Filed 1/19/18 (reposted to provide corrected version)

                                CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                             DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                          E066284

v.                                                          (Super.Ct.No. FVI1302698)

ERIC DAVID ROBBINS,                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash,

Judge. Affirmed in part; reversed in part with directions.

         Waldemar D. Halka, 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, A. Natasha Cortina, Meagan J.

Beale and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                        1
       A jury found defendant and appellant Eric David Robbins guilty of first degree

murder (Pen. Code, § 187, subd. (a))1, and attempted murder (§§ 187, subd. (a), 664)).

The jury found true the allegations that (1) the murder was committed by means of lying

in wait (§ 190.2, subd. (a)(15)); (2) the attempted murder was committed willfully and

with premeditation and deliberation (§ 189); and (3) during the murder and attempted

murder, defendant personally and intentionally discharged a firearm proximately

causing death to another person (§ 12022.53, subd. (d)). The trial court sentenced

defendant to prison for a term of life without the possibility of parole, plus a consecutive

term of 25 years to life.

       Defendant raises nine issues on appeal. First, defendant contends the attempted

murder conviction is not supported by substantial evidence. Second, defendant

contends the transferred intent theory argued by the prosecution is inapplicable to the

lying-in-wait special circumstance.

       Third, defendant contends the trial court erred by refusing to instruct on heat of

passion voluntary manslaughter. Fourth, defendant contends the trial court erred by

refusing to instruct on heat of passion attempted voluntary manslaughter. Fifth,

defendant asserts his trial counsel rendered ineffective assistance by failing to request

the jury be instructed on how provocation affects the degree of murder. Sixth,

defendant asserts the prosecutor erred by failing to ensure his witnesses complied with

the in limine ruling prohibiting references to defendant’s alleged support of racist

       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.


                                             2
organizations. Seventh, defendant contends the cumulative prejudicial effect of the

alleged errors in contentions three through six requires the judgment be reversed.

Eighth, defendant contends his sentence for attempted murder should be life, rather than

seven years to life. Ninth, defendant contends the trial court must exercise its discretion

as to whether to strike the firearm enhancements. (§ 12022.53, subd. (h).) We reverse

part of defendant’s sentence with directions and otherwise affirm the judgment.

                    FACTUAL AND PROCEDURAL HISTORY

       The afternoon of August 11, 2013, defendant and his wife, Dawn,2 were

aggravated with one another. Throughout the day, Dawn called her mother, Carmen

Griego, saying she wanted defendant to leave the home but defendant refused to leave.

Defendant began drinking beer and smoking marijuana around 3:00 p.m., consuming

approximately 33 beers. Defendant became intoxicated. At approximately 8:30 p.m.,

after Dawn again called Carmen, Dawn’s parents went to defendant’s and Dawn’s

home. When Dawn’s parents arrived, defendant and Dawn were arguing.

       Dawn’s father, Ernest Griego, offered to get a motel room for defendant.

Defendant responded, “[T]his is F-ing America. I have rights and I don’t have to

leave.” Defendant walked up to Ernest. Defendant made a fist and stared at Ernest.

Carmen told defendant she would call the police if defendant touched Ernest.

Defendant backed away. Ernest and Carmen left.



       2  We use first names for ease of reference and clarity as some of the witnesses
share a last name. No disrespect is intended.


                                             3
          Defendant left the house because he believed Carmen had called the police.

Defendant left in his truck. Whenever Dawn made defendant leave the house, he took

his guns and golf clubs with him because those items were the most important to him.

On this occasion, defendant put an AR-15 rifle and .308 bolt action rifle in his truck.

Defendant intended to purchase beer at an AM/PM convenience store and sleep in the

desert.

          Clarence Jones worked as a security guard at the AM/PM in Victorville. During

cashier shift changes, it was Jones’s responsibility to ensure that nobody attempted to

purchase anything at the AM/PM because the cashiers had to count the money in their

drawers. Thus, Jones stood outside the door of the AM/PM telling people they would

have to wait 10 minutes to make a purchase. Most of the time people complied with

Jones’s directive to wait. The customers who were already inside the store at the time

of the shift change were told the store would be closing briefly and to make their

transactions quickly or leave. The cashiers began counting their cash once the store was

empty.

          Daniel Olivera worked as a cashier at the AM/PM in Victorville. On August 11,

2013, Olivera worked from 2:00 p.m. to 10:00 p.m. During the 10:00 p.m. cashier shift

change, Jones stood outside the AM/PM door telling people they would need to wait 10

minutes to make a purchase.

          Defendant approached Jones. Jones told defendant a shift change was taking

place and defendant could not enter the store. Defendant said, “I gotta take a piss and

pay for some gas.” Jones replied, “Sir, we’ll be opened in a couple minutes. You’re


                                              4
welcome to wait.” Defendant became angry because he could see customers in the store

lined up at the register. Defendant made racist remarks, such as “nigger,” “boy,” and

used profanity. Jones is black.

       Jones said, “[S]ir, I’m only a security guard. I don’t have much power here.”

Defendant reached for the door, in order to open it. Jones put his hand on the door to

hold it closed. Defendant said, “[O]h so it’s like that? [E]njoy your power while you

have it.” Jones told defendant he could go inside the store, but he could not purchase

anything. Defendant replied, “I’ll be back, I’ll be back.”

       Defendant reentered his truck. Jones took photographs of defendant leaving,

including defendant’s truck. Defendant saw Jones photographing him. Jones took

photographs because defendant scared Jones. Jones did not capture a photograph of

defendant’s license plate.

       Defendant drove to a field and urinated. While in the field, defendant looked at

the AM/PM and thought, “What a nice shot.” Defendant was approximately 170 yards

from the AM/PM. Defendant set up his .308 rifle on a bipod. The rifle had a scope on

it.

       Defendant laid prone on the ground, looking through his scope. Defendant “sat

there for a long time” waiting. Defendant had a difficult time identifying the different

people at the AM/PM so he “crab walk[ed]” forward. Olivera exited the store, and

smoked a cigarette with Jones. Jones stepped away to share his cigarette lighter with a

customer. Defendant mistook Olivera for Jones. At approximately 10:40 p.m.,

defendant fired the gun, killing Olivera.


                                            5
       The next day, defendant watched the news and realized he killed Olivera, rather

than Jones. Defendant threw away the shoes he wore during the killing and removed

the stickers from the back of his truck. Approximately 10 days later, defendant drove

past the AM/PM looking for Jones. Defendant wanted to “finish the job” by killing

Jones with the .308 rifle. Defendant did not see Jones at the AM/PM.

       During a police interview, defendant explained that he wanted to kill Jones

because “[i]t’s a respect thing.” Defendant explained that he was angry because Jones

refused to let defendant enter the store. Defendant denied that he wanted to kill Jones

due to racial animus. Defendant denied that he was a white supremacist.

                                     DISCUSSION

       A.     SUBSTANTIAL EVIDENCE

       Defendant contends his conviction for the attempted murder of Jones is not

supported by substantial evidence.

       Under the substantial evidence standard “we review the evidence in the light

most favorable to the prosecution and presume in support of the judgment the existence

of every fact the jury could reasonably have deduced from the evidence. . . . We resolve

neither credibility issues nor evidentiary conflicts.” (People v. Zamudio (2008) 43

Cal.4th 327, 357.)

       “ ‘[A]ttempted murder requires the specific intent to kill and the commission of a

direct but ineffectual act toward accomplishing the intended killing.’ [Citation.] Hence,

in order for [a] defendant to be convicted of the attempted murder of [Jones], the




                                            6
prosecution had to prove he acted with specific intent to kill [Jones].” (People v. Smith

(2005) 37 Cal.4th 733, 739.)

       Defendant confessed during a police interview that he wanted to kill Jones.

Therefore, there is evidence of an intent to kill. Defendant shot a gun at the person he

believed was Jones. Therefore, there is evidence of a direct but ineffectual act toward

accomplishing the intended killing. Accordingly, there is substantial evidence of

attempted murder.

       Defendant contends the evidence of attempted murder is insufficient because

defendant fired a single bullet, which struck the person at whom his gun was aimed.

Defendant reasons that he aimed at a single person and shot a single bullet at that

person, so there is only one victim—Olivera. In other words, defendant intended to kill

the person at whom the gun was aimed, and that person was killed, so only that person

is the victim.

       If defendant had been convicted of murdering Jones, there would be an issue;

however, defendant was convicted of attempting to murder Jones. Defendant did

attempt to murder Jones, as set forth ante. The single bullet intended for Jones was

mistakenly shot at Olivera, thus creating an ineffectual act toward killing Jones.

       The record reflects defendant made a mistake of fact. “When a person commits

an act based on a mistake of fact, his guilt or innocence is determined as if the facts

were as he perceived them.” (People v. Beardslee (1991) 53 Cal.3d 68, 87-88.) If X

shoots Y, with the intent to kill Y, but Y is already deceased at the time of the shooting,

X is guilty of attempted murder. (People v. Islom (2015) 240 Cal.App.4th 1146, 1150.)


                                             7
In this case, defendant shot Olivera, with the belief he was shooting Jones and with the

intent to kill Jones, therefore defendant is guilty of attempted murder because

defendant’s guilt is “determined as if the facts were as he perceived them.” (Beardslee,

at pp. 87-88.) Defendant intended to shoot Jones, mistakenly believed he was shooting

Jones, and fired his gun killing Olivera. Because defendant believed he was killing

Jones, defendant is guilty of the attempted murder of Jones.

       We find People v. Bland (2002) 28 Cal.4th 313, 325 (Bland) to be helpful in

explaining how defendant’s single act and single bullet could produce two victims:

“The conceptual problem . . . arose even where the deadly force missed the intended

victim completely but the State nonetheless sought to charge the assailant with the

inchoate crime of intent to murder or assault with intent to murder. If the mens rea were

in limited supply, to which of two crimes should it be allocated? How could a single

mens rea be made to do double duty?

       “The [C]ourt [of Special Appeals of Maryland] then supplied the answer. As we

did in [People v. Scott (1996) 14 Cal.4th 544] it rejected the notion that transferring the

intent [for Olivera’s murder] uses it up. ‘By thinking of the mens rea in such finite

terms—as some discrete unit that must be either here or there—we have created a

linguistic problem for ourselves where no real-life problem existed. Criminal acts,

consummated or inchoate, are discrete events that can be both pinpointed and counted.

A mens rea, by contrast, is an elastic thing of unlimited supply. It neither follows nor

fails to follow the bullet. It does not go anywhere. It remains in the brain of the

criminal actor and never moves. It may combine with a single actus reus to make a


                                             8
single crime. It may as readily combine with a hundred acti rei, intended and

unintended, to make a hundred crimes, consummated and inchoate. Unforeseen

circumstances may multiply the criminal acts for which the criminal agent is

responsible. A single state of mind, however, will control the fact of guilt and the level

of guilt of them all.’ ” (Bland, supra, 28 Cal.4th at p. 325, italics omitted.)

       Defendant intended to kill Jones. Defendant mistakenly aimed his gun at Olivera

and killed Olivera. Defendant’s mens rea created two crimes with a single bullet.

Defendant murdered Olivera with malice aforethought and attempted to murder Jones

because he had the specific intent to murder Jones and mistakenly believed he was

killing Jones. As our Supreme Court has held, “[R]eliance on a transferred intent theory

of liability for the first degree murder of the unintended victim did not prevent the

prosecutor from also charging defendants with attempted murder of the intended

victim.” (People v. Scott, supra, 14 Cal.4th at p. 551.)

       An alternative way of explaining the issue is as follows: Defendant wanted to

kill Jones. If defendant fired at Jones and shot a wall, defendant would still be guilty of

the attempted murder of Jones. If defendant fired two bullets killing X and Y, believing

they were Jones, defendant would be guilty of two murders and the attempted murder of

Jones. The point is that defendant wanted to kill Jones and mistakenly believed he was

killing Jones. Thus, the crime of attempted murder occurred. (See People v. Stone

(2009) 46 Cal.4th 131, 141 [“ ‘A defendant who intends to kill one person will be liable

for multiple counts of murder where multiple victims die, but only one count of

attempted murder where no one dies’ ”].)


                                              9
       B.       LYING IN WAIT

       Defendant contends the transferred intent theory argued by the prosecution is

inapplicable to the lying-in-wait special circumstance.

       We apply the de novo standard of review to this question of law. (People v.

Garcia (2016) 62 Cal.4th 1116, 1122.) A defendant is eligible for imprisonment for life

without the possibility of parole if he “intentionally killed the victim by means of lying

in wait.” (§ 190.2, subd. (a)(15).) Defendant’s contention is based upon the wording

“intentionally killed the victim”: Can transferred intent apply if the statute requires

intent to kill the victim?

       “ ‘Under the classic formulation of California’s common law doctrine of

transferred intent, a defendant who shoots with the intent to kill a certain person and hits

a bystander instead is subject to the same criminal liability that would have been

imposed had “ ‘the fatal blow reached the person for whom [it was] intended.” ’ ”

(Bland, supra, 28 Cal.4th at pp. 320-321.)

       At the outset, we note that in the case of People v. Hajek and Vo (2014) 58

Cal.4th 1144 our Supreme Court commented that it found “no support in case law” for

the trial court making a transferred intent analogy on an issue of lying in wait. (Id. at p.

1184, fn. 12, abrogated on another point in People v. Rangel (2016) 62 Cal.4th 1192,

1216.) We understand the Supreme Court’s observation as meaning it is an issue of first

impression as to whether transferred intent applies to the lying-in-wait special

circumstance.




                                             10
       “The lying-in-wait special circumstance requires proof of ‘ “ ‘an intentional

murder, committed under circumstances which include (1) a concealment of purpose,

(2) a substantial period of watching and waiting for an opportune time to act, and

(3) immediately thereafter, a surprise attack on an unsuspecting victim from a position

of advantage.’ ” ’ ” (People v. Bonilla (2007) 41 Cal.4th 313, 330.) The “intentional

murder” is the substantive crime, in that murder requires malice aforethought (§ 187,

subd. (a); People v. Saille (1991) 54 Cal.3d 1103, 1114-1115), so it is the three factors

set forth ante that comprise the lying-in-wait special circumstance.

       Our Supreme Court has explained that the lying-in-wait special circumstance

qualifies as a capital crime because it requires “[a] substantial period of watching and

waiting,” which “helps distinguish lying-in-wait murder from ordinary murder.”

(People v. Sandoval (2015) 62 Cal.4th 394, 416 (Sandoval).) The three factors ante

generate the evidence of watching and waiting that elevate lying-in-wait murder above

ordinary murder. Thus, it is those three factors that are critical to the lying-in-wait

special circumstance.

       Our Supreme Court has explained, in a lying-in-wait special circumstance case,

“ ‘Lying in wait is the functional equivalent of proof of premeditation, deliberation, and

intent to kill.’ ” (Sandoval, supra, 62 Cal.4th at pp. 415-416.) Our Supreme Court

further explained that the “ ‘ “period [of lying in wait] need not continue for any

particular length ‘ “of time provided that its duration is such as to show a state of mind

equivalent to premeditation or deliberation.” ’ ” ’ ” (Id. at p. 416.) Thus, to the extent

one finds an intent requirement in the lying-in-wait special circumstance, it would be


                                             11
the same deliberate intent that is associated with premeditation and deliberation.

(People v. Saille, supra, 54 Cal.3d at p. 1115 [deliberate intent raises second degree

murder to first degree].)

       Our Supreme Court has held that the deliberate intent associated with

premeditation and deliberation can transfer. The high court wrote, “[I]f a person

purposely and of his deliberate and premeditated malice attempts to kill one person but

by mistake and inadvertence kills another instead, the law transfers the intent and the

homicide so committed is murder of the first degree.” (People v. Sears (1970) 2 Cal.3d

180, 189.) Because lying in wait provides proof of the same type of deliberate intent

associated with premeditation and deliberation, the intent associated with lying in wait

transfers in the same manner as the intent associated with premeditation and

deliberation.

       In sum, the lying-in-wait special circumstance creates a capital offense because it

requires proof of “[a] substantial period of watching and waiting” (Sandoval, supra, 62

Cal.4th at p. 416), which is proved by the three factors set forth ante. The requirement

that the defendant “intentionally killed the victim,” is equivalent to premeditation and

deliberation, i.e., the first degree murder mental state. (Id. at pp. 455-457.) Transferred

intent applies to premeditation and deliberation, and therefore, it also applies to killings

that qualify for the lying-in-wait special circumstance. Accordingly, we conclude there

was no error.




                                             12
       C.     HEAT OF PASSION MANSLAUGHTER

              1.      ADDITIONAL FACTS

       In this subsection, we present the facts in the light most favorable to a heat of

passion finding. When defendant approached Jones, Jones said a shift change was

taking place and defendant could not enter the store for 10 minutes. Defendant said

something to the effect of, “I gotta take a piss and pay for some gas.” Jones replied,

“That shit can wait!” Defendant made racist remarks, such as “nigger,” “boy,” and used

profanity. Jones felt threatened.

       Jones said, “[S]ir, I’m only a security guard. I don’t have much power here.”

Defendant reached for the door, in order to open it. Jones put his hand on the door to

stop defendant. Jones, while moving to grab the door, may have “swatted defendant’s

hand away.” Jones again told defendant he could not enter the store. Defendant said,

“[O]h so it’s like that? [E]njoy your power while you have it.” Jones told defendant he

could go inside the store, but he could not purchase anything. Defendant replied, “I’ll

be back, I’ll be back.” During a police interview, defendant said, “I lost it, and I shot

the wrong motherfucker.” Defendant felt “push[ed] around” by Jones.

              2.      ANALYSIS

       Defendant contends the trial court erred by refusing to instruct on heat of passion

voluntary manslaughter.

       “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial

court must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those


                                              13
principles closely and openly connected with the facts before the court, and which are

necessary for the jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 19

Cal.4th 142, 154.) We apply the de novo standard of review. (People v. Cole (2004) 33

Cal.4th 1158, 1218.)

       Heat of passion is not an element of voluntary manslaughter. Rather, it is a

theory of partial exculpation that reduces murder to manslaughter by negating the

element of malice. (People v. Moye (2009) 47 Cal.4th 537, 549.) “A heat of passion

theory of manslaughter has both an objective and a subjective component. [¶] ‘ “To

satisfy the objective or ‘reasonable person’ element of this form of voluntary

manslaughter, the accused’s heat of passion must be due to ‘sufficient

provocation.” ’ ’ ” (Ibid.) Provocation is sufficient when it would “ ‘ “ ‘cause an

“ ‘ordinary [and sober person] of average disposition . . . to act rashly or without due

deliberation and reflection, and from this passion rather than judgment.’ ” ’ ” ’ ”

(People v. Rivera (2011) 201 Cal.App.4th 353, 366; see also People v. Rangel (2016) 62

Cal.4th 1192, 1226.) The provocation that incites the defendant must have been caused

by the victim—“ ‘ “[T]he victim must taunt the defendant or otherwise initiate the

provocation.” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 116; People v. Carasi (2008)

44 Cal.4th 1263, 1306.)

       Jones told defendant that defendant would have to wait 10 minutes to make a

purchase, and Jones initially told defendant he could not enter the store. Jones also

placed his hand on the door to physically prevent defendant from entering the store and

possibly swatted at defendant’s hand.


                                            14
       A surveillance video from August 11, 2013 showed people walking away after

Jones told them the store was closed. The assistant manager of the AM/PM said people

were walking away because they were leaving. The assistant manager explained,

“Some of them that you see get out of the vehicle and then come halfway up and leave

is because [Jones] is telling them it’s going to be about 10 minutes so they’re either

going to go back to the car and wait or go to another gas station.”

       Jones stated that “[m]ost of the time people comply” with his directions to wait

for the store to reopen. During defendant’s police interview, defendant said, “My

attitude. My fucking anger. He fucking wouldn’t let me in. Big deal. I shoud’a just

went somewhere else.”

       The evidence reflects that Jones’s statements informing defendant that defendant

would have to wait 10 minutes, and Jones’s acts of holding the door closed and swatting

at defendant’s hand would not cause an ordinary person of average disposition to act

rashly or without due deliberation and reflection, and from his passion rather than

judgment. The ordinary person’s response to Jones’s statement and actions would be to

(1) walk away and wait, or (2) walk away and drive to another gas station. Because the

evidence does not reflect that an ordinary person would act rashly in response to Jones’s

statement and actions, the trial court did not err by refusing to instruct on heat of

passion voluntary manslaughter.




                                             15
       D.     HEAT OF PASSION ATTEMPTED VOLUNTARY MANSLAUGHTER

       Defendant contends the trial court erred by refusing to instruct on heat of passion

attempted voluntary manslaughter. As explained ante, heat of passion, in particular the

element of sufficient provocation, was not closely and openly connected with the facts

before the court. Accordingly, we conclude the trial court did not err by refusing to

instruct on heat of passion.

       E.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant asserts his trial counsel rendered ineffective assistance by failing to

request the jury be instructed on how provocation affects the degree of murder.

Defendant asserts that after the trial court refused to instruct on heat of passion, his trial

counsel should have requested an instruction on how provocation can reduce a first

degree murder to second degree murder.

       To demonstrate ineffective assistance of counsel, defendant must show

“ ‘counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms, and there is a reasonable probability that, but for

counsel’s unprofessional errors and/or omissions, the trial would have resulted in a

more favorable outcome.’ . . . ‘ “ ‘[If] the record on appeal sheds no light on why

counsel acted or failed to act in the manner challenged[,] unless counsel was asked for

an explanation and failed to provide one, or unless there simply could be no satisfactory

explanation,’ the claim on appeal must be rejected.” ’ ” (People v. Carrasco (2014) 59

Cal.4th 924, 982.)




                                              16
       “ ‘[T]he existence of provocation which is not “adequate” to reduce the class of

the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt

that the defendant formed the intent to kill upon, and carried it out after, deliberation

and premeditation.’ ” (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved

of on another point by People v. Barton (1995) 12 Ca.4th 186, 201.)

       “The test of whether provocation or heat of passion can negate malice so as to

mitigate murder to voluntary manslaughter is objective.” (People v. Padilla (2002) 103

Cal.App.4th 675, 678.) “The test of whether provocation or heat of passion can negate

deliberation and premeditation so as to reduce first degree murder to second degree

murder, on the other hand, is subjective.” (Ibid.)

       Defendant said during a police interview that he had consumed 33 beers and

marijuana on the night of the killing. Defendant said he was intoxicated. During the

first police interview, approximately 12 days after the killing, the detective began the

interview by saying, “I smell a little alcohol, but I think you’re OK.” Later that day,

during a second interview, the detective said to defendant, “The alcohol you can smell

it. ‘Cause you were sleeping in here for a while, so, like, when I opened up the door I

was like, ‘whoa, alcohol.’ ”

       Evidence of voluntary intoxication can be used to negate evidence of

premeditation and deliberation. (§ 29.4, subd. (b).) Thus, evidence of intoxication can

operate to reduce a first degree murder to second degree murder. (People v. Turk

(2008) 164 Cal.App.4th 1361, 1376-1377.) The trial court instructed the jury on how

voluntary intoxication reduces first degree murder to second degree murder. During


                                             17
closing argument, defendant’s trial counsel argued that defendant consumed “about 30

beers” and marijuana within approximately six hours. Defense counsel asserted

defendant did not plan the shooting because he was intoxicated.

      Defendant’s trial counsel, in evaluating the case, could reasonably conclude that

the proof of intoxication was stronger than the proof of provocation. Defense counsel

might believe the evidence of intoxication was stronger because few people would

doubt that 30 beers in six hours plus marijuana would cause a person to be inebriated;

however, many people might doubt that Jones’s statements and actions amounted to

provocation. (See People v. Souza, supra, 54 Cal.4th at p. 116 [victim must cause

provocation]; People v. Carasi, supra, 44 Cal.4th at p. 1306 [same].)

      Thus, in assessing the case, defense counsel could reasonably choose to argue

only intoxication to the jury because it was a stronger and clearer theory and would lead

to the same second degree murder conviction as would a provocation theory. Defense

counsel may not have wanted to muddy his theories by presenting two alternative routes

to second degree murder, and therefore chose to present only the stronger intoxication

theory. Accordingly, we conclude defendant has not established that his counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms.




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       F.     PROSECUTORIAL ERROR

              1.     PROCEDURAL HISTORY

       Prior to trial, the trial court granted defendant’s motion to exclude references to

defendant’s possible white supremacist associations and/or beliefs. The trial court

reasoned that the case did not involve a hate crime so such evidence would be more

prejudicial than probative. (Evid. Code, § 352.)

       During trial, the prosecutor asked Carmen, “Anything unusual about the white

pickup truck?” The prosecutor was referring to the truck defendant was driving during

the killing. Carmen responded, “He had stickers in the back of the window. It was just

like a regular 4x4 TRD, white in color, he had stickers on the back window, like maybe

an Obama sticker or swastika and there was another one but I don’t remember what that

is.” The prosecutor asked Carmen, “Well, do you have a photographic memory of what

the stickers are on the truck?” Carmen replied, “Well, there was a swastika sticker, if

that’s what you’re—I’m not.”

       When Ernest testified, the following exchange occurred:

       “[Prosecutor]: Are you familiar with the defendant’s vehicle?

       “[Ernest]: A white Toyota truck.

       “[Prosecutor]: Anything unusual about that vehicle?

       “[Ernest]: No, just the regular truck with stickers on the back windows.

       “[Prosecutor]: What kind of stickers?

       “[Ernest]: Not a skeleton but, like a German helmet on a decal on there, might

have been a clothing line, I’m not sure.”


                                            19
       While the jury was at its lunch recess, the trial court remarked that Carmen

testified about a swastika sticker on defendant’s truck and Ernest testified about a

sticker for a clothing line on defendant’s truck; defense counsel clarified Ernest

mentioned a German helmet. Defense counsel said he did not believe the prosecutor

had a malicious intent, and the point of the prosecutor’s question was to prove stickers

had been on the truck and that defendant removed them. The prosecutor said, “Right

and [defense] Counsel’s aware of this and so the Court knows, nowhere does it make a

reference to a Swastika sticker, so that was out of the blue, news to both of us.” The

court said it would admonish the jury to not consider the swastika evidence for any

purpose.

       At the end of the day, the trial court said to the jury, “There was testimony from

one of the witnesses about perhaps the vehicle identified as belonging to the defendant

that had a Swastika or German helmet, clothing design, whatever, you’re not to interpret

anything about that design one way or the other. The sole purpose is identification,

stickers and for the purpose of testimony. What you use it for is up to you, but as far as

what it is, not relevant, even if you believe it was a Swastika or a helmet, [it] has

nothing to do with the case and just keep that in mind because that came out. There’s

no bearing on the case at all.”

              2.     ANALYSIS

       Defendant asserts the prosecutor erred by failing to ensure his witnesses

complied with the in limine ruling prohibiting references to defendant’s alleged support

for racist organizations. The People assert defendant forfeited this issue by failing to


                                             20
object in the trial court, or to the extent defendant’s trial counsel requested an

admonishment, the trial court complied with the request. (See People v. Tully (2012) 54

Cal.4th 952, 1037-1038 (Tully) [failure to object on grounds of prosecutorial

misconduct forfeits the issue].) We choose to address the merits of defendant’s

contention.

       “ ‘ “It is, of course, misconduct for a prosecutor to ‘intentionally elicit

inadmissible testimony.’ [Citations.]” [Citation.] Such misconduct is exacerbated if

the prosecutor continues to elicit such evidence after defense counsel has objected.’

[Citation.] However, a prosecutor cannot be faulted for a witness’s nonresponsive

answer that the prosecutor neither solicited nor could have anticipated.” (Tully, supra,

54 Cal.4th at p. 1035.)

       The prosecutor said he had no knowledge of a swastika sticker being on

defendant’s truck prior to Carmen’s testimony. As a result, the prosecutor could not

have anticipated Carmen’s testimony regarding the swastika sticker. Because the

prosecutor could not have anticipated the testimony, there was no misconduct. (See

Tully, supra, 54 Cal.4th at p. 1038 [prosecutor could not have anticipated the testimony

so there was no misconduct].)

       When the prosecutor asked Carmen a yes or no question about having a

photographic memory, Carmen gave a nonresponsive answer that again mentioned the

swastika sticker. Because Carmen’s answer was nonresponsive, the prosecutor could

not predict that Carmen would again discuss the swastika sticker. Because the

prosecutor could not have anticipated Carmen’s answer, we conclude there was no


                                             21
misconduct. (See Tully, supra, 54 Cal.4th at p. 1038 [prosecutor could not have

anticipated the testimony so there was no misconduct].)

       When the prosecutor asked Ernest about the stickers on the truck, Ernest

mentioned a German helmet sticker that might be associated with a clothing company

logo. It does not appear from this record that the prosecutor was attempting to elicit

inadmissible evidence from Ernest. For example, the prosecutor did not follow-up with

Ernest to ask what other stickers may have appeared on the truck. Ernest’s failure to

mention any stickers other than the possible clothing company sticker indicates that the

prosecutor may have instructed Ernest not to mention any racist stickers. In sum, on

this record, it has not been demonstrated that the prosecutor intentionally elicited

inadmissible testimony. Therefore, we conclude prosecutorial misconduct has not been

established.

       G.      CUMULATIVE ERROR

       Defendant contends the cumulative prejudicial effect of the alleged errors in

“Arguments I to IV” (subsections C-F) require the judgment be reversed. We have

found no errors. Therefore, we have nothing to cumulate. (See People v. Duff (2014)

58 Cal.4th 527, 562 [“nothing to cumulate”].)

       H.      SENTENCE

               1.    PROCEDURAL HISTORY

       In count 1, for the offense of first degree murder (§ 187, subd. (a)), with the

special circumstance of lying in wait (§ 190.2, subd. (a)(15)), the trial court imposed a

sentence of life without the possibility of parole (LWOP). In regard to the firearm


                                            22
enhancement (§ 12022.53, subd. (d)) associated with the murder conviction, the trial

court said, “[T]hat’s a mandatory term of 25 years to life.” The LWOP and 25-years-to-

life sentences were to be served consecutively.

          In count 2, for the offense of attempted murder (§§ 187, subd. (a), 664)), which

was committed willfully and with premeditation and deliberation (§ 189), the trial court

imposed a “statutory sentence [of] seven years to life.” As to the firearm enhancement

(§ 12022.53, subd. (d)) associated with the attempted murder conviction, the trial court

said “25 years to life by statute.” The 25-years-to-life firearm enhancement sentence

was consecutive to the “seven years to life” sentence; however, all of the count 2

sentence was to be served concurrent to the count 1 sentence. Thus the trial court

pronounced defendant’s total sentence as “25 years to life, plus life without the

possibility of parole.”

                2.     ATTEMPTED MURDER SENTENCE

          Defendant contends his sentence for attempted murder should be life, rather than

seven years to life. The People concede defendant is correct.

          The trial court sentenced defendant to prison for a concurrent term of seven years

to life for the attempted murder conviction. The sentence for an attempted murder that

is deliberate and premeditated is imprisonment for life with the possibility of parole.

(§ 664, subd. (a).) Accordingly, we will reverse defendant’s attempted murder sentence

and direct the trial court to impose a concurrent term of life with the possibility of

parole.




                                              23
              3.     FIREARM ENHANCEMENT

       Defendant requests this court remand the case to the trial court so the trial court

can exercise its discretion regarding whether to strike one or both of the firearm

enhancements (§ 12022.53, subd. (d)). (§ 12022.53, subd. (h).) The People concede the

case should be remanded.

       The trial court sentenced defendant on June 10, 2016.

       On January 1, 2018, section 12022.53, subdivision (h), became effective. (Sen.

Bill. No. 620 (2017-2018 Reg. Sess.) § 2.) That subdivision provides, “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.” (§ 12022.53, subd. (h).) Prior to the effective date of

section 12022.53, subdivision (h), the imposition of a 25-years-to-life sentence was

mandatory for a violation of section 12022.53, subdivision (d). (Sen. Bill. No. 620

(2017-2018 Reg. Sess.).)

       Unless there is evidence to the contrary, courts presume that the Legislature

intends for a statutory amendment reducing criminal punishment to apply retroactively

in cases that are not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 747-748;

People v. Brown (2012) 54 Cal.4th 314, 324.) This presumption is applied not only to

amendments reducing a criminal penalty, but also to amendments giving the trial court

discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)




                                            24
       Section 12022.53, subdivision (h), vests the trial court with the discretion, at

sentencing, to strike or dismiss a firearm enhancement, which would result in a

defendant having a lesser sentence. There is nothing in the language of section

12022.53, subdivision (h), or in the broader language of the Senate Bill, indicating the

Legislature intended the subdivision to be only prospective. (Sen. Bill. No. 620 (2017-

2018 Reg. Sess.).) Accordingly, we conclude section 12022.53, subdivision (h), may be

applied in the instant case because (1) it vests the trial court with authority to lower

defendant’s sentence, and (2) defendant’s sentence was not final at the time the

subdivision became effective. (People v. Francis, supra, 71 Cal.2d at pp. 75-76.) We

will reverse the sentences for defendant’s firearm enhancements so that the trial court

may exercise its discretion under section 12022.53, subdivision (h).

                                      DISPOSITION

       Defendant’s sentence for the attempted murder conviction (§§ 187, subd. (a),

664); count 2) is reversed. The trial court is directed to impose a concurrent term of life

with the possibility of parole (§ 664, subd. (a)) for the attempted murder conviction in

count 2. The sentences for the firearm enhancements in counts 1 and 2 (§ 12022.53,

subd. (d)) are reversed. The trial court is directed to exercise its discretion under section

12022.53, subdivision (h).3 If the trial court elects not to strike or dismiss one or both

enhancements, then the trial court is directed to resentence defendant for the firearm

enhancement(s) (§ 12022.53, subd. (d)). The trial court is directed to issue an amended

       3 Nothing in this opinion is intended to indicate in what manner the trial court
should exercise its discretion.


                                             25
abstract of judgment and forward it to the appropriate agency/agencies. In all other

respects, the judgment is affirmed.

       CERTIFIED FOR PUBLICATION


                                                      MILLER
                                                                                       J.


We concur:


McKINSTER
                       Acting P. J.


CODRINGTON
                                 J.




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