P. v. Burns

Filed 8/1/07 P. v. Burns CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Affirmed.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Defendant and appellant Walter J. Burns appeals from his conviction of first degree murder.^[1]He contends: (1) he was denied due process as a result of the trial courts failure to instruct the jury on voluntary manslaughter as a lesser included offense, including the prosecutions burden to prove the absence of heat of passion; and (2) trial counsel was ineffective. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence adduced at trial established that on August 6, 2004, 1126 West 45th Street consisted of a front house and a back house; defendant lived in the back house; witnesses Juan De Matta and Merari Vasquez lived in the houses on either side of 1126 45th Street, and defendants grandparents and cousin lived across the street.^[2]

At about 6:30 p.m. that day, decedent Jomo Robbins told his wife that he was going to pay a condolence call on defendant at defendants grandmothers house, because defendants grandmother had died.

At about 6:00 or 6:30 p.m. that day, De Matta was watching TV when he heard men talking loudly outside. About half an hour later, De Matta heard four or five gunshots. Looking out a window, De Matta saw several young men standing near a block wall located in the back of defendants house; defendant was walking past De Mattas window toward the street holding what looked like a semiautomatic gun, which he tucked into the waistband of his pants and covered with his T-shirt; two men, one wearing a red hat and one wearing a blue hat, were following defendant; a few seconds later, the other young men, who had been standing against the wall, ran away.

Like De Matta, witness Vasquez was inside when he heard loud, angry voices outside.^[3] Vasquez could not make out the words. Walking out onto his porch to investigate, Vasquez saw four or five men in the front yard of 1126 45th Street, including Robbins. Robbins was yelling at a shorter man wearing a red baseball cap. Vasquez recognized the man in the red cap as someone he frequently had seen with defendant. Because he liked to keep a record of things that happened in the neighborhood, Vasquez retrieved his camera from inside the house. When he returned to the porch, Vasquez saw all the men going down a path that led to defendants house. Going back into his house, Vasquez looked through a window, which gave him a clear view of the paved area in back of defendants house. There, he saw Robbins and the man in the red cap taking off their shirts, which made Vasquez think they were preparing to fight. When another man said the police were coming, Robbins and the other man put their shirts back on, and all of the men started walking up the path from the rear of defendants house to the front, but stopped in the courtyard between defendants house and the front house.

Vasquez, who had moved to another window to keep the men in sight as they walked along the path, next saw defendant enter the courtyard and start to argue, trying to provoke this guy to -- I guess to fight or something, because the guy, you know, started screaming again and saying things, you know, loud, and you could hear that. Vasquez could not make out what defendant was saying, but he heard Robbins say to defendant in a loud and aggressive voice:  Youre disrespect my family or You disrespect me, something like that. Whereupon, defendant moved back several steps, took an automatic gun from his waist, pointed it at Robbins and fired three or four times; after Robbins fell to the ground, defendant took a step closer and fired at him four or five more times. As defendant walked quickly away, Vasquez got his phone to call 911. As he did so, Vasquez walked back onto the porch; he saw defendant get into the drivers seat and the man in the red cap get into the passenger seat of a Ford truck parked a few houses up the street; after making a three-point turn in a driveway, the truck drove away.

Robbins died of multiple gunshot wounds. Eight shell casings and one bullet were collected at the scene; a second bullet was collected from Robbins body. The casings were all determined to have been fired from the same weapon: a semiautomatic, nine-millimeter Luger.

Defense witness Robert Baines was several years older than defendant but they grew up in the same neighborhood, and Baines had known defendant for almost 26 years.^[4] Baines had moved out of the neighborhood but Baines relatives lived about two doors down from where defendants grandparents lived. At about 6:30 or 7:00 p.m. on the day of the shooting, Baines was on his way to pick up his wife from the relatives home when he saw defendant across the street talking to two men wearing hats. Baines waved to defendant and defendant waived back. Baines went into his aunts and uncles house and when he came out a few seconds later to smoke a cigarette, he saw defendant still standing across the street. Immediately after lighting the cigarette, Baines heard nine or 10 gunshots: I lit my cigarette. I seen him standing clearly across the street. When the gunshots rang out, [defendant] was standing here, and he ran that way. Baines described the scene as pandemonium, with 15 or 20 people running and screaming. Baines himself ducked down, ran into the house, got his wife and left.

DISCUSSION

A. The Evidence Did Not Warrant Voluntary Manslaughter Instructions

Defendant contends he was denied due process as a result of the trial courts failure to instruct the jury on voluntary manslaughter as a lesser included offense of murder and on the prosecutions burden to prove the absence of heat of passion.^[5] Relying on People v. Rios (2000) 23 Cal.4th 450 (Rios), he argues that the general rule requiring substantial evidence to support instructions on a lesser included offense is inapplicable to voluntary manslaughter vis--vis murder because the prosecution bears the burden of proving the absence of heat of passion. We disagree.

Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code,  187, subd. (a).)^[6]An unlawful killing committed without malice is manslaughter. ( 192.) Voluntary manslaughter is an unlawful killing upon a sudden quarrel or heat of passion. ( 192, subd. (a).) Provocation has become a shorthand term for  a sudden quarrel or heat of passion.  (People v. Spurlin (1984) 156 Cal.App.3d 119, 123-124.)

An intentional, unlawful homicide is, upon a sudden quarrel or heat of passion and thus voluntary manslaughter, if the killers reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an  ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.  [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman).) Thus, the evidence must demonstrate both objectively the existence of provocation and subjectively that the defendants reason was in fact obscured by passion at the time of the act. (People v. Steele (2002) 27 Cal.4th 1230, 1252.)

 To satisfy the objective or reasonable person element . . . the accuseds heat of passion must be due to sufficient provocation.   (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.) To be legally sufficient, the provocation first must be caused by the victim. (People v. Lee (1999) 20 Cal.4th 47, 59.) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Manriquez (2005) 37 Cal.4th 547, 583-584.) The passion aroused in the defendant can be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (Breverman, supra, 19 Cal.4th at p. 163.)

In Rios, our Supreme Court explained that voluntary manslaughter is a lesser included offense of murder but a murder defendant is entitled to voluntary manslaughter instructions only where evidence of provocation has been introduced, either in the prosecutions case or by the defendant; only if there has been evidence of provocation introduced does the prosecution have the burden of proving the absence of provocation beyond a reasonable doubt. (Rios, supra, 23 Cal.4th at pp. 460-462.) Thus, contrary to defendants reading of the case, Rios reaffirms the well established rule that a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter absent evidence of provocation. (Id. at p. 463, fn. 10, and cases cited therein.)

In People v. Barton (1995) 12 Cal.4th 186, the court found the following evidence warranted instructions on voluntary manslaughter: shortly before the killing, the defendants daughter told him that the victim had tried to run her car off the road and spat on her car window; when the defendant and his daughter confronted the victim, the victim called the defendants daughter a  bitch ; the defendant and victim angrily confronted each other and the victim assumed a  fighting stance ; the victim started to get into his car after the defendant told his daughter to call the police; when the defendant asked the victim where he was going, the victim said,  none of your f---king business ; the defendant screamed and swore and ordered the victim to  drop the knife  and get out of his car; the defendant threatened to shoot the victim if the victim did not comply. The court in Barton concluded that this testimony provided substantial evidence from which a reasonable jury could conclude that when defendant killed [the victim], defendants reason was obscured by passion to such an extent as would cause an ordinarily reasonable person to act rashly and without reflection, and that defendant thus shot [the victim] in a sudden quarrel or heat of passion. (Id. at p. 202.)

In Breverman, a sizable group of young men, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon property occupied by defendant and acted in a menacing way, including challenging the defendant to fight and using weapons to batter the defendants car parked in his driveway, within a short distance from the front door. This evidence was sufficient to require instructions on voluntary manslaughter because a rational jury could also find that the intense and high-wrought emotions aroused by the initial threat had not had time to cool or subside by the time defendant fired the first few shots from inside the house, then emerged and fired the fatal second volley after the fleeing intruders. . . . [A] jury could reasonably . . . conclude, from all the evidence, that defendant killed intentionally, but while his judgment was obscured due to passion aroused by sufficient provocation. (Breverman, supra, 19 Cal.4th at p. 164.)

Here, there was no evidence from which a jury reasonably could conclude that defendant killed while his judgment was obscured by passion to such an extent as would cause an ordinarily reasonable person to act rashly, or that defendant in fact shot Robbins in the heat of passion. The prosecutions theory was that defendant shot Robbins because defendant felt disrespected by Robbins loud, boisterous, obnoxious behavior at the gathering to honor defendants deceased grandmother. But bad behavior at a family gathering is not conduct that is sufficiently provocative to cause an ordinary person of average disposition to shoot the misbehaving person. Accordingly, voluntary manslaughter instructions were not warranted in this case; nor was the prosecution required to prove the absence of provocation. Inasmuch as there was no substantial evidence of provocation, the prosecution did not have the burden of proving the absence of provocation and there was no need to instruct the jury on this subject.

B. Defendant Did Not Receive Ineffective Assistance of Counsel

Defendant contends he received ineffective assistance of counsel as a result of trial counsels failure to object to De Mattas testimony that earlier on the day of the shooting, defendant had threatened to shoot De Mattas dog. We disagree.

In order to demonstrate ineffective assistance of counsel, a defendant must show that (1) counsels performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Thomas (2006) 37 Cal.4th 1249, 1256.) If the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsels performance. (People v. Smithey (1999) 20 Cal.4th 936, 986.) Failure to object rarely constitutes constitutionally ineffective assistance of counsel. (People v. Huggins (2006) 38 Cal.4th 175, 252 (Huggins).) Here, defendant has failed to meet his burden.

Without objection, De Matta testified that, when he arrived home from work at about 2:15 or 2:30 p.m. on the day of the shooting, he saw defendant standing with two other men across the street, in front of the house next to defendants grandparents house. At about 3:00 p.m., De Matta went outside with his dog. When the dog started barking, defendant said to De Matta, Hey, you better watch your dog because hes going to bite me, and Im going to kill that mother fucker.^[7] Also without objection, the prosecutor argued to the jury that this suggested premeditation: How many of you bring a gun to your [grandmothers] funeral? . . . [] He had it in his mind. No one knows when he had it in his mind, but he had it in his mind to do something. [] And then also we know from the dog incident that he was thinking about killing a little bit earlier that day when he talked about a dog. The prosecutor also argued that the dog incident supported De Mattas identification of defendant because it showed De Matta was familiar with defendant.

Apart from whether counsel was deficient in failing to object to the evidence and the prosecutions argument, defendant has failed to establish the requisite prejudice. Defendant was identified as the shooter by Vasquez; De Matta did not see the shooting itself, but saw defendant concealing a gun as he walked away from the scene just seconds after De Matta heard shots fired. Under these circumstances, it is not reasonably probable the result of the trial would have been different if the challenged evidence had been excluded.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

BOLAND, J.

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^[1] In addition to first degree murder, the information alleged various gun use enhancements. A jury convicted defendant and found true the enhancements. He was sentenced to 25 years for the murder, plus a consecutive 25 years for the enhancement of discharging a firearm causing death. He filed a timely notice of appeal.

^[2] There was also evidence that the mother of defendants children lived in the back house, but defendant lived elsewhere.

^[3] Vasquez put the time at about 5:30 p.m.

^[4] Baines had prior felony convictions for assault with a deadly weapon upon a police officer, domestic violence and receiving stolen property.

^[5] Specifically, defendant contends the trial court should have given CALJIC Nos. 8.40, 8.42, 8.43, 8.44, 8.50, 8.72 and 8.73.

^[6] All future undesignated statutory references are to the Penal Code.

^[7] In his opening brief, defendant incorrectly identified Vasquez as the person testifying.