P. v. Calac

Filed 10/12/07 P. v. Calac CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

Andree Francis Calac (Andree) appeals from a judgment convicting him of two counts of second degree murder of Marlene Magee (Marlene) and her unborn child. Andree argues the evidence warranted an instruction on voluntary manslaughter. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Andree, 27, and Marlene, 22, were in a relationship and lived together for 10 to 11 months in Andree's trailer on the Rincon Indian Reservation. Their relationship was marked by Andree's violence toward Marlene. When Marlene became pregnant with their first child, Andree grew even more violent and possessive toward her.

Andree was upset over Marlene's drinking and methamphetamine use during her pregnancy and was concerned that their child would be taken away by welfare officials. Marlene had four other children from a past relationship, although two of her children were placed for adoption. At one point during Marlene's pregnancy, Andree kicked her, and she fell out of the trailer face first in the dirt three feet below. When Marlene's sister tried to help her up, Andree threatened them both. Another time, Andree brought out his shotgun with Marlene and her cousin present, said he did not want anyone "fucking" with him, and went outside and fired the shotgun a few times. A week before the shooting, Marlene was at her friend's home when Andree arrived. He grabbed her and yanked her out the door, saying she needed to go home and take care of her "fucking" kids.

About one week before the shooting, Marlene and her children moved into her mother's house. Andree refused to let Marlene take her things when she moved out, and Marlene and her mother planned to contact the Sheriff's office for assistance with collecting her things.

On February 14, 2004, Marlene was up late drawing a picture in her pajamas. She was last seen by her uncle between 1:30 and 2:30 in the morning, when she told him she was going to bed. Andree arrived at Marlene's mother's house after smoking marijuana throughout the day, ingesting methamphetamine, drinking alcohol and visiting various casinos. Marlene left with Andree, who drove her back to his trailer, and shot her sometime later.

Marlene suffered a shotgun injury to the left side of her face, which caused her death. Her blood tested positive for methamphetamine, which she ingested sometime in the last 10 to 15 hours before she died. Andree had a shotgun wound to his left thumb because he was touching Marlene's face when he fired at a close range. Marlene's unborn child asphyxiated when Marlene bled to death.

Soon after Marlene was shot, Andree loaded her in his truck and drove to the California Department of Forestry fire station, where he yelled hysterically and banged on the door for help. When no one answered, Andree broke the window and went inside. Firefighter Julio Castillo found Andree lying on the floor of the station with an injury to his thumb, no shirt, and yelling, "they shot her," "the fucking Mexicans shot her." Castillo and his partner found Marlene's body and began to remove it. Andree got in the driver's seat and tried to drive away, saying, "I've got to get them," but the truck would not move because it was stuck in ice plant. Andree then got out of the truck and fell on top of Marlene's body. He was shaking and unable to answer questions.

Defense

Andree testified Marlene voluntarily returned to the trailer with him on the night of the shooting. They discussed Marlene's appointment with Child Protective Services, and Andree lectured Marlene about her continued drinking and drug habit during her pregnancy. He volunteered to quit using drugs and alcohol if she would.

As Andree discussed their future, Marlene cried. He lied down on the couch with her, and she started kicking something, which was the barrel of a shotgun. He grabbed the gun because it was in her way and it discharged accidentally. After running around panicked for some time, Andree grabbed the shotgun and put it under the truck. Then Andree carried and dragged Marlene to his truck and drove to the fire station for help.

Andree testified he did not remember making any statements about Mexicans at the fire station. A defense expert testified Andree's behavior after the shooting was consistent with posttraumatic shock, which is an experience an individual undergoes during some traumatic event. A firearm expert testified it was possible that the shotgun was discharged unintentionally by the backscratcher lying on the couch which could have pulled the trigger.

Andree's Statements

After Andree's initial statements about Mexicans shooting Marlene, he was interviewed by sheriff's detectives, where he maintained he and Marlene were in the trailer when he heard someone come in the backdoor with a shotgun, but did not see who it was. Andree denied owning a shotgun and claimed the rounds near his trailer were from a shotgun someone brought over on New Years.

In a later interview, Andree stated he was lecturing Marlene about her responsibilities when Marlene grabbed the shotgun, and the gun went off as Andree tried to take it away from her. Andree finally said he picked the shotgun up from the corner when he was trying to tell Marlene she had to settle down.

Procedural History

In April 2006, the People filed an amended information charging Andree with two counts of murder (Pen. Code,^[1] 187) and a multiple murder special circumstance ( 190.2, subd. (a)(3)). The People also alleged the sentencing enhancement of intentionally and personally discharging a firearm causing great bodily injury or death ( 12022.53, subd. (d)) and two prior prison terms ( 190.2, subd. (a)(3), 667.5, subd. (b)).

The court conducted a jury trial in April 2006. Defense counsel requested the court instruct the jury on voluntary manslaughter caused by provocation. The court sustained the People's objection because there was no evidence to support a theory of voluntary manslaughter, even if the court accepted that Marlene grabbed the gun and a struggle ensued over the weapon. The court went on to give CALCRIM No. 522 (Judicial Council of Cal. Crim. Jury Instns. (2006-2007)), on provocation, noting "it may have to do with the ability of Mr. Calac to premeditate." However, the court also commented on whether it should provide CALCRIM No. 522 on provocation if it was not going to provide CALCRIM No. 570 on voluntary manslaughter.

The court instructed the jury regarding: (1) the elements of first degree murder, with respect to two murder counts (CALCRIM No. 520), (2) the elements of the lesser included offense of second degree murder, with respect to the two murder counts (CALCRIM No. 521), (3) provocation which may reduce murder from first degree to second degree (CALCRIM No. 522), (4) the elements of the lesser included offense of involuntary manslaughter, with respect to the two murder counts (CALCRIM No. 580); and (5) the elements of excusable homicide or accident, in which "the killing is excused, and therefore not unlawful" (CALCRIM No. 510).

During deliberations, the jury requested clarification on the definitions of first and second degree murder, in particular the terms, "deliberate," "premeditated," "willful," and "provoke." The court referred the jury to CALCRIM Nos. 521 and 522.

The jury found Andree guilty of two counts of second degree murder, and found true all of the alleged firearm and great bodily injury enhancements and the alleged special circumstances. The trial court sentenced Andree to state prison for 80 years to life, which included sentences of 15 years to life as to each murder conviction and consecutive terms of 25 years to life as to the two firearm enhancements. Andree filed a timely notice of appeal.

DISCUSSION

I

FAILURE TO INSTRUCT ON VOLUNTARY MANSLAUGHTER

Andree contends the court erred in finding insufficient evidence of provocation to warrant the voluntary manslaughter instruction. As required by law, the trial court considered whether the evidence warranted instructions on the lesser included offenses of second degree murder and voluntary manslaughter, and concluded there was sufficient evidence of provocation to support the former but not the latter. Accordingly, the trial court instructed on second degree murder but not on voluntary manslaughter. We affirm the judgment.

A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 153 (Breverman).) Malice is negated when the defendant acts in a " ' "sudden quarrel or heat of passion." ' " (Id. at pp. 153-154.) A trial court has a sua sponte obligation to instruct on voluntary manslaughter when the offense is supported by the evidence. (Id. at p. 154.) The duty to instruct does not arise if there is " 'any evidence, no matter how weak' " in support of the lesser offense, but rather only arises if there is evidence " 'substantial enough to merit consideration' by the jury." (Id. at p. 162.) Substantial evidence exists if there is evidence that a reasonable jury could find persuasive. (Ibid.) In deciding whether there is substantial evidence to warrant the instruction, the court should not evaluate the credibility of witnesses and should resolve doubts in favor of giving the instruction. (Ibid.; People v. Strozier (1993) 20 Cal.App.4th 55, 63.) On appeal, "we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense of voluntary manslaughter should have been given. [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 584.)

To show heat of passion for voluntary manslaughter, the defendant's reason must be "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 and without due deliberation and reflection, and from this passion rather than from judgment." ' " (Breverman, supra, 19 Cal.4th at p. 163.) The passion aroused can be any intense emotion other than revenge. (Ibid.) The provocation need not occur instantaneously but may occur over a period of time. (People v. Wharton (1991) 53 Cal.3d 522, 569.) The key element is not the duration of the provocation but whether at the time of the act the defendant's reason was so disturbed by some passion that an ordinary person would act rashly. (Id. at pp. 569-570.) However, the killing is not voluntary manslaughter if sufficient time elapsed between the provocation and the killing for passion to subside and reason to return. (Breverman, supra, 19 Cal.4th at p. 163.) Provocation must be affirmatively shown and is evaluated under an objective standard; i.e., the conduct must be sufficiently provocative that it would cause an average person to be so inflamed that he or she would lose reason and judgment. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.)

Provocation may exist for second degree murder but not for manslaughter because second degree murder provocation is only determined under a subjective test, whereas voluntary manslaughter provocation must satisfy both a subjective and an objective test. That is, the existence of provocation to negate deliberation and premeditation and reduce the crime to second degree murder from first degree murder rests on a subjective evaluation of the defendant's actual state of mind. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) In contrast, provocation that negates malice and reduces the crime to voluntary manslaughter also requires a determination that a reasonable person under like circumstances would have reacted with deadly passion. (Ibid.) Thus, a defendant who is subjectively precluded from deliberating because of provocation is guilty of second degree rather than first degree murder, even if a reasonable person would not have been so precluded. (Ibid.)

Based on the court's ruling, the jury was instructed as to first and second degree murder. As to first degree murder, the jury was given CALCRIM No. 520, which states that the defendant must have "acted willfully, deliberately and with premeditation." As to second degree murder, the jury was also given CALCRIM No. 521, which informed them that the crime was second degree murder if the defendant killed intentionally and with malice but the evidence is insufficient to prove deliberation and premeditation. Finally, as to provocation, the jury was given CALCRIM No. 522, which states that if "the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder."

The evidence fails to show Andree was objectively provoked into shooting Marlene. There is nothing in the record to indicate that Marlene's behavior and Andree's lecturing of her on the day of the shooting were qualitatively any different from any of their previous arguments: i.e., Andree's emotionally-charged outbursts against Marlene's parenting and continued drug use. Although Andree's emotions and frustrations may be understandable for a person concerned about the health of his unborn child, his deadly passion cannot be deemed to arise from legally adequate provocation which dispels malice absent some type of extraordinary conduct by Marlene. Even if Andree's emotions were intensified by his drinking and drug use that day, adequate provocation is nevertheless based on the disposition of an average sober person. (See People v. Lee (1999) 20 Cal.4th 47, 60.) Because there was no evidence worthy of jury consideration to show provocation sufficient to cause an average person to kill in the heat of passion, we conclude there was no sua sponte duty to instruct on voluntary manslaughter.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.