Filed 12/15/17 P. v. Powell CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
DIANTAY POWELL,
Defendant and Appellant.

A149038

(Alameda County
Super. Ct. No. C171602A)


Diantay Powell (appellant) shot and killed two teenage girls during an argument prompted by his attempt to remove them from the car in which they were all riding. He was sentenced to prison for life without the possibility of parole plus 65 years to life after a jury convicted him of first degree murder with a multiple murder special circumstance as to one victim and second degree murder as to the other, and found true allegations he had personally discharged a firearm during the commission of each offense, causing death or great bodily injury. (Pen. Code, §§ 187, 190.2, subd. (a)(3), 12022.53, subd. (d).)
Appellant argues the judgment must be reversed in its entirety because (1) CALCRIM No. 625 improperly suggested the jury could not consider voluntary intoxication in connection with his claim that the killings were voluntary manslaughter based on heat of passion; and (2) the court improperly instructed the jury that the custody status of two prosecution witnesses did not by itself make them more or less believable. He also contends he is entitled to resentencing because a recent amendment giving the court the discretion to strike firearm enhancements in the interests of justice applies to cases not yet final on appeal. We remand the case so the trial court can exercise its discretion in this regard but otherwise affirm.
I. FACTS AND PROCEDURAL HISTORY
In the early morning hours of November 25, 2012, 18-year-old appellant was socializing with his cousin Antonio Edwards and their 16-year-old friend, Quincy Carter. They had consumed cough syrup, Valium and cocaine during the day and appellant may have snorted heroin or cocaine. At some point in the evening, appellant showed Carter a nine millimeter Beretta with a 30-round magazine attached.
Edwards borrowed a Nissan from Albert Rich and at 5:00 a.m., they picked up 16-year old Bobbie Sartain and 15-year-old Raquel Gerstel at a Union 76 gas station in Oakland. The girls sat in the back seat with Carter while appellant sat in the front passenger seat. Edwards drove the group to Brookdale Park and parked on a residential street.
Appellant received a phone call and told Sartain and Gerstel to get out of the car because he needed to go pick up his girlfriend. The girls refused. After a heated verbal argument, appellant got out of the car, opened the rear door on the driver’s side, and pulled Sartain out of the car. Sartain punched or slapped appellant and he knocked her to the ground. Sartain said she was going to call the police.
Gerstel got out of the car and confronted appellant, saying, “Did you just hit my cousin?” Appellant responded, “Bitch, I’ll knock you out too.” Appellant got his gun from the passenger seat and shot Gerstel in the head; she also suffered grazing wounds to the shoulder and buttock and a gunshot wound to the hip. Sartain began to run away, pleading with appellant that she would not tell anyone. Appellant shot her at least a dozen times, emptying the clip of his gun. Both Gerstel and Sartain died of their wounds.
Appellant got back inside the car and Edwards drove to West Oakland. When they returned the car to Rich, Edwards asked Rich if he had seen the news and appellant told Rich he had “domed a bitch,” meaning he had shot a woman in the head. Rich did not believe them at first, but ran an Internet search and learned about the shooting of Gerstel and Sartain. Bothered by the killings, he made an anonymous telephone call to the police and later met with officers.
Phone records revealed contact between Sartain, appellant and Edwards on the day of the shooting. DNA evidence showed that Edwards and Sartain had sex on the day she was shot. Appellant changed his cell phone number a few hours after the shooting and Edwards changed his number the following day. During a text message exchange in which Edwards pointed out the seriousness of the situation, appellant responded, “Think about what I text you you fuck her I kill her so who you think they comeing [sic] to git [sic] me or you?”
Appellant was charged with two counts of murder with firearm enhancements and a multiple murder special circumstance allegation. (§§ 187, 190.2, subd. (a)(3), 12022.5, subd. (a), 12022.53, subds. (b)–(d), (g).) Edwards was charged as a co-defendant with one count of accessory (§ 32), but the charge against him was dismissed before the jury began deliberations.
At trial, the defense did not dispute that appellant had shot Sartain and Gerstel, but sought to show that the killings were second degree murder or voluntary manslaughter rather than first degree murder. Appellant presented the testimony of Dr. Rahn Minagawa, a clinical psychologist, who testified that persons exposed to multiple traumatic events during childhood may exhibit the following: drug abuse, poor decision making, difficulties forming positive attachments or regulating their emotions, and dissociation from trauma and emotion. According to Dr. Minagawa, such individuals may perceive danger when none exists and may react aggressively where aggression is not warranted. The defense also called appellant’s grandmother as a witness, who testified that appellant’s mother had been addicted to drugs and his father had been absent. Appellant had trouble in school, was slow to meet his developmental milestones and had spent time in foster care and group homes. Additionally, when appellant was 13 years old, he was shot several times and still has the scars.
The court gave instructions on first degree premeditated murder, second degree murder and the heat of passion/provocation variant of voluntary manslaughter as a lesser included offense. The court also gave instructions on voluntary intoxication and the effect of a mental disease or defect on elements of the charged offenses. The jury found appellant guilty of the first degree murder of Sartain and the second degree murder of Gerstel, found true allegations under section 12022.53, subdivision (d), and found the multiple-murder special circumstance allegation to be true.
II. DISCUSSION
A. CALCRIM No. 625
The trial court instructed the jury with CALCRIM No. 625, which provided: “You may consider evidence, if any, of defendant Diantay Powell’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [¶] . . . . You may not consider evidence of voluntary intoxication for any other purpose.” Appellant argues the instruction was erroneous to the extent it suggested the jury could not consider voluntary intoxication when assessing his subjective state of mind for heat of passion and voluntary manslaughter. To put the issue in context, we provide an overview of some general principles of homicide law.
First degree murder is an unlawful killing with express malice aforethought, premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation. (Ibid.) Malice may be express (specific intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). (Ibid.) Intoxication or heat of passion may render a killing a second degree murder rather than a first degree murder by negating premeditation and deliberation. (People v. Carasi (2008) 44 Cal.4th 1263, 1306; see People v. Hughes (2002) 27 Cal.4th 287, 342.)
Even when a defendant has the intent to kill or conscious disregard for life, and would otherwise be deemed to have acted with malice aforethought, a homicide may be further reduced to voluntary manslaughter in limited, explicitly defined circumstances that are viewed as negating malice: (1) heat of passion arising from provocation that would cause a reasonable person to react with deadly passion, or (2) an unreasonable but good faith belief in the need to act in self-defense (imperfect self-defense). (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye); People v. Lasko (2000) 23 Cal.4th 101, 107–109.) The heat of passion variant of voluntary manslaughter (the only one at issue in this case) has both a subjective and objective component: (1) the defendant must have killed while actually in the heat of passion induced by the provocation, and (2) the provocative conduct must be such that a reasonable person would have reacted rashly or without due deliberation and reflection. (Moye, supra, 47 Cal.4th at pp. 549–550.) With respect to the objective component, the question is whether “ ‘an average, sober person would be so inflamed that he or she would lose reason and judgment.’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 586; see People v. Steele (2002) 27 Cal.4th 1230, 1253; People v. Oropeza (2007) 151 Cal.App.4th 73, 83 (Oropeza).)
The Legislature has limited a criminal defendant’s ability to use voluntary intoxication evidence as a defense. Section 29.4, subdivision (b), provides, “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (Italics added.) Thus, voluntary intoxication is inadmissible to negate general criminal intent or implied malice. (People v. Timms (2007) 151 Cal.App.4th 1292, 1297.) It is also irrelevant to the objective component of heat of passion/provocation, because the provocation necessary to reduce a killing to voluntary manslaughter is governed by the reasonable person standard. (Oropeza, supra, 151 Cal.App.4th at p. 83.)
The version of CALCRIM No. 625 given in this case correctly informed the jury that intoxication could negate the mental states of premeditation and intent to kill. Appellant argues the instruction was misleading to the extent it precluded the use of such evidence “for any other purpose,” because this suggested intoxication could not be used to determine whether he acted in a heat of passion, and in fact, intoxication is admissible for this purpose. But assuming that a defendant charged with murder may appropriately argue he acted in a heat of passion that was fueled by intoxication, this subjective heat of passion will only reduce a killing from murder to voluntary manslaughter when the provocation is objectively sufficient to provoke a reasonable person. (Oropeza, supra, 151 Cal.App.4th at p. 83.) Such evidence was lacking in this case, and renders harmless any defect in CALCRIM No. 625.
Sartain hit or slapped appellant when he yanked her out of the car, and Gerstel confronted appellant verbally, but neither did anything that would provoke a reasonable person to act out of passion. “ ‘ “A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.” ’ ” (People v. Najera (2006) 138 Cal.App.4th 212, 226.) A defendant may not “ ‘ “set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” [Citation].’ ” (Oropeza, supra, 151 Cal.App.4th at pp. 82–83.) Given the weakness of the evidence concerning the objective component of heat of passion/provocation, the failure to give an instruction explicitly allowing the jury to consider intoxication in connection with the subjective component was harmless under any standard. (See People v. Thomas (2013) 218 Cal.App.4th 630, 642 [failure to instruct on heat of passion implicates federal constitution and must be evaluated under harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 36]; People v. Mendoza (1998) 18 Cal.4th 1114, 1134–1135 [failure to adequately instruct on effect of intoxication was state law error that did not require reversal unless a more favorable result was reasonably probable absent the error, pursuant to People v. Watson (1956) 46 Cal.2d 818, 836].) Reversal is not required.
B. CALCRIM No. 337
Quincy Carter was a friend of appellant’s who was called as a prosecution witness and testified about the events leading up to and including the shooting. Albert Rich was called by the prosecution and testified about incriminating statements made by appellant after the shooting. Both Carter and Rich were taken into custody to secure their presence at trial, and both testified to this fact. Appellant argues the trial court erred by instructing the jury with CALCRIM No. 337: “When Albert Rich and Quincy Carter testified, they were in custody. The fact that a witness is in custody does not by itself make the witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.”
Appellant suggests he was prejudiced by CALCRIM No. 337 because that instruction prevented the jury from considering the custody status of Carter and Rich, when in fact that status was relevant to their credibility. We are not persuaded. The jurors knew why Carter and Rich were in custody—to secure their testimony—and were not told they could not discuss their custody status. (See People v. Mackey (2015) 233 Cal.App.4th 32, 114 [CALCRIM No. 337 did not preclude jury from considering prosecution witness’s felony convictions or status as an accomplice, pursuant to other instructions].) Rather, the jurors were told the mere fact the witnesses were in custody did not, in and of itself, make them more or less believable, and that credibility determinations should be made in accordance with other jury instructions. The court gave CALCRIM No. 226, regarding the factors to consider when evaluating witness credibility.
Appellant argues this case is akin to People v. Williams (1997) 16 Cal.4th 153, 226, in which the court held it was harmless error to give CALJIC No. 2.11.5, which had advised the jury to disregard the reasons another participant in the crime had not been prosecuted: “Defendant correctly observes ‘CALJIC No. 2.11.5. . . should not be given when a nonprosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witness’s credibility.’ ” (Ibid.) CALCRIM No. 337 did not similarly preclude the jury from considering a witness’s custody status, but cautioned merely that such status is not dispositive. This was an accurate statement of the law.
C. Retroactive Effect of Senate Bill 620
On October 11, 2017, the Governor signed Senate Bill 620, which as relevant here, amends section 12022.53 to give the trial court the authority to strike in the interests of justice a firearm enhancement allegation found true under that statute. Effective January 1, 2018, section 12022.53, subdivision (h), is amended to state, “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, 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.” (Stats. 2017, ch. 682, § 2(h).) Prior to this amendment, an enhancement under section 12022.53 was mandatory and could not be stricken in the interests of justice. (See former § 12022.52, subd. (h) (Stats. 2010, ch. 711; People v. Felix (2003) 108 Cal.App.4th 994, 999.)
In a supplemental brief, appellant argues the amendment to section 12022.53 applies to him because his case is not yet final on appeal, citing the rule of In re Estrada (1965) 63 Cal.2d 740, 746. Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Id. at p. 747–748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.) Appellant argues that because his case is not yet final, it must be remanded to the trial court for resentencing under the amended version of section 12022.53, subdivision (h), so the trial court can consider whether to strike one or both firearm enhancements.
The People—correctly—agree the amendment to section 12022.53 is subject to the Estrada rule and should be applied retroactively to cases not final on appeal. But they argue that because the amendment does not become effective until January 1, 2018, the issue is not yet ripe. We disagree. “ ‘A controversy is “ripe” when . . . the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’ ” (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722.) Although the amendment to section 12022.53 is not yet operative, the terms of the amendment are clear and the facts of this case have “sufficiently congealed” to allow a decision on the merits to be made. Less than a month remains until the amendment goes into effect, and this appeal will not be final until after that date. (See Cal. Rules of Court, rules 8.366(b)(1) [Court of Appeal decision final 30 days after filing of decision] and 8.500(e)(1) [petition for review timely if filed within 10 days after decision final in Court of Appeal]; Cal. Rules of Court, rule 8.512(b) & (c) [time limits for grant of review in California Supreme Court]; People v. Vieira (2005) 35 Cal.4th 264, 305–306 [judgment final for purposes of retroactivity analysis when direct appeals have been exhausted and petition for certiorari has been denied in the United States Supreme Court or period for petitioning has expired].) Any remand for resentencing would return the case to the trial court after the effective date of the amendment, and while we could wait until after January 1, 2018, to file our opinion, there is no practical reason to do so.
Turning to the merits of whether a remand is required under the facts of this case, the situation is akin to one in which a trial court misunderstands the scope of its discretion when imposing a sentence. (E.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; see Francis, supra, 71 Cal.2d at p. 79.) “Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) In such cases, the matter must be remanded to allow the trial court to properly exercise its discretion unless doing so would be an “idle act” because “ ‘the record shows the trial court would not have exercised its discretion even if it believed it could do so.’ ” (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
The People argue remand would be an idle act because the trial court would not have stricken either of the firearm enhancements under section 12022.53, subdivision (d). They cite People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, in which the court of appeal concluded a remand was not necessary when the trial court erroneously believed it lacked the discretion to strike a prior conviction under the three strikes law. In that case, however, the trial court stated on the record that it would not, in any event, have exercised such discretion. (Ibid.) The trial court in this case made no comparable finding as to whether the firearm enhancements should be stricken.
The People argue the trial court made several remarks in support of its decision to impose consecutive sentences that demonstrate it would not have stricken the firearm enhancements: (1) the court described appellant’s firearm as “not only” a gun, “but a 9-millimeter with a 30 clip;” (2) the court noted appellant fired 24 bullets and his victims were vulnerable young women; (3) the court stated the crime involved great violence, great bodily injury and a high degree of cruelty and viciousness. These comments explain why the court believed appellant should serve a consecutive term for each murder count, but they do not demonstrate it would have necessarily imposed the additional 25 years to life for the firearm enhancements attached to those counts. (See People v. Deloza (1998) 18 Cal.4th 585, 599–600 [case remanded for resentencing where court understood its discretion to strike a prior conviction under the three strikes law and declined to do so, but did not understand it had discretion to impose concurrent rather than consecutive sentences].) Appellant was only 18 years old at the time of this offense. (See Roper v. Simmons (2005) 543 U.S. 551, 574 [recognizing categorical rule that death penalty cannot be imposed on persons who were under 18 at the time of their offense, but recognizing “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18”].) In addition to reciting the aggravating factors noted above, the court found appellant to be remorseful, noted that he had been intoxicated when the crimes were committed, and observed that the shootings were part of a “cycle of violence” that included an extremely disadvantaged childhood: “[H]e was a dependent of the court at a very young age because he lacked family supervision; his mother was on drugs, his father wasn’t around, and then he came to the streets and started hanging out with young men and women and he started using drugs and the cycle began.”
The amendments effected by Senate Bill 620 allow the court to strike not only firearm use enhancements under section 12022.5 and section 12022.53, subdivision (b), but also enhancements under section 12022.53, subdivisions (c) and (d), which involve the discharge of a firearm and the discharge of a firearm resulting in death or great bodily injury. Thus, while appellant’s crimes were extremely serious, the Legislature has determined that it might be appropriate to strike a firearm enhancement in serious cases. According to the author of the bill, “SB 620 allows a court to use judicial discretion, when applying a firearm sentence enhancement, at the time a person is convicted for committing a felony. This is consistent with other sentence enhancement laws and retains existing sanctions for serious crimes. [¶] Right now these sentences are imposed as a mandate, regardless of the circumstances of a crime. If for some valid reason a court wanted to impose a lesser sentence they cannot. [¶] And these mandates are adding to an already long sentence. The individual is already facing a long sentence as a result of a felony conviction. The mandates make a long sentence longer. [¶] SB 620 provides the court with discretion to strike a firearm enhancement in any case in which that would be in the interests of justice to do so. A defendant who merits additional punishment for the use of a firearm in the commission of a felony would receive it. SB 620 allows a court to decide whether or not to extend the sentence if a specific case indicates that it would be appropriate to do so. [¶] Longer sentences do not deter crime or protect public safety according to research on these laws. [¶] Instead, research has found that these enhancements cause problems. They disproportionately increase racial disparities in prison populations and they greatly increase the population of incarcerated persons. [¶] SB 620 does NOT eliminate these enhancements. Instead, SB 620 allows a judge to exercise discretion on whether or not to make a long sentence longer if it is in the interest of justice.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen Bill No. 620 (2017–2078 Reg. Sess.) Sept. 13, 2017, pp. 4–5.)
We express no opinion as to how the trial court should exercise its newly granted discretion under section 12022.53, subdivision (h), on remand. We conclude only that it is the trial court’s function to exercise this discretion in the first instance.
III. DISPOSITION
The case is remanded for resentencing consistent with the views expressed in this opinion. The judgment is otherwise affirmed.
 

NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.









(A149038)