P. v. Contreras ( part II )

Filed 2/27/06 P. v. Contreras CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Continued from 1^st Part…………

1. The law governing whether a trial court must instruct the jury on

lesser included offenses and the standard of review applicable on appeal

The law governing a trial court's duty to instruct the jury on a lesser included offense and the standard of review that applies in reviewing the trial court's decision regarding whether to give such an instruction are well established.

"A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. [Citation.] ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could . . . conclude [ ]' " that the lesser offense, but not the greater, was committed. [Citations.]' [Citation.] [¶] [O]n 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 (Manriquez).)

2. The distinction between murder and voluntary manslaughter as

a heat of passion killing

Contreras claims the court erred by failing to instruct the jury pursuant to CALJIC No. 8.41 on the lesser included offense of attempted voluntary manslaughter with respect to count three. CALJIC No. 8.41 provides:

"[Defendant is accused [in Count[s] _______] of having committed the crime of attempted voluntary manslaughter, in violation of sections 664 and 192, subdivision (a) of the Penal Code.]

"Every person who unlawfully attempts [without malice aforethought] to kill another human being is guilty of the crime of attempted voluntary manslaughter in violation of sections 664 and 192, subdivision (a) of the Penal Code, a crime.

"Voluntary manslaughter is the unlawful killing of a human being [without malice aforethought].

"[There is no malice aforethought if the [killing] [or] [attempted killing] occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend [oneself] [or] [another person] against imminent peril to life or great bodily injury].]

"In order to prove this crime, each of the following elements must be proved:

"1. A direct but ineffectual act was done by one person towards killing another human being; [and]

"2. That person had the specific intent to kill the other person[.] [; and]

"[3. The actions taken to kill were unlawful.]

"In deciding whether a direct but ineffectual act was committed, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the killing or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.

"[An attempt to kill is lawful if done in lawful [self-defense] [or] [defense of others].]"

In Manriquez, the California Supreme Court reviewed the distinction between murder and voluntary manslaughter based on a heat of passion defense:

"'The Penal Code defines manslaughter as "the unlawful killing of a human being without malice." [Citation.] The offense is voluntary manslaughter when the killing is "upon a sudden quarrel or heat of passion." [Citation.] [M]anslaughter has been considered a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. [Citations.] An unlawful killing with malice is murder. [Citation.] Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation] . . . .' " (Manriquez, supra, 37 Cal.4th at p. 583, quoting People v. Lee (1999) 20 Cal.4th 47, 58-59.)

The Manriquez court also explained the requirement that a heat of passion killing be based on "sufficient provocation" as follows:

"'[T]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] 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. [Citations.] "Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.'" [Citation.]' [Citation.]

"Thus, '[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . ." [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' [Citations.]" (Manriquez, supra, 37 Cal.4th at pp. 583-584.)

Further, "'if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' [Citation.]" (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1244 (Kanawyer).) "In sum, where there is no substantial evidence of sufficient provocation that would arouse a passion in an ordinarily reasonable person or evidence of sufficient time for that passion to subside in a reasonable person, the court need not give a requested instruction on voluntary manslaughter." (Id. at p. 1245.)

The same law applies in considering whether, with respect to a charge of attempted murder, a trial court must instruct on the lesser included offense of attempted voluntary manslaughter. (See People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709.)

3. Case law regarding evidence of provocation sufficient to

warrant a voluntary manslaughter instruction

In People v. Cole (2004) 33 Cal.4th 1158 (Cole), defendant killed Mary Ann, his girlfriend of five years, with whom he was sharing an apartment. There was evidence that at the time of the killing, defendant was intoxicated, and that he believed Mary Ann was cheating on him. (Id. at pp. 1172-1173.) Defendant told police that just prior to the killing, Mary Ann had called him a "no good mother fucker" and that he went "berserk" after she said she would put a "butcher knife in [his] ass." (Id. at p. 1173.) At trial, defendant testified that he killed Mary Ann after an argument in which she told him that "if he fell asleep on the couch she would 'cut [his] damn balls off with a butcher knife.'" (Id. at p. 1176.)

The Cole court concluded that this evidence did not support giving a voluntary manslaughter instruction:

"While defendant and Mary Ann had argued, Mary Ann was in bed when defendant began his physical assault by pouring gasoline on her. Furthermore, between defendant and Mary Ann, bickering, yelling, and cursing were the norm. Their conduct that evening apparently was no different than the many other occasions on which they had argued in their five-year relationship. Neither was defendant's drinking on the day of the fire different [from] any other day. Accordingly, the trial court did not err in failing to instruct on voluntary manslaughter based on heat of passion." (Cole, supra, 33 Cal.4th at p. 1216.)

In People v. Lujan (2001) 92 Cal.App.4th 1389, 1414 (Lujan), defendant had been separated from his wife for approximately four to five months at the time he killed her and her new boyfriend. There was considerable evidence that defendant had been stalking his wife at various times since their separation. (Id. at p. 1415.) Defendant told the police that, on the night of the killings, he had been surreptitiously watching his wife and her new boyfriend as they stood outside the boyfriend's home late in the evening. (Id. at pp. 1395-1396.) Defendant saw the boyfriend touching his wife. (Id. at p. 1396.) The wife and the boyfriend went inside the boyfriend's home. (Ibid.) Defendant believed that they had had sexual relations. (Ibid.) When the pair came out of the residence, defendant killed both his wife and the boyfriend with a cement drain cap. (Ibid.)

On appeal from two first degree murder convictions, defendant claimed that the trial court improperly refused to instruct on voluntary manslaughter as a lesser included offense of murder. (Lujan, supra, 92 Cal.App.4th at pp. 1392, 1410.) He claimed that depression engendered by the breakup with his wife and the emotions aroused by seeing his wife being intimate with another man caused him to commit the killings during the heat of passion. (Id. at p. 1410.) The Lujan court rejected defendant's claim, reasoning:

"We disagree with defendant that heat of passion voluntary manslaughter instructions can be given under these circumstances. To begin with, neither [of the victims] engaged in provocative conduct so as to warrant heat of passion voluntary manslaughter instructions. [Citations.] It is not provocative conduct for a woman who has been separated from her estranged husband for four or five months and who has filed a petition for dissolution of marriage to later develop a romantic relationship with another individual." (Lujan, supra, 92 Cal.App.4th at p. 1414.)

The Lujan court also concluded that defendant's actions in repeatedly stalking his wife after their separation demonstrated that the killings were the actions of "an obsessed stalker" rather than those of a sufficiently provoked reasonable person. (Id. at p. 1415.)

In Manriquez, supra, 37 Cal.4th at page 586, the court concluded that a victim's repeated derogatory insults directed at a defendant in the context of a barroom killing did not constitute substantial evidence of provocation. The court reasoned:

"[The eyewitness] testified that [the victim] called defendant a 'mother fucker' and that he also taunted defendant, repeatedly asserting that if defendant had a weapon, he should take it out and use it. Such declarations, as recounted by [the eyewitness], comprised the only evidence of provocative conduct attributed to the victim, and plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment."

Accordingly, the Manriquez court held that the trial court had properly denied the defendant's request for an instruction on voluntary manslaughter based on the theory of a sudden quarrel or heat of passion. (Ibid.)

Further, where claimed provocation occurs some time before the killing, courts have often concluded that there is insufficient evidence of provocation to warrant a jury instruction on voluntary manslaughter. For example, in People v. Pride (1992) 3 Cal.4th 195, 213 (Pride), defendant, a janitor, was convicted of murdering two women with a knife in the building in which they all worked. Three days prior to the killings, defendant had been notified of a complaint regarding the quality of his work. (Id. at p. 216.) Defendant reacted violently, clenching his fists, calling the complaint a "fucking lie," and threatening to get the person who made the complaint. (Ibid.) Defendant knew that one of the victims was partly responsible for monitoring janitorial services. (Ibid.) The trial court denied defendant's request for an instruction on voluntary manslaughter. (Id. at p. 250.)

On appeal, defendant claimed he was entitled to a voluntary manslaughter instruction on the theory that there was evidence from which the jury could have concluded that he killed the women in the heat of passion. (Pride, supra, 3 Cal.4th at p. 250.) The Supreme Court concluded that the record did not support defendant's claim. (Ibid.) "To the extent defendant relies on criticism he received about his work performance three days before the crimes, such evidence is insufficient as a matter of law. . . ." (Ibid.; see also Kanawyer, supra, 113 Cal.App.4th at p. 1246 [rejecting defendant's claim that voluntary manslaughter instruction was required because, "even assuming, without deciding, that defendant was actually acting in a heat of passion 'based on years of abuse at the hands of his grandparents,' as he theorized at trial, this 'abuse,' i.e., harsh criticism of defendant's hapless lifestyle, could not be sufficient provocation under the objective standard, because of the significant time [more than two weeks] separating any opportunity for the claimed provocation to occur from the homicides"].)

4. There was no substantial evidence that Vettel provoked Contreras

In this case, Contreras claims the following evidence constitutes substantial evidence of provocation. First, Contreras contends that Vettel threatened to cheat him out of $100,000. Second, Contreras argues that Vettel caused him to be publicly humiliated when Deputy Turner briefly detained him on June 4, 2002, two days prior to the shootings. Finally, Contreras maintains that the triggering event for the shootings occurred on the afternoon of the incident when he learned that Vettel had obtained a domestic violence temporary restraining order and a removal order requiring him to leave the house in which they had been living.

We conclude that none of this evidence, considered either individually or cumulatively, constitutes sufficient evidence of provocation to warrant a voluntary manslaughter instruction. First, there was no evidence that Vettel "threatened" to "cheat" Contreras out of $100,000 by "manipulation of the court process" as Contreras asserts in his brief. Rather, the only evidence in this regard was that Contreras and Vettel had a single discussion two weeks prior to the shooting regarding a potential division of property in the marital estate. A spouse's proposal to divide a marital estate in a particular fashion, made more than two weeks prior to an attempted killing, is not sufficient provocation to warrant an attempted voluntary manslaughter instruction. (See Cole, supra, 33 Cal.4th at p. 1216 [concluding evidence of long term live-in girlfriend's threats to imminently cause grave bodily injury to defendant during a domestic argument immediately prior to killing did not warrant voluntary manslaughter instruction]; Kanawyer, supra, 113 Cal.App.4th at p. 1247 [verbal abuse perpetrated more than two weeks prior to killings did not constitute "substantial evidence of sufficient provocation to arouse heat of passion on the day of the murders or insufficient time for a heat of passion to subside between the claimed provocation and the murders"], italics omitted.)

Second, with respect to the June 4 incident, even assuming that the jury could have inferred that Vettel was responsible for Contreras's license suspension and for the police officer's decision to briefly detain Contreras, such conduct would not "cause an average person to become so inflamed as to lose reason and judgment." (Manriquez, supra, 37 Cal.4th at p. 586.) In any event, even assuming that Contreras was sufficiently provoked by the detention that occurred two days prior to the shootings, "sufficient time . . . elapsed for the passions of an ordinarily reasonable person to cool . . . ." (Kanawyer, supra, 113 Cal.App.4th at p. 1244; see Pride, supra, 3 Cal.4th at p. 250.)

Finally, with respect to the assertedly provocative conduct undertaken by Vettel on the day of the shootings, we conclude that obtaining a domestic violence restraining order and a removal order cannot serve as legally sufficient provocation to reduce a killing from a murder to a manslaughter. Obtaining such orders is not conduct "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Manriquez, supra, 37 Cal.4th at pp. 583-584; cf. Lujan, supra, 92 Cal.App.4th at p. 1414 [concluding husband who was depressed by pending divorce and was stalking wife was not entitled to voluntary manslaughter instruction in killing of wife where wife had developed romantic relationship with another person].)

We conclude that the trial court was not required to instruct the jury pursuant to CALJIC No. 8.41 on the lesser included offense of attempted voluntary manslaughter with respect to Contreras's attempted killing of Vettel based on a heat of passion theory, because there was no substantial evidence that Vettel provoked Contreras.^[1]

B. The trial court was not required to instruct the jury pursuant to CALJIC No. 8.73

that it could consider evidence of Vettel's provocation in determining whether

Contreras committed first or second degree murders in killing William and Mehall

because there was no substantial evidence of such provocation

Contreras argues that the trial court erred in failing to instruct the jury pursuant to CALJIC No. 8.73 that it could consider evidence of Vettel's provocation in determining whether the killings of William and Mehall were first or second degree murders.^[2] Specifically, Contreras contends that the jury found that he committed two premeditated and deliberate first degree murders in killing William and Mehall based on its finding that he intended to murder Vettel in a premeditated and deliberate manner, pursuant to the doctrine of transferred intent. Contreras further argues that the trial court's alleged error in failing to instruct the jury that it could consider evidence of Vettel's provocation in determining whether he committed first or second degree murder in killing William and Mehall requires reversal of the two murder convictions.^[3]

CALJIC No. 8.73 provides:

"If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation."

We concluded in part III.A., ante, that the trial court was not required to instruct the jury on the lesser included offense of attempted voluntary manslaughter because there was no substantial evidence that Vettel provoked Contreras. Contreras relies on the same evidence to argue that the trial court was required to instruct the jury pursuant to CALJIC No. 8.73 with respect to the murder counts. Specifically, Contreras claims that Vettel's statements, made two weeks prior to the shootings, regarding the potential division of their marital estate, her actions with respect to the June 4 incident, and her obtaining the restraining and removal orders on the day of the shootings, constituted substantial evidence that he was provoked into committing the killings and the attempted killings.

For the same reasons that we concluded in part III.A., ante, that this evidence did not constitute substantial evidence warranting an instruction on attempted voluntary manslaughter pursuant to a provocation theory, we conclude that this evidence does not constitute substantial evidence of provocation sufficient to warrant an instruction pursuant to CALJIC No. 8.73. Accordingly, we also conclude that Contreras's trial counsel was not ineffective for failing to specifically request that the trial court instruct the jury pursuant to CALJIC No. 8.73. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1222 [finding no ineffective assistance where defense counsel reasonably could have concluded that requesting jury instruction would have been futile].)^[4]

C. The trial court's imposition of upper terms and consecutive sentences did not

violate Contreras's constitutional right to a jury trial under Blakely v. Washington

(2004) 542 U.S. 296

Contreras claims the trial court violated his constitutional right to a jury trial under Blakely by imposing both upper term and consecutive sentences without a jury having found the aggravating factors necessary to impose such sentences. Contreras properly concedes in his reply brief that this claim fails in light of People v. Black (2005) 35 Cal.4th 1238, petition for certiorari pending, petition filed September 28, 2005. We are bound by the California Supreme Court's decision in Black. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Accordingly, we reject Contreras's claim.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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^[1] In light of our conclusion that the trial court did not err in failing to instruct the jury pursuant to CALJIC No. 8.41, we need not consider whether the alleged error was harmful. Nor do we need consider whether this alleged error infected the jury's findings of guilt with respect to the attempted murder of Irene or the murders of William and Mehall.

^[2] The jury was instructed, pursuant to CALJIC No. 8.30, that second degree murder is the unlawful killing of a human being with malice aforethought when the perpetrator intends to kill a human being but the evidence is insufficient to prove deliberation and premeditation.

^[3] Contreras does not claim that the trial court was required to instruct the jury pursuant to CALJIC No. 8.73 with respect to the murder counts on the basis of his defense that these killings were provoked by William's alleged attempt to move toward Contreras while Contreras was holding a gun.

^[4] In light of our conclusion, we need not consider the parties' arguments regarding whether the trial court had a sua sponte duty to instruct pursuant to CALJIC No. 8.73. In addition, we need not consider whether the alleged error was harmful.