Trial court’s failure to instruct the jury on second degree murder or voluntary manslaughter was not error because the evidence did not support these instructions. Johnson and Guthrie committed a “hit” on Canady in a barber shop, allegedly ordered by a drug kingpin named Grant. Johnson was convicted of first degree murder and a personal gun use enhancement was found true. Guthrie was also convicted of first degree murder and a serious felony prior was found true. A strike prior was found true as to each defendant. On appeal, Johnson challenged the trial court’s failure to instruct the jury on second degree murder and voluntary manslaughter. Held: Affirmed. Trial courts must instruct on lesser offenses supported by the evidence. Second degree murder and voluntary manslaughter are lesser offenses to first degree murder where the evidence arguably reflects an absence of premeditation or malice, or the presence of heat of passion. Here, evidence showed that Johnson entered and exited the barber shop within 16 seconds, indicating there was no time for a “drug deal gone bad.” There was no evidence Johnson was threatened. Johnson denied he was the shooter, but also told police he was hired to kill Canady and did so. Instructions regarding the lesser offenses to first degree murder were not supported by the evidence.
The trial court did not abuse its discretion by admitting evidence of the defendants’ false identification documents. Defendants argued the trial court erred by denying their motions to exclude false identification documents seized from their homes, which they used to illegally enter the United States. The Court of Appeal disagreed. All relevant evidence is admissible unless the trial court finds the probative value of the evidence is outweighed by its prejudicial effect. Here, the false identification evidence had similarities in production, suggesting a common manufacturer, which was relevant to show the defendants’ conspiratorial relationship. The trial court took measures to limit the prejudicial effect of the evidence and the prosecution did not exploit the defendants’ illegal immigrant status. The evidence was properly admitted.
The trial court correctly found Johnson’s Jamaican murder conviction qualified as a strike prior. Johnson argued his murder conviction in Jamaica did not constitute a strike prior in California because a Jamaican defendant can potentially be convicted of murder by nine members of an 11-person jury in certain circumstances rather than a unanimous 12-person jury as required in California. (See Cal. Const., art. 1, § 16.) He argued this procedural difference violated his right to equal protection. The Court of Appeal disagreed. A foreign conviction may constitute a serious felony prior enhancement or strike prior if the crime includes all of the elements of a serious felony in California. In making this determination, the trial court may not look outside the record of conviction, but may consider any evidence in the record of the foreign conviction that is not precluded by the rules of evidence or other statutory limitations. The recidivist laws do not look to the process by which the foreign conviction was obtained, rather to the elements of the crime. Thus, a prior foreign conviction may be used for a sentencing enhancement, even if the foreign jurisdiction does not afford the same procedural protections available in California, as long as the guilt ascertainment process in the foreign jurisdiction is not constitutionally flawed. Johnson did not show he was convicted by less than 12 jurors. Even if the court concluded that defendants with convictions from foreign jurisdictions are treated differently from defendants convicted in California, Johnson did not show the state lacked an appropriate basis for differing treatment.
Guthrie made a free and knowing waiver of his right to an attorney and did not make an unequivocal, unambiguous asserting of that right as required to revoke the waiver. Guthrie argued that he unequivocally invoked his right to counsel during a police interview after he initially waived his right to counsel at the beginning of the interview. The Court of Appeal disagreed. Following a waiver of rights, where a suspect makes an ambiguous statement that could be construed as an invocation of Miranda rights, officers may, but are not required to, seek clarification before continuing interrogation. A statement is ambiguous when a reasonable officer, in view of the totality of the circumstances, would have understood only that the suspect might be invoking the right to remain silent or to the assistance of counsel. In the middle of the interview, Guthrie grew frustrated and stated “[t]hen charge me, sir. A lawyer, lawyer.” When an officer asked Guthrie if he wanted to talk to a lawyer, Guthrie said “Yeah, yeah. Do, do I, if anything . . . .” Guthrie saying “yeah, yeah,” when asked if he wanted a lawyer was ambiguous because he responded to almost every question or statement of officers with “yeah, yeah.” Guthrie failed to signal a clear request when officers sought to clarify.
The trial court did not err by admitting the victim’s rap lyrics to prove motive and identity of the killers. Guthrie argued the trial court erred by admitting into evidence a rap song recorded by Canady (the murder victim) in which he admitted stealing drugs from Grant and sleeping with Grant’s girlfriend because the lyrics were irrelevant and cumulative. Admission of the lyrics was not error. The song lyrics tended to show that Canady was engaged in conduct that could provoke Grant to retaliate against him. Guthrie failed to show why the lyrics were prejudicial to his defense.
Senate Bill No. 620, which allows a trial court the discretion to strike a gun use enhancement, is retroactive to Johnson’s case. While this case was pending, SB 620 was passed and went into effect on January 1, 2018, giving trial courts the discretion to strike a gun use enhancement. This ameliorative change in the law applies retroactively to Johnson (In re Estrada (1965) 63 Cal.2d 740). Because it is unclear from the record whether the trial court would have exercised its discretion to strike the gun use enhancement, remand was required.
Senate Bill No. 1393, which grants trial courts the discretion to strike a prior serious felony enhancement, is retroactive to nonfinal cases. SB 1393, which took effect on January 1, 2019, and amends Penal Code sections 667, subdivision (a) and 1385 to give trial courts the discretion at sentencing to strike a five-year prior serious felony enhancement in furtherance of justice, is retroactive to cases not yet final. Although the trial court was not sympathetic to defendants, at the time of sentencing it had no discretion to strike the five-year enhancement. Out of an abundance of caution, the matter was remanded to give the trial court an opportunity to exercise its new-found discretion.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D071011A.PDF