or great bodily injury. To the contrary, defendant testified that he and Q.B. were friendly, that he had no problems with Q.B., that he bought marijuana from him, and that he did not believe Q.B. and his cousin were in “cahoots” to get him. Q.B., in turn, testified that he barely knew defendant and that there was no reason defendant would have had a problem with him. Both Q.B. and defendant testified that defendant would sometimes give him free food at Taco Bell.

Q.B., moreover, was standing outside his grandmother’s apartment talking on the phone when defendant drove by, reversed, rolled down the window, and fired multiple rounds. The men were not engaged in hand-to-hand combat or a heated dispute at the time of the shooting. Q.B. was not affiliated with any rival gang, and no evidence showed that Q.B. ever had a weapon or threatened defendant in any way.

Patterson’s statements to police that defendant was paranoid someone was out to get him because he had recently been shot at while in her car, or defendant’s statement to Patterson during a jail visit that he would not need to look over his shoulder once they moved out of state, at most revealed that defendant may have harbored some fear of future harm but provided no indication that defendant “ ‘actually, but unreasonably, believed he was in imminent danger of death or great bodily injury’ ” the night he shot Q.B. (People v. Manriquez, supra, 37 Cal.4th at p. 582.) The evidence was insufficient to require the court to instruct the jury sua sponte on attempted voluntary manslaughter as a lesser included offense of attempted murder.[5] (People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.)

DISPOSITION

The sentence is vacated. The matter is remanded to the trial court to exercise its discretion in resentencing in accordance with this opinion. The trial court clerk is then directed to prepare a new abstract of judgment and to forward a certified copy of the same to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

BUTZ , J.

We concur:

RAYE , P. J.

DUARTE , J.