Filed 10/12/18 P. v. Cdebaca CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed in part, reversed in part, and remanded with instructions.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Cynthia Kaye Cdebaca of first degree murder (Pen. Code, § 187, subd. (a); count 1)[1] for shooting her abusive son-in-law (G.E.) 15 times and killing him. The jury also found Cdebaca personally and intentionally discharged a firearm (a handgun) proximately causing G.E.'s death (§ 12022.53, subds. (a)(1), (d)). The court sentenced Cdebaca to a total term of 50 years to life based upon an indeterminate term of 25 years to life for the first degree murder conviction plus a consecutive term of 25 years to life for the gun enhancement allegation.

Cdebaca contends on appeal (1) the prosecutor engaged in prejudicial misconduct by misstating the provocation standard for manslaughter, (2) the court failed to fulfill its obligation to properly instruct the jury in response to questions requesting clarification of the standards for provocation because it did not tell the jury the prosecutor misstated the provocation standard for manslaughter, and (3) the matter should be remanded for resentencing to allow the court to consider striking the firearm enhancement in light of the recent amendment to section 12022.53, subdivision (h). The People concede the prosecutor misstated the provocation standard for manslaughter, but contend the error was harmless and the court properly responded to the jury's questions. The People also concede the third contention.

This is a tragic case in which a mother and grandmother killed her son-in-law after witnessing years of domestic violence against her family members. However, we conclude the prosecutorial misstatement was harmless considering the court's instructions to the jury in response to objections, the jury's careful consideration of the issues, and the evidence of premeditation supporting the jury's finding of first degree murder. The court properly responded to jury questions and clarified a subjective standard applies when considering whether provocation existed to reduce murder from first to second degree whereas an objective standard applies to reduce murder to voluntary manslaughter. (People v. Jones (2014) 223 Cal.App.4th 995, 1000–1001 (Jones).)

Given the People's concession on the third issue, we remand the matter to the trial court for the limited purpose of exercising its discretion under section 12022.53, subdivision (h), to consider striking the firearm enhancement. We affirm the judgment in all other respects.

BACKGROUND

A

A year after her husband died, Cdebaca suffered a stroke in September 2001. Thereafter, Cdebaca lived with her daughter (L.S.) and son-in-law G.E. intermittently between visiting other family members. Cdebaca lived in an apartment they referred to as a granny flat above a detached garage next to the main house where L.S., G.E., and their family lived. Cdebaca had some difficulty with speech, balance, and a slow gait because of the stroke.

B

On the morning of February 11, 2014, L.S. went to the flat to wish Cdebaca a happy birthday. L.S. gave Cdebaca some money for gambling because Cdebaca's niece was going to take her to a casino. Cdebaca was half asleep, but she was happy and excited.

At approximately 8:00 a.m., several neighbors called 911 reporting gunfire. The first caller reported three to four loud bangs, which the caller interpreted as possible gunshots. When the caller was speaking to the 911 operator, the caller heard an additional episode of shots.

A second caller reported hearing a cracking noise and a man saying, "help me, help me." The second caller heard another round of shots during the 911 call.

A third caller heard five shots followed by another group of five shots as the caller made the 911 call. The caller heard someone calling out.

The fourth caller heard gunshots followed by more gunshots a few minutes later. The caller also heard someone moaning and saying "help me" in a strained voice. As the caller was on the phone with 911 emergency, another series of gunshots was heard, and the person again yelled, "help me," followed by another gunshot.

A fifth caller, who is a law enforcement officer, heard five to seven metered gunshots at 7:57 a.m. A male voice yelled a single syllable word two to three times. As the officer drove down the street, the officer heard five to seven more shots at the same metered pace. The officer then called 911. While the officer was on the phone, the officer heard a third series of five to seven shots.

It took some time to locate where the shots were coming from because the home was in a gated community with only one entrance and many cul-de-sacs. When officers arrived on-scene, the patio door located in the back of the main house had a bullet hole, but the glass was otherwise intact, and the deadbolt was locked from the inside. G.E. was found inside without a pulse on the floor in the kitchen.

Female clothing and blood were found in the courtyard area. Red stains were near the door.

Detectives with the sheriff's department wanted to speak with family members who lived in the home and learned Cdebaca lived at the residence. They located Cdebaca at a coffee shop at approximately 6:00 p.m. She agreed to go to the police station where she was interviewed.

C

1

In the interview, Cdebaca said she did not like G.E. She said he would spray her with water and trip her. She said G.E. tried to choke L.S. and "pops" his sons. She said, "He was so mean to everybody. Even his own family."

Cdebaca said she stopped him and she was guilty. She asked the detectives if G.E. was dead and then said, "He's gotta be dead." When asked if she thought G.E. was dead, Cdebaca said, "I hope so." Cdebaca said she knew he was dead because she killed him. She said, "He's so mean to my daughter." Cdebaca said she did not want to kill G.E. She then said, "The only thing I could do, kill him, kill him, Goddamn. So evil. I never, never have once didn't hurt anybody. I love everybody, you know? I tried to love him. No."

When detectives confirmed G.E. was not alive, Cdebaca said, "Oh good. Good, good, good, good, good. Oh, thank you, thank you. You can take me whenever. Oh, God, oh, God. I don't care." Throughout the interview, Cdebaca asked several more times if G.E. was dead. Each time when she was told he was dead, she responded with words to the effect of "good" or "thank you." When asked what she would say to G.E. if he were present, Cdebaca said she would kill him again because, "He is so evil."

2

Cdebaca and G.E. were going to go see Cdebaca's grandchild's spelling bee after the child left for school on the morning of February 11, 2014. G.E. came to Cdebaca's flat and told her she could not go unless she changed clothes because she looked "ghetto" and like a "hobo." He laughed at Cdebaca. As she walked up the stairs, G.E. grabbed and pulled her. They got into a fight and he called her names.

This made Cdebaca mad, so she went to her room and got her gun from her purse. G.E. was carrying a bundle of clothes back to the house when Cdebaca approached him with the gun. When she started shooting, G.E. dropped the clothes, came after her, and grabbed her hands. He said he did not want to die like this. She backed up as she shot at G.E.[2]

After the first five shots, Cdebaca went to her car to reload. She put the spent bullets back in the box. She then returned and shot G.E. five more times as he lay on the ground.

She then went back to her car to reload again. When she returned, G.E. had made his way into the house and locked the door. Cdebaca shot the door and was surprised when it opened. She went in and shot G.E. four more times. G.E. said "please, don't kill me." Cdebaca was upset he did not say he wanted to see his children.

Cdebaca said she shot G.E. twice outside. She went to her car and reloaded twice. She disposed of the spent bullets in a trash can each time she reloaded. When he went inside, she shot the door open and shot him again. She fired a total of 15 rounds. G.E. sustained 12 gunshot wounds, which caused his death.

3

After the shooting, Cdebaca went to a local liquor store for cigarettes. She bought a better brand than she usually bought, saying it was her birthday. She did not appear distressed or injured. Cdebaca then went to a casino to gamble for a few hours. She came back to the coffee shop for coffee, where law enforcement officers found her. Cdebaca's gun was located after the shooting in a culvert behind a liquor store across the street from the coffee shop.

4

Cdebaca bought the gun over five years before, in 2005, because she had a bad feeling about G.E. When G.E. hit one of the children two weeks prior to the incident, she thought she could kill G.E. On January 24, 2014, Cdebaca went to a shooting range to renew her range card and buy bullets. L.S. said Cdebaca was experienced with guns and had guns when L.S. was growing up because they lived in a bad neighborhood. However, L.S. did not know Cdebaca had a gun at the time of the shooting.

Cdebaca admitted she had been thinking about shooting G.E. for two days before the shooting. When asked why she did not call police when G.E. laid hands on her or L.S., Cdebaca said G.E. used to be a law enforcement officer.

D

The defense presented evidence that G.E. was abusive and there were numerous instances of domestic violence in the home over the years. G.E. verbally abused and hit his children. He hit and choked L.S.

1

G.E. frequently left Cdebaca at the coffee shop, sitting outside in the heat or cold, for hours and did not come back to get her. Friends from the coffee shop gave Cdebaca rides home when these instances occurred. Cdebaca expressed her concerns to friends at the coffee shop about the relationship between L.S. and G.E. She said she did not like the way G.E. treated L.S. and the children. She said G.E. "hurts us," but did not provide details.

Cdebaca mentioned to her coffee shop friends that G.E. was verbally abusive to her and made fun of the way she dressed. One friend saw G.E. stand over Cdebaca at the coffee shop and berate her. Cdebaca asked another friend to sit next to her and smell her because she said G.E. told her she smelled like urine.

G.E. sprayed Cdebaca with a garden hose when she was smoking outside and also sprayed her with a water bottle used for training dogs. He also turned off the hot water to the granny flat, so Cdebaca had to take cold showers. G.E. pushed Cdebaca to the ground once when she tried to interfere in a fight between G.E. and L.S.

2

G.E. called his child a jerk, a low-life, and said dogs were better than the child. G.E. would spray the child in the face and hit the child's nose with the spray bottle, as he did with the dogs. G.E. did these things when Cdebaca was present.

Once when relatives were visiting, G.E. called the child downstairs and told the child to read a book. When the child objected saying their relatives were visiting, G.E. took out his belt and whipped the child until the child went into a reading nook. Cdebaca started crying and asked why G.E. was hitting the child. G.E. told Cdebaca to "shut the fuck up" because it was his house.

The night before the shooting, the same child came running up the stairs to Cdebaca's flat where L.S. was watching a show with Cdebaca. The child asked why L.S. hated the child and let G.E. treat the child the way he did. G.E. yelled and cussed up the stairs telling the child to come down. Later that evening L.S. awoke to arguing and loud noises. G.E. had broken the computer the child was using to do homework.

3

Cdebaca also witnessed instances when G.E. verbally and physically abused L.S. During a barbeque, G.E. wanted L.S. to go upstairs. When she refused saying he had been drinking too much, he hosed her down with a garden hose. On another occasion, Cdebaca's niece saw G.E. on top of L.S. holding her down on the couch while Cdebaca tried to pull him off. L.S. said this could have looked like G.E. was choking her because G.E. was holding her down with his fist and had his arm across her neck.

During a visit in 2008, Cdebaca's niece heard L.S. crying at night and saying "Stop … get off of me." When the niece questioned L.S., L.S. was embarrassed but said G.E. would hold her down and wait for her to pass out. Then G.E. sodomized her without her consent, saying it was the only way he could gratify himself because she was "too loose down there." This was not the only forcible sex act G.E. committed on L.S.

G.E. kicked Cdebaca out of the home several times over the years and Cdebaca would go live with her niece. On one such occasion in 2013, Cdebaca mentioned hearing noises from the main house at night. The niece told Cdebaca that G.E. sodomized L.S. without consent. Cdebaca became upset.

The niece and Cdebaca went to L.S.'s home for Thanksgiving in 2013. The niece and Cdebaca noticed bruises on L.S.'s arm when she pulled up a sleeve as she was cooking. L.S. said it was nothing. Cdebaca refused to leave the home thereafter.

A few weeks before the shooting, Cdebaca told a friend that things were not good around the house and G.E. had hit one of the children. Cdebaca said she planned to visit only for a few days, but she would not leave now. Cdebaca expressed concern about her life and the lives of L.S. and the grandchildren.

DISCUSSION

I

Statements About Provocation

Cdebaca contends the murder conviction should be reversed because the prosecutor misstated the provocation standard for voluntary manslaughter. The People concede the prosecutor made misstatements, but the misstatements were harmless in light of the court's instructions to the jury and the evidence of premeditation. We agree with the People.

A

Background

In his initial closing statement, the prosecutor argued the jury should convict Cdebaca of first degree murder based on premeditation. He said Cdebaca not only planned the shooting days or weeks before, but also had the opportunity to premeditate and deliberate about killing G.E. when she obtained the gun, shot the first rounds, and then went to her car to reload the gun—twice—before finally shooting him dead.

Defense counsel discussed manslaughter and provocation in his closing statement. He said, "It doesn't mean that the average person or hypothetical mom would have done the same thing. It doesn't mean that there would have been, you know, this particular gun and there would have been, you know, different shots and reloading. It means that they would have acted rashly, without judgment. Maybe done something else differently but would have acted out."

The prosecutor responded to the defense arguments in rebuttal. The prosecutor agreed an average mother would be upset about hearing about the abuse and rape of her daughter. However, the prosecutor said, "The real question under the definition of voluntary manslaughter is would an average mother be driven to act rashly and impulsively to kill."

Defense counsel objected saying this was a misstatement of the law. The court told the jury, "Ladies and gentlemen, if anything counsel say misstates the law that I have provided to you, then you are to adopt and abide by the law provided to you by the court."

The prosecutor told the jury they would have CALCRIM No. 570 and said "the question isn't whether people become emotional or people become rash and impulsive upon hearing bad news. … This is a murder case. … And so the question is would an average person, would an average mother be driven to go and kill. That's the question."

Defense counsel objected again. The court admonished the prosecutor to "provide the jurors with recitation of what the [CALCRIM] instructions read, you should provide them with the actual language of the instructions. And if, to the extent, ladies and gentlemen, that you believe the instruction does not comport to what counsel is telling you, again, you are to let the—use the instruction as guidance as relates to the law in this subject matter."

The prosecutor continued, "Let's look at [CALCRIM No.] 570. It says, the defendant was provoked. As a result of that provocation, the defendant acted rashly and under influence of intense emotion that obscured her reasoning and judgment and it would have caused an average person to—to kill."

Defense counsel objected a third time saying the argument misstated CALCRIM No. 570. The court said, "In terms of the exact language of [CALCRIM No.] 570, perhaps at this time it would be best then, given the objection, if the court would provide the jurors with the three elements[:] that the defendant was provoked; second, as a result of the provocation, defendant acted rashly under the influence of intense emotion to obscure the reasoning or judgment; and three, the provocation would have caused a person of average disposition to act rashly without due deliberation. That is from passion rather than from judgment. [¶] Those are the three elements."

The prosecutor concluded by saying voluntary manslaughter based on heat of passion requires the defendant to have acted only under provocation. The prosecutor said voluntary manslaughter did not apply because there were periods for Cdebaca to deliberate about her actions. The prosecutor said voluntary manslaughter might apply if, hypothetically, Cdebaca had walked in on L.S. being raped and her judgment was lost in the moment because it was obscured by emotion. In contrast, however, the prosecutor said there was a cooling off period in this case. Defense counsel did not object to this concluding statement.

After rebuttal, the court and counsel discussed the objections at sidebar. Defense counsel requested an opportunity to reclose. The court, instead, reread CALCRIM No. 570 in full to the jury after making the following statement: "Folks, you know during closing arguments and I remind you that what respective counsel say is not evidence. From time to time we find that counsel may have different interpretations of the law as provided to you. And I've been asked to just simply reread one of the instructions. I don't isolate this for any particular reason other than the request was made. And as I told you previously, please consider these instructions all together. [¶] But as relates to a particular instruction as both counsel have spent some time addressing it, let me articulate it to you again and that is 570."[3]

B

Legal Principles

" 'Murder is the unlawful killing of a human being … with malice aforethought.' [Citation.] 'Manslaughter is the unlawful killing of a human being without malice.' [Citation.] Manslaughter is a lesser included offense of murder, and a defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter." (People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).)

"[A] subjective test applies to provocation as a basis to reduce malice murder from the first to the second degree: it inquires whether the defendant in fact committed the act because [she] was provoked. … [Citation.] But more is required to reduce malice murder to voluntary manslaughter. For that, an objective test also applies: the provocation must be so great that, in the words of CALCRIM No. 570, it 'would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.' " (Jones, supra, 223 Cal.App.4th at pp. 1000–1001.)

The Supreme Court has said "voluntary manslaughter based upon sudden quarrel or heat of passion requires a showing of adequate provocation, which has both a subjective and an objective component. [Citation.] The defendant must actually and subjectively kill under the heat of passion, but the circumstances giving rise to the heat of passion are also viewed objectively to determine whether the ' "circumstances were sufficient to arouse the passion of the ordinarily reasonable man." ' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301.) "The fundamental inquiry when examining heat of passion in the context of manslaughter ' "is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion … to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' " (Nelson, supra, 1 Cal.5th at p. 538.)

The Supreme Court has clarified, "a standard requiring such provocation that the ordinary person of average disposition would be moved to kill focuses on the wrong thing. The proper focus is placed on the defendant's state of mind, not on his [or her] particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection." (People v. Beltran (2013) 56 Cal.4th 935, 949.)

It is improper for a prosecutor to misstate the law generally. (People v. Marshall (1996) 13 Cal.4th 799, 831.) " ' "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." ' " (People v. Jackson (2016) 1 Cal.5th 269, 349.) " ' "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' " (People v. Woodruff (2018) 5 Cal.5th 697, 765.) "This is not a low standard to meet, since ' "we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." ' " (People v. Spencer (2018) 5 Cal.5th 642, 684.)

C

Application

Based on the People's concession, we assume without deciding the prosecutor misstated the provocation standard for voluntary manslaughter in the rebuttal argument. However, we conclude there is no reasonable likelihood the jury here understood or applied the prosecutor's comments in an improper or erroneous manner.

Contrary to Cdebaca's contention, the court did not let the prosecutor's statements go unanswered. Each time the prosecutor made an objectionable statement, the court admonished the jury to follow the instructions, not the statements of the prosecutor. The impression given was that there was something inaccurate about the statement and the jury was to follow the instructions. The court read to the jury the elements for provocation for voluntary manslaughter from CALCRIM No. 570 three times: before closing arguments, during the prosecutor's rebuttal argument after an objection, and again after the rebuttal argument. We presume the jury followed the instructions of the court absent any contrary indication. (People v. Gray (2005) 37 Cal.4th 168, 217.)

By all indications, the jury took their job seriously and followed the law. The first jury note, sent shortly after the jury retired to deliberate, requested enough copies of the jury instructions for each juror to have his or her own copy.[4] As we discuss in the next section post, the jury focused on the language of the instructions and sought clarification about whether the objective provocation standard for voluntary manslaughter, as described in CALCRIM No. 570, applied to the provocation necessary to reduce murder to the second degree.

After clarification, the jury convicted Cdebaca of first degree murder, indicating they found she did not act based upon provocation, but acted based on premeditation or deliberation. There was ample evidence to support this finding, which Cdebaca does not challenge. Cdebaca told detectives she decided to kill G.E. days or weeks before the shooting after he repeatedly abused her daughter and grandchildren over 13 years. She said she would do it again because he was evil. Cdebaca, who purchased the gun five years earlier, went to a shooting range to renew her permit and buy bullets two weeks before the shooting.

After G.E. insulted Cdebaca's clothing and called her names on the morning of the shooting, she went to her room and got her gun. When she found G.E. in the outdoor patio area holding a bundle of laundry, she shot him five times in what 911 callers described as a metered or measured fashion. Even if the jury believed Cdebaca acted based on provocation in shooting G.E. the first five times, she had more opportunities for deliberation. After the gun was empty, Cdebaca walked to her car, retrieved bullets from the glovebox, reloaded the gun, put the empty casings back in the box, disposed of the box, went back to where G.E. was lying, and shot him another five times. She then returned to her car, reloaded the gun again, and disposed of the empty casings. When she returned to the patio area, she was surprised G.E. had gotten away. He had made it inside the house and locked the door. She shot the door open and then shot G.E. four more times. Based on witness accounts and 911 transcripts, the shooting occurred over the course of 10 minutes with three distinct episodes of gunfire.

The facts of this case are sympathetic given the years of verbal and physical abuse endured by Cdebaca's family and herself at the hands of G.E. However, we cannot conclude the prosecutor's misstatements resulted in prejudice considering the court's admonishments and instructions as well as the totality of the evidence.

II

Jury Questions

Cdebaca next contends the court did not adequately respond to the jury's questions. Specifically, she contends the jury's questions suggest they were confused about the applicable standard for provocation based on the prosecutor's misstatements and the court should have informed the jury the prosecutor's statements about the provocation standard for voluntary manslaughter were wrong. We disagree.

A

Background

During the second day of deliberations, the jury sent the court a note (Jury Note No. 3) requesting clarification of the term provocation as used in CALCRIM Nos. 522[5] and 570. With the agreement of the parties, the court provided a dictionary definition stating, " 'Provocation' is commonly understood to mean as follows[:] 'action or speech that makes someone annoyed or angry.' "

About an hour later, the jury sent Jury Note No. 4 asking, "(1) Do we apply the [CALCRIM No.] 570 definition of (reasonable person) 'prov[o]cation' to [CALCRIM No.] 522? [¶] (2) If all 3 elements of [CALCRIM No.] 521 are met can [CALCRIM No.] 522 be used to reduce the verdict to a lower count (M2 or manslaughter)"?[6]

With agreement of counsel, the court responded: "1) For purposes of distinguishing between the crimes of First Degree Murder and Second Degree Murder, [CALCRIM No.] 522 provides that provocation as found by the jury, may be used to assess whether the People have proven, beyond a reasonable doubt, premeditation and deliberation, which is required for First Degree Murder. [¶] 2) [CALCRIM No.] 522 addresses degrees of murder while [CALCRIM No.] 570 addresses the crime of voluntary manslaughter. Provocation can reduce First Degree Murder to Second Degree Murder ([CALCRIM No.] 522) and can reduce Murder to Voluntary Manslaughter ([CALCRIM No.] 570)."

Shortly after deliberations resumed the following court day, the jury sent Jury Note No. 5 asking, "(1) In [CALCRIM No.] 522 are there objective standards that can be used to move from murder 1 to murder 2? [¶] (2) Does the reasonable person standard apply to [CALCRIM No.] 522 in terms of how a person reacts to a prov[o]cation?"

The court responded, with counsel's agreement: "If the jury finds, beyond a reasonable doubt, that the People have proven that a defendant is guilty of the crime of murder, the jury must assess whether any actual provocation (the arousal of emotions) subjectively gave rise to a rash, impulsive decision that in turn shows no premeditation and deliberation. [¶] The reasonable person standard (a person of average disposition) applies to [CALCRIM No.] 570."

About 20 minutes later, the jury sent two more notes. Jury Note No. 6 said, "In reference to Court's Response to Jury Note [No.] 5. [¶] The court responded: [¶] The reasonable person standard (a person of average disposition) applies to [CALCRIM No.] 570. [¶] The original question was does it apply to [CALCRIM No.] 522. Please answer that specific question."

Jury Note No. 7 was in different handwriting than the other notes. It asked, "In a hypothetical criminal case, if all members of a jury agree that a defendant is not guilty of murder one, but hangs on the charge of murder two: If the case is retried, can the defendant be charged with … murder one?"

With the agreement of the parties, court responded to Jury Note No. 6: "Because [CALCRIM No.] 522 does not speak in terms of 'a person of average disposition' and addresses, instead, how provocation may impact the analysis of actual premeditation and deliberation which concerns a 'subjective' rather than 'objective' (person of average disposition) analysis, the Court endeavored to answer your question and regrets any confusion. [¶] The 'person of average disposition' standard does not apply to [CALCRIM No.] 522."

The court responded "No" to Jury Note No. 7.

A few minutes after receiving the responses the jury informed the bailiff they had reached a verdict. The jury found Cdebaca guilty of murder in the first degree and found she personally and intentionally discharged a firearm causing death in committing the crime.

B

Legal Principles

Section 1138 "imposes on the trial court a mandatory 'duty to clear up any instructional confusion expressed by the jury.' [Citations.] '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." [Citation.] But "[t]his 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." [Citation.] We review for an abuse of discretion any error under … section 1138.' " (People v. Lua (2017) 10 Cal.App.5th 1004, 1016.)

To establish ineffective assistance of counsel, a defendant has the burden to show counsel's performance fell below the standard of reasonableness under prevailing professional norms and the attorney's deficient performance was prejudicial, i.e., the defendant would have obtained a more favorable result absent the alleged error. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Ledesma (1987) 43 Cal.3d 171, 215–217.) " 'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof … must be a demonstrable reality and not a speculative matter.' " (People v. Karis (1988) 46 Cal.3d 612, 656.)

C

Application

Cdebaca does not contend the court's responses to the jury's questions were legally incorrect. Rather, she contends the court should have also informed the jury the prosecutor's rebuttal misstated the standard for voluntary manslaughter. She also contends her counsel was ineffective for not requesting such a statement.

Defense counsel agreed to the court's responses to the jury's questions, thereby waiving any claim of error. (People v. Castaneda (2011) 51 Cal.4th 1292, 1352.) Nevertheless, even considering the arguments, we conclude the court did not abuse its discretion in responding to the jury's questions with neutral and responsive statements of the law.

Contrary to the suggestion by Cdebaca, the jury did not appear confused about the objective standard necessary for voluntary manslaughter or misled by the prosecutor's statements. The questions focused squarely on whether the objective standard for provocation to establish voluntary manslaughter applied to provocation for second degree murder. There was no reason for the court to comment about the prosecutor's rebuttal argument in its responses. If the court had done so, such a comment would have been nonresponsive to the jury's questions and a distraction from the legal clarification sought by the jury. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331 ["the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination"].) This is likely why defense counsel agreed with the court's proposed responses. Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349.)

It appears the jury never reached the issue of voluntary manslaughter because they were focused on the standards for considering the murder charges. This is consistent with CALCRIM No. 640, which instructed the jury the court could only accept a verdict of guilty or not guilty of voluntary manslaughter if the jury found Cdebaca not guilty of both first and second degree murder. After receiving the requested clarification, the jury apparently found insufficient provocation for second degree murder based on a subjective standard, which is a lower standard than the objective standard for voluntary manslaughter. Instead, the jury convicted Cdebaca of first degree murder.

Finally, there is no indication the jury was so dissatisfied with the court's responses it "threw in the towel," as Cdebaca suggests. The record shows the jury was still engaged in a dialogue with the court about the applicable standard for second degree murder when the court also received Juror Note No. 7 asking a hypothetical about retrial if a jury acquitted a defendant of first degree murder but could not reach a verdict on second degree murder. Juror Note No. 7 was in different handwriting than all the other notes and the verdict form, suggesting this question was not from the foreperson reflecting the focus of the jurors' discussions, but rather the question of a single juror. Although, a court " 'is not required to "educate the jury on the legal consequences of a possible deadlock" ' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193), Cdebaca has not shown the simple response of "no" to the individual question was prejudicial. The court's response did not introduce extraneous factors or pressure the jury into a quick decision. (See People v. Virgil (2011) 51 Cal.4th 1210, 1282–1283.)

We conclude the court properly responded to the jury's questions and Cdebaca has not shown her counsel was ineffective.

III

Remand for Reconsideration of Firearm Enhancement

At the time of sentencing, imposition of a 25-year-to-life enhancement was mandatory pursuant to section 12022.53, subdivision (d), for personally and intentionally discharging a firearm in the commission of murder. The Legislature recently amended section 12022.53 to add subdivision (h), which allows courts discretion to "in the interest of justice … strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, § 2.)

The People concede this change in the law should be applied retroactively to this case. (People v. Francis (1969) 71 Cal.2d 66, 75; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 [Proposition 57, which reduces possible punishment for a class of persons, applies retroactively to judgments not final at the time of enactment].) Therefore, we remand the matter for the limited purpose of allowing the court to consider whether to strike or dismiss the firearm enhancement under section 12022.53, subdivision (h).

DISPOSITION

We remand the matter for the limited purpose of allowing the court to exercise its discretion under newly enacted section 12022.53, subdivision (h), to consider whether to strike or dismiss the firearm enhancement. In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

GUERRERO, J.