Filed 11/14/18 P. v. Weaver CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. LOYCE WEAVER, Defendant and Appellant.

H043497 (Santa Clara County Super. Ct. No. C1481216)

Defendant Loyce Weaver fired a gun multiple times toward a group of people in a parking lot, killing one of them, and was convicted of first degree murder. Defendant contends there was insufficient evidence to support his conviction and that the jury was instructed incorrectly. He also contends the trial court erred by not allowing him to present evidence about gangs to bolster his testimony that he shot to defend against a perceived attack by gang members. He alternatively argues the case should be remanded for resentencing because the enhancement imposed for using a firearm is no longer mandatory after a recent statutory amendment. We find no error but will remand for resentencing to allow the trial court to exercise its discretion as to the firearm enhancement.

• I. BACKGROUND

On a January evening in 2014, 19-year-old Jesus Granados went to a party at a hotel in Milpitas. Defendant went to the same hotel, for a different reason: to meet with an acquaintance who wanted to buy his car. Granados crossed paths with defendant in the parking lot around 10:30 p.m., and defendant shot and killed him. Defendant admitted firing the fatal shot, but said he did so because he feared for his life. He was charged with first degree murder.

At trial, several of the partygoers described the events leading up to the shooting. An argument between two men at the party turned into a physical fight, which spilled into the hotel parking lot. A group of five or six people, including Granados, were in the parking lot watching the altercation. As the fight ended, a black BMW with four people in it passed near the group. One of the partygoers remembered Granados hitting the window of the car and saying, “[w]hat’s up?” Another recalled that Granados said, “[w]hat the fuck, Bitch?” The car stopped. Defendant got out of the front passenger side, pulled a handgun, and shot several times in the direction of the partygoers. One of the bullets struck Granados in the back of the neck, killing him.

Defendant got back in the car, and was driven to San Francisco. The acquaintance (who was in the car at the time of the shooting) testified under a grant of immunity. He said there was no justification for the killing, and that afterward defendant stated, “[m]otherfuckers shouldn’t be looking at me like that, all funny.”

Defendant also testified. He said that when he arrived at the hotel he saw what he believed to be gang members coming and going. He assumed they were gang members because they wore red clothing, they were all Hispanic, and some of them had tattoos on their faces. Later while in the car, he saw the fight in the parking lot. He testified that “they looked like gang members to me,” because of “the red clothing, all the tattoos,” and “the demeanor of the whole situation.” He explained that he had seen gangs and gang fights before, and that growing up “we didn’t live in the best neighborhoods; so I mean, your neighbors are gang members … the person you sit next to at school is a gang member.” According to defendant, the people he believed to be gang members aggressively advanced toward his car and began hitting it. Defendant jumped out of the car “intending to find out what the problem was,” and saw something shiny in the hand of one of them, which he thought was “a blade or possible ice pick or screwdriver.” Defendant was “really scared” and “just reacted to the situation,” when he shot the gun. He shot because “these guys looked like gang members and they had a possible weapon.”

The trial court ruled in limine that no evidence relating to gangs would be presented other than defendant’s testimony. In granting a prosecution motion to exclude evidence regarding the victim’s gang ties, the trial court ruled that while defendant could testify about his own perception of the situation, “it would be far more prejudicial than probative to be going into whether this was a gang fight and the victim was a gang member,” and therefore further evidence about gangs was not admissible. The court noted it would consider revisiting the issue during trial if additional foundational evidence suggesting gang affiliation was introduced.

The jury found defendant guilty of first degree murder (Pen. Code, § 187), and found true that he personally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)). The trial court sentenced him to 25 years to life in prison consecutive to 25 years to life for the firearm enhancement.

• II. DISCUSSION

1. Sufficient Evidence of Premeditation

Defendant contends there was insufficient evidence that he killed Granados with premeditation and deliberation, a necessary element for first degree murder as charged. A killing is premeditated and deliberate if it is the result of thought and reflection rather than unconsidered impulse. (People v. Stitely (2005) 35 Cal.4th 514, 543.) Premeditation means “thought over in advance,” and deliberation refers to “careful weighing of considerations in forming a course of action.” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Nonetheless, “ ‘ “[p]remeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th 792, 812.) And evidence suggesting a killing was committed out of rage does not preclude an inference of premeditation. (People v. Thomas (1992) 2 Cal.4th 489, 518.) In deciding whether there was sufficient evidence of premeditation and deliberation, we review the record in the light most favorable to the verdict to determine if it contains evidence that is reasonable, credible, and of solid value from which the jury could find as it did. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) The testimony of a single witness is ordinarily enough to uphold the judgment, even if contradicted by other evidence in the record. (People v. Leigh (1985) 168 Cal.App.3d 217, 221.)

The prosecution’s theory was that defendant was so angered by the way the victim acted that, after momentary deliberation, he decided to shoot with the intention to kill the victim or someone in the group. Sufficient evidence in the record supports that theory: Though there was little time between the initial confrontation and when defendant pulled the trigger, it was long enough for him to weigh the consequences of his actions and make a calculated decision. As the prosecutor pointed out in closing argument, defendant had to get out of the car and take the gun out of his pocket before shooting. And one person in the car testified that defendant said he shot at the partygoers because of the way they were looking at him, which supports a deliberate act.

Based on other evidence, the jury could have reached a different conclusion––that defendant acted on impulse, or from an actual or perceived need to defend himself. Defendant testified he feared for his life and “just reacted” to a perceived threat when he fired. That his testimony would have supported a different conclusion does not render the competing evidence insufficient. Despite conflicting evidence regarding premeditation and deliberation, there was enough to support the verdict.

2. Exclusion of Gang Evidence and Ineffective Assistance of Counsel

Before trial, the prosecution moved to exclude all evidence of the “victim’s reported gang ties.” Defense counsel argued in opposition that the defense did not intend to present evidence that the victim was in fact a gang member, but only whether the appearance of the victim and others in the group––for instance, the color and type of clothing they wore––was consistent with gang membership, which was relevant to the self-defense theory. The trial court ruled that defendant could testify about his own perception of the situation, but no other evidence regarding gangs would be allowed because it would be substantially more prejudicial than probative.

The Attorney General urges that defendant forfeited an appellate challenge to the in limine ruling because the trial court described it as a “preliminary ruling” based on a lack of evidence of the victim’s gang membership and defense counsel never asked the court to revisit the decision. In his briefing, defendant contended the issue was not forfeited and, alternatively, that if it was, trial counsel was ineffective for not raising the issue again during trial. But at oral argument, defendant’s counsel conceded forfeiture. We will therefore assume (without deciding) that the issue was forfeited and will determine whether trial counsel’s failure to renew the request to introduce gang evidence after foundational facts were presented constituted ineffective assistance.

1. Standard of Review

The defendant bears the burden of showing trial counsel’s performance was so deficient that it violated the right to an attorney guaranteed by the Constitution of the United States and the California Constitution. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Two elements are required to make such a showing: (1) performance falling below an objective standard of reasonableness; and (2) a reasonable probability that but for counsel’s deficient performance, the result of the trial would have been more favorable. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) The United States Supreme Court has instructed that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697.) We follow that approach here.

2. Prejudice

The prejudice element of an ineffective assistance of counsel claim requires proof of a “demonstrable reality and not a speculative matter.” (People v. Mesa, supra, 144 Cal.App.4th 1000, 1007.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (Id. at p. 1008.) “In making this determination, a court … must consider the totality of the evidence ... . Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (Strickland v. Washington, supra, 466 U.S. 668, 695–696.)

To determine whether it is reasonably probable that defendant would have obtained a better result here, we consider several possible outcomes more favorable than a first degree murder conviction: an acquittal (based on self-defense); a conviction for voluntary manslaughter (based on imperfect self-defense); and a mistrial due to even a single juror unable to agree on a verdict. (See People v. Soojian (2010) 190 Cal.App.4th 491, 521 [A hung jury is a more favorable result than a guilty verdict].)

The jury was instructed on both self-defense and imperfect self-defense. A killing committed in self-defense is justified, making self-defense a complete defense to a murder charge. (People v. Elmore (2014) 59 Cal.4th 121, 133–134.) A person acts in self-defense when he or she believes the use of deadly force is necessary to avert an imminent threat of death or great bodily injury, and the belief is objectively reasonable under the circumstances. (Id. at p. 134.) Where a person actually believes killing is necessary to avoid imminent death or great bodily injury but the belief is unreasonable, he or she is said to act in “imperfect self-defense.” (Id. at pp. 129–130.) A killing committed in imperfect self-defense is still a crime; but it is the lesser crime of voluntary manslaughter, not murder. (People v. Barton (1995) 12 Cal.4th 186, 200.) That is because one who acts with an honest, although unreasonable, belief his or her life is in danger does not act with the malice required for murder. (People v. Elmore, supra, 59 Cal.4th at p. 134.) In deciding whether defendant believed his life was in danger and whether that belief was reasonable, the jury was instructed to “consider all the circumstances as they were known to and appeared to the defendant.” (CALCRIM Nos. 505, 571.)

On this record, we have little difficulty finding no reasonable probability of acquittal had the gang testimony been allowed. Self-defense requires that the belief in the need for deadly force be objectively reasonable. Even if evidence had been admitted to support defendant’s asserted belief he was confronted by gang members––and even if the jury believed defendant’s testimony that someone in the group had a weapon––no rational jury would find it objectively reasonable to get out of the car and immediately fire multiple gunshots at the group, gang members or not. Defendant’s conduct was entirely unreasonable, even considering the excluded evidence.

It is a closer question, however, whether the jury (or at least one juror) could find facts amounting to imperfect self-defense. Deciding that defendant acted unreasonably would not preclude a verdict of voluntary manslaughter, as imperfect self-defense requires only that defendant subjectively believed his life was in danger, even if a reasonable person would not feel the same way. Given that standard, we acknowledge the importance of the excluded evidence: defendant said the group aggressively approached him; expert testimony about appearances of the group being consistent with gang membership could have helped the jury understand why defendant perceived the people to be gang members. The evidence would have supported defendant’s testimony that he genuinely believed his life was in danger. (See, e.g., People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 757.) Defendant’s credibility is crucial to determining prejudice here: had the jury believed his testimony that he feared for his life, he would not have been convicted of murder.

But defendant’s own testimony and prior statements undermine his claim that he genuinely believed his life was in danger. Though he testified he recognized the group to be gang members when he passed by in the car, and that they began to hit the car and act aggressively, he also stated that he then opened the car door and got out. Whether he got out seeking a confrontation (as the prosecution suggested) or merely to “find out what the problem was” (as defendant testified), leaving the relative safety of the car is patently inconsistent with fearing for his life. When interviewed by police after his arrest, defendant never mentioned shooting out of fear of a confrontation with gang members, further weakening his trial testimony on that point.

Considering the inconsistencies in defendant’s own testimony regarding his subjective fear, the evidence supporting the imperfect self-defense theory is relatively weak. Still, we acknowledge that the gang evidence might have assisted defendant and might have made a difference in the outcome of the trial. It is possible at least one juror could have viewed more favorably defendant’s claim that he feared for his life had evidence corroborating his perception of the group as gang members been admitted. But we are mindful of the limits of our reviewing role and that the possibility of a different result is not sufficient to establish ineffective assistance of counsel. We can reverse a judgment on the basis of ineffective assistance only where it is reasonably probable a more favorable result would have occurred. “Reasonably probable” has a particular meaning in this context: it does not mean “more likely than not,” but rather “a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. 668, 693–694.) After reviewing the entire record and considering the strength of the evidence against defendant, the possibility of a different result––while perceptible––is not so great as to undermine our confidence in the jury’s verdict. Finding no prejudice, we reject defendant’s ineffective assistance of counsel claim.

3. Jury Instructions

Defendant contends the trial court erred by giving certain jury instructions that, although correct statements of law, do not apply to the facts of this case. A trial court should give a requested instruction only when it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39.) Theories that are unsupported by the facts should not be presented to the jury. (Id. at pp. 39–40)

At the prosecution’s request, the trial court instructed the jury regarding the limitation on the right to self-defense for a defendant who engaged in mutual combat (CALCRIM No. 3471). The instruction states that a person who engages in mutual combat or starts a fight has a right to self-defense only if he or she first tries to stop fighting; indicates that to the opponent; and then gives the opponent a chance to stop fighting. Defendant argues it was error to give such an instruction in this case because there was no evidence of mutual combat. He notes that when asking for the instruction, the prosecutor conceded that defendant and the victim were not engaged in combat at the time of the homicide.

The mutual combat instruction (which also applies when a defendant is the initial aggressor in a fight, whether it is mutual or not) does not appear well-suited to the facts of this case, as there was no physical fight involving defendant that preceded the shooting. But we need not and do not decide whether it was error to give the instruction because even assuming error, defendant was not prejudiced. The instruction applies to self-defense, which can be found only when a defendant’s conduct is objectively reasonable. As we have discussed, on this record no rational jury would have found defendant’s conduct reasonable. Even if the mutual combat instruction had not been given, defendant’s self-defense theory would not succeed.

Defendant also contends the jury was incorrectly instructed regarding imperfect self-defense (a theory that does not require him to have acted reasonably). He argues that the court should not have given the following portion of the imperfect self-defense instruction (CALCRIM No. 571) because it was not supported by substantial evidence: “Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary’s use of force.” That language is designed to instruct the jury that imperfect self-defense “cannot be invoked by a defendant whose own wrongful conduct created [] circumstances in which the adversary's attack was legally justified.” (People v. Enraca (2012) 53 Cal.4th 735, 761.) And there is substantial evidence to support that principle: a witness who was standing next to the victim testified that defendant’s car passed by (almost striking the victim) and, absent any provocation, “that’s when I seen him stop, that’s when I saw the guy getting [out of] the car from the passenger seat, and then he started––he just came out, stand up and put the gun on us.” The jury could have determined that defendant getting out of the car and pulling a gun was an initial threatening act that justified some responsive conduct by the victim (or his group) which defendant perceived to require a deadly response.

While the facts were in dispute regarding what led to the confrontation, there is evidence to support a theory that defendant was the initial aggressor. If the jury decided he was not, and the “own wrongful conduct” principle therefore did not apply, the jury could disregard it. The trial court instructed the jury, “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I’m suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” We assume the jury complied with those instructions. (People v. Thornton (2007) 41 Cal.4th 391, 441.) The trial court did not err by instructing that defendant could not rely on imperfect self-defense if his own conduct created a need for the victim to respond with force.

4. Resentencing on Firearm Enhancement

In supplemental briefing, defendant asks that we remand his case for resentencing on the enhancement for personal use of a firearm causing death (Pen. Code, § 12022.53, subd. (d)) based on Senate Bill 620 (Stats. 2017, ch. 682, § 2), which amended Penal Code section 12022.53 to give the trial court discretion to strike a firearm enhancement in the interest of justice. (See Pen. Code, § 12022.53, subd. (h).) The amendment was not effective until after he was sentenced, but it applies here because defendant’s case is not yet final. (People v. Robbins (2018) 19 Cal.App.5th 660, 679.) We agree that remand is appropriate to allow the trial court to exercise its newly conferred discretion on this issue. We will therefore reverse the judgment and remand the case to the trial court for the limited purpose of determining whether to strike, dismiss, or impose the Penal Code section 12022.53, subdivision (d) sentencing enhancement.

• III. DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions to exercise its discretion regarding the imposition of the Penal Code section 12022.53, subdivision (d) sentencing enhancement. If the court decides the enhancement should be imposed, it shall reinstate defendant’s original sentence. If the court decides the enhancement should be stricken or dismissed, it shall resentence defendant accordingly, and transmit an amended abstract of judgment to the Department of Corrections and Rehabilitation.