Filed 7/29/21 P. v. Daniels CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule

8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION T WO

THE PEOPLE,

Plaintiff and Respondent,

v.

JA SON MONROE DANIELS

,

Defendant and Appellant. B30 1038

(Los Angeles County

Super. Ct.

No . NA106266 )

ORDER MODIFYING

OPINION

[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on July 26, 2021,

be modified as follows:

1. On page 29, the paragraph under the heading

“Additional Presentence Custody Credits” is deleted and the

following paragraph is inserted in its place:

T he sentencing hearing transcript shows the trial court

miscalculated Daniels’s presentence custody credits as 832 days.

Daniels contends

, and the People acknowledge

, that he was2

entitled to 84 7 days, having spent 84 7 days in actual custody.

(See People v. Heard (1993) 18 Cal.App.4th 1025, 1027

– 1028.) A

sentence that fails to award legally mandated custody credit is

unauthorized and may be corrected whenever discovered. ( People

v. Taylor (2004) 119 Cal.App.4th 628, 647.) Daniels’s presentence

custody credit s a ward, and the abstract of judgment reflecting

the award, shall be modified to aw ard him 1 5 additional days, for

a total award of 84 7 days of presentence custody credits.

2. On page 30, the text of the Disposition is deleted and the

following disposition is inserted in its place:

We modify the judgment by strik ing the three one

- year

Penal Code section 667.5, subdivision (b) sentencing

enhancements and add ing 1 5 days of pre sentence custody credits

for a total of 84 7 days of presentence custody credits. As modified

the judgment is affirmed. The superior court is directed to

prepare a corrected abstract of judgment and forward it to the

Department of Corrections and Rehabili tation.

This modification changes the judgment.

Appellant’s petition for rehearing is denied.

NOT TO BE PUBLISHED.

LUI, P. J. ASHMANN

- GERST, J. HOFFSTADT, J.Filed 7/26/21 P. v. Daniels CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule

8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION T WO

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON MONROE DANIELS

,

Defendant and Appellant. B30 1038

(Los Angeles County

Super. Ct.

No . NA106266 )

APPEAL from a judgment of the Superior Court of Los

Angeles County, Judith Levey Meyer

, Judge

. Modified and

affirmed with directions

. Edward J. Haggerty , under appointment by the Court of

Appeal , for Defendant and Appellant

.

Matthew Rodri q uez

, Acting Attorney General, and Rob

Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Susan Sullivan Pithey, Senior Assistant

Attorney General, Blythe J. Leszkay and David W. Williams,

Deputy Attorneys General

, for Plaintiff and Respondent.2 Defendant and appellant Jason Monroe Daniels was

convicted by a jury of second degree murder , felony child abuse

, and possession of firearm by a felon. The jury found true

firearm

- use and prior conviction enhancements. On appeal,

Daniels contends the trial court prejudicially erred in refusing to

appoint advisory counsel and in revoking his pro se status, and

made instructional errors requiring reversal. We modify the

judgment to strike p rior prison term enhancements pursuant to

Senate Bill No. 136 (2019

– 2020 Reg. Sess.) and to reflect

additional presentence custody credits. We affirm the judgment

as modified.

FACT S

On April 1 9

, 2017, William Hayes suffered a fatal gunshot

wound to his chest

. The shooting occurred outside the home of

Daniels’s girlfriend Shawntee Falconer (Shawntee) and her

family. Daniels had been residing with Shawntee until the

afternoon of that day, when she kicked him out following an

argument. Shawntee then went to work, and Daniels reentered

the home in her absence. That night, Hayes showed up at the

home unexpectedly to see Shawntee’s two children, a 1 2

- year

- old

daughter and a six

- year

- old son. Hayes had been their

stepfather. He and the children visited outside. Shawntee was

still at work.

Shawntee’s brother and mother testified Daniels was

visibly upset by Hayes’s appearance

. After Hayes arrived,

Daniels told Shawntee over the phone, “I’m about to pop cuz.”

Daniels threw down the phone and wa lked outside to confront

Hayes. Daniels produced a gun and shot Hayes once in the chest,

narrowly missing Shawntee’s son. The bullet struck Hayes in the

heart, and he collapsed to the ground , where he was found by3

police

. 1 Daniels immediately fled. He was later arrested in Las

Vegas

.

Daniels testified he was unarmed when he confronted

Hayes outside. The children and other adults were inside the

home. Daniels realized Hayes was armed. The two men

struggled over Hayes’s gun, and the weapon fired once and fell to

the ground. Hayes grabbed his arm or shoulder and entered the

home. Daniels picked up the gun, hid it in the garage, and drove

away.

PROCEDURE

Daniels made three unsuccessful attempts to replace his

appointed counsel before trial ( People v. Marsden (1970) 2 Cal.3d

118) . Thereafter, his request to represent himself was granted

( Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45

L.Ed.2d 562] ( Faretta ) ) . The trial court relieved the public

defender’s office and appointed standby c ounsel , who was present

during trial

. In pretrial proceedings, Daniels was verbally combative

with the trial court

. On one occasion, he refused to leave his

holding cell , prompting the trial court to admonish Daniels that

his pro se status could be revok ed if he refused to comply with

court orders. During voir dire, the court made a point of giving

Daniels a general advisement that if he refused to leave the

holding cell “or anything like that” during trial, his pro se statu s

c ould be revoked.

1 S hawntee’s brother and mother each telephoned 911.

Audio recordings and transcripts of the phone calls were provided

to the jury.4 When tria l was under way, Daniels accus ed the trial court

of “side

- track [ ing ] ” him , “disrespect [ ing ] ” him

, or infringing h is

constitutional rights. He also berated the court when rulings

were not in his favor. Daniels engaged in two separate outbursts

in front of the jury. Each time, the court warned Daniels that his

pro se status could be terminated. Daniels’s third outburst

happened during his closing argument. The court revoked his

pro se status, and stand by counsel completed Daniels’s closing

argument.

A jury convicted Daniels of second degree murder ( Pen.

Code, § 187, subd. (a) 2 ) , felony child abuse ( § 273a, subd. (a)), and

possession of a firearm by a felon 3 ( § 29800, subd. (a)(1)). The

jury found true enhancement allegations that Daniels had

personally and intentionally discharged a firearm when

committing the murder ( § 12022.53, subd. (d)) and had personally

used a firearm when committing the child abuse (§ 12022.5, subd.

(a)). The jury also found true special allegations that Daniels had

suffered two prior violent or serious felony conviction s within the

meaning of the “ T hree S trikes ” law (§§ 667, subds. (b)

– ( j ),

1170.12) and two prior serious felony conviction s under section

667, subdivision (a) , and had served four separate prison terms

for felonies ( § 667.5, subd. (b)). Daniels was sentenced to an

aggregate state prison term of 122 years to life. This appeal

followed.

2 All further statutory references are to the Penal Code.

3 Daniels stipulated to having a prior felony conviction for

purposes of the charge of possession of a firearm by a felon.5 DISCUSSION

1. Denial of Advisory Counsel

A. Additional Facts

In his written motion

, Daniels’s stated grounds for

appointment of advisory counsel were: (1) “the law library in the

facility in which the defendant is being held has limited

resources ” ; (2) t he “ defendant does not have access to the

witnesses and the evidence in this case” ; and (3) the assistance of

advisory counsel “will aid the defendant in preparing his case for

trial.”

Before ruling on Daniels’s request, the trial court and

Daniels engaged in the following discussion:

“The Co urt: You’re asking for advisory counsel?

“[Daniels]: Yes.

“The Court: Thank you. [¶] Your request is denied. You don’t

get advisory counsel. [Kieran Brown is] just what we call back

up counsel. So that’s the deal. Let me just be clear. You can as k

for your pro per status to be revoked

— or you can give it up

, and I

give you an attorney.

“[Daniels]: I understand that.

“The Court: But you don’t get both.

“[Daniels]: Well, the state’s C onstitution says otherwise.

“The Court: I disagree. I’m denying it.

“[Daniels]: Okay.

“The Court: I disagree that that’s what the C onstitution says.

“[Daniels]: But it’s in there.

“The Court: But my feeling is you’re i nterpreting it wrong. We

don’t do that, and you’re not ‘entitled’ under the C onstitution to

advisory counsel. You’re not even entitled to back

- up counsel.6

Yet, we do that more as a convenience for the court, that if in the

middle of trial, and you feel that you get in over your head, then I

will revoke your pro per status and let a completely unprepared

attorney continue your case.

“[Daniels]: Well, that’s not

—

“The Court: That’s how it works.

“[Daniels]: That’s

—

“The Court: Or you can stop being pr o per and get an attorney,

which I will appoint the public defender’s office to continue to

help you again. [¶] Is that what you want?

“[Daniels]: No, ma’am.

“The Court: Okay. Then your request is denied.

“[Daniels]: Once again, the state’s C onstitut ion has awarded me

that because of limited access to certain law material.

“The Court: I disagree with that interpretation. Okay. .

. . [T] he

court is denying this motion.”

Jury trial commenced about a month later. Daniels

represented himself through most of the trial, and standby

counsel was present during the proceedings.

B. Relevant Legal Principles

C riminal defendants have a constitutional right to

represent themselves at trial. ( Faretta

, supra, 422 U.S. at

pp. 817

– 818.) But criminal defendants do not have a

c onstitutional right to advisory counsel. ( People v. Mattson

(1959) 51 Cal.2d 777, 795

, overruled on another ground in People

v. Taylor (2009) 47 Cal.4th 850, 871 ; People v. Moore (2011) 51

Cal.4th 1104, 1119

– 1120 ( Moore ); accord, McKaskle v. Wiggins

(1984) 465 U.S. 168,183 [104 S.Ct. 944, 79 L.Ed.2d 122]

( McKaskle ) .)7 Daniels argues the California Supreme Court, particularly

in Moore

, improperly relied on dicta in McKaskle

, which does not

support that conclusion. We are, however, compelled to follow

our Supreme Court’s repeated holdings that the Sixth

Amendment does not give a criminal defendant a right to

advisory counsel or any other hybrid form of representation. (See

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455

– 456 [intermediate court bound to follow binding precedent of

higher reviewing court and refusal to do so is in excess of

intermediate court ’ s jurisdiction]; People v. Smith (2003) 110

Cal.App.4th 1072, 1091 [same].)

A trial court may exercise its discretion to appoint advisory

counsel. ( People v. Cran dell (1988) 46 Cal.3d 833, 861 ( Crandell ),

abrogated on another ground by People v. Crayton (2002) 28

Cal.4th 346, 364

– 365; accord

, People v. Miracle (2018) 6 Cal.5th

318, 338.) Various factors that the court may consider include

the defendant ’ s education, familiarity with the criminal justice

system, and demonstrated legal abilities; the defendant ’ s reasons

for seeking advisory counsel, including evidence of a

manipulative purpose; the seriousness of the charges; and the

complexity of the issue s. ( People v. Debouver (2016) 1

Cal.App.5th 972, 976.) We review the decision for abuse of

discretion and will only set it aside if it is “arbitrary, capricious,

or whimsical.” ( Ibid. )

A trial court’s failure to exercise discretion, however, is

necessarily an abuse of discretion. ( People v. Bigelow (1984) 37

Cal.3d 731, 743; see Crandell, supra

, 46 Cal.3d at p. 861.) We

review such error under People v. Watson (1956) 46 Cal.2d 818,

836 ( Watson )

, to determine whether the denial of a dvisory

counsel under the particular circumstances would have been an8

abuse of discretion. If not, no constitutional right is implicated.

( Watson

, at pp. 864

– 865.)

C. Trial Court’s Denial of Daniels’s Request T o

Appoint Advisory Counsel Was Not Prejudicial

Daniels argues the trial court failed to exercise its

discretion in refusing to appoint advisory counsel. We agree.

Daniels’s motion w as summarily denied; there is no evidence the

court evaluated any relevant factors to determine whether the

appointment of advisory counsel was justified. (See Crandell,

supra

, 46 Cal.3d at p. 862.) The court correctly stated Daniels

was not entitled to ad visory counsel, but it apparently did not

understand that appointment of advisory counsel was a

discretionary choice. The court mistakenly believed a defendant

must either proceed in pro se or be represented by counsel.

Nonetheless, the record shows it w ould not have been an

abuse of discretion had the trial court exercised its discretion in

denying Daniels’s request for advisory counsel. ( People v. Clark

(1992) 3 Cal.4th 41, 111

– 112.) Daniels was 34 years old and a

high school graduate. He also had extensive experience with the

legal system, having multiple prior convictions and time spent on

parole.

In representing himself, Daniels consistently “proved to be

an aggressive, thorough, and skillful advocate.” ( Crandell, supra,

46 Cal.3d at p. 865.) Before seeking advisory counsel, Daniels

made a variety of pretrial motions, which he capably drafted and

argued

, including two Pitchess motions ( Pitchess v. Superior

Court (1974) 11 Cal.3d 531 ), a motion to set aside the

information, and a motion to exclu de evidence of his prior

convictions. Daniels also secured the assistance of two

investigators, the second one after the first one was relieved for9

health reasons; fo rmal and informal discovery from the

prosecutor; three transcripts of pretrial proceedings; the filing of

several subpoenas; a two

- week continuance of the trial; two

different expert witnesses, although only one of them testified;

and ex parte communicatio ns with the court. Daniels also filed

motions alleging vindictive prosecution and judicial bias.

At trial, Daniels participated in voir dire and the

conference on jury instructions

, made an opening statement,

vigorously cross

- examined prosecution witness es, and persuaded

the trial court to have witnesses testify at an evidentiary hearing.

Daniels also introduced trial exhibits, an expert witness, and his

own testimony to support his defense. Until his pro se status was

revoked, Daniels presented a closi ng argument. Moreover

, this

case did not involve highly complex legal issues, but instead

turned on witness credibility as acknowledged and addressed by

Daniels’s self

- prepared defense. (See People v. Clark, supra, 3

Cal.4th at p. 111.) I t is not reasonably probable that had

advisory counsel been appointed, Daniels would have obtained a

more favorable result. ( Watson, supra

, 46 Cal.2d at p. 826.)

2. Revocation of Pro Se Status

A. Additional Facts

Daniels’s pro se status was revoked following three

separate outbursts in front of the jury. The first outburst

occurred on July 5, 2019. Outside the presence of the jury,

Daniels had been told by the trial court that his “Sixth

Amendment issues” would be addressed after the corone r’s

testimony. When the jury entered the courtroom, Daniels

announced he wanted to return to the holding cell, his issues

needed to be raised in front of the jury, and the court was

violating his constitutional rights by not addressing them.10 The trial court had the jury leave the courtroom and gave

Daniels the option of expressing his issues “now.” Daniels

became upset when told to speak more slowly for the court

reporter, and he again insisted on returning to the holding cell.

The court adm onished that if he left, his pro se status would be

revoked. Daniels continued to complain about the court’s

obligation to consider his issues immediately and insisted the

court was “trying to upset” him. Daniels claimed to be suffering

from PTSD

, and th e court agreed to allow him to briefly leave the

courtroom. When Daniels returned, the court confirmed he was

still representing himself but was “ on notice.”

The second outburst occurred on July 8, 2019. Outside the

presence of the jury, the trial court repeatedly informed Daniels

that he had to decide whether he wanted to testify. Daniels did

not answer and complained the court was violating his

constitutional rights and committing misconduct by not allowing

a police interview of Shawn t ee’s six

- year

- ol d son to be admitted

into evidence

. 4 The court told Daniels the jury was entering the

courtroom and if he refused to stop talking, his pro se status

would be revoked.

After the jury entered the courtroom, the prosecution

rested. The trial court asked Daniels whether he wished to

testify. D aniels said, “Yes

, I do,” but insisted that he needed to

call additional unnamed witnesses. The court twice inquired

whether Daniels wanted to testify, “ ‘ yes ’ or ‘ no. ’ ” Daniels

answered the court was violating his Sixth Amendment rights.

The court rev oked Daniels’s pro se status, called upon standby

4 Neither the son nor the interviewing officer had been

subpoenaed.11

counsel

, and had the jury leave the courtroom. At that point,

Daniels said he wanted to testify because he was “tired of these

games.” The court permitted him to continue representing

himself. Daniels proceeded to testify.

During closing argument the same day, Daniels repeatedly

told the jury that his defense was hampered by his inability to

play a recording of the police interview of Shawntee’s six

- year

- old

son. The court sustained the prosecu tor’s objection for improper

argument. The following exchange occurred:

“[Daniels]: Improper argument? Come on, man.

“The Court: It is.

“[Daniels]: How is it improper? No one heard [the son] say he

—

nothing happened to him

— but you guys. So how can I express

that fact that nothing happened to him, and he simply said it.

“The Court: Sir, I’m done.

“[Daniels]: No, I’m not done.

“The Court: Well then, I’m going to just stop you and have the

final argument

—

“[Daniels]: How can you do that? That would be

— see, you’ve

done this over and over.

“The Court: All right. Thank you. You’re done. [¶] Any final

rebuttal or submit?

“[Daniels]: You see this shit? No. Do you see this shit? I can’t

even express my story. I can’t

— No. This is the rest of my life

right here. Do you understand that?

“The Court: Final rebuttal?

“[Prosecutor]: Yes, Y our Honor. It will be very brief.

“[Daniels]: This is the rest of my life here. And

—

“The Court: Sir

—12

“[Daniels]: I’m not able to

— I’m not able to say my peace [ sic ].

You’ve been doing this ever since I’ve been in your courtroom.

“The Court: All right. Three is a charm. You’re out. [¶] Mr.

Brown, come on in.

“[Daniels]: At this time, I really don’t give a fuck. You’re

disrespectful, and you’ve been doing this to me this whole time.

You’ve been doing this this whole time, [Judge] Meyer s [ sic ] , and

you upset because I disqualified you for calling me a liar.

“The Court: Mr. Brown, would you like to finish the closing

argument?

“[Daniels]: That’s what you ’re going through right now. Get me

out of this courtroom dude.

“The Court: If you can’t be quite [ sic ], I’m going to have you

removed from the courtroom.

“[Daniels]: Man, I’m going to get out of the courtroom because

you

— you

— you simply

— I ’m

— I’m sorry

, ladies and gentlemen.

“The Court: Thank you sir. [¶] You’re out. If you don’t want to

stay for your closing argument

—

“[Daniels]: Man, look you don’t to have [ sic ] say nothing else to

me.

“The Court: Thank you, sir.

“[Daniels]: This is bullshit. This is bullshit. Hey look man. I

feel sorry for your soul when God comes for you. I do. [¶] And

for the record, I don’t give up my pro per status. Mr. Kieren [ sic ],

you can say

—

“The Court: The court has now revoked your pro per status for

the third outburst.

“[Daniels]: Well, like I said

—

“The Court: Take him out, please.13

“[Daniels]: You can’t revoke it without a hearing. You can’t

revoke it without a hearing.

“The Court: I just did. ”

Standby counsel Kieran Brown completed the defense

argument to the jury, followed by the prosecutor’s closing

argument. The court gave final instructions, and the jury began

deliberating.

B. Relevant Legal Principles

A trial court may terminate a defend ant ’ s right of self

representation “ for misconduct that seriously threatens the core

integrity of the trial. ” ( People v. Carson (2005) 35 Cal.4th 1, 6

( Carson ); Faretta

, supra

, 422 U.S. at p. 834, fn. 46; People v.

Kirvin (2014) 231 Cal.App.4th 1507, 1515.) A ruling revoking a

defendant ’ s pro se status is reviewed for abuse of discretion, and

will not be disturbed absent a strong showing of clear abuse.

( Carson

, at p. 12; People v. Doss (2014) 230 Cal.App.4th 46, 54.)

W e “a ccord due deference to the trial court ’ s assessment of the

defendant ’ s motives and sincerity as well as the nature and

context of his misconduct and its impact on the integrity of the

trial in determining whether termination of Faretta rights is

necessary to maintain the fairness of the proceedings. ” ( Carson,

at p. 12; Doss, at p. 54.)

In Carso n

, the Supreme Court explained: “ Whenever

‘ deliberate dilatory or obstructive behavior ’ threatens to subvert

‘ the core concept of a trial ’ [citation] or to compromise the court ’ s

ability to conduct a fair trial [citation], the defendant ’ s Faretta

rights are subject to forfeiture. Each case must be evaluated in

its own context, on its own facts. ” ( Carson, supra

, 35 Cal.4th at

p. 10.) Carson enumerated several factors relevant to this14

analysis. In addition to the nature of the misconduct and its

impact on the trial proceedings, other considerations include

(1) whether the defendant was warned that particular

misc onduct would result in termination of pro se status;

( 2 ) whether the defendant has intentionally sought to disrupt and

delay his trial ; (3) the actual effect of the misconduct; and (4) the

availability and suitability of alternative sanctions

. ( Ibid. )

Da niels tries to characterize his behavior as mere

“overzealous advocacy” as opposed to intentionally disruptive. He

also argues his purported misconduct was not egregious enough

to be obstructionist, especially since it occurred near the end of

the trial. This argument may have been stronger had Daniels’s

misconduct been limited to a few isolated instances. But

throughout the trial , Daniels continuously ignored the rules of

evidence and rejected the trial court’s orders not to mention

certain evidence or relitigate discovery issues.

Daniels was also on notice of the consequences of his

disruptive behavior. Before and during trial, Daniels was

repeatedly warned that if he insisted on leaving the courtroom,

refused to abide by court rulings or to comply with court protocol

his pro se status would be revoked. Nonetheless, Daniels’s

persistent response was his constitutional rights were being

violated

. (The court is “ fucking violating my rights.”) Daniels

also repeatedly accused the court of judicial bias. (“You’re

purpose ly doing what you’re doing to upset me. It’s been that

way ever since .

. . we started this.”)

Moreover, as the trial c ourt expressly found, Daniels’s

misconduct was intended to be disruptive. ( “What you’re doing is

trying to get a mistrial or set up something for an appeal, and I

understand that.” “So it appears to me that you’re trying to ask15

him questions trying to se t up an appeal in regards to issues that

have occurred between you and me and discovery on this case.”)

Indeed, the increasing frequency and intensity of Daniels’ s

defiant behavior as the trial progressed suggested “a deliberate

course of conduct designed to cause as much disruption as

possible

, ” particularly in front of the jury. ( People v. Clark,

supra, 3 Cal.4th at p. 116. )

Daniels also maintains the trial court failed to consider

alternatives to termination of his pro pria per sona status.

However, we agree there was no satisfactory sanction short of

revocation, given Daniels’s persistent disregard of the court’s

orders. Contrary to Daniels’s argument, a brief recess followed

by another warning was not a satisfactory alternative. That

option had already proved ineffective, and the court reasonably

believed Daniels would continue to disrupt closing argument.

Daniels claims the court could have terminated his pro pria

per sona privileges, rather than his pro se status. 5 However, the

obstructionist misconduct took place at the trial itself, making

such an alternative sanction less feasible.

The trial court was exceedingly patient with Daniels and

bent over backward to accommodate his wishes and to ensure his

rights as a pro se defe ndant. However, Daniels’s repeated, willful

failure to abide by the court ’ s evidentiary and discovery rulings

5 Propria persona privileges are afforded self

- represented

defendants who are incarcerated. S tandard pro pria per sona

privileges include the use of the law library and telephones for a

specified number of hours, the opportunity to i nterview witnesses

for extended periods, and the use of and conferences with legal

runners and investigators. (See Wilson v. Superior Court of Los

Angeles County (1978) 21 Cal.3d 816, 822.)16

undercut the court ’ s control of the proceedings, and thereby

threaten ed the core integrity of trial. (See § 1044.) The court did

not abuse its discretion in revoking Daniels’s pro se status.

3. Alleged Instructional Errors

Daniels argues the trial court erred by failing to sua sponte

instruct the jury on (1) voluntary manslaughter on an imperfect

self

- defense theory, (2) involuntary manslaughter on a criminal

negligence theory, (3) accidental discharge of a weapon, and

(4) misdemeanor child abuse. He also contends the trial court

improperly instructed the jury on perfect self

- defense using

CALCRIM No. 505. Daniels argues the purported errors violated

his rights to due process and a fair trial , and require reversal.

We disagree.

A. Additional Facts

The trial court instructed the jury on second degree

murder, felony child abuse, possession of a firearm by a felon

,

and the two firearm

- use enhancements. Without objection, the

court also instructed the jury sua sponte on perfect self

- defense

pursuant to CALCRIM No. 505. Daniels did not request the

lesser included offenses and accidental discharge instructions he

now contends should have been given sua sponte.

B. Relevant Legal Principles

A trial court must instruct the jury on all general principles

of law relevant to the issues raised by the evi dence, including

lesser included offenses, and defenses on which the defendant

relies and that are not inconsistent with his theory of the case,

whether or not the defendant makes a formal request. ( People v.

Moye (2009) 47 Cal.4th 537, 548.) Instruction on a lesser

included offense is required when there is evidence the defendant

is guilty of the lesser offense, but not the greater. ( People v.17

Whalen (2013) 56 Cal.4th 1, 68.) Substantial evidence is evidence

th at a reasonable jury could find persuasive. ( People v.

Benavides (2005) 35 Cal.4th 69, 102.) The existence of any

evidence, no matter how weak, will not justify instructions on a

defense or a lesser included offense

. ( Whalen, at p. 68.) In

deciding whether there is substantial evidence we do not evaluate

the credibility of the witnesses, a task for the jury. ( People v.

Wyatt (2012) 55 Cal.4th 694, 698.)

We independently review the question of whether the trial

court erred by failing to instruct on a lesser included offense or a

defense. ( People v. Trujeque (2015) 61 Cal.4th 227, 271.)

C. Substantial Evidence Did Not Support

Imperfect Self

- d efense Instruction

“ The doctrine of self

- defense embraces two types: perfect

and imperfect. ” ( People v. Rodarte (2014) 223 Cal.App.4th 1158,

1168.) “ Perfect ” self

- defense, which exonerates a defendant

completely, requires that he had an honest and reasonable belief

that the use of force was necessary to defend against an

imminent threat of bodily injury against himself or another, and

that he used no more force than was necessary to defend against

that threat. ( § 197, subd. ( 1 ) ; Rodarte, at p. 1168.) Imperfect

self

- defense “ is the killing of another human being under the

actual but unreasonable belief that the killer was in imminent

danger of death or great bodily injury. ” ( People v. Booker (2011)

51 Cal.4 th 141, 182 .) Imperfect self

- defense is not a complete

defense to a killing, but negates malice and reduces the offense to

voluntary manslaughter. ( Ibid. )

Although the trial court instructed the jury sua sponte on

perfect self

- defense, it was inapplicable. There was no

substantial evidence from which the jury could have found18

Daniels acted in self

- defense, and the instruction ran counter to

his defense at trial. Daniels was the only defense witness to the

shooting. Daniels testified he “kind of got upset” when he went

outside a nd demanded that Hayes leave. Hayes did not respond

. The two men stood face to face about three feet apart. Hayes’s

arms were down by his sides. Daniels then heard a “click

, ”

looked down, and saw Hayes begin to raise his left arm. Danie ls

immediately grabbed Hayes’s left wrist and felt a gun in Hayes’s

fist. As Hayes continued to raise his arm, Daniels grabbed both

of Hayes’s wrists and elbowed Hayes in the head. Daniels then

“pull [ ed ] ,” Hayes “shoved,” and the gun fired and fell to th e

ground. Daniels testified, “Like I didn’t do nothing” ; and when

“the gun goes

— pow[,] I’m not in control of the gun

. [Hayes] is.”

Daniels denied killing Hayes. His testimony was that Hayes was

alive

— grasping his arm or shoulder and entering the home a fter

the shooting.

Daniels did not testify that he intentionally shot Hayes

, killing him, because he believed deadly force was required to

defend himself

. He did not admit to having shot Hayes at all.

Instead, Daniels testified

, in effect

, that the gun accidentally

discharged when he and Hayes were struggling over it. He also

suggested that it was Hayes who unintentionally caused the gun

to fire. Crediting Daniels’s account, the shooting was purely

accidental on his part

. In general, an a ccidental shooting is

inconsistent with an assertion of self

- defense. (See, e.g., People v.

Villanueva (2008) 169 Cal.App.4th 41, 50; People v. Curtis (1994)

30 Cal.App.4th 1337, 1357 [ “ self

- defense imports an intentional

shooting; it does not apply to an accidental one ” ].) Thus, absent

evidence Daniels intentionally fired the gun at Hayes because he19

was in actual fear for his life, a perfect self

- defense instruction

was not warranted.

Daniels contends the trial court erred by failing to instruct

the jury sua sponte on voluntary manslaughter on an imperfect

self

- defense theory for two reasons. First, Daniels cites those

opinions which hold whenever a jury is instructed on perfect self

defense, the trial court must also give an imperfect self

- defense

instruction. (Rely ing on People v

. Ceja (1994) 26 Cal.App.4th 78,

88

– 89 (conc. opn. of Johnson, J.) , disapproved on other grounds in

People v. Blakel e

y (2000) 23 Cal.4th 82, 92 ; People v. DeLeon

(1992) 10 Cal.App.4th 815, 825 (conc. opn. of Johnson, J.); but see

People v. R odriguez (1997) 53 Cal.App.4th 1250, 1273

[distinguishing the cases and rejecting this premise], cited with

approval in People v. Szadziewicz (2008) 161 Cal.App.4th 823,

834, overruled on another ground in People v. Dalton (2019) 7

Cal.5th 166, 214, and People v. Valenzuela (2011) 199

Cal.App.4th 1214, 1231.) We reject this reason out of hand

, having concluded insufficient evidence supported the perfect self

defense instruction.

For his second reason, Daniels offers a thi rd version of the

shooting. Daniels argues the jury might have rejected his

testimony and concluded instead he intentionally shot Hayes in

the actual, but unreasonable belief that Hayes was about to shoot

him. What Daniels asserts, in essence, is the tri al court, in

deciding what instructions to give the jury, was required to

conflate two conflicting versions of events, neither of which alone

supported voluntary manslaughter on an imperfect self

- defense

theory, and to divine a hypothetical “ third ” version that could

support it. While it may be true, as an abstract principle, that a

jury may believe parts of a witness ’ s testimony and reject others20

( People v. Wader (1993) 5 Cal.4th 610, 641), for an instruction on

a defense theory to be required, there must still be substantial

evidence in the entire record to support it. ( People v. Elize (1999)

71 Cal.App.4th 605, 615.) Speculation is insufficient to require

an instruction on a lesser included offense. ( People v. Simon

(2016) 1 Cal.5th 98, 132; Peopl e v. Yarbrough (1974) 37

Cal.App.3d 454, 457 [no involuntary manslaughter instruction

based on hypotheticals].)

D. Lack of Involuntary Manslaughter and

Accidental Discharge Instructions Was Not

Prejudicial

(1) Involuntary Manslaughter

Daniels contends the trial court should have instructed the

jury sua sponte on the lesser included offense of involuntary

manslaughter on a criminal negligence theory. Manslaughter is

“the unlawful killing of a human being without malice.” (§ 192 .)

Invo luntary manslaughter, excluding vehicular manslaughter, is

“the commission of an unlawful act, not amounting to a 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).) “ ‘ The words “ without due

caution and circumspection ” refer to criminal negligence

—

unintentional conduct which is gross or reckless, amounting to a

disregard of human life or an indifference to the consequences. ’ ”

( People v. Guillen (2014) 227 Cal.App.4th 934, 1027.)

Daniels argues the jury reasonably could have found the

gun was fired accidentally due to his criminal negligence in

handling the gun. Specifically, Daniels contends “grab[ b ing]

Hayes’s arms and struggl[ing] for contro l of the weapon”21

“rendered the homicide unintentional and reduced the offense to

involuntary manslaughter.”

E ven if we assume the evidence was sufficient to require an

instruction on involuntary manslaughter, any error in failing to

give that instruction was harmless. F ailure to instruct on a

lesser included offense in a noncapital case is reviewed for error

under Watson

, supra, 46 Cal.2d at p age 836

. ( People v. Beltran

(2013) 56 Cal.4th 935, 955.) “[ T] he error is harmless unless there

is a reasonable probability of a different result absent the error.”

( People v. Gonzalez (2018) 5 Cal.5th 186, 200, fn. 4.) “ ‘ Such

posttrial review focuses not on what a reasonable jury could do,

but what such a jury is likely to have done in the absence of the

error under consideration. In making that evaluation, an

appellate court may consider, among other things, whether the

evidence supporting the existing judgment is so relatively strong,

and the evidence supporting a different outcome is so

comparatively weak, that there is no reasonable probability the

error of which the defendant complains affected the result. ’ ”

( People v. Thomas (2012) 53 Cal.4th 771, 814. )

T he evidence in the case before us was compelling. In

convicting Daniels of second degree murder, the jury reasonably

rejected hi s attempt to portray Hayes as the aggressor in the

shooting. The testimony of Shawntee, her mother Lorraine

Jackson, her 1 2

- year

- old daughter, who were not impeache d,

established Daniels, who was angered by Hayes ’s visit, accosted

Hayes, shot and killed him

, and fled

. According to the

uncontroverted testimony of a police officer, Daniels was later

arrested in Las Vegas

. These circumstances demonstrate the

shooting was not accidental.22 Daniels’ s own testimony was riddled with assertions that

strained credulity. He claimed Hayes grabbed his arm or

shoulder after being shot and then entered the home. He claimed

to have overheard Jackson and Hayes saying “for his ass” in

reference to Daniels before the shooting occurred. He claimed to

have picked up the gun by the barrel aft er the shooting, and told

Shawntee he had hidden it in the garage so police could find

Hayes’s DNA on it. 6 He claimed to have purchased “tickets” in

advance of the shooting to travel with Shawntee to Las Vegas as

part of a job transfer. He claimed Shawntee told him that she

had been arrested.

Furthermore, “[e] rror in failing to instruct the jury on a

lesser included offense is harmless w hen the jury necessarily

decides the factual questions posed by the omitted instructions

adversely to defendant under other properly given instructions. ”

( People v

. Koontz (2002) 27 Cal.4th 1041, 1085

– 1086; see People

v. Jones (1991) 234 Cal.App.3d 1303, 1315

– 1316

, disapproved on

another ground in People v. Anderson (2011) 51 Cal.4th 989, 998,

fn. 3.) Here, the jury was properly instructed on the prosecution’s

burden of proof beyond a reasonable doubt, the elements of the

offenses with which Daniels was charged, and the findings that

were required to find th e firearm enhancements. The jury had an

opportunity to determine Daniels’s killing of Hayes was justified

in self

- defense, but declined to do so. B y convicting Daniels

instead of second degree murder, the jury necessarily found he

6 The gun was never recovered. Shawntee testified on

rebuttal that she did not recall having a phone conversation with

Daniels while he was in custody about finding anything in the

garage.23

acted with malice. ( People v. Chun (2009) 45 Cal.4th 1172, 1181

[ S econd degree murder is an unlawful killing with malice, but

without the elements of premeditation and deliberation which

elevate the killing to first degree murder

. Malice may be express

(intent to kill) or im plied (intentional commission of life

threatening act with conscious disregard for life) ].)

Additionally, by finding Daniels intentionally, not

accidentally, discharged his gun cau sing death within the

meaning of section 12022.53, subdivision (d), the jury necessarily

rejected a prerequisite for finding defendant guilty of involuntary

manslaughter

. (§ 12022.53, subd. (d) [ applies to “a ny person who,

in the commission of a felony .

. . persona lly and intentionally

discharges a firearm and proximately causes great bodily injury

. . . , or death, to any person other than an accomplice ” ]. )

Under Chapman v. California (1967) 386 U.S. 18, 24 [87

S.Ct. 824, 17 L.Ed.2d 705 ] , we evaluate whether, if the jury was

properly instructed, it is beyond a reasonable doubt that the

verdict would have been the same

. Even if Chapman were

applicable in this case, we would find the error harmless beyond

a reasonable doubt for the reasons sta ted

.

(2) Accidental Discharge

Daniels argues the trial court erred by failing to instruct

the jury on accidental discharge of a firearm while acting in self

defense. Daniels concedes the California Supreme Court has h eld

that it is a pinpoint instruction, which a trial court has no duty to

give sua sponte. ( People v. Anderson , supra, 51 Cal.4th at p. 996;

People v. Jennings (2010) 50 Cal.4th 616, 674.) Daniels

acknowledges we are bound by these precedents ( Auto Equit

y

Sales, Inc. v. Superior Court , supra

, 57 Cal.2d at p. 55), but24

invites us to disagree with them to preserve the issue for future

review. We decline to do so.

E. CALCRIM No. 505

Daniels contends the jury was improperly instructed on

perfect self

- defense in violation of his rights to due process and

jury trial. Daniels asserts CALCRIM No. 505 is flawed because it

erroneously allowed the jury to find Daniels shot Hayes in self

defense only if Daniels “ belie[v ed ] there was imminent danger of

de ath or great bodily injury [ to himself ]

. ” 7

In People v. Nguyen (2015) 61 Cal.4th 1015

, the California

Supreme Court recognized a defendant who engages in a lethal

response to imminent deadly force cannot claim self

- defense if “ he

did not act on the basis of fear alone but also on a desire to kill. ”

( Id. at p. 1044.) Nguyen cited with approval the Fifth District ’ s

7 CALCRIM No. 505 provides in pertinent part: “ T he

defendant is not guilty of murder if he was justified in killing

someone in self

- defense. The defendant acted in lawful self

defense if: [¶] 1

. The defendant reasonably believed that he was

in imminent danger of being killed or suffering great bodily

injury; ” [¶] 2 . The defendant reasonab ly believed that the

immediate use of deadly force was necessary to defend against

that danger ; [¶] AND [¶] 3 . The defendant used no more force

than was reasonably necessary to defend against that danger

. [¶]

Belief in future harm is not sufficient

, no matter how great or

how likely the harm is believed to be. The defendant must have

believed there was imminent danger of death or great bodily

injury to himself. Defendant’s belief must have been reasonable

and he must have acted only because of that belief. The

defendant is only entitled to use that amount of force that a

reasonable person would believe is necessary in the same

situation. If the defendant used more force than was reasonable

, the killing was not justified. ”25

holding in People v. Trevino (1988) 200 Cal.App.3d 874 ( Trevino )

that former CALJIC No. 5.12 ( the predecessor instruction to

CALCRIM No. 505) correctly stated the law of perfect self

defense by requiring the party who killed must have had an

honest and reasonable belief in the need for self

- defense or the

defense of another, and, in killing, must have “ ‘ acted under the

influence of such fe ars alone

. ’ ” ( Nguyen, at p. 1045, italics added,

quoting Trevino, at p. 879; §§ 197, 198.) Trevino further

suggested

, if at the time the defendant also harbored emotions

other than (and in addition to) fear toward the victim which did

not cause the defendant to commit the crime, t he defendant could

request additional, clarifying instructions regarding the presence

of those other, mixed moti ves. ( Trevino, at p. 880.)

Daniels argues Trevino was wrongly decided and

CALCRIM No. 505 is not an accurate statement of the law as

reflected in sections 197 (justifiable homicide)

, 198 (requiring

reasonable fear), the common law

, and the California and federal

Constitutions. He maintains the jury should have been

instructed that “a homicide based on mixed motives is justifiable

so long as reasonable fear was a substantial cause of the decision

to kill.” And, “given the evidence of multiple potential

motivations for Daniels’s actions toward Hayes, there is a strong

likelihood at least some jurors rejected self

- defense on the

grounds a small portion of the emotion that animated Danie ls

was anger or jealously toward Hayes.”

We reject Daniels’s argument for several reasons. First,

Daniels forfeited his challenge to CALCRIM No. 505. “ ‘[ A] party

may not complain on appeal that an instruction correct in law

and responsive to the eviden ce was too general or incomplete

unless the party has requested appropriate clarifying or26

amplifying language. ’ ” ( People v. Jones (2013) 57 Cal.4th 899,

969.) Second, as discussed, on this record Daniels was not

entitled to a perfect self

- defense instru ction, so it amounted to a

windfall. (See People v. Szadziewicz , supra, 161 Cal.App.4th at

p. 834.) Third, if CALCRIM No. 505 did apply here, we would

disagree with Daniels and would follow Trevino

. In our view,

CALCRIM No. 505 correctly states the law of self

- defense under

sections 197 and 198 and does not give preclusive effect to “mixed

motives.” As the Trevino court aptly acknowledged: “ [A] person

who feels anger or even hatred toward the person killed, may .

. . justifiably use deadly force in self

- defense. .

. . [¶] In [some]

situations

. . . it would be unreasonable to require an absence of

any feeling other than fear, before the homicide could be

considered justifiable. Such a requirement is not a part of the

law

. . . . Instead, the law requires that the party killing act out

of fear alone. ” ( Trevino, supra, 200 Cal.App

. 3d at p. 879, italics

omitted.) However, as the form instruction does not “ eliminate a

feeling of anger or any other emotion so long as that emotion wa s

not part of the cause of the use of deadly force, ” it correctly stated

the law of perfect self

- defense

. ( Id. at p. 880 .)

Like former CALJIC No.5.12 contested in Trevino

, CALCRIM No. 505, as instructed here, did not remove the

possibility that Daniels harbored other negative feelings about

Hayes. Nor did the form instruction advise the jury it had to

reject self

- defense if Daniels felt some hostility or jealousy apart

fro m fear. Instead, in keeping with section 198, CALCRIM No.

505 requires that Daniels’s fear for his life is the sole “ but for ”

cause of the murder , and is an accurate and complete statement

of the law.27 F. Substantial Evidence Did Not Support

Misdemeano r Child Abuse Instruction

The trial court instructed the jury on felony child abuse.

Daniels did not request an instruction on misdemeanor child

abuse and now contends the court had a duty sua sponte to give

the instruction on the lesser included offense

.

“Section 273a defines both felony and misdemeanor child

abuse. The criminal acts proscribed by section 273a are:

(1) willfully causing or permitting any child to suffer, or

(2) inflicting thereon unjustifiable physical pain or mental

suffering, or (3) having the care or custody of any child, willfully

causing or permitting the person or health of such child to be

injured, or (4) willfully causing or permitting such child to be

placed in such situation that his or her person or health i s

endangered. ” ( People v. Moussabeck (2007) 157 Cal.App.4th 975,

980 ( Moussabeck ) .)

In Moussabeck the Court of Appeal explained the

difference between felony child abuse and misdemeanor child

abuse: “ If the act is done under circumstances or conditions

likely to produce great bodily injury or death, it is a felony

(§ 273a

, subd

. (a)); if not, the off ense is a misdemeanor (§ 273a

,

subd

. (b))

. [Citation.] Misdemeanor child abuse

. . . is a lesser

included offense of felony child abuse.” ( Moussabeck, supra , 157

Cal.App.4th at p. 980.)

The issue here is whether there is substantial evidence

from which a reasonable jury could find Daniels committed

misdemeanor child abuse but not felony child abuse to

demonstrate instructional error. ( People v. Whalen, supra

, 56

Cal.4th at p. 68.) If the re is no such evidence, the court had no

duty to give the lesser i ncluded offense sua sponte. ( Ibid. )28 Daniels testified Shawntee’s son and daughter were inside

the home at the time of the shooting. If the jury had credited his

testimony, it would have found no child abuse had occurred

. Shawntee’s mother, Lorraine Jackson

, testified her six

- year

- old

grandson (Shawntee’s son) was sta nding “next to” or “pretty

close” to Hayes, and yelled, “He shot him. He shot him” after

Daniels fired the gun. Shawntee’s 1 2

- year

- old daughter testified

when Daniels pointed the gun at Hayes, her brother was “on

[Hayes’s] back,” “kind of just playing ar ound.” Shawntee testified

her son was severely troubled by the shooting

, had developed

behavioral issues , and was still in counseling at the time of trial.

We see no evidence, let alone substantial evidence

, from

which a jury could reasonably find only mi sdemeanor child abuse

was committed. Daniels fired a gun killing Hayes, when

Shawntee’s son was on or beside Hayes, seriously endangering

the boy’s life. No lesser included offense instruction was

required.

4. Senate Bill No. 136

Daniels and the People a gree that because of the passage of

Senate Bill No. 136, the three one

- year consecutive sentencing

enhancement s under section 667.5, subdivision (b) must be

stricken.

At the time Daniels was sentenced, the trial court was

required to impose one

- year prior prison term enhancement s

. (Former § 667.5, subd. (b).) But, in 2019, Senate Bill No. 136

(2019

– 2020 Reg. Sess.) was passed. It changed this enhancement

so that it would apply only to prior prison terms for certain

sexually violent offenses

. (§ 667.5, subd. (b); People v. Lopez

(2019) 42 Cal.App.5th 337, 341.) This change went into effect on29

January 1, 2020. ( People v. Camba (1996) 50 Cal.App.4th 857,

865.)

The change in the law applies retroactively to this case.

When the Legislature eliminates or reduces the punishment for

an offense or a sentence enhancement, that reduction is applied

retroactively to all judgments on appeal that are not yet final.

( In re Estrada (1965) 63 Ca l.2d 740, 745

– 748.) Consequently,

because Daniels’s prior prison term s w ere not for a sexually

violent offense, the section 667.5, subdivision (b) enhancement s

must now be stricken. ( People v. Gastelum (2020) 45 Cal.App.5th

757, 772.)

5. Additional Prese ntence Custody Credits

T he sentencing hearing transcript shows the trial court

miscalculated Daniels’s presentence custody credits as 832 days.

Daniels contends

, and the People acknowledge

, that he was

entitled to 842 days, having spent 84 2 days in actual custody.

(See People v. Heard (1993) 18 Cal.App.4th 1025, 1027

– 1028.) A

sentence that fails to award legally mandated custody credit is

unauthorized and may be corrected whenever discovered. ( People

v. Taylor (2004) 119 Cal.App.4th 628, 647.) Daniels’s presentence

custody credit s award, and the abstract of judgment reflecting

the award, shall be modified to aw ard him 10 additional days, for

a total award of 842 days of presentence custody credits.30 DISPOSITION

We modify the judgment by strik ing the three one

- year

Penal Code section 667.5, subdivision (b) sentencing

enhancements and add ing 10 days of presentence custody credits

for a total of 842 days of presentence custody credits. As modified

the judgment is affirmed. The superior court is directed to

prepare a corrected abstract of judgment and forward it to the

Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN

- GERST, J.

HOFFSTADT, J.