P. v. McDonald

Filed 1/10/19 P. v. McDonald CA4/3
Opinion following grant of rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DUSTIN SEAN ROSS MCDONALD,
Defendant and Appellant.
G054148
(Super. Ct. No. 14CF2681)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, John
Dorsey Conley, Judge. Affirmed and remanded with directions. Respondent’s request
for judicial notice granted.
Elizabeth Garfinkle, 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, Barry J. Carlton and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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A jury convicted defendant Dustin Sean Ross McDonald of one count of
premeditated murder and two counts of attempted premeditated murder. The jury also
found true three firearm sentencing enhancements. McDonald was 23 years old when he
committed the crimes. The trial court imposed a prison sentence of 114 years to life.
On appeal, McDonald asserts three instructional errors (mental impairment,
involuntary manslaughter, and provocation). McDonald also asserts prosecutorial
misconduct, abuse of the trial court’s sentencing discretion, ineffective assistance of
counsel, cumulative error, and the imposition of an improper fine. We agree there is one
instructional error, but we find it to be harmless beyond a reasonable doubt.
McDonald further asks for a remand based on three recent statutory
changes. We grant that request, in part.
On remand, the trial court is directed to: 1) exercise its (now existing)
sentencing discretion to either dismiss or not dismiss the firearm enhancements; and
2) allow the parties to create a record for any future youth offender parole hearings,
which are now available to offenders who were less than 25 years of age when they
committed their crimes. (Pen. Code, §§ 12022.53, subd. (h), 3051, subd. (b)(3).)1
We deny McDonald’s request for the trial court to consider granting mental
health diversion under section 1001.36 on remand. Effective January 1, 2019, the
Legislature amended section 1001.36 to exclude from consideration those defendants
charged with murder. (See § 1001.36, subd. (b)(2)(A).) 2
In all other respects, the judgment is affirmed.
1
All further undesignated statutory references are to the Penal Code.
2
We grant respondent’s request to take judicial notice of the Assembly Floor Analysis of
Assembly Bill No. 1810, and the recently amended section 1001.36. (Evid. Code, §§
452, 459; Cal. Rules of Court, rule 8.252.)

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I
FACTS AND PROCEDURAL BACKGROUND
McDonald arranged to buy drugs from Aaron Chavez at a designated
intersection. When Chavez arrived at the Santa Ana location in a car, McDonald
approached on foot and fired 10 shots into the car with a handgun. McDonald killed
Chavez and grievously injured two other people.
Before the Shooting
A few months before the shooting, McDonald contacted Chavez and asked
him about buying drugs. Ashlee C. was present, but she is not sure if a drug sale actually
occurred. Ashlee and Chavez had been dating for about two years; they were sellers and
users of methamphetamine and heroin. The couple often “ripped off” their customers by
diluting the drugs with substances like salt (for methamphetamine) or brown sugar (for
heroin), or they would simply sell the substances as drugs. Chavez did not have his own
cell phone; Chavez shared Ashlee’s phone.
About a month before the shooting, McDonald texted Ashlee’s phone,
seeking to purchase methamphetamine. Ashlee drove to a Santa Ana parking lot to meet
up with McDonald; Chavez was not with her that day. McDonald got into the passenger
seat of the car and Ashlee sold him what was purported to be methamphetamine. But
McDonald later complained that the drug “was bad stuff.” McDonald talked to Chavez,
who “apologized and said that he would make it right.” But as far as Ashlee was aware,
Chavez never “made it right” with McDonald.
The Shooting
A little after 11:00 p.m., on August 12, 2014, Ashlee and Chavez drove to a
Santa Ana restaurant, where they picked up Ashlee’s former coworker, Ingrid G. Ashlee
was driving, Chavez was in the front passenger seat, and Ingrid was in the backseat.

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Chavez was using Ashlee’s phone, arranging to sell heroin (actually, mostly brown sugar)
to McDonald.
Ashlee drove to a nearby intersection, chosen by McDonald, where she
parked on a street in front of a house. Ashlee selected that spot because it was better lit.
The three smoked methamphetamine in the car while they waited for McDonald
(although a surveillance video later revealed that about 18 minutes earlier, McDonald had
actually parked his vehicle nearby). McDonald texted Chavez and told him that they
were parked too far away, so Ashlee moved the car and parked across the street from
where McDonald was parked, although she never shifted the transmission into “park.”
According to Ashlee, it was “really dark” outside.
As McDonald walked to the drivers’ side of the car, Ashlee pointed him
towards the passenger side where Chavez was seated with the bag of purported heroin.
Chavez rolled down his window as McDonald approached the passenger side. But before
any words were spoken, and as McDonald stood about three or four feet away from the
car, he pulled a gun out of his waistband, pointed it at Chavez and shot him in the face.
McDonald then shot Ashlee in the face; she curled up in her seat and her foot came off
the brake pedal. Ashlee heard about 10 shots in quick succession. Ashlee had been shot
in both legs, both arms, her hand, chest, and face.
Ingrid had been looking down at her phone in the backseat when she heard
shots being fired and heard Ashlee screaming, “‘he’s dead.’” Ingrid felt a burning pain in
her shoulder. Ingrid told Ashlee to “Go. Go. Go[,]” as the car started moving slowly
forward. Ingrid threw a syringe out of the car before calling 911. Ingrid had been shot
through her armpit, on her side, and in her lower back.
The Forensic Investigation
Police found Chavez dead in the front passenger seat, sitting upright with
both hands folded in his lap. Chavez was holding a plastic baggie containing a substance

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with trace amounts of heroin. The windows on the right side of the car had been shot out.
Police found 10 expended nine-millimeter bullet casings about 70 to 80 feet away from
the car; some of the casings were on the sidewalk and some were in the gutter. No
weapons were found in the car.
The following day, police arrested McDonald in Garden Grove. Police
searched a recreational vehicle (the RV) that McDonald lived in, as well as the
surrounding area; the RV was parked at his grandmother’s house. Under the lid of a
barbeque grill, police found a nine-millimeter semiautomatic handgun. In the RV, police
found a loaded .45-caliber semiautomatic handgun and two boxes of ammunition. Nine
of the expended cartridges and all of the bullets recovered at the crime scene had striation
marks consistent with being fired from the nine-millimeter handgun.
McDonald’s Interview
Two Santa Ana police detectives interviewed McDonald at the station.3
Police asked him if he had any medical problems and if he had been “diagnosed with
anything?” McDonald said that he had “a form of schizophrenia and thought
broadcasting.” He said that he took medication, but if he does not, “I’ll start getting
angry at the abnormal thoughts in my head. I’ll start acting funny, all kinds of things.”
One of the detectives said, “Okay. I’ve been kind of watching you here . . . while I get
ready to talk to you, but I didn’t see any of [those] actions. For now you’re okay?”
McDonald responded, “Yeah. I mean I’m not--I’m just tired.”
McDonald said that he understood each of his constitutional rights and he
continued to answer the detectives’ questions. McDonald stated his full name and
address. McDonald could not remember his cell phone number, but he did remember his
grandmother’s house number. McDonald answered numerous questions regarding his
3
A video of the interview was played for the jury during the rebuttal portion of the
prosecution’s case. A transcript of the interview is included in the record.

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biography; he told the police where he was born, where he grew up, and where his
relatives live. McDonald said that he had been laid off from Boeing where he had
worked as an aircraft parts assembler.
The detectives told McDonald that they were investigating an incident that
happened a couple of days ago and asked him if he had any reason to be in Santa Ana.
McDonald said that he used to attend a mental health program there, but the last time he
had attended was two months earlier. He said, “This week I might have drove through. I
don’t keep track where I drive. It’s just kinda drive [sic]. You know?” The detectives
told McDonald that an assault happened a couple of days ago, his name had come up, and
they wanted to hear his side of the story.
McDonald said, “It’s bullsh*t what happened, dude.” Detectives told
McDonald “we’re getting kind of conflicting stories from people that were out there.”
He asked, “What do you want me to say? Like I was--I was supposed to meet up with
somebody, and like bullets started firing, and things like that.” McDonald said, “Yeah,
dude, it’s--I had--I had history with somebody . . . [¶] . . . [¶] . . . and just the thoughts
in my head, dude. I know now it seems like I’m probably just gonna put it on that, but I
literally—I almost got poisoned once, and then through my head, it just kept running
through, ‘This guy’s gonna kill me. This guy’s gonna kill me.’”
Detectives asked McDonald if he thought the person (Chavez) was
poisoning him. He responded, “Yeah, it was--it was like, I had got some drugs, and it
had something weird in it.” McDonald said that he only met the person a couple of
times. He said that it was in his head for weeks that the person was going to kill him.
McDonald realized that these were not actual messages. “It’s in my head—he’s in my
head saying, ‘I’m going to kill you,’ and then he text me like, ‘Hey, dude, let’s meet up
for some heroin.’” The detectives asked him: “But you decided to go meet with him; is
that correct?” McDonald responded: “Just to get it over with.”

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Detectives asked McDonald what happened and he responded, “I shot a
bunch of bullets.” McDonald said that he was nervous when he walked up to the driver’s
side of the car and that he was told to walk over to the passenger side. McDonald said
that he had two guns with him. He said that the handguns were in his belt covered by his
shirt and that he pulled one of the guns out as he walked from the driver’s side to the
passenger door. McDonald said that he did not see the other person with a weapon, but
he did say that “I saw the person reach-reach down.” He said that the other person was
about five feet away from him when McDonald fired the gun.
Court Proceedings
The prosecution charged McDonald with one count of murder and two
counts of attempted murder. (§§ 187, 664.) The prosecution alleged a lying-in-wait
special circumstance, and an allegation that McDonald had personally discharged a
firearm causing death (Chavez). (§§ 190.2, subd. (a)(15), 12022.53, subd. (d).) The
prosecution further alleged premeditation and deliberation, and that McDonald had
personally discharged a firearm causing great bodily injury (Ashlee and Ingrid). (§§ 664,
subd. (a), 12022.53, subd. (d).) McDonald testified at his jury trial and called three
expert witnesses.
McDonald’s Defense
McDonald testified that he had been experiencing delusions and auditory
hallucinations since he was 16 years old. McDonald said that he knew they were
hallucinations because they were different from what he was used to. He said that he
took prescribed medications; the medications did not stop the hallucinations, but made
them more tolerable. McDonald got into a mental health program in Santa Ana that
helped him obtain the medications and helped him find work.

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McDonald said that he met Chavez through someone else. McDonald
testified that he had texted Chavez asking for methamphetamine, and remembered
purchasing it from Chavez’s girlfriend on an earlier occasion in a parking lot. He said
that when he smoked the methamphetamine he discovered that it had been cut with some
substance. McDonald said that he called Chavez, who told him that he would make it up
to him. McDonald said that he was not really that upset about it and “kind of just forgot
about it.” When asked why he had told the detectives that he was almost poisoned,
McDonald said that it was “maybe like an exaggeration.” McDonald said that on August
12, 2014, he wanted to buy some heroin so he could get some sleep. He also wanted to
talk to Chavez to get “clarification” on his “weird thoughts.”
McDonald said that he chose the Santa Ana location because it was dark
and there was a parking lot where he could wait. He said that when he approached the
driver’s side of the car and was told to go to the passenger side, he “kind of got
suspicious [about] what was going on.” He testified that when he got to the passenger
side, Chavez “didn’t say anything, didn’t look at [him], just started reaching down for a
gun.” McDonald said that he panicked, stepped back, pulled out his gun and “shot a
burst of shots.” He said that he did not intend to kill and fired in self-defense. When
asked why he had the guns with him, McDonald said: “Just in case, in case I had to. In
case I got shot at or, you know, a gun pulled on me.”
A toxicologist, a neuropsychologist, and a clinical psychologist testified on
McDonald’s behalf. The toxicologist testified that methamphetamine can cause paranoia,
triggering fight or flight instincts and sometimes irrational thoughts or delusions. The
neuropsychologist testified that when a person is in a fight or flight situation the brain
focuses on survival and cannot make decisions in a normal way. The clinical
psychologist diagnosed McDonald as having schizophrenia. She testified that
schizophrenia is a psychotic disorder, which includes delusions and/or hallucinations.
She said that McDonald told her that in the month leading up to the shooting he

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repeatedly heard Chavez’s voice saying that he was going to kill him; he said that the
voices often happened when he would receive texts from Chavez. The psychologist
testified that a person with schizophrenia may still make choices, but they are influenced
by the hallucinations they are experiencing as well as their disordered thoughts.
Judgment and Sentencing
Before deliberations, the trial court instructed the jury on the charged
crimes: first degree (premeditated and deliberate) murder and the two attempted
murders. The court also instructed on lesser included offenses: second degree murder,
voluntary manslaughter (imperfect self-defense), involuntary manslaughter, and their
associated attempts. Further, the court instructed on the defenses of: justifiable homicide
(self-defense), mental impairment, and hallucination.
The jury found McDonald guilty of one count of first degree murder and
two counts of attempted murder. The jury found true the three firearm enhancements and
the premeditation and deliberation enhancements (as to the attempted murders). The jury
did not find the lying-in-wait special circumstance to be true. The court imposed a total
aggregate sentence of 114 years to life (McDonald’s sentencing will be covered in more
detail in the discussion section of this opinion).
II
DISCUSSION
McDonald asserts three instructional errors, prosecutorial misconduct,
abuse of the trial court’s sentencing discretion, ineffective assistance of counsel,
cumulative error, and the imposition of an improper fine. McDonald further requests a
remand based on three recent legislative changes. (§§ 1001.36, 12022.53, 3051.)

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A. Instructional Error Claims
We review instructional error claims de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.) We determine whether the trial court fully and fairly instructed the
jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
When making this determination, we consider the instructions taken as a whole; we also
presume jurors are intelligent people capable of understanding and correlating all of the
instructions they were given. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220,
overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
“‘Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such interpretation.’”
(People v. Ramos, supra, 163 Cal.App.4th at p. 1088.) The ultimate question is whether
there is a reasonable likelihood the jury applied the instructions that were objected to in
an impermissible manner. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1220.)
McDonald challenges: 1) the mental impairment instruction as given;
2) the involuntary manslaughter instruction as given; and 3) the trial court’s refusal to
give the jury a provocation instruction.
1. The Mental Impairment Instruction
McDonald claims that the mental impairment instruction as given
precluded the jury from considering evidence of his schizophrenia and auditory
hallucinations in deciding whether he had the state of mind required for imperfect self-
defense (an honest, but unreasonable belief in the need to use deadly force).
We disagree. Further, even if we were to assume error, we would find it to be harmless
beyond a reasonable doubt.

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a. Applicable Law
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) “Manslaughter is the unlawful killing of a human
being without malice.” (§ 192.) “A defendant commits voluntary manslaughter when a
homicide that is committed either with intent to kill [express malice] or with conscious
disregard for life [implied malice]—and therefore would normally constitute murder—is
nevertheless reduced or mitigated to manslaughter.” (People v. Bryant (2013) 56 Cal.4th
959, 968; § 189.) Two situations preclude the formation of malice and can reduce
murder to voluntary manslaughter: heat of passion and imperfect self-defense. (People
v. Moye (2009) 47 Cal.4th 537, 549.)
Imperfect (or unreasonable) self-defense applies when a homicide
defendant actually believed he was facing an imminent and unlawful threat of death or
great bodily injury, and actually believed his acts (that caused the victim’s death) were
necessary to avert the threat, but those beliefs were objectively unreasonable. (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082.) Imperfect self-defense is not a justifiable
defense to a homicide (like complete or perfect self-defense); however, imperfect self-
defense negates malice (an unlawful intent to kill) and thereby reduces a homicide which
would otherwise be murder to voluntary manslaughter. (Ibid.)
A homicide defendant who misjudges the external circumstances may
present evidence that his mental impairment contributed to his mistaken perception of the
threat. (People v. Elmore (2014) 59 Cal.4th 121 (Elmore).) In Elmore, a mentally ill
defendant stabbed a woman to death. (Id. at p. 130.) He claimed that delusions made
him believe he needed to defend himself, and requested an instruction on imperfect self-
defense. (Id. at p. 131.) The trial court refused; the Supreme Court agreed. (Id. at
pp. 134-135.) The court held that evidence of insanity cannot be introduced in the guilt
phase of a trial and “a belief in the need for self-defense that is purely delusional is a
paradigmatic example of legal insanity.” (Ibid., italics added.) The court explained that:

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“A person who sees a stick and thinks it is a snake is mistaken, but that misinterpretation
is not delusional. One who sees a snake where there is nothing snakelike, however, is
deluded. Unreasonable self-defense was never intended to encompass reactions to threats
that exist only in the defendant’s mind.” (Id. at p. 137.)
However, the Elmore court also went on to reiterate that “our holding does
not prevent the defense from presenting evidence of mental disease, defect, or disorder to
support a claim of unreasonable self-defense based on a mistake of fact. A defendant who
misjudges the external circumstances may show that mental disturbance contributed to
the mistaken perception of a threat, without presenting the jury with the same question it
would confront at a sanity trial. The jury must find there was an actual, unreasonable
belief in the necessity of self-defense based on the circumstances, and it should be so
instructed.” (Elmore, supra, 59 Cal.4th at p. 146, italics added.)4
b. Procedural Background
The trial court gave the jury CALCRIM No. 571, the pattern instruction on
voluntary manslaughter (imperfect self-defense):
A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed a person because he acted in imperfect
self-defense.
If you conclude the defendant acted in complete self-defense his action
was lawful and you must find him not guilty of any crime. The difference
between complete self-defense and imperfect self-defense depends on
whether the defendant’s belief in the need to use deadly force was
reasonable.
4
We note that the Supreme Court recently held that evidence of voluntary intoxication
cannot be similarly used to support a claim of imperfect self-defense. (People v. Soto
(2018) 4 Cal.5th 968, 978.) However, there is nothing in Soto to indicate that the
Supreme Court intended to reverse its holding in Elmore, supra, 59 Cal.4th 121.

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The defendant acted in imperfect self-defense if:
1. The defendant actually believed that he was in imminent danger of
being killed or suffering great bodily injury; [¶] AND
2. The defendant actually believed that the immediate use of deadly force
was necessary to defend against the danger; [¶] BUT
3. At least one of those beliefs was unreasonable.
Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be.
In evaluating the defendant’s beliefs, consider all the circumstances as
they were known and appeared to the defendant.
A danger is imminent if, when the fatal wound occurred, the danger
actually existed or the defendant believed it existed. The danger must seem
immediate and present, so that it must be instantly dealt with. It may not be
merely prospective or in the near future. 5
(Italics added.)
During the trial, McDonald’s counsel modified the pattern jury instruction
on mental impairment. (CALCRIM No. 3428.) The prosecutor asked the court to delete
the last two paragraphs; he argued that they were “superfluous” and “confusing,” and the
concepts were covered by other instructions. The mental impairment instruction, as
drafted by McDonald’s counsel, read as follows:
You have heard evidence that the defendant may have suffered from a
mental disease or disorder. You may consider this evidence only for the
limited purpose of deciding whether, at the time of the charged crime, the
defendant acted with the intent or mental state required for that crime.
5
The trial court also instructed the jury on the lesser included offense of attempted
voluntary manslaughter (imperfect self-defense) using CALCRIM No. 604, which
essentially mirrors CALCRIM No. 571. For reasons of clarity, we will sometimes refer
to only the lesser included offense of voluntary manslaughter; however, the same
rationale applies to the two lesser included offenses of attempted voluntary manslaughter.

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The People have the burden of proving beyond a reasonable doubt that the
defendant acted with the required intent or mental state, specifically:
malice aforethought and willfully, deliberately, and with premeditation. If
the People have not met this burden, you must find the defendant not guilty
of First Degree Murder.
The People have the burden of proving . . . , specifically: malice
aforethought. If the People have not met this burden, you must find the
defendant not guilty of Second Degree Murder.
The People have the burden of proving . . . , specifically: the intent to kill.
If the People have not met this burden, you must find the defendant not
guilty of Attempted Murder.
The People have the burden of proving . . . , specifically: willfully,
deliberately, and with premeditation. If the People have not met this
burden, you must find the premeditation and [sic] allegation of
Attempted Murder not true.
The People have the burden of proving . . . , specifically implied malice
aforethought. If the People have not met this burden, you . . . , must find
the defendant not guilty of Voluntary Manslaughter.
The People have the burden of proving . . . , specifically: implied malice
aforethought. If the People have not met this burden, you must find the
defendant not guilty of Attempted Voluntary Manslaughter.
(CALCRIM No. 3428, italics added; the italicized last two paragraphs were later read
into the record by the trial court.)
The trial court agreed with the prosecutor that the last two paragraphs were
confusing.6
After some discussion, McDonald’s counsel did not object to the
prosecutor’s request to delete the last two paragraphs: “You know, I agree with the
People with respect that there are different ways that you can get to a vol. You could
6
The prosecution did not have the burden of proving “implied malice aforethought” as
stated in the last two paragraphs (voluntary and attempted voluntary manslaughter).
Again, every type of manslaughter (voluntary, involuntary, and vehicular) is by
definition, “the unlawful killing of a human being without malice.” (§ 192, italics added.)

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have P and D, you could have no P and D. And either way . . . the jury could decide it’s a
vol. [¶] I think that express or implied covers it, but I would submit that to the court.”
c. Legal Analysis
To begin with, we agree with the Attorney General that McDonald has
forfeited this instructional error claim on appeal. (See People v. Welch (1999) 20 Cal.4th
701, 757.) McDonald did not object to the wording of the mental impairment instruction
at trial, nor did he request an additional or qualifying instruction; in fact, his counsel
agreed with the prosecutor’s proposal to delete the last two paragraphs, which he now
claims was error. Nevertheless, we will review the merits of McDonald’s argument.
(See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [court addressed forfeited
issue thereby forestalling ineffective assistance of counsel claim].)
The crux of McDonald’s claim is that the mental impairment instruction as
given did not specifically mention the lesser included offenses of voluntary manslaughter
and attempted voluntary manslaughter; therefore, he argues that the jury was “precluded”
from considering whether his mental impairment affected his perceptions such that he
“misinterpreted [Chavez’s] movements as reaching for a gun, and thus unreasonably
believed self-defense was necessary.” We disagree.
In the first paragraph of the instruction, the jurors were told that they could
consider evidence of McDonald’s mental impairment for the “purpose of deciding
whether, at the time of the charged crime, the defendant acted with the intent or mental
state required for that crime.” (CALCRIM No. 3428, italics added.) And in the
remaining four paragraphs of the instruction as given, it went on to list the required
intents or mental states for four of the crimes: first and second degree murder and their
associated attempts. But there was no language in the instruction that confined the jury’s
consideration of McDonald’s mental impairment to only those four crimes. (CALCRIM
No. 3428.) That is, there was no language that precluded the jury from applying the

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mental impairment instruction to the other lesser included crimes: voluntary or
involuntary manslaughter and their attempts. Thus, the jury could consider McDonald’s
mental impairment as to the lesser included offenses of voluntary manslaughter and
attempted voluntary manslaughter (based on imperfect self-defense).
Indeed, the final four paragraphs (beyond the first paragraph) of the mental
impairment instruction as given were essentially unnecessary and/or redundant.
(CALCRIM No. 3428.) The required intents or mental states for each of the four crimes
was also set out and explained in each of the individual instructions for each of those
crimes. (See CALCRIM No. 521 (First Degree Murder: willfully, premeditated, and
deliberate); see also CALCRIM No. 520 (Murder: First and Second Degree malice
aforethought); CALCRIM No. 601 (Attempted Murder: willfully, premeditated, and
deliberate); CALCRIM No. 600 (Attempted Murder: intent to kill).)
Moreover, within the voluntary manslaughter instruction, the jurors were
told that they could find that McDonald acted in imperfect (or unreasonable) self-defense
if he “actually believed that he was in imminent danger of being killed or suffering great
bodily injury” and he “actually believed that the immediate use of deadly force was
necessary,” but his beliefs were objectively “unreasonable.” (CALCRIM No. 571, italics
added.) The imperfect self-defense instruction also told the jurors that when “evaluating
the defendant’s beliefs, consider all the circumstances as they were known and appeared
to the defendant.” (CALCRIM No. 571, italics added.) Again, there was nothing in the
mental impairment instruction that prohibited the jury from considering McDonald’s
schizophrenia and auditory hallucinations as it related to his beliefs (i.e., his “mental
state” as specified in the first paragraph of the mental impairment instruction).
We presume the jury understood and correlated the court’s instructions.
(See People v. Hajek and Vo, supra, 58 Cal.4th at p. 1220.) That is, when considered
together, the instructions properly told the jurors that if they found that McDonald
actually believed Chavez had a gun and he was in imminent danger, and McDonald’s

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state of mind was affected by his mental impairments, but his belief was unreasonable,
then they could find him guilty of the lesser included offense of voluntary manslaughter
(or attempted voluntary manslaughter) under a theory of imperfect self-defense. Indeed,
McDonald’s counsel made precisely that argument to the jury (without objection) during
her closing argument.
McDonald argues that his instructional error claim is the same as the
defendant’s instructional error claim in People v. Ocegueda (2016) 247 Cal.App.4th 1393
(Ocegueda). We agree that the two cases are closely aligned, but they are also
conspicuously distinguishable. In Ocegueda, the defendant was a gang member who shot
a rival gang member. (Id. at p. 1396.) The defendant “claimed he did so out of fear
because he believed [the rival gang member] was pulling a gun on him.” (Id. at p. 1397.)
At the defendant’s attempted murder trial, a psychologist testified that the defendant had
and an intellectual developmental disability (formerly called retardation). (Id. at p.
1402.) The psychologist said that the “defendant had difficulty planning and
understanding the causes and effects of his actions. He also had difficulties in problem
solving and considering or weighing his options.” (Ibid.)
In Ocegueda, supra, 247 Cal.App.4th at page 1405, the trial court
instructed the jury on attempted voluntary manslaughter (imperfect self-defense). The
court also instructed on mental impairment as follows: “‘You have heard evidence that
the defendant may have suffered from a mental disease, defect, or disorder. You may
consider this evidence only for the limited purpose of deciding whether, at the time of the
charged crimes and special allegations, the defendant acted or failed to act with the
specific intent or mental state required for those crimes and special allegations. [¶]
Those specific intents and mental states are as follows: [¶] Number 1: The intent to kill
contained in attempted murder and attempted voluntary manslaughter. [¶] Number 2:
The premeditation and deliberation contained in the special allegation relating to the

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charge of attempted murder.’” (Id. at p. 1405, italics added [the italicized phrase was not
included in the mental impairment instruction in this case].)
The Ocegueda court reiterated that “California law allows the jury to
consider a defendant’s mental disabilities in deciding whether he or she had an actual but
unreasonable belief in the need for self-defense.” (Ocegueda, supra, 247 Cal.App.4th at
p. 1407.) However, the court found that the jury instruction as written “explicitly limited
the jury’s consideration of mental disabilities to the issue of whether he intended to kill.”
(Id. at p. 1409, italics added.) The court held that mental impairment “instruction was
therefore erroneous.” (Ibid.) However, the court went on to find that the instructional
error was not prejudicial. (Id. at pp. 1410-1411.)
Here, the trial court’s instruction did not have the limiting language that the
court found objectionable in Ocegueda. Again, in Ocegueda, the mental impairment
instruction limited the jury’s consideration of the defendant’s mental disability to only
those crimes that were listed in that instruction: “‘Those specific intents and mental
states are as follows: . . . [.]’” (Ocegueda, supra, 247 Cal.App.4th at p. 1405, italics
added.) However, in this case the mental impairment instruction (along with the
imperfect self-defense instruction) allowed the jury to consider whether McDonald’s
schizophrenia or auditory hallucinations had any effect on any of the charged crimes
(murder and attempted murder), as well as the lesser included crimes (voluntary
manslaughter and attempted voluntary manslaughter based on imperfect self-defense).
d. Harmless Error
In Ocegueda, the appellate court found that the instructional error was
harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (Ocegueda, supra, 247
Cal.App.4th at pp. 1406-1407 [no reasonable probability of a more favorable result in the
absence of the error].) McDonald argues that any prejudice must be considered under
Chapman v. California (1967) 386 U.S. 18, 23-24 (Chapman) [harmless error beyond a

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reasonable doubt].) But we need not decide the question; even if we were to assume
error, we would find it to be harmless under the more rigorous Chapman standard.
Again, McDonald contends that the trial court’s mental impairment
instruction precluded the jury from considering evidence of his mental impairments in
deciding whether he had committed the lesser included offenses of voluntary
manslaughter and attempted voluntary manslaughter (based on imperfect self-defense).
But the court also instructed the jury that it could not find McDonald guilty of first degree
murder and first degree attempted murder unless the prosecution had proven beyond a
reasonable doubt that he premeditated and deliberated or “carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to
kill.” (CALCRIM Nos. 521 & 601.) And the court instructed the jury that they could not
find McDonald guilty of a lesser included offense unless they found him not guilty of the
greater offense. (CALCRIM No. 3517.)
Here, there was overwhelming evidence of premeditation and deliberation.
McDonald told the police that he suspected Chavez had earlier poisoned him. McDonald
said that he had initiated the contact with Chavez, told him when and where to meet, and
then he had Ashlee park in a darker spot. McDonald said that he had arranged to meet
with Chavez: “Just to get it over with.” McDonald had two loaded handguns with him,
and he told police that he had one of his guns drawn as he walked from the driver’s side
to the passenger side of the car. This statement in particular essentially undercut his later
trial testimony about panicking and pulling out a gun in purported self-defense. Finally,
McDonald shot Chavez in the face without warning, then shot into the car nine more
times, hitting Ashlee and Ingrid multiple times.
The jury found that McDonald premeditated and deliberated as to the
murder and the two attempted murders. We cannot see how the jury’s finding (that
McDonald carefully weighed the considerations and decided to kill the three people in
the car) can be reconciled with imperfect self-defense, which would have required a

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finding that McDonald “actually believed that he was in imminent danger of being killed
or suffering great bodily injury” and he actually, but unreasonably “believed that the
immediate use of deadly force was necessary[.]” (CALCRIM No. 571, italics added.)
We find beyond a reasonable doubt that the jury would have found
McDonald guilty of the greater offenses (first degree murder and attempted murder),
even if we assume error in the mental impairment instruction as it related to the lesser
included offenses of voluntary and attempted voluntary manslaughter.
2. The Involuntary Manslaughter Instruction
McDonald claims that the involuntary manslaughter instruction as given
improperly contained a diminished capacity test. We agree. The instruction contained a
misstatement of the law; since 1981, diminished capacity does not exist as a valid defense
in California courts. But the instructional error was undoubtedly harmless beyond a
reasonable doubt.
a. Applicable Law
Involuntary manslaughter is “the commission of an unlawful act, not
amounting to a felony; or . . . the commission of a lawful act which might produce death,
in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).)
“Involuntary manslaughter is a lesser offense of murder . . . .” (People v. Butler (2010)
187 Cal.App.4th 998, 1006.) “The mens rea for murder is specific intent to kill [actual
malice] or conscious disregard for life [implied malice]. [Citation.] Absent these states
of mind, the defendant may incur homicide culpability for involuntary manslaughter.”
(Ibid.)
Under a diminished capacity theory, a defendant may be legally sane, but
nevertheless lack the capacity to form the intent necessary for the crime charged. Under
former California law, such a defendant could be found guilty of a lesser included offense

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or could be acquitted. (See People v. Wells (1949) 33 Cal.2d 330, 346, superseded by
statute as stated in People v. Saille (1991) 54 Cal.3d 1103, 1109-1110.) But in 1981, the
Legislature abolished the defense of diminished capacity, while preserving the defense of
diminished actuality. (§ 28, subd. (a), added by Stats. 1981, ch. 404, § 4, p. 1592; People
v. Steele (2002) 27 Cal.4th 1230, 1253.)
“Evidence of mental disease, mental defect, or mental disorder shall not be
admitted to show or negate the capacity to form any mental state, including, but not
limited to, purpose, intent, knowledge, premeditation, deliberation, or malice
aforethought, with which the accused committed the act. Evidence of mental disease,
mental defect, or mental disorder is admissible solely on the issue of whether or not the
accused actually formed a required specific intent, premeditated, deliberated, or harbored
malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).) “As a
matter of public policy there shall be no defense of diminished capacity . . . in a criminal
action or juvenile adjudication hearing.” (§ 28, subd. (b).)
The doctrine of invited error operates to prevent a party from asserting an
error when his or her own conduct induces the commission of error. (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 49.) “‘The doctrine of invited error is designed to
prevent an accused from gaining a reversal on appeal because of an error made by the
trial court at his behest. If defense counsel intentionally caused the trial court to err, the
appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel
acted for tactical reasons and not out of ignorance or mistake.’” (Ibid.)
b. Procedural Background
During discussions regarding the proposed jury instructions, McDonald
requested an instruction on involuntary manslaughter. The prosecution did not object.
After some discussion, it was agreed that McDonald’s counsel would revise the pattern
involuntary manslaughter instruction. (CALCRIM No. 580.)

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The following revised involuntary manslaughter instruction was provided
to the jury without objection: “When a person does not actually form the intent to kill or
does not premeditate and deliberate due to a mental illness, then the defendant is not
guilty of murder and voluntary manslaughter and may be guilty of involuntary
manslaughter. [¶] A mental disorder is admissible solely on the issue of whether or not
the accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged, see CALCRIM
252, page 13. [¶] The defendant committed involuntary manslaughter if: [¶] 1. There is
reasonable doubt as to whether the defendant could actually form the necessary intent to
unlawfully kill with malice aforethought due to mental illness; AND [¶] 2. The
defendant’s acts unlawfully caused the death of another person.” (CALCRIM No. 580,
italics added.)
c. Legal Analysis
Here, the involuntary manslaughter instruction contained both a correct and
an incorrect statement of the law. The instruction correctly told the jury that McDonald’s
“mental disorder is admissible solely on the issue of whether or not the accused actually
formed a required specific intent . . . .” (Italics added.) However, the jury was also
incorrectly told that it could find McDonald guilty of involuntary manslaughter if there
was a “reasonable doubt as to whether the defendant could actually form the necessary
intent to unlawfully kill with malice aforethought due to mental illness . . . .” (Italics
added.) We agree with McDonald’s argument (raised for the first time in this appeal) that
the instruction effectively told the jurors that they were able to consider defendant’s
diminished capacity to commit a crime due to his alleged mental disorders. This was
plainly error.
The Attorney General argues that McDonald’s trial counsel invited the
error and he should be estopped from raising it on appeal. We essentially agree that the

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error was invited, but we are not sure that it was done for tactical reasons. It appears to
have been a mistake. Thus, the invited error doctrine would not apply. (See People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 49.)
Nevertheless, the error was unquestionably harmless beyond a reasonable
doubt. (Chapman, supra, 386 U.S. at pp. 23-24.) The instruction provided McDonald
with a possible defense at his trial—diminished capacity—that was simply not available
to him under California law. Therefore, the error could have only benefitted him. We
cannot discern a credible argument that McDonald was somehow harmed by the error.
3. The Provocation Instruction
McDonald claims that the trial court committed error by refusing his
request for a provocation instruction. We disagree and find no error. And again, even if
we were to assume error, we would not find it to be prejudicial.
a. Relevant Law
There are two types of provocation in the context of homicides: subjective
and objective. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334.) Subjective
provocation may reduce a murder from first degree to second degree where the
provocation “would not cause an average person to experience deadly passion but it
preclude[d] the defendant from subjectively deliberating or premeditating.” (Id. at
p. 1332.) Objective provocation may reduce a second degree murder to voluntary
manslaughter if the provocation is such that it would cause an ordinary person to react

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under a heat of passion. (Ibid.) The archetypal example of objective provocation is when
a person catches his or her spouse in bed with another person. 7
The word “provocation” has no technical meaning peculiar to the law.
(People v. Hernandez, supra, 183 Cal.App.4th at pp. 1332-1333.) Provocation means
“something that provokes, arouses, or stimulates”; provoke means “to arouse to a feeling
or action [;] . . . to incite to anger.” (Webster’s Collegiate Dict. (11th ed. 2007) p. 1002;
see People v. Ward (2005) 36 Cal.4th 186, 215 [“provocation . . . is the defendant’s
emotional reaction to the conduct of another, which emotion may negate a requisite
mental state”].) “[P]rovocation (the arousal of emotions) can give rise to a rash,
impulsive decision, and this in turn shows no premeditation and deliberation.” (People v.
Hernandez, supra, 183 Cal.App.4th at p. 1334.)
b. Procedural Background
The pattern instruction on the defense of provocation reads as follows:
“Provocation may reduce a murder from first degree to second degree. The weight and
significance of the provocation, if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the provocation in deciding
whether the crime was first or second degree murder.” (CALCRIM No. 522.)
During discussions regarding the jury instructions, McDonald requested the
provocation instruction, CALCRIM No. 522. The court said, “I’m not sure I see any
provocation.” McDonald’s counsel responded: “The provocation, I believe at least the
evidence was that there was a movement down. That could be provocation.” The
prosecution argued that this was covered by the self-defense instruction. McDonald’s
7
Again, there are two ways a murder can be reduced to voluntary manslaughter: heat of
passion and imperfect (or unreasonable) self-defense. (People v. Moye, supra, 47 Cal.4th
at p. 549.) McDonald concedes that he was not entitled to an instruction on voluntary
manslaughter based on heat of passion. That is, he admits that any of his actions based
on any perceived “provocation” by Chavez were not objectively reasonable.

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counsel responded, “I respectfully disagree. I believe the jury should be given this as a
theory, because there is some indication, whatever weight the jury gives to it, the jury can
give to it. But if there is a reach down, especially in light of the fact that this is an illegal
drug sale, that could cause [McDonald] to have acted rashly and under the influence of
that intense panic. And I would request the instruction.”
The court initially said that it was going to give the provocation instruction
out of “an abundance of caution. There’s some evidence.” But after some discussion, the
court said, “I’m revising my ruling. I think I will take out . . . CALCRIM [No.] 522,
provocation. And I’m refusing the request for voluntary manslaughter, heat of passion.
We’ll take that one out.”
c. Legal Analysis
Here, when McDonald initially spoke to the police after his arrest he did
not say that he saw Chavez with a weapon, but he did say that, “I saw him reach-reach
down . . . .” At trial, McDonald testified that when he approached the passenger side of
the car, Chavez “didn’t say anything, didn’t look at [him], just started reaching down for
a gun.” McDonald said that he “panicked,” stepped back, and “shot a burst of shots.”
McDonald said that he did not intend to kill and fired in self-defense.
Based on this testimony, we find no evidence of “provocation” in the way
that term is ordinarily used or would have been understood by the jury. There was no
evidence that McDonald had an “emotional reaction” to Chavez’s conduct, which
arguably caused him to make a “rash” or “impulsive decision” to shoot. Rather,
McDonald’s claim that he acted in self-defense when he thought Chavez was reaching for
a gun was adequately covered by the self-defense and imperfect self-defense instructions.
The court instructed the jury that it could not find McDonald guilty of any of the charged
or lesser include crimes if he acted in lawful self-defense. (CALCRIM No. 505.) And
again, the court also instructed the jurors that they had to find imperfect self-defense if

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they found that McDonald actually believed that his life was in imminent danger, but his
belief was objectively unreasonable. (CALCRIM Nos. 571, 604.)
In sum, we find no error in the court’s refusal to instruct on provocation.
McDonald also argues that: “It was error to refuse the requested provocation instruction
for second-degree murder, while providing an incomplete pattern instruction on
hallucinations.” (Original capitalization and boldfacing omitted.) We disagree.
A person’s hallucination is a perception that is not based on any objective
reality. (People v. Padilla (2002) 103 Cal.App.4th 675, 677.) “[E]vidence of a
hallucination . . . is inadmissible to negate malice so as to mitigate murder to voluntary
manslaughter but is admissible to negate deliberation and premeditation so as to reduce
first degree murder to second degree murder.” (Ibid.) The court has a sua sponte duty to
give defense instructions supported by substantial evidence and not inconsistent with
defendant’s theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195.) However,
“‘[a] party may not argue on appeal that an instruction correct in law was too general or
incomplete, and thus needed clarification, without first requesting such clarification at
trial.’” (People v. Livingston (2012) 53 Cal.4th 1145, 1165.)
Here, the court instructed the jury without objection using the pattern
hallucination instruction, CALCRIM No. 627. The instruction reads as follows: “A
hallucination is a perception not based on objective reality. In other words, a person has
a hallucination when that person believes that he is hearing something that is not actually
present or happening. [¶] You may consider evidence of hallucinations, if any, in
deciding whether the defendant acted with deliberation and premeditation. [¶] The
People have the burden of proving beyond a reasonable doubt that the defendant acted
with deliberation and premeditation. If the People have not met this burden, you must
find the defendant not guilty of first degree murder.” (CALCRIM No. 627.)
McDonald’s claim that the pattern hallucination instruction is incomplete is
forfeited on appeal because he did not request a clarification or a modification of the

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instruction during the trial. Moreover, McDonald has not told us precisely how the trial
court could or should have modified the allegedly incomplete instruction. Indeed, the
pattern hallucination instruction is an accurate and complete statement of the law. (See
People v. Padilla, supra, 103 Cal.App.4th at p. 679.)
McDonald also argues that: “The pattern hallucination instruction the jury
received is premised on a provocation defense. It must be given in tandem with the
provocation instruction to support that defense, and, if given alone, it is misleading for
other available mental-illness defenses.” (Original capitalization and boldfacing
omitted.) McDonald did not argue at trial that the hallucination instruction was
“premised” on any other defenses, including a provocation defense. This argument is
therefore forfeited. Finally, McDonald cites no authority for the proposition that the
hallucination instruction must be given “in tandem” with any other instruction, including
the provocation instruction.
d. Harmless Error
Again, even if we were to assume error, we would find the error to be
harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at pp. 23-24.) Largely
for the reasons we have already discussed, we do not think that the jurors would have
found that Chavez somehow provoked McDonald’s response had they been so instructed.
The jury necessarily rejected the defenses of either perfect or imperfect self-defense.
And again, there was overwhelming evidence supporting the jury’s finding that
McDonald premeditated and deliberated before committing the murder and the two
attempted murders. (See ante, pp. 18-20.)
B. Prosecutorial Misconduct Claims
McDonald claims that the prosecutor committed misconduct by making an
improper argument to the trial court and by misstating the law to the jury. We disagree.

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We evaluate claims of prosecutorial misconduct under well-established
standards. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) Generally, in order to raise any
alleged errors on appeal, they must have first been brought to the attention of the trial
court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Specifically, a defendant forfeits
any complaint of prosecutorial misconduct on appeal unless he or she objected to the
alleged misconduct at the time it occurred and also requested that the jury be admonished
to reject the alleged impropriety. (See People v. Ervine (2009) 47 Cal.4th 745, 806.)
McDonald first argues that the prosecutor committed misconduct because
he “successfully requested that voluntary manslaughter be removed from the mental-
illness instruction.” This was plainly not prosecutorial misconduct. There is no
indication that the prosecutor used “deceptive or reprehensible” tactics. The prosecutor
correctly argued that the mental impairment instruction was confusing and that the
concepts were covered by other instructions. Further, as we held earlier, the alleged
instructional error was not prejudicial; therefore, the alleged prosecutorial misconduct
could not have rendered the trial fundamentally unfair.
McDonald also claims that the prosecutor committed misconduct during
closing argument by raising the diminished capacity test, which had been erroneously
included in the involuntary manslaughter instruction. The prosecutor arguably made
several allusions to this erroneous defense, including asking the jury whether McDonald
was “capable of forming the intent for the crime? That’s really what it boils down to.”
(Italics added.) But McDonald did not object to the alleged misconduct; neither did he
ask the court to admonish the jury. Therefore, this claim has been forfeited. In any

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event, any mention of the diminished capacity defense could only have worked to
McDonald’s advantage. Thus, there was no prejudice.
C. Consecutive Sentencing Error Claim
McDonald claims that the trial court abused its discretion by imposing
consecutive (rather than concurrent) sentences. We disagree.
When a defendant is “convicted of two or more crimes” the trial court may
impose “the terms of imprisonment” either “concurrently or consecutively.” (§ 669,
subd. (a).) The court must state on the record its reasons for imposing consecutive
sentences and is generally guided by factors stated within the state court rules. (See Cal.
Rules of Court, rules 4.406, 4.425; People v. Scott (1994) 9 Cal.4th 331, 349-350.)
However, there is no presumption of concurrent sentencing. (People v. Black (2007) 41
Cal.4th 799, 822 [a “court may consider aggravating and mitigating factors, but there is
no requirement that, in order to justify the imposition of consecutive terms, the court find
that an aggravating circumstance exists”].)
“It is well established that a trial court has discretion to determine whether
several sentences are to run concurrently or consecutively. [Citations.] In the absence of
a clear showing of abuse, the trial court’s discretion in this respect is not to be disturbed
on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason,
all of the circumstances being considered.” (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Generally, a reviewing court may not reverse a trial court’s exercise of its discretion
unless the court acted in an “““arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.”““ (People v. Clark (2016) 63 Cal.4th 522,
572.)
Here, after considering McDonald’s probation report, victim impact
evidence, and arguments from both counsel, the trial court stated that “here is a defendant
with no prior record to speak of, who is relatively young, but who did some devastating

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shooting on the date in question. . . . How do you say . . . that this is just 50 to life, which
is a huge sentence, and kind of forget what happened to Ashlee and Ingrid? I don’t think
that would be proper. I don’t think that would be fair. I don’t think that would be just.
[¶] . . . [¶] The court is going to impose the maximum sentence. I was asked to extend
mercy, but I don’t see mercy in a case like this . . . . The crime is so, so bad compared to
the defendant’s mental situation, his age, and his lack of prior record, that I think the full
extent of the law should be imposed.”
The trial court stated some of the aggravating and mitigating sentencing
factors when it detailed its reasons for imposing consecutive sentences (e.g., multiple
victims, as well as McDonald’s age and lack of criminal record). There is no indication
that the court approached its decision in an arbitrary or capricious manner. Its ruling was
not beyond the bounds of reason. Thus, the court did not abuse its discretion.
McDonald argues that the trial court “abused its discretion by failing to
address all mitigating factors which provided for concurrent sentencing.” But we
presume that the court considered the appropriate factors. (See People v. Superior Court
(Du) (1992) 5 Cal.App.4th 822, 831 [a court is presumed to have considered all the
relevant sentencing criteria].)
D. Ineffective Assistance of Counsel Claims
McDonald claims that he was denied effective assistance of counsel in
violation of his constitutional rights. We disagree.
A criminal defendant has a right to effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 685-686 (Strickland).) To establish a
violation of this right, a defendant must show: 1) counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms; and 2) this
resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) There is “a strong

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presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” (Id. at p. 689.)
“‘The burden of sustaining a charge of inadequate or ineffective
representation is upon the defendant. The proof . . . must be a demonstrable reality and
not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) “[A] court need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . , that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
Here, McDonald claims his trial counsel was ineffective: 1) by drafting the
involuntary manslaughter instruction (which contained the erroneous diminished capacity
test); 2) by failing to object during the prosecutor’s closing argument (to the allusions to
the erroneous diminished capacity test); and 3) by failing to file a sentencing brief, which
may have more persuasively argued the factors in mitigation.
As recommended by the Supreme Court, we shall dispose of these claims
based on a lack of prejudice. (See Strickland, supra, 466 U.S. at p. 670.) Again, as far
diminished capacity, that defense should not have been raised at all. Therefore, any
mentions of the erroneous defense, either by defense counsel or the prosecutor could have
only worked to McDonald’s advantage. Further, as we have already discussed, we
presume that the trial court considered all of the relevant sentencing factors, including
those in mitigation. Given the trial court’s stated analysis, we are highly confident that it
would not have imposed a more lenient sentence had McDonald’s counsel filed a
sentencing brief.

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E. Cumulative Error Claim
McDonald argues that the cumulative effect of his prior instructional,
prosecutorial misconduct, and ineffective assistance of counsel claims, requires reversal
of his convictions. We disagree.
“In theory, the aggregate prejudice from several different errors occurring
at trial could require reversal even if no single error was prejudicial by itself.” (In re
Reno (2012) 55 Cal.4th 428, 483.) However, the rejection of specific individual claims
“cannot logically be used to support a cumulative error claim.” (Ibid.)
Here, McDonald argues that his three claims of instructional error taken
together “rendered the proceedings fundamentally unfair” and violated his rights to due
process. But the only instructional error we have identified actually worked to
McDonald’s advantage and provided him with a defense to which he was not legally
entitled (diminished capacity). As to the other claims, we found no errors. Thus, we find
no cumulative or aggregated prejudice.
F. Parole Revocation Fine Claim
McDonald claims that “the parole-revocation fine must be dismissed,
because [he] has no reasonable possibility of being paroled.” (Original capitalization and
boldfacing omitted). He is mistaken.
Trial courts are required to impose a parole revocation fine “[i]n every case
where a person is convicted of a crime and his or her sentence includes a period of
parole.” (§ 1202.45, subd. (a).) The fine is stayed until such time as the person is
granted parole and it is levied only if the parole is actually revoked. (§ 1202.45, subd.
(c).) The fine is improper if a person is sentenced solely to death or life in prison without
the possibility of parole. (See People v. Battle (2011) 198 Cal.App.4th 50, 63.)
Here, the trial court sentenced McDonald to a term of life in prison—with
the possibility of parole—on the murder charge (25 years to life), the two attempted

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murder charges (14 years to life) as well as the three firearm enhancements (75 years to
life). The total aggregate sentence is 114 years to life (as of now).8
Nevertheless, the
sentence does include the possibility of parole. Accordingly, the court properly imposed
and stayed the parole revocation fine.
McDonald cites People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), for
the proposition that since no portion of his sentence includes a determinate term, a parole
revocation fine cannot be imposed. We disagree. In Brasure, the trial court imposed a
parole revocation fine on a defendant with a death sentence and a determinate term.
(Id. at p. 1075.) The Supreme Court cited section 3000, subdivision (a)(1), which
provides: “A sentence resulting in imprisonment in the state prison pursuant to Section
1168 or 1170 shall include a period of parole supervision . . . .” (Italics added.) Since
the defendant’s sentence also included a determinate term under section 1170, the court
held that the parole revocation fine was properly imposed. (Brasure, supra, at p. 1075.)
Here, the trial court imposed McDonald’s sentence, in part, under the
statutory authority of California’s indeterminate sentencing laws, including section 1168.
(See People v. Lyons (1999) 72 Cal.App.4th 1224, 1227-1228.) As stated in Brasure, “a
period of parole” also expressly applies to sentences imposed under section 1168.
(Brasure, supra, 42 Cal.4th at p. 1075.) Accordingly, McDonald’s sentence “shall
include a period of parole” and is subject to a stayed parole revocation fine. (See
1202.45, subd. (a); see also Brasure, supra, 42 Cal.4th at p. 1075.)
G. Remand Request (Mental Health Diversion)
McDonald argues that section 1001.36, which allows for the pretrial
diversion of defendants with mental disorders, applies retroactively to cases not yet final
on appeal. We agree. (See People v. Frahs (2018) 27 Cal.App.5th 784.) However,
8
The firearm enhancements may or may not be dismissed on remand, as will be
discussed later in this opinion.

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effective January 1, 2019, the Legislature amended section 1001.36, to exclude those
defendants charged with murder. (See § 1001.36, subd. (b)(2)(A).) The prosecution
charged McDonald with one count of murder (and two counts of attempted murder).
Therefore, we deny McDonald’s request for the trial court to consider granting mental
health diversion under section 1001.36 on remand.
In supplemental briefing, McDonald argues that the failure to give him the
opportunity for mental health diversion on remand violates the ex post facto clauses of
the California and United States Constitutions. We disagree.
“A statute violates the prohibition against ex post facto laws if it punishes
as a crime an act that was innocent when done or increases the punishment for a crime
after it is committed.” (People v. White (2017) 2 Cal.5th 349, 360.) The ex post facto
prohibition ensures that people are given “fair warning” of the possible punishment they
may be subjected to if they violate the law; they can rely on the meaning of the statute
until it is explicitly changed. (Weaver v. Graham (1981) 450 U.S. 24, 32, fn. 17.)
On August 12, 2014, McDonald committed the crime of murder (and the
two attempted murders). On that date, the possibility of pre-trial mental health diversion
did not exist (the earlier version of section 1001.36 became effective on June 27, 2018).
Consequently, McDonald could not have relied on the possibility of pre-trial mental
health diversion when he committed the crime of murder. Moreover, the Legislature’s
amendment of the statute to eliminate murder as eligible offense (effective January 1,
2019), did not make an act unlawful that was not formerly unlawful, nor did it increase
the punishment for any crime. (See People v. White, supra, 2 Cal.5th at p. 360.) Thus,
the amendment does not violate ex post facto considerations.
H. Remand Request (Firearm Allegations)
McDonald asks us to remand this matter to the trial court so it can consider
whether to dismiss the firearm sentencing enhancements. We will make that order.

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The version of section 12022.53 in effect at the time of McDonald’s
sentencing did not permit the trial court to exercise its discretion to strike or dismiss the
firearm enhancements. But since then, the statute has been amended. Section 12202.53,
subdivision (h), now reads: “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.”
Here, the trial court imposed three firearm enhancements under section
12022.53. The Attorney General concedes that the amended statute applies to McDonald
because it has the potential to lessen the punishment and McDonald’s case is not yet final
on appeal. (See People v. Francis (1969) 71 Cal.2d 66, 69-70; In re Estrada (1965) 63
Cal.2d 740.) We agree. The court will have an opportunity to exercise its discretion on
remand (of course, we take no position on the merits of any possible dismissal orders).
I. Remand Request (Youthful Offender Parole Hearings)
Finally, McDonald asks for an opportunity to prepare a record for any
future youth offender parole hearings. We will make that order.
Effective January 1, 2018, the Legislature amended section 3051 to provide
youth offender parole hearings to certain felons who were 25 years of age or younger
when they committed their crimes. McDonald was 23 years old when he committed the
three crimes. Therefore, the amendment to section 3051 renders McDonald eligible for a
youth offender parole hearing on his “25th year of incarceration.” (§ 3051, subd. (b)(3).)
Felons eligible for youth offender parole hearings are entitled to a sufficient
opportunity—preferably at or near the time of the offense—to assemble a record of
information for their eventual hearings. (See People v. Franklin (2016) 63 Cal.4th 261,
283-284 (Franklin).) Because McDonald never had that opportunity, he is entitled to
have one now.

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The Attorney General essentially argues that the sentencing record as it
stands is sufficient. That may be true. Nevertheless, we direct the trial court to conduct a
“Franklin hearing,” which may be held concurrently with the sentencing hearing
regarding the firearm enhancements. Both parties are to be given the opportunity to put
on the record any additional relevant evidence that demonstrates McDonald’s
“culpability or cognitive maturity, or otherwise bears on the influence of youth-related
factors.” (Franklin, supra, 63 Cal.4th at p. 284.)
III
DISPOSITION
The matter is remanded with directions to the trial court to conduct a
sentencing hearing and a “Franklin hearing” as discussed within this opinion. In all other
respects, the judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.

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