P. v. Weekly

Filed 9/29/17 P. v. Weekly CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDERICK JUSTINE WEEKLY,
Defendant and Appellant.
D071294
(Super. Ct. No. SCD253909)
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed with direction to amend the abstract of judgment.
Anthony J. Dain, 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, Steve Oetting and Christine Y.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found Frederick Justine Weekly guilty of first degree murder (Pen. Code,
§ 187, subd. (a))1 and that Weekly personally discharged a firearm causing great bodily
injury and death (§ 12022.53, subd. (d)). The trial court sentenced Weekly to a prison
term of 50 years to life, consisting of a 25-year-to-life term for the murder and a 25-year-
to-life term for the firearm enhancement.
Weekly contends (1) the trial court prejudicially erred in erroneously instructing
the jury that it could consider evidence of Weekly's voluntary intoxication only in
deciding whether Weekly acted with intent, but not in considering whether Weekly
premeditated and deliberated the murder; (2) the sentence enhancement for the firearm
allegation is unauthorized because the information did not plead personal use of a
firearm; and (3) the abstract of judgment should be amended to conform to the trial
court's order that victim restitution was to be a joint and several obligation with Weekly's
codefendant, who pled guilty prior to trial.
We conclude: (1) although the content of the voluntary intoxication instruction
was erroneous, Weekly has not established that it is reasonably probable he would have
obtained a more favorable result without the error; (2) Weekly's challenge to the
imposition of the sentencing enhancement lacks merit; and (3) the abstract of judgment
must be amended to reflect the joint and several restitution order made at sentencing.
Accordingly, we direct the trial court to amend the abstract of judgment, and in all other
respects we affirm the judgment.
1 Unless otherwise indicated, all further statutory references are to the Penal Code.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
Weekly admitted at trial to shooting and killing Kirk Sampson on the night of
September 2 or the early morning of September 3, 2015. The question for the jury was
whether, as Weekly claimed, the shooting was an accident that occurred while the two
men struggled over a gun, or whether, as the prosecution contended, Weekly either
intentionally shot Sampson or shot him as part of an intentional carjacking.
Weekly and Sampson were friends who knew each other because they had the
same ex-girlfriend, Angela Anderson.2 Weekly and Anderson broke up in early August
2015, approximately a month before the shooting. Anderson dated Sampson before she
was with Weekly, and she remained good friends with Sampson. Anderson, Weekly and
Sampson had all spent time together.
In March 2015, Anderson obtained inheritance money and used some of it to buy a
1997 Toyota 4Runner (the Truck). The evidence was conflicting as to whether Anderson
was letting Sampson drive the Truck or whether she had gifted it to him. The Truck was
registered in Sampson's name, and Sampson drove the Truck for approximately two
months until Anderson and Weekly told Sampson to hand over the Truck to them.
According to Weekly, Anderson retook possession of the Truck because Sampson had
not been upholding his part of an agreement that Sampson and Anderson had entered into
2 As the parties note, Angela Anderson is sometimes referred to in the record as
Angela Gerber. For the sake of clarity, we refer to her as Anderson.

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concerning the Truck's upkeep and registration. A friend testified that Sampson was
upset that the Truck had been taken from him.
In August 2015, after Weekly and Anderson broke up, Sampson was living for a
short time in a trailer with Anderson and sometimes drove the Truck with Anderson's
permission. On August 30, 2015, Sampson left Anderson's trailer with the Truck and did
not return. According to witnesses, Anderson was angry that Sampson left with the
Truck, and she made calls to friends, including to Weekly, to see if anyone could find
Sampson or the Truck.
On September 3, 2015, three days after Sampson left with the Truck, Sampson
was found dead on the side of the road in a quiet residential area at 3:00 a.m. Sampson
was killed by a single bullet to the chest that entered through his right ribcage and passed
through his right lung and his heart. Sampson also had injuries to his face caused by
blunt force, consistent with either a fight or a car accident. Medical evidence suggested
that the time of death was between 8:30 p.m. on September 2 and 2:30 a.m. on
September 3. It appeared that Sampson's body had been left by the side of the road but
that the shooting occurred elsewhere. A toxicology test performed during the autopsy
showed a high level of methamphetamine in Sampson's body, and a vial of a substance
suspicious for methamphetamine was found in Sampson's pocket.
Police eventually identified Weekly as a suspect, arrested him, and charged him
with murdering Sampson (§ 187), in addition to alleging discharge of a firearm,
proximately causing death. (§ 12022.53, subds. (d), (e)(1).) Anderson was also arrested

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and charged with murder in the same information.3
In an interview with police on September 17, 2015, Weekly claimed to know
nothing about Sampson's death, but said that he met up with Sampson on September 2,
2015, after coincidentally noticing the Truck parked at the curb while taking a walk.
Weekly told police that he and Sampson got into a fist fight inside the Truck after
Weekly found out that Sampson had taken the Truck from Anderson and criticized him
for doing so. Weekly claimed that after he and Sampson exited the Truck to continue the
fight, the Truck rolled away and crashed into a pole. Weekly got into the Truck and
drove it to Anderson.
At trial, Weekly described a similar situation but admitted that he had shot
Sampson. Weekly testified that he noticed the Truck in the neighborhood where he was
visiting a friend on the evening of September 2, and not knowing whether it was
Anderson or Sampson who parked the Truck there, he sat in the Truck and waited for one
of them to appear so that he could ask for a ride to a neighborhood where he planned to
buy drugs. Sampson eventually appeared at the Truck and agreed to give Weekly a ride
later in the evening. The men met up later that night and spent some time together in a
3 Anderson pled guilty to voluntary manslaughter (§ 192, subd. (a)) on August 22,
2016. Thereafter, the information was amended to make allegations solely against
Weekly. Both the original information and the amended information alleged that "the
defendant, [Weekly], was a principal in the foregoing offense, and in the commission of
the offense at least one principal personally and intentionally discharged a firearm, to wit:
handgun, and proximately caused great bodily injury and death to a person (other than an
accomplice), within the meaning of . . . [s]ection 12022.53[, subdivisions ](d) and (e)(1)."
(Capitalization omitted.)

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nearby park where they drank alcohol and smoked methamphetamine, laughing and
joking with each other. Together, the two men drove downtown to meet Sampson's
friend, who sold them methamphetamine. They then returned to the same area by the
park and smoked some more methamphetamine.
According to Weekly's testimony, while the two men were having a good time
hanging out together, Anderson called Weekly. When Anderson found out Weekly was
with Sampson, she told him that Sampson had taken the Truck and asked Weekly to bring
the Truck back to her. Weekly said he would not get involved, and Anderson hung up on
him. Anderson then contacted Sampson, either by phone call or by text. According to
Weekly, after the contact from Anderson, Sampson's demeanor changed and he was no
longer friendly toward Weekly. Sampson refused Weekly's request for a ride to a more
distant neighborhood, but he agreed to drive Weekly a short distance to a friend's house.
Weekly testified that when they arrived at his friend's house, he again asked for a ride to
the more distant neighborhood, but Sampson again refused. Sampson also asked whether
Weekly remembered the last time he and Anderson took the Truck from him and stated,
"I bet that won't happen again."
Sampson threw a punch at Weekly, and the two men started to fight inside the
Truck. Weekly then saw Sampson pull out a sawed-off rifle. Weekly grabbed the rifle
and tried to keep it pointed away from him, while Sampson also kept a grip on the rifle.
After Weekly hit Sampson's chin with a lighter that was in his hand, Sampson dropped
his grip on the rifle, put the Truck in gear and accelerated. The passenger door was open
next to Weekly, and the sudden acceleration caused him to fall out of the truck, and also

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accidentally caused him to fire the rifle into Sampson's chest. The Truck moved forward
with Sampson in it and crashed into a telephone pole.
According to Weekly, he panicked after shooting Sampson, got into the Truck,
shoved Sampson aside, and drove the Truck to a residential neighborhood where he
dropped Sampson's body. He discarded the rifle in a wooded area, stopped by a fast food
restaurant, and then took the Truck to Anderson. Together, Anderson and Weekly drove
the Truck to a friend's property in a rural area. In early October 2015, the police located
the Truck abandoned in a parking lot, where it had been parked since September 17.
Cell phone records introduced at trial showed that Weekly and Sampson had
contact through their phones on the night of September 2, and their cell phones were in
the same general area at certain points during the evening, consistent with Weekly's
description of their movements. The evidence at trial also established that Weekly's
DNA was found on Sampson's wrist, ankles, knuckles and fingernails.
Weekly was prosecuted under two alternative theories of first degree murder,
namely (1) that Weekly killed Sampson during an intentional carjacking, and thus
committed felony murder; or (2) Weekly committed an intentional murder with
premeditation and deliberation.4
The jury found Weekly guilty of first degree murder, and it also made a true
finding that Weekly proximately caused death to a person by personally and intentionally
4 Although felony murder during a carjacking was one of the theories of murder, the
information did not charge Weekly with the separate crime of carjacking, and
accordingly the jury was not asked to return a verdict on carjacking.

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discharging a firearm (§ 12022.53, subd. (d)).5 The trial court sentenced Weekly to an
indeterminate prison term of 50 years to life, composed of a 25-year-to-life term for the
murder conviction and a 25-year-to-life term for the firearm enhancement.
II.
DISCUSSION
A. Weekly's Challenge to the Voluntary Intoxication Jury Instruction
1. The Instruction Was Erroneous
The jury was instructed regarding voluntary intoxication pursuant to CALCRIM
No. 625 as follows: "You may consider evidence, if any, of the defendant's voluntary
intoxication only in a limited way. You may consider that evidence only in deciding
whether the defendant acted with an intent to kill for murder or the intent to steal for the
carjacking theory of felony murder. [¶] A person is voluntarily intoxicated if he
becomes intoxicated by willingly using any intoxicating drug, drink, or other substance
knowing that it could produce an intoxicating effect or willingly assuming the risk of that
5 Based on the jury's finding on the firearm enhancement that Weekly intentionally
discharged a firearm, it is unlikely the jury convicted Weekly on the theory that he
accidentally discharged the gun during an intentional carjacking. Accordingly, the jury
either found that Weekly was guilty of first degree murder (1) based on a felony murder
during which he intentionally discharged the gun, or (2) based on a theory that Weekly
killed Sampson willfully, deliberately and with premeditation.

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effect. [¶] You may not consider evidence of voluntary intoxication for any other
purpose."6
Weekly contends that this instruction was legally erroneous, and we agree.7
Although the jury was instructed that it could not consider voluntary intoxication "for any
other purpose" except intent, this statement is incorrect in light of section 29.4,
subdivision (b), which provides that "[e]vidence of voluntary intoxication is admissible
solely on the issue of whether or not the defendant actually formed a required specific
intent, or, when charged with murder, whether the defendant premeditated, deliberated,
or harbored express malice aforethought." (Italics added.) Because Weekly was
charged with murder, in addition to stating the jury could consider voluntary intoxication
when deciding whether Weekly had an intent to kill (i.e., express malice aforethought),
6 Although the record is not completely clear, it appears from a stamped notation by
the trial court on the printout of the jury instruction under CALCRIM No. 625 that the
defense requested that instruction.
7 Although defense counsel did not object to the error in the instruction on voluntary
intoxication, the People do not contend that Weekly has forfeited his ability to seek
reversal based on the erroneous instruction. We find no basis to conclude that the
argument has been forfeited. "Where . . . defendant asserts that an instruction is incorrect
in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875,
fn. 11.) Further, a defendant does not forfeit the right to obtain a reversal based on an
instructional error when the defendant establishes that his substantial rights have been
affected by the error, and that analysis also requires us to consider the merits of the
argument. (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50, 64; People v. Franco
(2009) 180 Cal.App.4th 713, 719.) In an alternative argument, Weekly states that if we
conclude that an objection to the instruction was required to preserve the issue for appeal,
we should nevertheless reach the instructional error issue because defense counsel was
ineffective for failing to object. Because we conclude that the argument was not
forfeited, we need not and do not consider Weekly's alternative argument that he received
ineffective assistance of counsel.

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the instruction also should have stated that the jury could consider voluntary intoxication
in deciding whether Weekly premeditated and deliberated in killing Sampson.8
"Although a trial court has no sua sponte duty to give a 'pinpoint' instruction on the
relevance of evidence of voluntary intoxication, 'when it does choose to instruct, it must
do so correctly.' " (People v. Pearson (2012) 53 Cal.4th 306, 325 (Pearson).) Here, the
trial court erred because it provided an incorrect instruction on voluntary intoxication,
which precluded the jury from considering evidence of voluntary intoxication in deciding
whether Weekly premeditated and deliberated Sampson's murder.
The People contend that the instruction was not erroneous when the jury
instructions are considered as a whole. According to the People, "viewing the
instructions as a whole, a reasonable juror would understand that he or she could consider
evidence of voluntary intoxication in determining whether [Weekly] acted with
deliberation or premeditation as well as whether [Weekly] intended to kill." We disagree.
While it is true that we may "review the instructions as a whole to determine whether it is
'reasonably likely the jury misconstrued the instructions as precluding it from
considering' the intoxication evidence" (People v. Mendoza (1998) 18 Cal.4th 1114, 1134
(Mendoza)), in this case nothing in the instructions suggested to the jury that it could
8 Indeed, the form instruction for CALCRIM No. 625 provides bracketed language
for use in murder prosecutions, stating that the jury can consider evidence of voluntary
intoxication "in deciding whether the defendant acted with an intent to kill[,] [or] [the
defendant acted with deliberation and premeditation[,]] . . . ." (CALCRIM No. 625.)
However, perhaps because of clerical error, that bracketed language was not included in
the version of CALCRIM No. 625 presented and read to the jury in this case.

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consider voluntary intoxication when deciding whether Weekly premeditated and
deliberated. Indeed, quite to the contrary the plain language of the instruction expressly
precludes any such approach, as it states that voluntary intoxication may be considered in
deciding whether Weekly acted with intent, and then tells the jury that "you may not
consider evidence of voluntary intoxication for any other purpose." (Italics added.) A
reasonable juror following this instruction would understand that voluntary intoxication
could not be used to decide whether Weekly premeditated and deliberated Sampson's
murder.9
9 The People rely on People v. Castillo (1997) 16 Cal.4th 1009, in which an
instruction on voluntary intoxication was held not to be erroneous, even though it did not
mention premeditation as one of the mental states for which voluntary intoxication could
be considered. However, Castillo is inapposite because it dealt with different wording in
the jury instructions. In Castillo, the trial court "told the jury it should consider
defendant's voluntary intoxication in determining whether he had the specific intent or
mental state required for the charged crime." (Id. at p. 1014.) The defendant contended
that "defense counsel was ineffective for not requesting that the instruction specifically
tell the jury it should consider the intoxication evidence in deciding whether he
premeditated the killing. In effect, defendant argue[d] that the pinpoint instruction did
not pinpoint enough, that it did not additionally say that premeditation is a mental state."
(Ibid.) Castillo concluded that "the trial court correctly and fully instructed the jury on
the way in which the evidence of intoxication related to defendant's mental state,
including premeditation." (Id. at pp. 1015-1016.) Because the instruction on voluntary
intoxication referred only to the specifically required "mental state," and elsewhere in the
instructions, the jury was informed that premeditation and deliberation were necessary
mental states, "[a] reasonable jury would have understood deliberation and premeditation
to be 'mental states' for which it should consider the evidence of intoxication as to either
attempted murder or murder." (Id. at p. 1016.) Here in contrast, the instruction did not
refer generally to a "mental state" and it specifically precluded the jury from using
voluntary intoxication for any issue except intent. Thus, here, unlike in Castillo, even in
light of the instructions as a whole, the voluntary intoxication instruction contained an
incorrect statement of the law.

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2. Weekly Has Not Established That the Error Was Prejudicial
Having concluded that it was error for the trial court to instruct the jury with a
version of CALCRIM No. 625 that failed to inform the jury that it could consider
voluntary intoxication when deciding whether Weekly acted with premeditation and
deliberation, we next consider whether the error was prejudicial.10
a. The Watson Standard for Assessing the Prejudice Attributable to Errors of
State Law Applies Here
The first issue we must address in our harmless error review is what standard
applies to our analysis. Weekly contends that the standard for assessing the prejudice
resulting from federal constitutional error should apply. (Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).) The People contend that the instructional error is reviewed
under the standard of prejudice for errors of state law. (People v. Watson (1956) 46
Cal.2d 818, 836 (Watson).)
As we have explained, the error at issue here had the effect of precluding the jury
from considering evidence of voluntary intoxication when deciding whether the People
met their burden to prove that Weekly acted with premeditation and deliberation. As our
Supreme Court has held, when, as here, an instructional error has the effect of precluding
the jury from considering the evidence of voluntary intoxication in deciding whether the
10 Of course, as premeditation and deliberation are not required for a second degree
murder verdict (§ 189), if the jury concluded that the People failed to prove that Weekly
premeditated and deliberated when he killed Sampson, the jury could have convicted
Weekly of second degree murder, which would have been a more favorable result for
Weekly than a first degree murder conviction.

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People met their burden to establish a necessary mental state, "[a]ny error would have the
effect of excluding defense evidence and is thus subject to the usual standard for state law
error: 'the court must reverse only if it also finds a reasonable probability the error
affected the verdict adversely to defendant.' " (Mendoza, supra, 18 Cal.4th at pp. 1134-
1135, italics added [holding that if, on remand, the trial court determined that the jury
instructions were defective because they precluded the jury from considering evidence of
voluntary intoxication on the issue of whether the defendant acted with the specific intent
needed for aiding and abetting liability, the trial court should apply the Watson standard
in determining the prejudicial nature of the instructional error].) Our Supreme Court has
reaffirmed in two subsequent opinions what it held in Mendoza, namely that when an
instructional error precludes the jury from considering evidence of voluntary intoxication
on the issue of whether the defendant acted with the required mental state for aiding and
abetting liability, the Watson standard for assessing prejudice applies. (People v.
Covarrubias (2016) 1 Cal.5th 838, 897; People v. Letner and Tobin (2010) 50 Cal.4th 99,
187.) Mendoza and the cases following it are applicable here. As in those cases, by
precluding the jury from considering voluntary intoxication on the issue of whether
Weekly acted with premeditation and deliberation, the erroneous instruction on voluntary
intoxication had "the effect of excluding defense evidence and is thus subject to the usual
standard for state law error." (Mendoza, at p. 1134; see also Pearson, supra, 53 Cal.4th
at p. 325 [the prejudice from an error in omitting torture from the list of specific intent
crimes for which the jury could consider evidence of voluntary intoxication was assessed
by application of "the 'reasonable probability' test of prejudice"].)

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Weekly contends that the Chapman standard should apply here, despite our
Supreme Court's holding in Mendoza. Weekly attempts to distinguish Mendoza by
arguing that the instructional error in this case was preclusive because it completely
precluded the jury from considering evidence of voluntary intoxication on the issue of
premeditation and deliberation, but in Mendoza the instruction was merely incomplete
because it failed to inform the jury that evidence of voluntary intoxication could be
considered in determining the particular mental state at issue. According to Weekly, in
Mendoza the instructions at issue "did not by their terms preclude the jury from
considering the voluntary intoxication evidence as to the requisite elements for aiding and
abetting," and instead simply failed to "specify whether or not the jury could consider the
voluntary intoxication evidence as to aiding and abetting." Weekly's attempt to
distinguish Mendoza is unpersuasive. As we have noted, in Mendoza our Supreme Court
did not reach the issue of whether the instructions, as a whole, erroneously communicated
to the jury that it was precluded from considering voluntary intoxication as to the state of
mind required for aiding and abetting. (Mendoza, supra, 18 Cal.4th at p. 1135.) Instead,
Mendoza remanded that issue to the trial court. (Ibid.) However, Mendoza was clear that
if, on remand, the trial court found the instructions to be erroneous in that they precluded
the jury from considering the voluntary intoxication evidence, that error would be subject
to harmless error review under Watson because it has "the effect of excluding defense
evidence" on the required mental state. (Mendoza, at p. 1134, italics added.) In choosing
to refer to an instructional error with the effect of "excluding" evidence, it is clear that
Mendoza was describing an instructional error precluding the jury from considering the

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evidence for the purpose of determining the required mental state, not merely an
instructional error that failed to specify whether the jury could consider the evidence for
that purpose.
Weekly also contends that we should evaluate whether the error was prejudicial
under the standard for federal constitutional error set forth in Chapman, supra, 386 U.S.
at page 24, because his federal constitutional right to present a defense was infringed
when the trial court gave the jury the erroneous voluntary intoxication instruction. The
argument lacks merit. As our Supreme Court has explained, voluntary intoxication is not
a defense. (People v. Boyer (2006) 38 Cal.4th 412, 469; People v. Saille (1991) 54
Cal.3d 1103, 1118-1119.) Instead, when appropriate, evidence of voluntary intoxication
may be "proffered in an attempt to raise a doubt on an element of a crime which the
prosecution must prove beyond a reasonable doubt." (Saille, at p. 1120.) Accordingly,
there is no merit to Weekly's argument that by giving an instruction that precluded the
jury from considering evidence of voluntary intoxication on the issue of premeditation
and deliberation, the trial court violated Weekly's federal constitutional rights by
preventing him from presenting a defense. (See Pearson, supra, 53 Cal.4th at p. 325,
fn. 9 ["The failure to give a fully inclusive pinpoint instruction on voluntary intoxication
did not, contrary to defendant's contention, deprive him of his federal fair trial
right . . . ."].)
Nor is there merit to Weekly's contention that the erroneous voluntary intoxication
instruction constituted a misinstruction on the elements of an offense amounting to
federal constitutional error. (See People v. Flood (1998) 18 Cal.4th 470, 502-503 ["an

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instructional error that improperly describes or omits an element of an offense" is subject
to harmless error review under Chapman].) This argument fails because our Supreme
Court has made clear that an instructional error that precludes the jury from considering
voluntary intoxication when determining whether a defendant possessed a specific mental
state does not misdescribe or omit an element of the offense, but instead simply has "the
effect of excluding defense evidence." (Mendoza, supra, 18 Cal.4th at p. 1134; see also
Pearson, supra, 53 Cal.4th at p. 325, fn. 9 [erroneous pinpoint instruction on voluntary
intoxication did not "unconstitutionally lessen the prosecution's burden of proof" on an
element of the crime].)
We note that in a recent opinion that is now under review by our Supreme Court,
our colleagues in the Sixth District reaffirmed the applicability of the Watson standard for
assessing prejudice when an instructional error results in the jury being precluded from
considering voluntary intoxication on the issue of the defendant's mental state. (People v.
Soto (2016) 248 Cal.App.4th 884, 901-903, review granted Oct. 12, 2016, S236164
(Soto).) Specifically, Soto held that the jury instructions erroneously precluded the jury
from considering voluntary intoxication in determining whether defendant acted in
imperfect self-defense, but the error was harmless under the Watson standard. (Soto, at
p. 898.) In determining that the Watson standard applied in assessing the prejudicial
nature of the instructional error, Soto cited and followed Mendoza for the proposition that
"instructional error restricting a jury's consideration of voluntary intoxication amounts to
state law error only." (Soto, at p. 901, citing Mendoza, at pp. 1134-1135.) However, in
the course of its analysis, Soto also addressed and rejected an argument advanced by the

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defendant for the application of the Chapman standard, which the defendant based on
United States Supreme Court precedent.
"Defendant's position that the Chapman standard applies finds some
support in the opinions of several United States Supreme Court justices in
Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff). There, the court
considered the effect of a Montana law restricting juries from considering
voluntary intoxication in determining the state of mind required for any
criminal offense. Based on historical common law principles, a four-justice
plurality held the law did not violate federal due process standards. (Id. at
p. 51 (plur. opn. of Scalia, J.).) Justice Ginsburg concurred on the ground
that a state is not constitutionally prohibited from defining mens rea so as to
eliminate the exculpatory nature of voluntary intoxication. (Id. at pp. 58-59
(conc. opn. of Ginsburg, J.).) But Justice Ginsburg distinguished the
Montana statute from evidentiary rules that are unconstitutional because
they prevent the defendant from introducing relevant, exculpatory evidence
that could negate an essential element of the offense. Four justices
dissented and would have held the Montana law violated due process by
preventing the jury from considering evidence relevant to the defendant's
mens rea. (Id. at p. 63 (dis. opn. of O'Connor, J.).)
"The instruction at issue here arguably prevented the jury from considering
evidence which California law makes relevant to an element of the offense,
such that Justice Ginsburg and the four dissenting justices in Egelhoff might
have held it unconstitutional. However, absent a clearer statement of the
law from the United States Supreme Court, we are bound by the precedent
set forth by this state's high court in Mendoza. (Auto Equity Sales, Inc. v.
Superior Court of Santa Clara County (1962) 57 Cal.2d 450.)" (Soto,
supra, 248 Cal.App.4th at pp. 901-902, review granted.)
Our Supreme Court has granted review of Soto, specifying the issues presented as
"(1) whether the trial court erred in instructing the jury . . . and (2) if so whether the error
was prejudicial." (People v. Soto (2016) 381 P.3d 232.) Based on our review of the
parties' briefing in the Supreme Court, one of the issues in contention and subsumed
under the prejudice analysis is whether our Supreme Court should revisit its decision in
Mendoza that the Watson standard applies in assessing the prejudicial nature of an

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instructional error that precludes the jury from considering the defendant's voluntary
intoxication when determining whether the defendant acted with a specific mental state.
However, unless and until our Supreme Court decides to revisit and reassess its holding
in Mendoza, we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court of
Santa Clara County, supra, 57 Cal.2d 450.) Accordingly, we apply the Watson standard
in determining whether the instructional error at issue here was prejudicial.
b. Under Watson, a More Favorable Result for Weekly Was Not Reasonably
Probable in the Absence of the Error
Under the Watson standard, to establish prejudice Weekly must show that " 'it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.' " (People v. Mower (2002) 28 Cal.4th 457, 484,
italics added.) "There is a reasonable probability of a more favorable result . . . when
there exists 'at least such an equal balance of reasonable probabilities as to leave the court
in serious doubt as to whether the error affected the result.' " (Ibid.) Under this standard,
"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. Breverman (1998) 19 Cal.4th 142,
177.)

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Here, as we will explain, Weekly has not established a reasonable probability that
he would have obtained a more favorable result had the jury been instructed that it could
consider voluntary intoxication in deciding whether Weekly premeditated and deliberated
Sampson's murder because the evidence presented at trial did not establish that Weekly's
voluntary intoxication made it more likely that he would act rashly and impulsively rather
than with premeditation and deliberation.11
As an initial matter, we acknowledge that although the evidence was not
conclusive regarding whether Weekly was voluntarily intoxicated during the shooting,
the jury could reasonably have reached that conclusion based solely on Weekly's own
testimony. Specifically, Weekly testified that he and Sampson used methamphetamine
and alcohol prior to the shooting. In corroboration, the toxicology report on Sampson
11 It is possible that the jury did not even consider the erroneous jury instruction on
the issue of whether Weekly acted with premeditation and deliberation, as the jury may
have based its first degree murder verdict solely on a felony-murder theory, which does
not require such a finding. However, our harmless error analysis does not consider the
fact that the jury may not have relied on the erroneous jury instruction on premedication
and deliberation when arriving at its first degree murder verdict, and that it instead may
have convicted on a felony-murder theory. Our Supreme Court has indicated that when it
is not possible to determine whether the jury relied on a legally correct theory of guilt or
a theory that is tainted by instructional error, the possibility that the jury may have relied
on the legally correct theory is not sufficient to prevent reversal. (People v. Guiton
(1993) 4 Cal.4th 1116, 1122 [in the case of instructional error, among other legal errors,
" '[w]hen the prosecution presents its case to the jury on alternate theories, some of which
are legally correct and others legally incorrect, and the reviewing court cannot determine
from the record on which theory the ensuing general verdict of guilt rested, the
conviction cannot stand,' " based on the presence of the legally correct theory].) Our
harmless error analysis therefore proceeds on the assumption that the jury did consider
the issue of premeditation and deliberation.

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indicated a high level of methamphetamine. Indeed, defense counsel mentioned several
times during closing argument that Weekly was intoxicated during the killing.12
However, apart from the bare fact that Weekly claims he used some unspecified
amount of alcohol and methamphetamine, the record contains no evidence whatsoever
regarding the effect that intoxication by methamphetamine and alcohol could have had on
Weekly's mental state to make him less likely to have premeditated and deliberated
before he killed Sampson. During Weekly's own testimony he was not asked, and did not
comment upon, how his mental state was affected by his consumption of
methamphetamine and alcohol on the night of the killing. Similarly, there was no
evidence through the testimony of Weekly or any other witness about how drugs and
alcohol affected Weekly's mental state on other occasions to make him more impulsive.
For instance, no one testified that Weekly had used methamphetamine or alcohol in the
past and had become irrationally violent or impulsive as a result. In addition, no expert
testimony was offered at trial regarding the effect that alcohol and methamphetamine can
have on a person's mental state, including whether the intoxicated person would act
rashly and impulsively rather than with premeditation and deliberation.
12 Defense counsel raised the issue of intoxication in connection with three issues
during closing argument: (1) to argue that although Weekly may not have acted after the
shooting like someone who had just accidentally shot someone, as he did not seek
medical help or report the accident, his irrational reaction can be understood as someone
who is very high on methamphetamine and "freaking out," rather than as an indication of
guilt; (2) to argue that Weekly was too high on methamphetamine to form an intent to
commit a carjacking; and (3) to argue, briefly, that Weekly was too high on
methamphetamine to commit "premeditated deliberated murder."

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An analogous situation is discussed in cases considering whether a voluntary
intoxication instruction should have been given when there was evidence that the
defendant had used intoxicating substances, but there was no evidence about how the
defendant's mental state was affected. In those cases, an instruction on voluntary
intoxication was not warranted because the record contained insufficient evidence
concerning the effect of the intoxication. (See People v. Marshall (1996) 13 Cal.4th 799,
848 [the evidence did not require giving a voluntary intoxication instruction because
"[a]lthough the offenses were committed after defendant . . . had drunk an unspecified
number of alcoholic drinks over a period of some hours, evidence of the effect of
defendant's alcohol consumption on his state of mind is lacking"]; People v. Williams
(1997) 16 Cal.4th 635, 677-678 [trial court properly refused defendant's requested
instruction on voluntary intoxication despite evidence defendant was " 'doped up' and
'smokin' pretty tough" around the time of the killings because "there was no evidence at
all that voluntary intoxication had any effect on defendant's ability to formulate intent"];
see also People v. Frierson (1979) 25 Cal.3d 142, 156-157 [instruction on diminished
capacity based on intoxication was not required because "in the absence of evidence
regarding the amount of drugs ingested by defendant and their effect upon his mental
state, no reasonable juror would have concluded that defendant lacked a specific intent to
commit robbery"]; People v. Ramirez (1990) 50 Cal.3d 1158, 1180-1181 [voluntary
intoxication instruction was not required where "[n]either defendant nor any of the other
[relevant] . . . witnesses . . . testified that defendant's beer drinking had had any
noticeable effect on his mental state or actions," and defendant "did not suggest that his

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drinking had affected his memory or conduct"].) The value of these cases is that they
demonstrate that the probative value of voluntary intoxication evidence is greatly
increased if there is evidence of how the defendant's mental state was impacted by the
intoxicating substance, and conversely the probative value is decreased if the jury learns
nothing more than the bare fact that the defendant used an intoxicating substance around
the time of the crime.
Here, in light of the absence of any evidence that Weekly's use of
methamphetamine and alcohol prior to the shooting impacted his mental state by making
him either (1) more likely to act rashly and impulsively, or (2) less likely to premeditate
and deliberate, it is significantly less likely that the jury would have come to a different
conclusion on the issue of premeditation and deliberation had they been instructed that
they could consider evidence of voluntary intoxication on that issue. We accordingly
conclude that it is not reasonably probable that the jury would have convicted Weekly of
second degree murder rather than first degree murder had it been instructed that it could
consider voluntary intoxication when deciding whether Weekly killed with premeditation
and deliberation.
B. Weekly's Challenge to the Firearm Enhancement
We next consider Weekly's challenge to the imposition of the 25-year-to-life
sentence enhancement based on the jury's finding that he personally and intentionally
discharged a firearm, proximately causing death.
In both the original information and the amended information, it was alleged that
"the defendant, [Weekly], was a principal in the foregoing offense, and in the

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commission of the offense at least one principal personally and intentionally discharged a
firearm, to wit: handgun, and proximately caused great bodily injury and death to a
person (other than an accomplice), within the meaning of . . . [s]ection 12022.53[,
subdivisons ](d) and (e)(1)." (Capitalization omitted.) Based on this allegation, the
verdict form asked the jury to decide whether Weekly "personally and intentionally
discharge[d] a firearm . . . and proximately caused death to a person within the meaning
of . . . section 12022.53[, subdivisions ](d) and (e)(1)." Although the verdict form
identified both subdivisions (d) and (e)(1), the trial court explicitly imposed a sentence
enhancement of 25 years to life based solely on the true finding under section 12022.53,
subdivision (d).
Subdivision (d) of section 12022.53 provides for a sentence enhancement of 25
years to life for "any person who, in the commission of a felony specified in subdivision
(a) [which includes murder] . . . , personally and intentionally discharges a firearm and
proximately causes great bodily injury . . . or death, to any person other than an
accomplice."
Subdivision (e) of section 12022.53, which is also identified in the information
and the verdict form, provides that the enhancements in section 12022.53 apply to any
principal in an offense, not just to the person who actually uses or discharges the firearm,
if it has been pled and proved that the person committed a felony for the benefit of a
criminal street gang and that another principal has used or discharged a firearm as

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specified in subdivisions (b), (c), or (d) of section 12022.53.13 The information
contained no allegation that Weekly committed a crime for the benefit of a criminal street
gang, there was no such evidence presented at trial, and the jury was not instructed that it
should make such a finding. Thus, although the information identified subdivision (e) of
section 12022.53, the People clearly did not proceed at trial under that provision.
Instead, the jury was simply instructed with language applicable to a sentencing
enhancement under subdivision (d) of section 12022.53. Specifically the jury was
instructed that to prove the firearm allegation the People must prove: "1. The defendant
personally discharged a firearm during the commission of [murder]; [¶] 2. The
defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant's act caused
the death of a person."
Weekly contends that the imposition of the sentence enhancement under
subdivision (d) of section 12022.53 was unauthorized because the language used in the
information did not track the language of subdivision (d) and thus did not properly allege
an enhancement under that subdivision. As Weekly points out, instead of alleging that
Weekly "personally and intentionally discharge[d] a firearm" as set forth in language of
the statute (§ 12022.53, subd. (d)), the information alleged that "at least one principal
personally and intentionally discharged a firearm," which could or could not be referring
13 Specifically, section 12022.53, subdivision (e)(1) states: "The enhancements
provided in this section shall apply to any person who is a principal in the commission of
an offense if both of the following are pled and proved. [¶] (A) The person violated
subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any
act specified in subdivision (b), (c), or (d)."

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to Weekly's own personal discharge of a firearm. Weekly argues that "the personal
firearm use enhancement imposed upon [Weekly] must be stricken because the
prosecution did not plead personal use of a firearm by [Weekly]" and instead "alleged
principal firearm use." Weekly contends that an allegation that he personally used a
firearm was "required by both . . . section 12022.53, subdivision (j), and due process."
Turning first to Weekly's argument premised on subdivision (j) of section
12022.53, that code provision states in part: "For the penalties in this section to apply,
the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact." Here, we conclude that the information adequately alleges the
existence of the facts required for section 12022.53, subdivision (d) to apply.
Specifically, the amended information alleges that "the defendant, [Weekly], was a
principal in the foregoing offense, and in the commission of the offense at least one
principal personally and intentionally discharged a firearm." Because Weekly was
alleged to be a principal, and a principal was alleged to have personally and intentionally
discharged a firearm, the information sufficiently alleged the existence of facts necessary
to support a finding that Weekly personally and intentionally discharged a firearm.14
For his due process argument, Weekly relies on People v. Mancebo (2002) 27
Cal.4th 735 (Mancebo). Mancebo explained that "in addition to the statutory
14 Plainly the other requirement set forth in section 12022.53, subdivision (j) are
present here, as the jury made a true finding that Weekly personally and intentionally
discharged a firearm and Weekly admitted that he shot Sampson.

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requirements that enhancement provisions be pleaded and proven, a defendant has a
cognizable due process right to fair notice of the specific sentence enhancement
allegations that will be invoked to increase punishment for his crimes." (Id. at p. 747.) In
Mancebo, the information did not allege a multiple-victim-circumstance as a basis for
imposing the One Strike law sentencing scheme (§ 667.61). Nevertheless, the trial court
substituted the multiple-victim circumstance as a basis for a One Strike sentence after the
verdict. (Ibid.) Mancebo concluded that it was improper for the court to make that
substitution because the defendant did not receive fair notice that he could be sentenced
based on a multiple-victim circumstance. (Id. at pp. 739, 754.)
The situation in Mancebo is very different from the instant case. Here, unlike
Mancebo, the information expressly identified the firearm enhancement and alleged its
specific code provision, namely section 12022.53, subdivision (d). Further, the
information stated that Weekly was alleged to be a principal and that a principal
personally and intentionally discharged a firearm. Those allegations put Weekly on
notice that he could be found to have personally and intentionally discharged a firearm.
Moreover, unlike in Mancebo the jury was instructed with the language applicable to
section 12022.53, subdivision (d), and was presented with a verdict form that identified
section 12022.53, subdivision (d) and tracked the applicable language of that statute.
Under the circumstances, Weekly was provided with ample notice that the trial court
could impose a 25-year-to-life sentence enhancement pursuant to section 12022.53,

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subdivision (d) if the jury made a true finding that it applied.15
In sum, we conclude that there is no merit to Weekly's contention that the
sentencing enhancement imposed under section 12022.53, subdivision (d) is unauthorized
and should be stricken.
C. The Abstract of Judgment Must Be Corrected to Reflect a Joint and Several
Restitution Order
As reflected in the reporter's transcript and the minute order from the sentencing
hearing, the trial court imposed a victim restitution order pursuant to section 1202.4,
subdivision (f) in the amount of $5,000, stating that "restitution is to be joint and sever[al]
15 Weekly also relies on People v. Arias (2010) 182 Cal.App.4th 1009 and People v.
Botello (2010) 183 Cal.App.4th 1014. Those cases are inapposite because they arose in
instances where the defendant received far less notice than Weekly received here, in that
the charging document did not cite a specific code section and did not provide notice of
the sentencing enhancement allegation at issue. Specifically, in Arias, the trial court
sentenced the defendant to life terms for attempted murders under section 664,
subdivision (a), which states that a life sentence shall be imposed for attempted murders
that are willful, deliberate and premeditated. However, because the information did not
allege that the attempted murders were willful, deliberate and premeditated and did not
identify section 664, subdivision (a), Arias concluded that imposition of the life sentences
violated the defendant's right to due process. (Arias, at pp. 1019-1020.) In Botello, the
court concluded that it could not for the first time rely on section 12022.53, subdivision
(e) to affirm the imposition of a firearm use sentencing enhancement because doing so
would violate the defendants' right to due process. (Botello, at pp. 1022, 1027.) The
specific sentencing enhancement was not alleged in the information, was not presented to
the jury on the verdict form, and the trial court did not impose sentence based on that
provision. (Id. at pp. 1021-1022.) Here, in contrast, imposition of the sentencing
enhancement pursuant to section 12022.53, subdivision (d) did not violate Weekly's right
to due process because Weekly received ample notice that his sentence could be
enhanced pursuant to section 12022.53, subdivision (d) in that the specific code provision
associated with the enhancement was pled in the information, was provided in the jury
instructions along with the language of the enhancement, and was expressly identified in
the verdict form.

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with Angela Anderson," i.e., Weekly's codefendant in this matter. However, the abstract
of judgment does not reflect joint and several liability as to the restitution order.
Weekly contends that the abstract of judgment should be amended to accurately
reflect that his liability for the $5,000 restitution order is joint and several. The People do
not oppose the request.
A trial court has the authority to order that victim restitution be paid jointly and
severally. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) Further, a trial
court's oral pronouncement of sentence controls over a conflicting abstract of judgment.
(People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466,
471.) As "[c]ourts may correct clerical errors at any time . . ." (People v. Mitchell (2001)
26 Cal.4th 181, 185), we direct that the abstract of judgment be corrected to show that the
restitution order imposed under section 1202.4, subdivision (f) is a joint and several
obligation of Weekly and his codefendant Anderson.

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DISPOSITION
The trial court is directed to amend the abstract of judgment to state the restitution
order made pursuant to section 1202.4, subdivision (f) is the joint and several obligation
of Weekly and Angela Anderson, and to thereafter forward a copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
O'ROURKE, Acting P. J.
DATO, J.

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