P. v. Blue
Filed 9/6/13 P.
v. Blue CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. JESSE BLUE, Defendant and Appellant. | A133110 (Alameda County Super. Ct. No. 162371) |
Originally
charged with murder (Pen. Code,
name="_ftnref1" title="">[1]
§ 187), defendant was convicted by a jury of
subd. (a)), with use of a firearm (§ 12022.5, subd. (a)). Defendant was sentenced to a total of 21
years in state prison. In this timely appeal, defendant contends that
the jury was improperly instructed (failure to instruct pursuant to
(Dewberry)
and that he was improperly sentenced (due to use of improper aggravating
circumstances). We find no error and
affirm.
I. Factual
Background
Defendant
and Ayesha Thomason (hereinafter the victim) had an on and off dating
relationship; there was a history of domestic
violence perpetrated upon the victim by defendant. On June 6, 2009, defendant gave the victim a
black eye. On the morning of June 16,
defendant went to the McDonald’s where the victim worked, looking for her. He asked the victim’s boss when she would be
at work; her boss responded that defendant would have to ask her. Defendant said that he had tried calling her
and going by her house, but could not contact her. Defendant appeared “pissed off and angry.â€
Later
that morning, defendant and the victim were seen by a neighbor (Tyrome Earby),
arguing in front of the victim’s home.
The victim stood at the top of the stairs and defendant at the bottom of
the stairs; they argued for about 20 minutes.
Earby then went inside, but 10 minutes later defendant banged on his
door and asked him to call 911.
Defendant seemed panicky, backed up, fell down the porch stairs, and
went back across the street. Defendant
kept saying to call 911. Earby’s mother
called 911, while Earby watched defendant walk around in circles in the
victim’s front yard. Defendant also went
inside the victim’s home several times.
Leslie Taylor also heard the argument; she heard the victim say, “Don’t
touch that gate. Don’t cross that
fence.†The locking mechanism on the
victim’s front gate was later found to be out of alignment.
Officer
Curtis Filbert responded to the victim’s home.
As he walked into the home, he observed the victim on the floor with her
back resting against the sofa. A handgun
was on the floor between the love seat and the sofa, approximately four to five
feet away from the victim. A cordless
phone was on the floor near the victim’s legs; it was found to have blood on
the keypad and when redial was pressed, the phone called 911.
later identified as defendant’s, was found on the couch. The victim was bleeding from her mouth and
forehead; she had suffered a single gunshot wound to the forehead. The victim was alive and struggling to
breath; she was unresponsive. After
paramedics removed the victim from the home, a bullet was located in the seat
back of the sofa. There was blood or
tissue spatter on the walls behind the sofa.
The
gun that was used to shoot the victim was a Glock that belonged to the victim’s
brother-in-law, Hurley Richardson (the victim lived with her sister and her
sister’s husband). He testified that he
had never shown the victim how to use the gun; it was stored in his sock
drawer. In order to fire the gun, a
round has to be chambered by racking the gun.
The gun did not fire accidentally; it would not discharge if dropped;
someone had to fire it. The weapon has
three safety features: a trigger safety,
a firing pin block, and a drop safety that blocks the striker from going
forward. All of these safety features
were functioning.
At
the hospital, the victim later succumbed to her wound and was pronounced dead
at 11:53 a.m. The cause of death was a
single gunshot wound to the head, but blunt force trauma was also found to her
head and neck, and bruises on her right arm and left wrist. Based upon the stippling pattern, the
pathologist opined that the shot was fired from between three and 12 inches
from the victim’s head, and that there was an object between the muzzle of the
gun and the surface of the victim’s skin when the gun was fired. The cell phone found on the couch could have
been the intervening object.
Defendant
was found to have a particle of gunshot residue on the back of his right hand;
the victim had one gunshot residue particle on her left hand and more on her
right hand. This was interpreted to mean
that both defendant and the victim were in the vicinity of a gun when it was
fired, or that they had handled a recently fired firearm.
Defendant
testified at trial, indicating that he did argue with the victim at her home
that morning and that he followed her upstairs because he was afraid that she
would hurt herself. She appeared at a
window with a gun, and told him that if he broke the window she would shoot
him. He coaxed her out of the house; she
screamed at him not to touch the gate.
He again was afraid she might commit suicide and told her that it would
kill him if she killed herself. She told
him to prove it and handed him the gun.
He racked the gun and put it to his head. He returned the gun to her because she
promised to put it away, but they started arguing again. At one point, the victim put the gun to her
own head. At some point they moved into
the house. They then stopped fighting
and said they loved each other.
Defendant grabbed the gun and tried to yank it from the victim; she
grabbed his hand. They struggled over
the gun, moving from the kitchen to the living room. The victim tripped and fell onto the couch;
defendant fell on top of her. He then
yanked on the gun three times, and it went off, shooting the victim in the
head. A defense forensic scientist
testified that the victim was shot during a “take away†situation, when one
person tries to take a weapon away from another. He opined that the muzzle of the gun was six
to nine inches away from the victim’s forehead when it was fired. He said it was impossible to determine what
intercepted the stippling particles between the weapon and the victim’s
forehead.
II. Discussion
The jury was
instructed upon first and second degree murder, and upon voluntary and
involuntary manslaughter. Defendant
contends that the trial court erred by failing to instruct the jury
that if it had a reasonable doubt whether the crime was voluntary or
involuntary manslaughter, they must give the defendant the benefit of the doubt
and convict only of involuntary manslaughter (pursuant to Dewberry, supra,
51 Cal.2d 548). In
second degree murder. The trial court
had instructed that if the jury had a reasonable doubt whether the offense was
first or second degree murder, it had to convict of second degree. The court refused to give an instruction that
would have told the jury that if it found the defendant “. . . was
guilty of an offense included within the charge . . . , but
entertain(ed) a reasonable doubt as to the degree of the crime of which he
[was] guilty,†it had a duty to convict only of the lesser offense (in that
case of manslaughter rather than murder).
The Dewberry court found this
latter failure to instruct was prejudicial error. (Dewberry,
supra, at pp. 554–555.) Defendant
argues that the trial court in the present case was similarly required to
instruct that if the jury had a reasonable doubt between voluntary and
involuntary manslaughter, they must convict only of involuntary
manslaughter. He has cited no case law
or statutory authority requiring such an instruction as between the crimes of
voluntary and involuntary manslaughter.
The
Attorney General argues that Dewberry
is not applicable as between voluntary and involuntary manslaughter, since
involuntary manslaughter is not a lesser-included offense of voluntary
manslaughter, citing People v. Orr
(1994) 22 Cal.App.4th 780 (Orr)
(decided in a double jeopardy context).
The Attorney General is correct.
As explained in Orr, voluntary
and involuntary manslaughter are two kinds of manslaughter; involuntary
manslaughter is not an included offense of voluntary manslaughter. Voluntary manslaughter can be committed
without necessarily committing involuntary manslaughter, as the “definition of
manslaughter differs significantly from that of voluntary manslaughter and
requires the trier of fact to make substantially different findings.†(Id.
at p. 784.) Defendant first responds
that the holding in Orr was made in
the context of double jeopardy; while true, that does not detract from its
reasoning. Defendant then argues that
the fact that involuntary manslaughter is not a necessarily included offense of
voluntary manslaughter does not necessarily bring this case out of the ambit of
the requirement of a Dewberry
instruction, as that instruction must also be given with regard to all crimes
with lesser degrees (not the case with manslaughter) or related offenses. Involuntary manslaughter, defendant argues,
is a related offense of voluntary manslaughter.
It
is true that the Supreme Court has described its ruling in Dewberry as holding that “a criminal defendant is entitled to the
benefit of a jury’s reasonable doubt with respect to all crimes with lesser degrees or
related or included offenses.†(
1216, 1262, second italics added (Musselwhite).) In the present case, while the crimes of
voluntary and involuntary manslaughter arose from the same set of operative
facts relating to the killing of the victim, the jury was not instructed upon
involuntary manslaughter because it was a lesser-related offense to voluntary
manslaughter. The jury was instructed upon
involuntary manslaughter because it was a necessarily lesser-included offense
of murder (just as was voluntary manslaughter).
name="_ftnref5" title="">[5] Thus, the trial court did not err by failing
to give a Dewberry instruction as
between voluntary and involuntary manslaughter; indeed it would have been error
had the trial court so instructed.
name="_ftnref6" title="">[6]
B. No Sentencing Error
Defendant
was sentenced to the aggravated term of 11 years on his voluntary manslaughter
conviction and the aggravated term of 10 years on the use of a firearm
enhancement, for a total of 21 years in state prison. On appeal, defendant challenges the
imposition of each of these aggravated terms, contending that the trial court
relied upon improper factors. We find no
error in the sentencing.
name="_ftnref7" title="">[7]
At
the sentencing hearing, the court
indicated that it was primarily considering the aggravating factors set forth
in the probation report (rather than those argued by the district
attorney). The court considered, among
other things, the facts as they developed at trial, specifically referencing
defendant’s conduct in persisting in his attempt to enter the victim’s home,
stating: “[I] am convinced that the
defendant’s conduct was simply inexcusable in persisting in trying to gain
entrance into the house after Ayesha had retreated into the house to the extent
that he put on a pair of gloves and started banging on the window to an extent
Ayesha could reasonably think that he was trying to break the window. At that point, tragically, she armed herself
with the firearm to try to make him leave; not even that worked . . .
he was able to convince her to open the door and let him in and then we have
the events as they unfolded. So I think
all of that has to be taken into consideration, and again taking into
consideration as to what sentence to impose.â€
The court went on to specifically detail the aggravating circumstances
under the California Rules of Court,
indicating that rule 4.421(a)(1) (the crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness) applied because the victim was
shot in the head at point-blank range and because defendant racked the weapon
before that occurred. The court also
found that rule 4.421(a)(3) applied, as the victim was particularly vulnerable
due to her past abusive relationship with defendant and his playing upon her
emotions (she was in love with defendant and he was able to use that to gain
access to her home),
name="_ftnref9" title="">[9]
where she was alone and where there was a gun (there being no evidence she even
knew how to use the weapon).
Additionally, although not specifically referenced by rule number, the
court also considered rule 4.421(b)(1), finding that defendant engaged in
violent conduct indicating a serious danger to society. Finally, the court indicated that defendant’s
conduct showed that there was no consideration by defendant of the consequences
of his actions as they unfolded, a factor which could be considered as
additional criteria reasonably related to the discretionary sentencing decision
to impose the aggravated term, pursuant to rule 4.408. As to the aggravated term imposed on the use
of a firearm enhancement, the court indicated that it was relying upon the
additional fact that the use of the gun brought about the death of a human
being.
The
imposition of the aggravated term is a sentencing choice which is reviewed for
an abuse of discretion. (
825, 846.) Dual use of certain factors
is prohibited. For example, the court
may not use a fact that is an element of the crime as an aggravating factor
(rule 4.420(d)), nor may the court use as a reason to impose a greater term the
use of a firearm if that is the basis of an enhancement that is imposed (rule 4.420(c)). Additionally, the court cannot rely on the
same fact to impose a consecutive sentence and to impose the aggravated
term. (Scott, supra, 9 Cal.4th
at p. 350, fn. 12.) The prohibition
of dual use of facts is a limited one, however.
As the court in Scott explained,
dual use “is prohibited to some extent.†(Id.
at p. 350, italics added.)
Contrary
to the contentions of defendant, the trial court did not violate the dual use
rule in sentencing him to the aggravated term on voluntary manslaughter and on
the use enhancement. Defendant’s first
argument is that the trial court abused its discretion by imposing the upper
term for voluntary manslaughter because it relied upon an element of the crime,
violent conduct resulting in death, as a factor in aggravation. The court did not improperly rely on an
element of the crime. Violence is not
necessarily an element of voluntary manslaughter, which is the unlawful killing
of a human being, without malice, upon sudden quarrel or heat of passion. (§ 192, subd. (a).) While voluntary manslaughter does require
that the defendant either intended to kill the victim, or acted in conscious
disregard for life (People v. Parras
(2007) 152 Cal.App.4th 219, 224), the crime may be committed without violence
(as by means of poison or use of legal or illegal drugs, or the termination of
medical treatment). (
852, 856 [violence not an element of murder].)
Additionally, the trial court did not rely solely upon violence when
applying the aggravating factor set forth in rule 4.421(a)(1); it also relied
upon the high degree of cruelty, viciousness, or callousness involved in the
commission of the offense (because defendant shot the victim at point-blank
range and racked the gun before shooting).
Defendant
also complains that the court relied upon the fact that his conduct showed that
he had no consideration of the consequences of his actions as they
unfolded. Defendant interprets this
statement by the court as an improper dual use of an element of voluntary
manslaughter (conscious disregard for human life). Defendant reads the court’s comments too
narrowly; a more reasonable interpretation in context is that the trial court
was referring generally to defendant’s actions as the scene unfolded at the
victim’s home, leading up to the shooting (not specifically to defendant’s
state of mind at the time of the shooting).
Finally, defendant contends that the victim was not particularly
vulnerable. The trial court properly
found, however, that the victim’s past relationship with defendant, and her
feelings for him, made her particularly vulnerable under the
circumstances. Defendant was able to
take advantage of their past relationship and play upon the victim’s emotions,
talking himself into her home and putting himself in a position to take the gun
and shoot her. We find no error in the
aggravating circumstances relied upon by the trial court to impose the upper
term on voluntary manslaughter.
With
regard to the use of a firearm enhancement, we also find that the trial court
acted within its discretion in imposing the aggravated term. The specific factor relied upon by the court
in making this sentencing decision, in addition to the general aggravating factors
considered above, was that the gun was not just used in any fashion, but was
used to cause the death of a human being.
As defendant notes, the use enhancement that was imposed here was
pursuant to section 12022.5, subdivision (a).
By referencing the fact that the use of the firearm resulted in death,
the trial court may have been drawing an analogy to section 12022.53,
applicable to murder and various other crimes (but not to manslaughter), which
has three distinct sentences depending upon the proof of certain factors. The latter section provides for a
25-year-to-life enhancement if the crime resulted in great bodily injury or
death. (§ 12022.53, subd.
(18)(d).) Section 12022.5, subdivision
(a) contains no similar provision enhancing the sentence if death results,
however, that does not by itself prevent a court from considering the resulting
death as a general circumstance in aggravation relating to the enhancement.
Defendant
further contends that the death of the victim is an element of voluntary
manslaughter (as it requires the killing of a human being) and that the court
could, therefore, not rely upon that fact to aggravate the enhancement. Even if relying upon the simple fact of the
victim’s death, standing alone, was considered to be a dual use of an element
of voluntary manslaughter, the court here also referenced back to factors it
had relied upon in aggravating the base term on voluntary manslaughter. Those factors included the particular manner
in which the gun was used (racking the gun prior to firing and shooting the
victim point blank in the head). The
factors relating to the manner in which the gun was used would have justified
imposition of the aggravated term on the use enhancement, without reference to
whether the use resulted in death.
Assuming
that the trial court improperly relied upon the fact that the use of the
firearm resulted in death in order to aggravate the use enhancement, there is
no reasonable probability “that a more favorable sentence would have been
imposed in the absence of the error,†as there is no reasonable probability
that the court would not have relied upon factors such as the manner in which
the gun was used in order to impose the upper term on the enhancement. (People
v. Osband (1996) 13 Cal.4th 622, 730 (Osband).) The question then is whether the court could
rely upon the facts relating to the manner in which the firearm was used both
to enhance the sentence on voluntary manslaughter, and to impose the aggravated
term on the use enhancement. On this issue,
there is a split of authority.
In
People v. Moberly (2009) 176
Cal.App.4th 1191, 1197–1198 (Moberly),
the court held that the dual use of a fact or facts to aggravate both the base
term on voluntary manslaughter and the sentence on the enhancement for use of a
firearm was not prohibited. The court
found such use to be similar to the use of the same fact to impose the
aggravated term on multiple offenses which are being imposed consecutively,
which is not prohibited. We find the
reasoning of Moberly to be more
persuasive than People v. Velasques
(2007) 152 Cal.App.4th 1503, 1516, footnote 12, whose holding to the contrary
in a footnote is, as indicated in Moberly,
dicta and unsupported by the Scott
case, which it relies upon as authority.
Even
if such dual use is prohibited, however, that would not end our inquiry. Taking the manner of the use of the gun out
of consideration as a factor in aggravation regarding voluntary manslaughter,
the court still relied upon ample remaining factors, as detailed above, for
that sentencing choice. Since even a
single factor in aggravation suffices to support an upper term, both the
imposition of the aggravated term on voluntary manslaughter, as well as on the
firearm use enhancement, were within the discretion of the trial court. (Osband,
supra, 13 Cal.4th at p. 730.)
III. Disposition
The
judgment is affirmed.
_________________________
Sepulveda,
J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Dondero, J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code.
name="_ftn2" title="">[2]
Specifically, defendant contends that the trial court erred in failing to
instruct the jurors that they should only convict on involuntary manslaughter
if they had a reasonable doubt whether the crime committed was voluntary or
involuntary manslaughter, citing Dewberry.
