THE PEOPLE v. REGINALD FIELDS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. REGINALD M. FIELDS, Defendant and Appellant.

B220807

Decided: January 24, 2011

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

“Prospective Juror No. 16:  Yes. Baldwin Hills, California.   I am single.   I am a construction cost engineer during the day, and at night I'm a record producer/engineer.[ 5 ]  And I have served on a jury before for a domestic case.

“The Court:  So domestic violence?

“Prospective Juror No. 16:  Uh-huh.

“The Court:  How many years ago?

“Prospective Juror No. 16:  About seven, eight years ago.

“The Court:  Seven or eight.   Did the jury reach a verdict?

“Prospective Juror No. 16:  Yes we did.

“The Court:  Thank you.”

The record does not indicate that Juror No. 16 spoke again or raised his hand in response to any question from court, the prosecutor or Fields.   The prosecutor used his eighth peremptory challenge on Juror No. 16.6  By that point, Jurors 1 through 65 had given their biographical information and had been questioned by the court and the parties.

The record suggests no grounds for the prosecutor's challenge of this juror.

Juror No. 15

In arguing his Wheeler/Batson motion, Fields also referenced the peremptory challenge the prosecutor had used on an African-American man who was “a lawyer.”   Based on our review of the entire record of voir dire, it is apparent that Fields was referring to Juror No. 15.7  In providing his biographical information, Juror No. 15 stated that he was a transactional attorney who practiced in the area of finance law.   He was married and had three daughters.   His wife used to be a software trainer but did not work anymore.   He lived in South Pasadena.

Juror No. 15 raised his hand and responded to several questions posed to the group by the court, Fields and the prosecutor.   In response to the court's inquiry regarding good or bad experiences with law enforcement, Juror No. 15 raised his hand and stated that he had “been[ ] racially profiled on several occasions” by the police in New Haven Connecticut, where he grew up.   He described one “scary” incident which occurred when he was home on a break from college:  “I was approached by police more than I could count, guns drawn.   Apparently, I fit a profile.   And the experience, I believe, was quite unfair and I think it had nothing to do with anything I had done or was guilty of.”   He did not file a complaint with the police department.

When Fields asked about club memberships, Juror No. 15 responded that he was a “member of clubs and multiple bar associations and [his] church.”   When Fields asked whether anyone believed “that because a person is addicted to drugs that they are a bad person or could come to court and not tell the truth because of their drug addiction,” Juror No. 15 responded:  “I don't think that I would automatically discredit someone, but drug addiction is a problem in my family and I think it does affect someone's credibility depending on what they are testifying about.   Like, for example, if they are testifying and said they never did drugs, I would doubt that if there were proof there was drugs.   I'm not quite sure I understand the depth of the question.”   Juror No. 15 agreed with Fields's statement that a drug user could be considered credible if his or her testimony “matched up to the evidence.”   In response to another question by Fields, Juror No. 15 stated his opinion that if a person were to commit a criminal act and then flee, that “would imply guilt.”

The prosecutor asked Juror No. 15 specifically whether he had had any reaction when he heard that Fields had chosen to represent himself.   Juror No. 15 indicated that he wondered why Fields would do that.   The prosecutor asked the group whether anyone felt it was “unfair” or had “any other discomfort” with the fact that the crimes occurred in 1990 and Fields was being prosecuted nearly 20 years later.   Juror No. 15 responded:  “It struck me as odd, but I'm not familiar.   That just could be the normal time.   I don't know.   When you mentioned that or it was mentioned, I thought it was odd.”

The prosecutor used his eleventh peremptory challenge on Juror No. 15.

The record suggests reasonable grounds for the prosecutor's challenge of Juror No. 15.   He had had bad experiences with law enforcement, he questioned the delay in prosecution of the case and his familial experience with drug addiction had caused him to question the credibility of drug users.   Eyewitness Caroline Lard had a history of drug use and abuse.

Juror No. 16's excusal, discussed above, is all the more suspect in light of Juror No. 15's exchanges with the court and the parties.   Juror No. 15 was quite vocal during voir dire, responding to many questions.   Juror No. 16 said nothing other than his brief biographical statement.

Juror No. 9

In arguing his Wheeler/Batson motion, Fields did not reference Juror No. 9. The prosecutor used his second peremptory challenge on this prospective juror.   Juror No. 9 identified himself/herself on the record as an African-American.   It is not clear from the record whether this prospective juror is male or female.   In providing biographical information, Juror No. 9 stated:  “Altadena, California.   I'm single.   No children.   I'm unemployed.   And no, I have not served on a jury before.”   Before the unemployment, Juror No. 9 had worked in the mailroom for an entity called Southwest Administrators.

During group questioning by the court, Juror No. 9 stated that he/she had been arrested for marijuana possession and served four or five days in jail in La Crescenta.   Juror No. 9 believed that sheriff's deputies pulled him/her over immediately prior to the arrest because they saw that he/she was African-American.   Juror No. 9 stated that he/she could be fair and objective as a juror on the case despite that experience.   Juror No. 9 also revealed that his/her father was a deputy probation officer and his/her brother-in-law had worked for the San Antonio Police Department.   Juror No. 9's father had owned a handgun for his work.

The prosecutor asked Juror No. 9 specifically about any reaction to the fact that Fields had chosen to represent himself.   Juror No. 9 responded:  “I would say that is bold.”

The record suggests a reasonable ground for the prosecutor's challenge of Juror No. 9 given his/her arrest for marijuana possession and his/her belief that sheriff's deputies target people because of their race.

Considering the totality of the circumstances set forth in the record of voir dire, we conclude that Fields established a prima facie case of group bias regarding the challenge of Juror No. 85.   She was (at least) the fourth African-American juror the prosecutor had challenged.   The record does not suggest a ground on which the prosecutor might reasonably have challenged her.   The prosecutor's previous challenge of Juror No. 16, an African-American man, gives rise to an inference of a discriminatory purpose.   The record indicates that, other than providing biographical information, Juror No. 16 did not speak during voir dire.   He did not respond to any of the group questions posed by the court, Fields and the prosecutor.   Neither party asked him a direct question.   On this record, a prima facie showing exists that the prosecutor was challenging African-American jurors based on race.   The trial court should have conducted the second and third steps of the Batson inquiry.   Our opinion should not be construed to imply a lack of race-neutral grounds for the prosecutor's challenge of Juror No. 85.

Fields argues the appropriate remedy is to remand the matter for a new trial.   In People v. Johnson (2006) 38 Cal.4th 1096, 1103-1104, the California Supreme Court held that the appropriate remedy, where the trial court had erred in its decision regarding the first step of the Batson inquiry, and therefore had not reached the other two steps, was to remand the case to the trial court for further proceedings.   Because the voir dire in this case occurred less than two years ago, and there is a complete record of voir dire, we conclude a limited remand is an appropriate remedy.  (See People v. Hutchins (2007) 147 Cal.App.4th 992, 998-999.)

On remand the trial court “should attempt to conduct the second and third Batson steps.   It should require the prosecutor to explain his challenge[to Juror No. 85].   If the prosecutor offers a race-neutral explanation, the court must try to evaluate that explanation and decide whether defendant has proved purposeful racial discrimination.   If the court finds that, due to the passage of time or any other reason, it cannot adequately address the issues at this stage or make a reliable determination, or if it determines that the prosecutor exercised his peremptory challenge[ ] improperly, it should set the case for a new trial.   If it finds the prosecutor exercised his peremptory challenge[ ] in a permissible fashion, it should reinstate the judgment.”  (People v. Johnson, supra, 38 Cal.4th at pp. 1103-1104.)

Because our reversal is conditional, we address the other issues Fields raises on appeal.

II. Jury Instructions

A. Involuntary manslaughter

Fields contends the trial court erred in declining to instruct the jury on involuntary manslaughter.   We disagree.

During a conference on jury instructions, Fields asked the court to give the following instruction, which he had prepared:  “If you find that the defendant killed another human being but due to a sudden quarrel or an honest but mistaken belief of the necessity to act in self-defense, the killing is manslaughter.   You must decide whether it is voluntary or involuntary manslaughter.   Unless you are convinced beyond a reasonable doubt that the defendant had the intent to kill or acted with conscious disregard for human life, as defined in these instructions, you must find him guilty of involuntary manslaughter.”

The trial court explained to Fields that there was no need for him to create a new instruction on sudden quarrel or self-defense because standard pattern instructions already existed covering these theories.   The court informed Fields that it would not give these instructions, however, because there was no substantial evidence supporting theories of sudden quarrel, heat of passion or self-defense.   The court added:  “The only evidence I have is that the defendant and Country invaded a home with guns and shot people in that home.   That is the evidence that exists.”

Fields never explained below how a theory of involuntary manslaughter applied to his case.   He did discuss the issue further with the trial court.   He did not present evidence supporting, nor did he argue such a theory.   When he testified, he presented an alibi defense.   Now, on appeal, Fields argues that substantial evidence supported instructions on involuntary manslaughter because the “jury could have found that the homicide of Jefferson was involuntary manslaughter, caused by Country's criminally negligent brandishing of the gun at Combs.”   For the reasons explained below, we disagree that substantial evidence in the record warranted instructions on involuntary manslaughter under Fields's new and previously undisclosed theory of the case.

“Manslaughter is the unlawful killing of a human being without malice.” (§ 192.)   Manslaughter is “involuntary” where the killing occurs “in the commission of an unlawful act, not amounting to felony;  or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).)  Drawing or exhibiting a deadly weapon “in a rude, angry, or threatening manner” is a misdemeanor offense. (§ 417.)   A finding of involuntary manslaughter is supported where a defendant unlawfully exhibits a gun in an angry manner during a quarrel and the gun accidentally discharges because, for example, someone bumps into the defendant.  (See People v. Southack (1952) 39 Cal.2d 578, 583-584;  see also People v. Lee (1999) 20 Cal.4th 47, 60-61.)  “Involuntary manslaughter is ordinarily a lesser offense of murder.”  (People v. Abilez (2007) 41 Cal.4th 472, 515.)

A trial court errs if it fails to instruct “on all theories of a lesser included offense which find substantial support in the evidence.   On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.”  (People v. Breverman (1998) 19 Cal.4th 142, 162.) 8  “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.  [Citations.]  ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could ․ conclude” ’ that the lesser offense but not the greater, was committed.”  [Citation.]”  (Ibid.)

Fields argues that a portion of Yolanda Griffith's testimony supports his new theory that, at the time Jefferson was killed, Fields had not formed the intent to kill Combs, and Country's only intention was to scare Combs by brandishing a weapon, a misdemeanor offense. (§ 417.)   Fields asserts that substantial evidence demonstrates that neither Country nor Fields had formed the intent to kill Combs until after Combs struggled with Country and the gun accidentally discharged, firing the bullet that killed Jefferson.   Thus, Fields contends that his later-formed intent to kill Combs cannot be transferred to the prior killing of Jefferson.

Fields's new theory of involuntary manslaughter is not supported by the evidence.   Fields and Country armed themselves with loaded weapons and went to the home of the man who was having a sexual relationship with the same woman as Fields.   According to Griffith, Country “rushed” through the door with his gun pointed at Combs.   No words were exchanged.   Country did not threaten Combs.   Combs wrestled Country down to the ground and then the shot rang out that hit Jefferson.   Combs came up with the gun, but did not hold it up or point it at anyone;  instead, the gun was pointed at the floor.   Fields entered the home “right after Country,” and immediately pointed his gun at Combs and fired “[a] lot” of shots at Combs.

Lard's version of the evening's events does not support a theory of involuntary manslaughter.   As set forth above, Lard testified that Fields and Country “bust[ed] in the door” with Fields immediately firing his weapon at Combs multiple times.

The record does not contain substantial evidence requiring the trial court to instruct on involuntary manslaughter under the theory-not articulated below-that neither Country nor Fields had formed the intent to kill Combs until after the shot was fired that killed Jefferson.   There was no argument inside the home that precipitated the shooting.   According to Griffith's testimony, Country and Fields rushed into the home one right after the other with guns aimed at Combs.   Fields shot Combs multiple times.   Five bullets were recovered from Combs's body.   Griffith's testimony does not constitute substantial evidence indicating that Fields formed the intent to kill Combs after hearing the shot that killed Jefferson, entering the home and seeing Combs holding Country's gun.   This is not a reasonable interpretation of Griffith's testimony.   She stated that Combs entered the home right after Country and immediately started firing at Combs.   The trial court did not err in declining to instruct on involuntary manslaughter.

Even if the trial court did have a duty to instruct on involuntary manslaughter, any error could not have been prejudicial because the jury's findings demonstrate that the jury necessarily rejected Fields's current version of events.  (See People v. Lewis (2001) 25 Cal.4th 610, 646.)   If the jury had credited the portion of Griffith's testimony that Fields now relies on, it would not have found true the allegation that Fields personally used a firearm during the commission of Jefferson's murder.   Griffith testified that Fields entered the home immediately after Jefferson was struck with the bullet.   Based on her testimony, Fields did not use his firearm until after the killing of Jefferson had occurred.   According to the testimony of both eyewitnesses, Fields came into the home and started shooting immediately.   The only manner in which Fields “used” his firearm was in shooting it.   There is no testimony indicating that he displayed it “in a menacing manner” before he fired it.  (CALCRIM No. 3146.)   Thus, the jury must have believed Lard's account on this issue and concluded that Fields was shooting at Combs when Jefferson was killed.

B. Transferred Intent

Fields contends the trial court did not instruct properly on transferred intent.   We disagree.

Using CALCRIM 562, the trial court gave the following instruction on transferred intent:  “If the defendant intended to kill one person, but by mistake or accident also killed someone else, then the crime, if any, is the same for the unintended killing as it is for the intended killing.”   This is a correct statement of the law.  (See People v. Shabazz (2006) 38 Cal.4th 55, 62.)   The court also instructed on aiding and abetting (CALCRIM Nos. 400 & 401) as well as the requirement of “proof of the union, or joint operation, of act and wrongful intent (CALCRIM No. 251).

Fields argues that the court had a sua sponte duty to instruct the jury further that “transferred intent applies only when the unintended victim [Jefferson] is killed in the course of the attempt to kill the intended victim [Combs], or while defendant harbors the intent to kill the intended victim.”   By failing to ask the court to give an instruction clarifying or amplifying CALCRIM 562, Fields forfeited this claim on appeal.  (People v. Geier (2007) 41 Cal.4th 555, 579 [where trial court's instructions are correct on the law, defendant forfeits claim of instructional error by failing to request a clarifying or amplifying instruction].)

In any event we already have rejected Fields's new theory that “Jefferson may have been shot in the course of Country's brandishing of his gun at Combs, before Fields formulated the intent to kill Combs,” which is the basis for this claim of instructional error.   The court did not err in failing to give instructions based on an unarticulated theory of the case which was not supported by substantial evidence.

III. Sentence on Firearm Enhancements

On each murder count, the trial court imposed a consecutive 10-year prison term for the firearm enhancement under section 12022.5, subdivision (a).   The trial court made clear that it was imposing the upper term for these enhancements, and stated its reasons for doing so.   Fields contends the trial court erred in imposing his sentence on the enhancements.   The People concede the errors, as set forth below.

In September 1990, when the offenses occurred, the punishment for personal use of a firearm under section 12022.5, subdivision (a), was three, four or five years.  (Stats.1989, ch. 18, § 3, ch. 19, § 2, ch. 1044, § 5 & ch. 1167, § 5 [the 1989 amendment changed the term from two years to “three, four, or five years”].)  Section 12022.5, subdivision (a), was amended on November 30, 1994 to include the upper term of 10 years.  (Stats.1993-1994, 1st Ex.Sess., ch. 31, § 3, p. 8650 & ch. 33, § 6, p. 8677 [the 1994 amendment changed the term from three, four or five years to “3, 4, or 10 years”].)   The parties are correct that imposition of the 10-year terms violated the ex post facto clauses of the federal and state constitutions.  (U.S. Const., art.   I, § 10, cl. 1;  Cal. Const., art.   I, § 9.)

Moreover, in 1990, California law did not allow the imposition of multiple firearm enhancements on multiple murders that occurred as part of “one occasion, one intent, one objective, one indivisible transaction.”  (In re Culbreth (1976) 17 Cal.3d 330, 335.)   This changed in 1993 when the California Supreme Court overruled Culbreth and held in People v. King (1993) 5 Cal.4th 59, 79, that “a firearm-use enhancement under section 12022.5 may be imposed for each separate offense for which the enhancement is found true.”   The Supreme Court made clear that the “Culbreth rule” applied to crimes predating the Court's opinion in K ing. (Id. at p. 80.)   The murders of Combs and Jefferson occurred as part of one indivisible course of conduct.   Thus, the parties are correct that the trial court should have imposed only one five-year enhancement under section 12022.5, subdivision (a).9

We order the trial court to correct these errors on remand, as set forth in the disposition below.

IV. Presentence Credits

Fields contends, and the People agree, that he is entitled to one additional day of credit under section 2900.5 for his actual days in presentence custody.   The trial court awarded Fields 1,318 days of actual credit.   The parties agree that Fields is entitled to 1,319 days.   Fields was arrested in Mexico on April 5, 2006, and he was sentenced on November 13, 2009.   He is entitled to credit for the actual days he spent in presentence custody, including the day of his arrest and the day of his sentencing.  (People v. Smith (1989) 211 Cal.App.3d 523, 526.)   This also includes presentence time spent in Mexico.   (In re Watson (1977) 19 Cal.3d 646, 654 [“a defendant convicted of a felony is entitled to credit pursuant to section 2900.5 against his sentence for the presentence time spent in jail in a foreign jurisdiction resisting extradition to this state on charges of which he has been ultimately convicted”].)

Fields also contends, and the People agree, that he is entitled to conduct credits, which the trial court did not award.   The statutory provisions which eliminate presentence conduct credit for murderers, sections 190, subdivision (e), and 2933.2, were not operative at the time the murders were committed in 1990, and may not be applied retroactively.  (See People v. Hutchins, supra, 90 Cal.App.4th at pp. 1315-1318.)   The parties are correct that Fields is entitled to an award of presentence conduct credits under section 4019.   As Fields has noted, section 2933.1, subdivision (a) which provides that a violent felon “shall accrue no more than 15 percent of worktime credit,” was enacted in 1994, and may not be applied retroactively. (§ 2933.2, subds.(a) & (d);  Stats.1994, ch. 713, § 1.)

We order the trial court to calculate Fields's conduct credits on remand, as set forth in the disposition below.

DISPOSITION

The judgment is conditionally reversed and the cause remanded for further proceedings on Fields's challenge to the prosecutor's use of a peremptory challenge to Juror No. 85.   If the trial court determines the challenge was exercised for a race-neutral reason, the trial court shall then (1) recalculate Fields's presentence custody credits, including actual custody (1,319 days) and conduct credits (to be calculated), (2) correct the judgment by striking the two, 10-year firearm enhancements imposed under section 12022.5, subdivision (a), and imposing one, five-year firearm enhancement under section 12022.5, subdivision (a), and (3) reinstate the original judgment in all other respects.   If, however, the trial court finds that due to the passage of time or for any other reason it cannot adequately address the issues on Fields's Wheeler/Batson motion or make a reliable determination on that motion, or if it concludes that the prosecutor exercised the

challenge to Juror No. 85 on the basis of that juror's race, the judgment shall remain reversed and the trial court shall set the case for a new trial.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN5. At the time that Juror No. 16 was excused, he was the only prospective juror who had stated that he worked in construction.   There was only one other prospective juror who had identified himself as an engineer (Juror No. 43).   Juror No. 43 cannot be the prospective juror whom Fields was referring to in support of his Wheeler/Batson motion because the record does not indicate that the prosecutor used a peremptory challenge on that prospective juror..  FN5. At the time that Juror No. 16 was excused, he was the only prospective juror who had stated that he worked in construction.   There was only one other prospective juror who had identified himself as an engineer (Juror No. 43).   Juror No. 43 cannot be the prospective juror whom Fields was referring to in support of his Wheeler/Batson motion because the record does not indicate that the prosecutor used a peremptory challenge on that prospective juror.

FN6. Each side had 20 peremptory challenges to use before the jury was selected and sworn.   The prosecutor used 18 of those challenges.   Each side had eight peremptory challenges to use during the selection of alternate jurors.   The prosecutor used his second of those challenges on Juror No. 85, the subject of Fields's Wheeler/Batson motion..  FN6. Each side had 20 peremptory challenges to use before the jury was selected and sworn.   The prosecutor used 18 of those challenges.   Each side had eight peremptory challenges to use during the selection of alternate jurors.   The prosecutor used his second of those challenges on Juror No. 85, the subject of Fields's Wheeler/Batson motion.

FN7. At the time that Juror No. 15 was excused, there was only one other male prospective juror who had identified himself as a lawyer (Juror No. 47).   Juror No. 47 cannot be the prospective juror whom Fields was referring to in support of his Wheeler/Batson motion because the record indicates that Fields used a peremptory challenge on that prospective juror..  FN7. At the time that Juror No. 15 was excused, there was only one other male prospective juror who had identified himself as a lawyer (Juror No. 47).   Juror No. 47 cannot be the prospective juror whom Fields was referring to in support of his Wheeler/Batson motion because the record indicates that Fields used a peremptory challenge on that prospective juror.

FN8. In People v. Breverman, the California Supreme Court addressed the trial court's sua sponte duty to instruct on a lesser included offense.   (People v. Breverman,supra, 19 Cal.4th at p. 162.)   The principles set forth in Breverman also are applicable here where Fields requested an instruction on a lesser included offense and the trial court declined to give it.  (See People v. Elize (1999) 71 Cal.App.4th 605, 610.).  FN8. In People v. Breverman, the California Supreme Court addressed the trial court's sua sponte duty to instruct on a lesser included offense.   (People v. Breverman,supra, 19 Cal.4th at p. 162.)   The principles set forth in Breverman also are applicable here where Fields requested an instruction on a lesser included offense and the trial court declined to give it.  (See People v. Elize (1999) 71 Cal.App.4th 605, 610.)

FN9. Fields does not argue that imposition of the upper term was improper..  FN9. Fields does not argue that imposition of the upper term was improper.

the court:

ROTHSCHILD, Acting P.J. JOHNSON, J.