Filed 11/28/18 P. v. Feaster CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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In November 2015, defendant Patrick Robert Feaster was a police officer with the Paradise Police Department. Shortly after midnight on November 26, 2015, defendant shot a man in the neck as the man attempted to climb out of a sport utility vehicle (SUV) following a high-speed police chase and rollover accident. Several weeks later, the man died due to complications from the gunshot wound. Defendant contended he accidentally discharged his firearm.

A jury found defendant guilty of involuntary manslaughter (Pen. Code, § 192, subd. (b))[1] and found true the allegation he was armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)). The trial court suspended imposition of sentence and placed him on probation for three years with various conditions, including the condition he serve 180 days in county jail.

On appeal, defendant contends the trial court committed reversible error by modifying CALCRIM No. 581 (Involuntary Manslaughter: Murder Not Charged) in response to a jury inquiry during deliberations. He argues the modification confused the jury, lowered the prosecution’s burden of proof, and obscured the ground(s) upon which the jury based its verdict. Defendant further contends the trial court committed reversible error in denying his motion to dismiss the firearm enhancement. We affirm the judgment.

FACTUAL BACKGROUND

Defendant served as a patrol officer for the Paradise Police Department from January 2010 to November 2015. Shortly after midnight on November 26, 2015, defendant saw an SUV leave the parking lot of a bar at a high rate of speed without its lights on. The SUV ran a red light and drove at speeds of 55 to 60 miles per hour in a 30-mile-per-hour zone. Defendant activated his overhead lights and pursued the SUV. The pursuit and the events that occurred thereafter were captured on the dashboard camera in defendant’s patrol car. The recording was played for the jury.

Approximately 30 seconds after the pursuit began, the SUV struck the center median and some other objects, causing it to become airborne. The SUV rolled over and came to a rest on its driver’s side in the road. A woman, later identified as Darien Ehorn, was ejected from the vehicle. She landed on the road next to the SUV.

Defendant immediately reported the accident and stopped his patrol car near Ehorn and the SUV. He quickly got out of his car and approached the SUV. As he did so, a man, later identified as Andrew Thomas, was attempting to climb out of the top of the SUV through the front passenger side window. Defendant pulled out his gun and immediately shot Thomas, who instantly fell back inside the SUV. Approximately 10 seconds elapsed from the time defendant stopped his patrol car until he shot Thomas.

After shooting Thomas, defendant walked up to the SUV and looked inside through the window Thomas had tried to climb out of. According to defendant, he told Thomas to get out. In response, Thomas said, “You shot me. I am dead.” Defendant replied, “You are not shot.” Defendant did not attempt to render any assistance to Ehorn.

Approximately 25 seconds after shooting Thomas, defendant reported that he had an unresponsive female and a male refusing to get out of a vehicle. Defendant then searched the ground with his flashlight for the bullet’s shell casing until Paradise police officers John Alvies and Manuel Ayala arrived about 10 seconds later. Portions of the video recordings from their body cameras were played for the jury.[2]

Officer Alvies was a senior officer and the officer in charge. Defendant did not immediately disclose to him that he had discharged his firearm. Instead, he said that Thomas was refusing to get out of the SUV. As Officer Alvies was assessing how to remove Thomas from the SUV, defendant told Thomas, “You are not shot, sir. Get out of the car.” Defendant then told Officer Alvies about the accident but failed to mention he had discharged his firearm.

Officer Alvies looked inside the SUV and told Thomas to get out of the vehicle. When Thomas told Officer Alvies he could not get out because he had been shot, Officer Alvies asked, “Who shot you?” In response, Thomas said, “The cop.” Officer Alvies told Thomas that he was not shot by a cop and then walked away. Officer Alvies did not believe Thomas had been shot because he could not see any injuries, as Thomas’s head was “slumped down” toward his chest.

As Thomas was speaking with Officer Alvies, defendant was searching the ground nearby with his flashlight. He never mentioned that he had discharged his firearm. At various times thereafter, defendant searched the ground with his flashlight for the shell casing while the other officers attempted to render assistance to Thomas and Ehorn. At one point, defendant claimed Thomas was “playing coy” when he refused to respond to Officer Alvies, which Officer Alvies interpreted as meaning he was pretending to be hurt. When asked, defendant described the accident to the other officers but, again, did not mention he had discharged his firearm.

Shortly after paramedics arrived, the lead paramedic decided that no further life-saving treatment would be provided to Ehorn. She was pronounced dead at the scene.

As the paramedics attempted to remove Thomas from the SUV, Officer Alvies asked defendant to give him the details about what had happened. Defendant described the accident but, again, did not mention he had discharged his firearm.

After Thomas was removed from the SUV, Officer Alvies noticed that he had a large amount of blood on him and was bleeding. Because Officer Alvies suspected that Thomas had been shot or injured at the bar, he ordered defendant to take over the scene and ordered Officer Ayala to accompany him to the bar. As Officer Alvies was giving these orders, defendant said, “No, no.” He then said, “I had an AD,” meaning an accidental discharge. Defendant explained: “He jumped out of the car. I don’t think I shot him. I wasn’t even pointing at him, but my gun did go off.” Defendant subsequently told Officer Alvies that his firearm had discharged when it was pointed at the SUV but he did not think the bullet had struck Thomas.

Approximately 11 and a half minutes elapsed from the time defendant shot Thomas until he mentioned he had an accidental discharge.

Following the shooting, Thomas was hospitalized for several weeks. The bullet had entered his neck and traveled to his spine, nearly severing his spinal cord. While he was in the hospital, Thomas suffered septic shock, organ failure, peritonitis, and pneumonia. He died on December 19, 2015. A pathologist identified the cause of death as “consequences of [a] gunshot wound to the neck.”

At trial, Sergeant Robert Pickering of the Paradise Police Department testified about the proper handling of firearms, the proper use of force, and defendant’s firearm training.[3] At the time of trial, Sergeant Pickering held multiple training titles: range master, firearms instructor, defensive tactics instructor, and taser instructor. He testified that there are five basic firearm rules which are emphasized to police officers on a regular basis: (1) always assume a firearm is loaded; (2) always know the target and what is behind the target; (3) always keep your finger out of the trigger guard until the target is seen and you are ready to fire; (4) only point your firearm at a target you intend to shoot; and (5) the best safety on any firearm is the shooter.

When asked, Sergeant Pickering explained that the term “indexing” means placing the index finger of the primary shooting hand along the slide of the firearm outside the trigger guard. He noted that the purpose of indexing is to avoid an accidental discharge. He stated: “The purpose is to make sure that when an officer is assessing a threat on whether or not they need to use their sidearm, that . . . the finger doesn’t come off the side of the pistol and go to the trigger, or inside the trigger guard, until the decision has been made that lethal force is reasonable and needs to be used.”

Sergeant Pickering testified that police officers are specifically trained not to point their firearm at a person unless they intend to use it on that person. He further testified that defendant’s firearm had a safety on the trigger, and that it would not have discharged unless defendant actually pulled the trigger. According to Sergeant Pickering, defendant was not required to pull out his firearm for officer safety under the circumstances but noted that it was reasonable for him to have done so. However, Sergeant Pickering stated that shooting an unarmed person under the circumstances was improper, and that defendant did not follow policy when he failed to immediately disclose to his supervisor that he had discharged his firearm.

Sergeant Pickering opined that defendant did not intentionally shoot Thomas. He characterized the shooting as “negligent” because defendant made the mistake of putting his finger on the trigger and pulling the trigger.

When defendant testified, he explained that, after the accident, he got out of his patrol car and heard Ehorn moaning and struggling to breathe. He further explained that, as he approached the SUV, he saw a person quickly trying to get out, which surprised him given the violent nature of the accident. He stated: “Based on the reckless driving beforehand, I had to assume that this person may have been the driver, and was trying to either flee or attack. I didn’t know what their intentions were, so I drew my weapon in attempt to order them to show me their hands and stop. [¶] . . . [¶] Next thing I know, I see a small flash, and my gun is pointed up in the air.”

Although defendant remembered pulling out his firearm and seeing a flash, he claimed that he had no memory of pulling the trigger, the sound of the gun firing, the recoil of the gun, or the smell of gunpowder. He also claimed that he never saw Thomas’s injuries because Thomas was sitting inside the SUV “hunched over.” Defendant noted that he had a small “inkling” that his firearm had discharged, and acknowledged that he did little at the scene other than to look for the shell casing. He explained that he was looking for the shell casing to confirm whether or not he had discharged his firearm. He further explained that he never checked on Ehorn because her injuries were beyond his medical training, he did not want to be vulnerable to an attack by Thomas, and he heard the sirens of approaching medical personnel.

Defendant claimed that when Officer Alvies gave the order for him to “hold the scene” while he and Officer Ayala went to the bar, “it started to click” about what had happened because Officer Ayala believed there was enough evidence to investigate a possible shooting. While he was not 100 percent sure as to whether his firearm had “gone off,” he told Officer Alvies he had an accidental discharge.

Upon viewing the video recording of the shooting, defendant admitted he shot Thomas. He stated, “Thomas didn’t deserve to get shot or die that night. And I still don’t know how or why my finger got [to the trigger] . . . or . . . what happened. It still keeps me up at night.”

Defendant admitted that he was trained to hold his firearm so that his index finger was away from the trigger, and that he could have looked at the magazine to determine whether or not he had fired a shot. He also acknowledged that his firearm would not have discharged unless he firmly pulled the trigger.

Craig Geis, a course director at the California Training Institute,[4] testified for the defense about the effect of stress on perception and behavior. He characterized the shooting as “unintentional” rather than “accidental.” He concluded that the shooting was “unintentional” and “almost an automatic response” “under extreme stress.” Geis opined that defendant’s behavior following the shooting was “irrational,” and his lack of memory about the incident was consistent with his behavior being “an unconscious process.” According to Geis, defendant was under extreme stress, which led to his unintentional discharge and his subsequent irrational behavior.

DISCUSSION

1.0 Alleged Instructional Error

Defendant contends the trial court committed reversible error by modifying CALCRIM No. 581 (Involuntary Manslaughter: Murder Not Charged) in response to a jury inquiry during deliberations. He argues the modification confused the jury, lowered the prosecution’s burden of proof, and obscured the ground(s) upon which the jury based its verdict. Defendant has demonstrated no reversible error.

1.1 Additional Background

At the close of evidence, the parties discussed jury instructions. The prosecutor proposed instructing the jury with a modified version of CALCRIM No. 581, which is the pattern jury instruction on involuntary manslaughter. It begins as follows: “The defendant is charged . . . with involuntary manslaughter [in violation of Penal Code section 192[, subdivision] (b)]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed (a crime/ [or] a lawful act in an unlawful manner); [¶] 2. The defendant committed the (crime/ [or] act) with criminal negligence; [¶] AND [¶] 3. The defendant’s acts caused the death of another person.” (Boldface omitted.)

Because the prosecutor’s theory was that defendant committed a lawful act in an unlawful manner with criminal negligence, the following additional language of CALCRIM No. 581 applied: “[The People . . . allege that the defendant committed the following lawful act[s] with criminal negligence: <insert act[s] alleged>.] [¶] Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. [¶] . . . [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”

Defense counsel requested the trial court instruct the jury with the last three lines of the last optional paragraph of CALCRIM No. 581, which state: “[You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree on which act (he/she) committed.].” In response, the prosecutor explained that he omitted this language from his proposed instruction because there was “basically” only one negligent act—defendant pulling out his firearm, placing his finger on the trigger, and pulling the trigger. The prosecutor argued that the optional language suggested by defense counsel was confusing. The trial court agreed, stating that the language is confusing and inappropriate because it is inconsistent with the People’s theory. Defense counsel conceded the point and the trial court indicated that it would instruct the jury with the modified version of CALCRIM No. 581 submitted by the People.

Thereafter, the trial court instructed the jury orally and in writing pursuant to CALCRIM No. 581 as follows: “The defendant is charged with involuntary manslaughter in violation of Penal Code section 192[, subdivision] (b). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed a lawful act in an unlawful manner; [¶] 2. The defendant committed the act with criminal negligence; [¶] AND 3. The defendant’s acts unlawfully caused the death of another person. [¶] The People allege that the defendant committed the following lawful act with criminal negligence: pulling his firearm and putting his finger on its trigger, and pulling that trigger. Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in this way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”

In addition to instructing the jury with CALCRIM No. 581, the trial court also instructed the jury with a modified version of CALCRIM No. 510 (Excusable Homicide: Accident). The jury was advised that defendant was not guilty of manslaughter “if he killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful if: [¶] 1. The defendant was doing a lawful act in a lawful way; [¶] AND [¶] 2. The defendant was acting with usual and ordinary caution; [¶] A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of manslaughter.” (CALCRIM No. 510.)

In closing argument, the prosecutor argued that the shooting was not an accident but rather the result of defendant’s criminal negligence. In making this argument, the prosecutor emphasized that the lawful act done with criminal negligence was defendant’s “pulling that gun, placing his finger on the trigger and pulling. That is the act.” The prosecutor specifically noted that even if it was lawful for defendant to have pulled out his gun under the circumstances as Sergeant Pickering testified, pulling the trigger was unlawful. The prosecutor explained to the jury that “[t]his is a case about what a reasonable person, an ordinarily careful person would do if faced with the same situation that the defendant faced that night.” He argued that an ordinarily careful person would not have shot Thomas and urged the jury to review the videotape of the shooting carefully because it showed a “[f]luid, quick, decisive criminally negligent act [that] ended [Thomas’s] life . . . .”

Defense counsel conceded in closing argument that the relevant facts were undisputed, and told the jury that their job was to apply the undisputed facts to the law. He argued that this case is about an accident, and that an accident is not a crime. Defense counsel noted that it was the prosecution’s burden to prove that defendant committed a lawful act with criminal negligence, and then discussed the reasonable person standard for determining whether defendant was criminally negligent under the circumstances. He specifically told the jury that the alleged criminal negligence in this case was defendant’s pulling his firearm, placing his finger on the trigger, and pulling the trigger. He asserted that all three components had to be present for the jury to return a guilty verdict. Defense counsel went on to argue that acquittal was appropriate because defendant had the “right” to pull his firearm after the accident and the video recording showed he unintentionally and accidentally shot Thomas, as evidenced by defendant’s shooting Thomas mid-stride and flinching in response to the shot. In support of his contention that the shooting was unintentional and an accident, defense counsel noted that defendant was suffering from extreme stress at the time he discharged his firearm. As evidence of defendant’s extreme stress, defense counsel pointed to the accident, the severity of Ehorn’s injuries, defendant’s irrational behavior after the shooting, and defendant’s poor memory about the shooting. Defense counsel emphasized that the prosecutor was required to prove beyond a reasonable doubt that defendant was criminally negligent (i.e., he acted in a reckless way that created a high risk of death) and argued that the prosecutor failed to meet his burden because he failed to show the shooting was not an accident.

During jury deliberations, the jury sent the following inquiry to the court: “If any of these acts are not criminally negligent, do we have to find the defendant not guilty?” The listed acts were: (1) pulling the firearm; (2) putting finger on trigger; (3) pulling trigger. After reading the inquiry to the parties, the court commented that the jury’s note implicated the optional language requested by defense counsel during the discussion on jury instructions. The court acknowledged that the prosecutor’s theory of guilt was based on one continuous course of conduct but noted that the lawful act the prosecution contended was committed with criminal negligence involved three different things—defendant’s pulling his firearm, putting his finger on the trigger, and pulling that trigger. The court then stated that the last optional paragraph in CALCRIM No. 581 arguably answered the jury’s concerns. That paragraph states: “[The People allege that the defendant committed the following (crime[s]/ [and] lawful act[s] with criminal negligence): <insert alleged predicate acts when multiple acts alleged>. You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree on which act (he/she) committed.]” (CALCRIM No. 581, boldface omitted.)

The prosecutor agreed with the trial court, explaining that the “People’s theory . . . is that this was all one continuous act,” and that “it doesn’t matter as to whether they find one specific act of these three acts were committed with criminal negligence, as long as they all agree on which one was committed w[ith] criminal negligence.” Defense counsel objected, arguing that all three acts are interrelated and the jury must find that the prosecution proved each act to establish guilt. Defense counsel noted that answering the jury’s question in the manner proposed by the trial court would render the instruction on involuntary manslaughter “nonsensical,” and that the inclusion of the language would allow the jury to find that criminal negligence exists if only one of the three acts occurred. The trial court contemplated telling the jury that there was only one act but decided against doing so because it believed such a response might confuse the jury.

The trial court responded to the jury’s inquiry as follows: “You may not find the Defendant guilty unless all of you agree that the People have proved that the Defendant committed at least one of these alleged acts, and you all agree upon which act he committed.”

1.2 Analysis

Defendant contends the trial court’s answer to the jury’s inquiry modified the version of CALCRIM No. 581 the court gave the jury at the close of trial. He argues that the modification was reversible error because it confused the jury and lowered the prosecution’s burden of proof. We disagree. Defendant also contends the alleged error prevented meaningful appellate review by obscuring the ground on which the guilty verdict rested. Because we conclude the supplemental instruction did not confuse the jury or lower the prosecution’s burden of proof, appellant has not demonstrated the need for further examination of the jury’s reasoning.

When a jury asks a question after retiring for deliberation, “[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985.) “nder section 1138 the court must attempt ‘to clear up any instructional confusion expressed by the jury.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) “This means the trial ‘court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.’ ” (People v. Solis (2001) 90 Cal.App.4th 1002, 1015.)

[u] BUTZ , J.

We concur:

ROBIE , Acting P. J.

RENNER , J.