Filed 9/10/18 P. v. Walton CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Michael Simlee Walton guilty of the murder of one victim, the attempted murder of a second victim, assault with a gun on three other victims, being a felon in possession of a gun, and receiving stolen property (the gun). The jury further found true a host of gun enhancements. The trial court sustained a recidivist allegation that the prosecution later dismissed. It sentenced him to state prison for a determinate term of 26-plus years and a consecutive minimum indeterminate life term of 65 years.

Defendant filed his notice of appeal in October 2012. The briefing originally was completed in February 2014; supplemental briefing was completed in June 2017 and February 2018. The panel as presently constituted was assigned this matter in July 2018.

On appeal, defendant contends the evidence is insufficient to sustain the burden of the prosecution with respect to disproving his theories of self-defense, imperfect self-defense, and heat of passion. He also contends pattern instructions with regard to the defense theories are flawed. In defendant’s supplemental briefing, the People agree that he is entitled to additional presentence custody credits and the amendment of the abstract of judgment (although we find the latter moot); defendant also contends he is entitled to the benefit of the recent amendments to gun enhancement statutes under which the trial court can now consider whether his violent course of conduct warrants the exercise of its discretion to dismiss them. Although we are mindful of scarce judicial resources, the trial court in selecting the most severe punishments available did not expressly make any remarks from which we can discern that a remand to consider this new discretion would be an exercise in futility.[1] We therefore will affirm the judgment, and must remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

We are presented with a slew of extraneous details in the briefing about the circumstances underlying the convictions. We limit our account to the facts necessary to resolve the contentions on appeal.

A pair of renters just north of Grant High School were in the practice of hosting “after hours” parties at their house, soliciting contributions toward the costs of the events. A couple who were friends of theirs assisted with the hosting (the husband, A.B., often acting as the security guard). A disc jockey played music in the garage. Defendant met one of the roommates, Q.W., when he opened an account at a bank where the latter worked, who afterward sent e‑mailed invitations to him to the events. Several friends of the household noted that defendant had been a problematic guest at previous events with his rude behavior and demand for free admission and drinks.

In April 2011, the hosts scheduled an event to honor the birthday of one of their friends. On this occasion, A.B. was again assisting with the task of security, aided by his wife, M.B. Within the first hour, the honoree and defendant had a quarrel. The honoree demanded that defendant be ejected from the party (who was at that point walking toward the door into the garage). The other renter—L.G.—took defendant by the arm in the garage and asked him to go outside with him; defendant demanded to talk to Q.W. Q.W. joined them in the garage with A.B., whom he had told it would be okay to eject defendant, along with the attempted murder victim (who was another acquaintance of the renters). A.B. confronted defendant, demanding that he leave. There were about 60 to 70 people in the garage at that time, which was dimly lit and had a loud noise level. A.B. testified that defendant threw a punch at them first, and A.B. responded in kind. (The attempted murder victim—William S.—testified that it was A.B. who took the first swing.) Defendant and Q.W. fell together onto a sofa. Q.W. was trying to shield defendant from attack, and was not conscious of any blows. However, other witnesses saw people with Q.W. throwing punches at defendant and kicking him. A.B. acknowledged beating defendant, whom he said did not defend himself. Another witness said defendant was fighting back.

Q.W. heard gunfire, got up, and ran off. He did not actually see defendant firing a gun. The other renter, L.G., also saw gunfire but not any gun, although he saw defendant aiming a gun around the room after the gunfire ceased. A.B. said that he saw gunfire immediately after defendant fell (his search of defendant at the door apparently not having been effective), but did not see the gun. He fled into the house with the crowd. William S. did not actually see the gun in defendant’s hand. He felt the impact of bullets, ran into the house and out the front door, where he fell on the grass. He had been shot three times in the torso.

Witnesses did see defendant pull a gun and begin firing it, aiming toward the door to the house where people were trying to flee. Defendant did not appear to be aiming at anyone in particular, and was simply firing into the crowd. Many in the crowd tried to flee back into the house as he fired at them; L.G. opened the garage door, and people scattered out through it. Defendant stood for a moment and proclaimed that he was member of a gang, not a punk, and then left the garage.

The murder victim, Christopher Milas, was found lying on his back in the garage, bleeding from his torso. Although he could blink his eyes at the time, he was nonresponsive in the ambulance. Upon arriving at the hospital, he was pronounced dead. One of the assault victims had seen fists flying (without recalling any particular details) and then heard gunshots. He was shot in the ankle. He stepped over the body of the murder victim, who had been standing next to him, and fled into the house. He was able to drive himself to the hospital. Another assault victim saw defendant begin firing after he had been pushed down and A.B. and William S. had begun to beat him. This victim fled toward the door to the house when defendant began to shoot. A bullet hit him in the wrist. The third assault victim was unaware of the fight, but joined in the rush into the house when she heard gunfire. She felt an impact in her back akin to being kicked. She had a gunshot wound in her lower back.

In a police interview on the following day, defendant said the birthday honoree was confrontational with him without any cause and encouraged people to eject him from the party. People had been hostile to him at these gatherings before without any cause. In the garage, he was punched and fell to the ground, at which point he heard gunfire. He denied being the shooter. He did not complain of any injury other than a lump on the back of his head, and his interviewer did not notice any visible injuries.

Defendant testified at trial. He again acknowledged that he was attending an event for the fourth time where many people disliked him because both he and his girlfriend were attractive to the women guests, and A.B. had previously challenged him (falsely) about bringing his own alcohol with him. He again asserted that the birthday honoree had been spontaneously hostile toward him and demanded that he leave the party. The other renter L.G. guided defendant away from her, saying that she was in a drunken rage. Defendant found himself in the garage. A.B. confronted him and told him to leave the party. Q.W. approached defendant with another person; L.G. joined them. More people joined the circle, including a man with a knife in his hand. Someone hit defendant in the back of his head, and he fell to the ground with Q.W. People were punching and kicking him; he thought they were going to beat him to death. In order to defend himself, he reached for his gun. He started to fire it without the intention of killing anyone. He did not fire at the fleeing crowd or aim at anyone in particular.

DISCUSSION

1.0 The Evidence Is Sufficient to Support the Verdicts

Essentially asking that we reweigh the evidence, defendant contends the People did not carry their burden to disprove justification through self-defense, or the absence of a state of mind (“imperfect” self-defense or heat of passion) that precludes malice as a matter of law. (People v. Rios (2000) 23 Cal.4th 450, 462; People v. Banks (1976) 67 Cal.App.3d 379, 384.) We disagree.

When viewed in favor of the verdicts, defendant had made himself unwelcome at previous events, a fact of which he was aware, and yet he returned armed with a gun. Rather than accede to reasonable requests to leave, he asserted his intention to remain and threw a punch at those trying to eject him. When two of the renters’ compatriots started to beat him, defendant was quick to pull out the gun and fire around him in the dark and crowded garage at fleeing partygoers before he received any serious blows (and while Q.W. was still trying to shield him from Q.W.’s compatriots). He then took the time to declare to those still present that he was not some mere “punk” with whom they could trifle. This is more than sufficient for a reasonable jury to find that defendant had intended to come to the event ready to answer any further lack of respect toward him with deadly force, rather than his self-serving claims of a perceived need to defend himself with deadly force (whether reasonable or not) or being reasonably provoked. (See, e.g., People v. Holt (1944) 25 Cal.2d 59, 67; People v. Johnston (2003) 113 Cal.App.4th 1299, 1310-1313 [both making the point that a defendant spoiling for a fight who creates an antagonistic atmosphere is not entitled to these defenses].) We do not need to parse down the overall picture into the individual tidbits on which defendant focuses in his arguments, so we will not belabor the point further.

2.0 The Pattern Instruction on Self-Defense Is Not Erroneous

Focusing on the phrase in the pattern instruction that explains self-defense is available if a defendant “used no more force than was reasonably necessary to defend against that danger” (CALCRIM No. 505, par. 3), defendant contends this incorrectly focuses the jury on the amount of force reasonably necessary to defend against the actual danger rather than the amount of force reasonably necessary to defend against the danger as defendant subjectively perceived it. (Defendant appears also to suggest that the amount of force used in response to the perceived threat is not gauged under an objective standard, but does not provide authority for this proposition.) This is a typical instructional challenge that ignores the overall context of the charge as a whole.

Under federal and state law, a defendant must establish the reasonable likelihood that a reasonable juror would have interpreted an instruction erroneously. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316]; People v. Williams (2013) 56 Cal.4th 630, 688; People v. Cross (2008) 45 Cal.4th 58, 67-68 (Cross).) If we find ambiguity in an instruction, we then consider arguments of counsel to determine how the jury may have interpreted it. (Middleton v. McNeil (2004) 541 U.S. 433, 438 [158 L.Ed.2d 701]; People v. Kelly (1992) 1 Cal.4th 495, 526-527; People v. Cuevas (2001) 89 Cal.App.4th 689, 699.) We are not concerned with meanings that can conceivably be “teased out” of an instruction. (People v. Avena (1996) 13 Cal.4th 394, 417.)

The phrase defendant extracts from the instruction as a whole includes a reference to an antecedent danger (“that danger” (CALCRIM No. 505, par. 3)). The two prior clauses emphasize the objective component of the defense, a reasonable belief of an imminent danger of death or great bodily injury, and a reasonable belief in the need to use deadly force against this danger. The instruction thereafter shifts to the need for a defendant to have an actual belief of imminent danger of death or great bodily injury, using only the degree of force in response that a reasonable person believes is necessary in light of the facts “as they . . . appeared to the defendant” (ibid., 5th par.); most importantly, the instruction specifically explains, “[i]f the defendant’s beliefs were reasonable, the danger does not need to have actually existed” (ibid., 4th par., italics added).

Defendant quotes language from a former pattern instruction to “demonstrate[] the flaw” in the current instruction: In exercising the right to self-defense, a defendant “ ‘may use all force and means which [the defendant] believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury [that] appears to be imminent.’ ” (Quoting CALJIC No. 5.30.) We do not discern any meaningful distinction between this and the current instruction.

We therefore do not perceive, as defendant posits, how a reasonable juror would feel preclosed from finding that defendant was entitled to claim self-defense in his use of deadly force if he actually and reasonably believed he was at risk of death or great bodily injury even if he were not in fact at such a risk. Certainly nothing in the argument of the People would convey that idea. The prosecutor argued that gunfire was an unreasonable response to an attack with hands and feet that did not inflict any serious injuries, and that defendant did not really believe he was in danger of death or great bodily injury as the result of such an attack. It is therefore not any fault in the instructions that led the jury to reject his far-fetched claim of self-defense on the evidence in this case.

3.0 The Pattern Instruction on Mutual Combat or Instigation and Self-Defense Was Not Prejudicial in any Respect

Although defendant suggests that the pattern instruction (CALCRIM No. 3471) on the right to self-defense in the context of mutual combat or when instigating a fight does not correctly state the law, he does not provide any argument in support of this offhand assertion that specifies the legal error, and we deem it forfeited. In point of fact, his actual premise is that the evidence did not warrant the instruction.

Even if defendant were correct that the evidence in this case was insufficient to support the instruction with respect to mutual combat (he does not provide any argument why the evidence is insufficient to warrant an instruction on instigation), at worst it was superfluous and immaterial in the face of strong evidence of guilt, and accordingly not a basis for reversing the judgment. (Cross, supra, 45 Cal.4th at p. 67; People v. Jackson (1996) 13 Cal.4th 1164, 1225; People v. Guiton (1993) 4 Cal.4th 1116, 1130.) We thus reject this argument.

4.0 The Pattern Instruction on Contrived Self-defense Was Both Correct and Warranted

The jury received the pattern instruction that “A person does not have the right to self-defense if he . . . provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.) Utterly ignoring his failure to comply peaceably with the request of his hosts that he leave their event and the testimony of at least one witness that he threw the first blow, defendant contends the evidence is insufficient to demonstrate that he provoked any fight or quarrel other than with people not involved in the garage fight. He also appears to contend that the instruction is an incorrect statement of law in the context of the use of deadly force in self-defense, because it is too general a statement of the entire escalation waltz under which a provocateur who had initially intended only to create an excuse for ordinary force is then justified in using deadly force if the magnitude of the victim’s response warrants it.[2]

We reject his assertion that the evidence did not support this instruction out of hand. He refused the reasonable request to leave the renters’ property, which cannot under any circumstance help but lead to efforts of forcible ejectment, and there was some evidence that he was the first to resort to violence in this situation. Whether his conduct was intended to provoke the opportunity to use some kind of force was thus called into issue on this evidence.

As for his claim the instruction is erroneous because it does not fully set out the entire sequence under which an aggressor can regain the right to use deadly force, the instruction itself correctly states the general principle. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1334; see In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) This instruction “might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force.” (Eulian, supra, at p. 1334.) However, as the People point out, this very concept is included in the instruction regarding mutual combat or instigation: “[I]f the defendant used only nondeadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting or communicate a desire to stop to the opponent, or give the opponent a chance to stop fighting.” We assume jurors are intelligent and capable of correlating the instructions as a whole. (People v. White (1987) 188 Cal.App.3d 1128, 1138-1139.)

It is true that in People v. Ramirez (2015) 233 Cal.App.4th 940 (a case neither party cites), a divided court concluded the combined instructions did not cure the failure to modify the contrived self-defense instruction itself (the court apparently departing from the ordinary rule that modification of pattern instructions must be requested (People v. Lee (2011) 51 Cal.4th 620, 638)). However, in Ramirez, the prosecutor had made the improper argument that this instruction precluded self-defense even if the defendant had intended only to provoke a fistfight but encountered deadly force. (Ramirez, supra, at pp. 943, 945-946.) The prosecutor also improperly argued that the language of the contrived self-defense instruction made the supplementing language in the mutual combat instruction regarding an unanticipated response of deadly force inapplicable. (Id. at p. 950.) Finally, the case is distinguishable on its facts, in that there was evidence the defendant intended only a fistfight, whereas in the present case the evidence pointed to defendant’s intent to inflict deadly force in bringing a gun to a party and quickly responding with deadly force after a series of blows that did not leave any significant injury. We therefore reject defendant’s argument.

5.0 Custody Credits and Correction of the Abstract of Judgment

Following the death of defendant’s original attorney on appeal, substituted counsel filed supplemental briefing in which he noted that defendant did not receive any custody credit for the 538 days spent in jail before sentencing (admitting that he is not entitled to any conduct credits in light of his offenses). The People concede that the trial court overlooked the probation report’s calculation of custody credits in its rendition of judgment. On remand, the trial court shall award the custody credits.

Defendant also contends the abstract of judgment misidentifies the statutory basis for one of the gun enhancements. The People concede the error. As the matter must be remanded for reconsideration of whether to strike the various enhancements, the point is moot until resentencing.

6.0 The Matter Must Be Remanded for Reconsideration of the Sentence

While this appeal was pending in this court, the Legislature amended the firearm enhancements in Penal Code sections 12022.5 and 12022.53 to grant discretion to the trial court in sentencing to dismiss the enhancements in the interests of justice, effective January 1, 2018. Defendant’s homicide convictions are enhanced pursuant to the latter statute; his assault convictions are enhanced pursuant to the former.

The People concede, in light of the uniform body of law considering these two amendments, that they apply retroactively to any case still pending on appeal. (E.g., People v. Woods (2018) 19 Cal.App.5th 1080.) They contend, however, that a remand for the trial court to exercise this newly awarded discretion would be an idle act.

The discretion to be exercised is for the trial court in the first instance and thus it is not for this court to review the record and guess the manner in which the trial court will act. (Collateral Loan and Secondhand Dealers Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1041, fn. 7.) Although there are circumstances in which the trial court has telegraphed that it would turn a jaundiced eye on an exercise of its discretion in the interests of justice (e.g., People v. McVey (2018) 24 Cal.App.5th 405, 418-419, petn. for review pending, petn. filed Jul. 13, 2018, time for grant or denial of review extended to Oct. 11, 2018, S249930), it is conceivable in the present case—where the trial court acknowledged defendant’s youth as a mitigating factor—that it might find the sentence for the underlying substantive offense and fewer than all of the enhancements to be sufficient, given the lack of any express declarations that it would not exercise such discretion even if it possessed it at that time or “pointed comments” to equivalent effect (McVey, at p. 419). We shall thus remand the matter, at which time the trial court can grant the proper amount of custody credit and correct any errors in the abstract of judgment.

DISPOSITION

The judgment of conviction is affirmed and the sentence vacated. The matter is remanded to the trial court to decide whether to exercise its discretion to strike any or all of defendant’s gun enhancements and resentence him accordingly, making corrections in its original judgment and abstract as we have identified above.

BUTZ , J.

We concur:

RAYE , P. J.

MAURO , J.