P. v. Crew
Filed 8/7/12 P. v. Crew CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ARRION LEE CREW, JR.,
Defendant
and Appellant.
E053522
(Super.Ct.No.
RIF139980)
OPINION
APPEAL from the Superior Court of
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Modified and affirmed with directions.
Waldemar D. Halka, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Kelley Johnson, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant
and appellant Arrion Lee Crew, Jr., appeals his conviction on two counts of
circumstance of multiple murder. We will
affirm the judgment.
PROCEDURAL HISTORY
Defendant was charged with two
counts of first degree murder (counts 1 & 2) and one count of
felon (count 3). (Pen. Code, §§ 187, subd. (a), former 12021,
subd. (a)(1).)
title="">[1] The information alleged personal discharge of
a firearm (§ 12022.53,
subd. (d)) as to both murder counts, and alleged the special circumstance of
multiple murder as to count 2 (§ 190.2,
subd. (a)(3)). The prosecution did not
seek the death penalty.
A jury convicted defendant on all
three counts and found the special circumstance allegation and the
The court sentenced defendant to
life without the possibility of parole for the multiple murder special
circumstance, with consecutive terms of 25 years to life on both count 1 and
count 2, plus consecutive terms of 25 years to life on counts 1 and 2 for the
firearm discharge enhancements, and a concurrent term of three years on count
3.
Defendant filed a timely
FACTS
Kimberly Harris, the victim in count
2, known as “Cozy,” lived in Moreno Valley with her 18-year-old son Arthur and
two younger sons. Her friend, Raquel
Reliford Robinson, the victim in count 1, also lived with Harris.
22, 2007. Two of Arthur’s friends were
spending the night as well. Harris’s
friend Ramona Williams, also known as “Bons” or “Bonswi,” was also at the
house. Harris, Robinson and Williams
often got together to “party,” drinking alcohol and using drugs, specifically
“weed” and cocaine. Defendant, known as
“E,” was Harris and Robinson’s drug dealer.
Robinson regularly bought approximately $150 worth of drugs from him,
and Harris regularly bought $80 worth of drugs from him.
Around 10:00 p.m., defendant and
“some other guy” came to Harris’s house.
After the two men left, Harris and Robinson told Williams that
“something went down” with defendant and defendant “ha[d] to bring them back
some money.” Williams later learned that
Robinson had paid defendant $100 for some drugs, and defendant owed her $20 in
change. Robinson had been drinking and
was “all hyped up” and saying that defendant owed her $20. Robinson kept calling defendant and making
unspecified threats, as well as telling him that she was going to get her
husband and some other people to beat him up.
Robinson kept calling defendant “cuz.”
Williams testified that she thought defendant might be a “Blood
ex-gangbanger.” If he was, calling him
“cuz” would be insulting, because that is a term Crips use to refer to one
another. She did not know whether
defendant was a Blood, however.
Over the course of the evening,
Robinson drank about a pint of cognac.
She was intoxicated,
name="_ftnref3" title="">[3] and was very agitated about the $20 defendant
owed her. Harris repeatedly tried to
calm her down.
Around 4:00 a.m., Arthur was
awakened by voices outside the house, near his bedroom. He looked out the window and saw his mother
and Robinson standing on the driveway.
Robinson was asking his mother for money, but his mother refused to give
it to her. His mother went inside the
house, while Robinson approached defendant, who was standing nearby, next to
his white SUV. The conversation went on
for a few minutes. At one point,
defendant became upset and walked away while Robinson was still talking to
him. Robinson grabbed defendant by the
shoulder. He shrugged her off and said,
“Bitch, get the fuck off me.” He got
into the SUV and drove away.
Around 6:00 a.m., defendant knocked
at the outside door to Harris’s bedroom.
Williams answered the door and saw defendant and his girlfriend. Both were wearing “hoodies” with the hoods
pulled up over their heads. Defendant
said, “I thought you was coming to pick up this money,” and that he had come to
pay Robinson the $20. Harris told
Williams to let them in.
Robinson and Williams were seated in
chairs near Harris’s bed, and Harris was lying on her bed with her feet at the
phone up,” meaning why were they calling him so much. Robinson replied, “I’m calling you for my
money.” Defendant said that he was going
to bring it by, but that Robinson could have come to pick it up, or could have
sent someone to pick it up. At that
point, the conversation was “fine.”
Defendant was calm and was not disrespectful.
At some point during the
conversation, Robinson jumped up and became confrontational, saying, “I just
need you to pay my money, cuz.” Williams
jumped in between them and attempted to calm Robinson down. Harris also told Robinson to calm down. Defendant just stood there with his hands in
his pockets. Robinson eventually sat
back down.
Defendant asked Harris how she could
allow Robinson to talk to him like that, “disrespecting” him in her home. Robinson jumped up again and charged toward
defendant. Williams again inserted
herself between them, putting a hand on each of their chests to keep them
separated. She told defendant that
Robinson was drunk, and asked him just to leave. But Robinson said, “He’s not going
nowhere. He still ain’t paid me my
money.” She kept calling him “cuz” and
threatening to “do this and that” to him.
She kept trying to jump over Williams to get to defendant.
Harris kept telling Robinson to sit
down, but Robinson would not listen. She
became combative with Williams, and Williams had difficulty keeping her from
defendant.
could, and Robinson lunged toward him, reaching toward him with her right
hand. Her hand was open, but she had
something in her left hand. Williams
thought it was her cell phone. As
Robinson reached toward defendant, defendant pulled two guns out of his pockets
and shot Robinson “point blank.”
Williams heard about eight gunshots.
Williams was “surprised” when
defendant pulled out the guns. She did
not view the situation as “life or death,” and she did not anticipate it at
all.
Thinking that she herself had been
shot, Williams fled. As she was leaving
the room, she saw defendant approach Harris and say angrily, “You letting her
talk to me like this in your house” She
then heard eight more gunshots.
According to Williams, Harris never left her bed during the
incident. Williams saw defendant and his
girlfriend run out of the house, down the driveway and to the street.
Arthur was awakened by the
gunshots. He heard four gunshots
separated by a second or two. He opened
his bedroom door and saw Williams running down the hall. He asked, “Is my mom shot” Williams said she didn’t know and told him to
call 911. She then ran out the front
door and disappeared.
Arthur entered his mother’s bedroom
and found both of them injured but apparently still alive. He called 911. When sheriff’s deputies arrived, they found
Robinson on the floor at the foot of the bed.
Harris was face down on the bed with her feet at the head of the
bed. She was bleeding from her ear, and
there was a pool of blood on the bed.
Paramedics arrived shortly thereafter and pronounced both women dead.
Three Winchester .45-caliber bullet
casings were found near Robinson’s body.
All three were fired from the same gun.
A pair of scissors was found close to Robinson’s right hand, and a
carpet knife or box cutter, in an open position, was found in or near
Robinson’s left hand. Robinson had two
gunshot wounds, including a fatal wound to her chest and a wound to her
abdomen. The bullets entered from the
front of her body. The trajectories were
consistent with Robinson leaning forward when she was shot. Harris had a gunshot wound to the head,
apparently fired from close range, and a gunshot wound to her thigh.
Blood samples taken from both women
during the autopsy tested positive for cocaine.
Robinson’s blood alcohol content was 0.22.
The day after the shooting (October
24, 2007), Shawn Sinclair, the manager of the apartment complex where defendant
lived, noticed that defendant’s door was standing open. He knocked but received no answer. He went inside and saw that the apartment
appeared to have been “went through.” He
saw bullets on the floor and .45-caliber bullets on a table. Near the complex’s Dumpster, he found a
magazine that contained nine Winchester .45-caliber rounds. He called the police and gave them the
magazine. The rounds in the magazine
matched the casings found in Harris’s bedroom.
The next day (October 25, 2007),
defendant’s mother, Troylyn Gammage, came to defendant’s apartment and took a
box of ammunition that had a few rounds missing, as well as the .45-caliber
rounds that Sinclair had seen on the table the day before.
On November 1, 2007, police arrested
defendant and his girlfriend, Wanda Mitchell, on outstanding felony warrants
unrelated to the homicides. Early in
November 2007, police executed a search warrant at the home of defendant’s
mother. Defendant’s SUV was parked at
her residence. The vehicle had plastic
covering the seats. Defendant’s mother
said she had had the vehicle cleaned and the seats vacuumed and shampooed a few
days before, on November 4.
The parties stipulated that
defendant had a prior felony conviction.
LEGAL ANALYSIS
1.
THE TRIAL COURT CORRECTLY INSTRUCTED THE JURY ON
SELF-DEFENSE AND IMPERFECT SELF-DEFENSE
A. The Issue Is Cognizable on Appeal.
Defendant relied on the defense of
self-defense or, alternatively, of imperfect self-defense as to count 1, the
murder of Raquel Robinson. He now
contends that the self-defense and imperfect self-defense instructions were
incomplete, ambiguous and misleading for a number of reasons. He did not, however, request clarification or
amplification of the instructions in the trial court.
As general rule, a defendant’s
failure to request clarification or amplification of an otherwise correct
instruction forfeits that claim on appeal.
(People v. Young (2005) 34
Cal.4th 1149, 1203.) However, because
defendant also asserts that defense counsel’s failure to object or to request
clarification deprived him of his constitutional right to the effective
assistance of trial counsel, we will address the instructional issue on its
merits.
B. Standard of Review
An appellate court reviews the
wording of a jury instruction de novo and assesses whether the instruction
accurately states the law. (
218.) If the instruction is potentially
misleading or ambiguous, the court inquires “‘whether there is a reasonable
likelihood that the jury misunderstood and misapplied the instruction.’ [Citations.]
‘“‘“[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction
or from a particular instruction.”’”’
[Citations.] The reviewing court
also must consider the arguments of counsel in assessing the probable impact of
the instruction on the jury.
[Citations].” (
The Instructions Were Legally Correct, and There Is No Reasonable Likelihood That the Jury Was Misled or
Confused In the Manner Defendant Suggests.
The
court gave the standard instruction, CALCRIM No. 505, on self-defense. That instruction provides:
“The defendant is not guilty of
murder or manslaughter if he was justified in killing someone in
self-defense. The defendant acted in
lawful self-defense if:
“1.
The defendant reasonably believed that he was in imminent danger of
being killed or suffering great bodily injury;
“2.
The defendant reasonably believed that the immediate use of deadly force
was necessary to defend against that danger;
“AND
“3.
The defendant used no more force than was reasonably necessary to defend
against that danger.
“Belief in future harm is not
sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was
imminent danger of great bodily injury to himself. Defendant’s belief must have been reasonable
and he must have acted only because of that belief. The defendant is only entitled to use that
amount of force that a reasonable person would believe is necessary in the same
situation. If the defendant used more
force than was reasonable, the killing was not justified.
“When deciding whether the
defendant’s beliefs were reasonable, consider all the circumstances as they
were known to and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable,
the danger does not need to have actually existed.
“A defendant is not required to
retreat. He is entitled to stand his
ground and defend himself and, if reasonably necessary, to pursue an assailant
until the danger of death or great bodily injury has passed. This is so even if safety could have been
achieved by retreating.
“Great bodily injury means
significant or substantial physical
injury. It is an injury that is
greater than minor or moderate harm.
“The People have the burden of
proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you
must find the defendant not guilty of murder or manslaughter.”
The court then gave CALCRIM No.
3472, which provides: “A person does not have the right to self-defense if he
provokes a fight or quarrel with the intent to create an excuse to use force.”
On imperfect self-defense, the court
gave a modified version of CALCRIM No. 571:
“A killing that would otherwise be
murder is reduced to voluntary manslaughter if the defendant killed a person
because he acted in imperfect self-defense.
“If you conclude the defendant acted
in complete self-defense, his action
was lawful and you must find him not guilty of any crime. The difference between complete self-defense
and imperfect self-defense depends on whether the defendant’s belief in the
need to use deadly force was reasonable.
“The defendant acted in imperfect
self-defense if:
“1.
The defendant actually believed that he was in imminent danger of being
killed or suffering great bodily injury;
“AND
“2.
The defendant actually believed that the immediate use of deadly force
was necessary to defend against the danger;
“BUT
“3.
At least one of those beliefs was unreasonable.
“Belief in future harm is not
sufficient, no matter how great or how likely the harm is believed to be.
“In evaluating the defendant’s
beliefs, consider all the circumstances as they were known and appeared to the
defendant.
“Great bodily injury means
significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm.
“However,
defendant by his wrongful conduct created the circumstances which legally
justified his adversary’s use of force.
“The People have the burden of
proving beyond a reasonable doubt that the defendant was not acting in
imperfect self-defense. If the People
have not met this burden, you must find the defendant not guilty of murder.” (Italics added.)
The italicized paragraph is not part
of the standard instruction on self-defense.
The parties agree, however, that it is a correct statement of the law.
should have clarified the instructions by adding, “‘Where the original aggressor
is not guilty of a deadly attack, but of a simple assault or trespass, the
victim has no right to use deadly or other excessive
force. . . . If the
victim uses such force, the aggressor’s right of self-defense arises . . .’
[citation],” or by adding, “‘If, however, the counter assault be so sudden and
perilous that no opportunity be given to decline or to make known to his
adversary his willingness to decline the strife, if he cannot retreat with
safety, then as the greater wrong of the deadly assault is upon his opponent,
he would be justified in slaying, forthwith, in self-defense’ [citation].”
Defendant does not explain
instructions were necessary. In any
event, these instructions were not supported by the evidence. They would have been appropriate if there had
been evidence that defendant had committed a minor assault, to which Robinson
responded with an attempt at deadly force.
As defendant himself notes, however, “[Defendant’s] failure to pay
Raquel the $20 he owed her as change from an earlier drug transaction or his
verbal quarrel with Raquel in Harris’s residence did not amount to an
initiation of a physical assault or the commission of a felony, within the
meaning of [In re Christian S.,
fn. 1].” An instruction should not
be given unless there is substantial evidence from which the jury could
reasonably conclude that the specific facts supporting the instruction existed. (People
v. Petznick (2003) 114 Cal.App.4th 663, 677.) Because there was no evidentiary support for
the instructions defendant now contends were necessary, their omission was not
error.
Defendant goes on to contend that
giving CALCRIM No. 3472 (“A person does not have the right to self-defense if
he provokes a fight or quarrel with the intent to create an excuse to use
force.”
in combination with the portion of CALCRIM No. 571 which provides thatself-defense “is not available if the defendant by his wrongful conduct created
the circumstances which legally justified his adversary’s use of force” was
misleading because, “[a]lthough as a convicted felon [defendant] engaged in
felonious conduct by coming armed with a firearm to Harris’s residence,
[defendant] did not, solely by reason of his unlawful conduct, forfeit his
right to self-defense because Raquel was not entitled to respond to [his]
wrongful conduct, by escalating the encounter and threatening and assaulting
[him] with a box cutter and/or scissors.”
The problem with this contention is
that there was no evidence that Robinson escalated the encounter by responding
to defendant’s felonious conduct of arming himself with a firearm, because
there was no evidence that Robinson knew
he had a firearm until he pulled it out and shot her as she was moving toward
him. Moreover, neither attorney argued
for that scenario. The prosecutor’s
position was that Williams’s testimony showed that defendant was angry at being
disrespected by Robinson, not that he was afraid she was about to assault him
with a box cutter. With respect to
self-defense, the prosecutor argued that defendant’s use of force was
disproportionate because Robinson did not pose any threat of death or serious
injury because if she did have a box cutter in her hand, it was in her left
hand, and Williams testified that Robinson reached toward defendant with her
open right hand.
title="">[8] Moreover, Williams made it abundantly clear
that she viewed Robinson as the instigator of the quarrel and that defendant
did nothing but protest verbally about being disrespected until Robinson jumped
to her feet the second time and moved toward defendant. Consequently, the record does not support the
inference that jurors did or might have misapplied the instructions in the
manner defendant suggests. (
Defendant also contends that CALCRIM
No. 571 was ambiguous, incomplete and misleading because it does not define the
terms “wrongful conduct” or “legally justified.” (“However, this principle [i.e., imperfect
self-defense] is not available if the defendant by his wrongful conduct created
the circumstances which legally justified his adversary’s use of force.”
He contends that jurors could haveinterpreted this language to mean that Robinson was justified in assaulting him
with a box cutter or scissors because he was “a drug dealer who failed to pay
her back her $20, [and] because he became involved in a quarrel, verbal
altercation, and physical confrontation with [Robinson].” Again, however, the prosecutor’s position was
not that anything defendant did gave Robinson the legal right to assault
him. Rather, his position was that
defendant came to the house with the intent of killing Robinson because of her
haranguing and disrespecting him over the trivial matter of $20 owed to
her. And, he argued that defendant’s use
of force was disproportionate to any actual or perceived threat posed by
Robinson. Moreover, CALCRIM No. 505 told
the jury that self-defense is justified only when a person reasonably believes
that he or she is imminent danger of serious bodily harm or death. Accordingly, the jurors were aware that
“wrongful conduct” which would “legally justify” the use of force would be
conduct which caused the adversary to believe that he or she was in imminent
danger of serious injury or death. They
were also aware that trivial “wrongful conduct,” such as engaging in failing to
repay a debt or engaging in a verbal altercation, would not legally justify
self-defense.
Because neither the evidence nor the
prosecutor’s theory of the case supported the inference defendant suggests, and
because the instructions as a whole correctly informed jurors of the factual
basis necessary to create a legal right to self-defense, there is no reasonable
likelihood that the jurors were misled by the omission of definitions of
“wrongful conduct” and “legally justified.”
Accordingly, there was no error with
respect to the instructions on self-defense and imperfect self-defense.
2.
THE OMISSION OF AN INSTRUCTION ON HEAT-OF-PASSION
VOLUNTARY MANSLAUGHTER WAS NOT PREJUDICIAL
Defendant contends that the trial
court was required to instruct on the lesser included offense of
heat-of-passion voluntary manslaughter because “a reasonable juror could
conclude based on the evidence that the homicide of [Robinson] was provoked and
took place in [a] sudden quarrel and/or heat of passion.” Even if the instruction was warranted by the
evidence, however, its omission was not prejudicial.
An intentional killing may be
reduced from murder to voluntary manslaughter if there is evidence that the
killing was committed without malice.
Malice is presumptively absent when the defendant kills upon a sudden
quarrel or in the heat of passion on sufficient provocation or in the
unreasonable but good faith belief that deadly force is necessary in
self-defense. (People v. Manriquez (2005) 37 Cal.4th 547, 583 (
voluntary manslaughter on a heat-of-passion theory, there must be substantial
evidence that “‘“‘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.]”
(Id. at p. 584.) Passion includes anger, rage, or any
“‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citations],”
except the desire for revenge. (
142, 163 (Breverman).) The passion must result from some provocation
caused by the victim or reasonably attributed to the victim by the
defendant. (Manriquez, at pp.
583-584.)
Heat-of-passion voluntary
manslaughter has both an objective element and a subjective element: The defendant’s response to the provocation
must be objectively reasonable, i.e., “‘“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.]” (
And, the defendant must “‘actually [and] subjectively’” be acting under
the influence of the passion engendered by the provocation when he or she uses
deadly force. (Id. at p. 585.)
As with any lesser included offense,
a trial court must instruct on heat-of-passion voluntary manslaughter if there
is substantial evidence which would rationally support a finding that the
defendant is guilty only of that lesser offense and is not guilty of murder. (Manriquez,
theories [that] the jury could not reasonably find to exist.” (People
v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
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. (
favorable to the defendant in determining whether substantial evidence supports
giving the instruction. (
Here, defendant did not testify, and
there was no other evidence, such as a police interview, which directly
revealed defendant’s mental state when he shot Robinson. Consequently, there is no direct evidence
that defendant felt rage, fear or any other emotion which would show that he
“‘actually, subjectively, kill[ed] under the heat of passion.’ [Citation.]”
(Manriquez,
nevertheless warrant an instruction on heat-of-passion voluntary manslaughter,
even if the defendant denies committing the homicide, denies that he or she
intended to kill, or testifies only that he or she acted in a perceived need
for self-defense. (See
1012, 1016-1017, and cases cited therein; Breverman,
Defendant contends that the earlier
confrontation between Robinson and defendant outside the house, Robinson’s
multiple telephone calls haranguing and threatening defendant, the continued
verbal assault by Robinson when defendant came to the house, and Robinson’s
physically charging at defendant, all of which culminated in defendant’s
shooting Robinson, is sufficient evidence to warrant an instruction on
heat-of-passion voluntary manslaughter.
We agree, in part. Robinson’s
haranguing and insulting defendant was not sufficient provocation to invoke
heat-of-passion voluntary manslaughter.
Insults, such as calling the defendant a “mother fucker,” and taunting
him that if he had a weapon, he “should take it out and use it,” or calling the
defendant a “faggot” and pushing him, have been held not to constitute
provocation sufficient to cause an ordinary person of average disposition to
lose reason and judgment under an objective standard. (Manriquez,
212, 226.) Similarly, repeated telephone
calls over a few hours, insults, unspecified threats and haranguing someone
over a $20 debt do not objectively suffice as provocation sufficient to cause
an ordinarily reasonable person to lose reason and control. Even Robinson’s repeatedly insulting
defendant by calling him “cuz” does not amount to sufficient provocation, even
assuming he was indeed a Blood: The
standard for legally sufficient provocation is the reasonable person, not the
reasonable gang member. (
1073, 1087.)
Combined, however, with Robinson’s
lunging at defendant, possibly with a box cutter in her hand, the circumstances
arguably did warrant an instruction on heat-of-passion voluntary
manslaughter. In Breverman, supra, 19
Cal.4th 142, the defendant was attacked by a group of young men, one of whom
had been injured the day before in an altercation which took place in front of
the defendant’s home and at which the defendant might have been present,
although he denied having been involved in the altercation. (Id.
at pp. 149-151.) As the court summarized
it, the testimony of the defendant, as well as that of his mother and a friend
who were both present, showed that a “sizeable group of young men, armed with
dangerous weapons[
and harboring a specific hostile intent, trespassed upon domestic property
occupied by [the] defendant and acted in a menacing manner. This intimidating conduct included challenges
to the defendant to fight, followed by use of the weapons to batter and smash
[the] defendant’s vehicle parked in the driveway of his residence, within a
short distance from the front door.
[The] [d]efendant and the other persons in the house all indicated that
the number and behavior of the intruders, which [the] defendant characterized
as a ‘mob,’ caused immediate fear and panic.”
(Id. at p. 163.) The defendant, who testified that he thought
he and his mother and his friend were going to be killed, responded by shooting
out the front door, killing one of the assailants. (Id.
at p. 151.) Although Breverman’s defense
was self-defense and defense of others, both actual and imperfect (
at the trial (id. at p. 151, fn. 3),
the court held that “a reasonable jury could infer that [the] defendant was
aroused to passion, and his reason was thus obscured, by a provocation
sufficient to produce such effects in a person of average disposition.” (Id.
at pp. 163-164, fn. omitted.) The court
held that, based on this evidence, the trial court had a sua sponte duty to
instruct the jury on heat-of-passion voluntary manslaughter. (Id.
at p. 164.)
Breverman
differs from this case in that the circumstantial evidence which the court
found to support the inference that the defendant acted in a heat of passion
included Breverman’s own statement to the police, in which he described his
“continuous, chaotic response to the riotous events outside his door.” (Breverman,
omitted.) In this case, there is no
equivalent evidence of defendant’s mental state from which jurors could infer
that he acted in a heat of passion.
Nevertheless, the situation defendant faced—an enraged 280-pound woman
launching herself toward him in a small, enclosed space, holding something that
might have been a box cutter—was arguably sufficient to engender an emotional
response which obscured his reason and caused him to act out of fear. However, even if we assume that the evidence
does support that conclusion, the omission of a heat-of-passion voluntary
manslaughter instruction was not prejudicial.
Omission of a jury instruction on a
lesser included offense requires reversal if an examination of the entire
record establishes a reasonable probability that the error affected the outcome
of the trial. (Breverman, supra, 19
Cal.4th at pp. 165-178.) Here, it is not
reasonably probable that the jury would have returned a verdict of
heat-of-passion voluntary manslaughter if the instruction had been given. The jury was instructed that if defendant
reasonably feared that he was in danger of imminent bodily injury or death, the
homicide was justifiable, and that if he unreasonably acted out of that fear,
the homicide was voluntary manslaughter on an imperfect self-defense
theory. Thus, the precise factual
scenario which defendant posits as the basis for the heat-of-passion instruction,
i.e., that he shot Robinson out of fear for his safety, either reasonably or
unreasonably, was rejected by the jury under the self-defense and imperfect
self-defense instructions.
In addressing a similar claim, the
California Supreme Court observed, “Once the jury rejected defendant’s claims
of reasonable and imperfect self-defense, there was little if any independent
evidence remaining to support his further claim that he killed in the heat of
passion, and no direct testimonial evidence from defendant himself to support
an inference that he subjectively
harbored such strong passion, or acted rashly or impulsively while under its
influence for reasons unrelated to his perceived need for
self-defense. . . .
[¶] Moreover, the jury having
rejected the factual basis for the claims of reasonable and unreasonable
self-defense, it is not reasonably probable [that] the jury would have found
the requisite objective component of
a heat of passion defense (legally sufficient provocation) even had it been
instructed on that theory of voluntary manslaughter.” (People
v. Moye (2009) 47 Cal.4th 537, 557.)
For the same reason, the omission of a heat-of-passion instruction was
not prejudicial in this case.
In a related argument, albeit under
a separate heading, defendant contends that reversal of both counts of murder
is required because the court failed to instruct the jury that malice
aforethought, an essential element of first degree murder, is “a specific
intent to kill in the absence of sudden quarrel, heat of passion and imperfect
self-defense.” He contends that the
omission of an instruction fully informing the jury of the meaning of malice
aforethought is subject to review under the standard of Chapman v. California (1967) 386 U.S. 18, 24, i.e., that reversal
is required unless the court can conclude that the error was harmless beyond a
reasonable doubt. He contends that under
this standard, the omission of an instruction in this case which “fully
defined” malice aforethought requires reversal of both murder counts.
Defendant relies on
450. In that case, the court addressed
the contention that in a trial in which voluntary manslaughter is the charged
offense, the instructions were “prejudicially incomplete because they omitted
the voluntary manslaughter ‘elements’ that the killing must have occurred in a
heat of passion upon sufficient provocation (hereafter heat of passion or
provocation), or in the actual but unreasonable belief in the need for
self-defense (hereafter imperfect self-defense).” (Id.
at p. 454.) “In effect, defendant urges
that if the jury believed he committed an intentional, unlawful killing,
without provocation or belief in the need to defend himself, it must acquit him
of voluntary manslaughter.” (
The court rejected that argument, holding that where the charged offense
is murder, the prosecution may have to prove the absence of provocation or the
erroneous belief in the need for self-defense in order to prove malice, but
that where the charged offense is voluntary manslaughter, malice is not at
issue and the prosecution must prove only that the homicide was unlawful and
unintentional. (Ibid.)
Defendant implies that the court
held that a murder instruction is always incomplete unless it defines malice as
excluding heat of passion or imperfect self-defense. This is not correct. Rather, the court made it clear that such an
instruction is required only in a murder trial where the evidence warrants an
instruction on voluntary manslaughter as a lesser included offense. In that circumstance, the court held, the
trial court must instruct that provocation or imperfect self-defense negates
malice and reduces the offense to voluntary manslaughter. (People
v. Rios, supra, 23 Cal.4th at p. 463, fn. 10.) Accordingly, to say, as defendant does, that
the court erroneously failed to instruct that malice is the intent to kill in
the absence of sudden quarrel or heat of passion is merely a recasting of
defendant’s previous argument that an instruction on heat-of-passion voluntary
manslaughter was required because it was warranted by the evidence. It is not a new or different issue. Moreover, the omission of an instruction
explicitly stating that malice aforethought requires the absence of heat of
passion or imperfect self-defense does not affect the jury’s deliberations on
first or second degree murder; it only affects their deliberations on voluntary
manslaughter. Consequently, the absence
of the instruction is irrelevant to the murder convictions.
Defendant apparently raises this
issue separately in order to argue that the omission of the heat-of-passion
instruction is subject to review under Chapman
v. California, supra, 386 U.S.
18. However, in Breverman, the California Supreme Court held that the failure to
instruct sua sponte on a lesser included offense in a noncapital case is, “at
most, an error of California law alone, and is thus subject only to state
standards of reversibility.” (
The court expressly “reject[ed] any implication” that the failure to
instruct sua sponte on an uncharged lesser included offense, “or any aspect
thereof,” “is one which arises under the United States Constitution.” (Ibid.) We, of course, are bound by
Superior Court (1962) 57 Cal.2d 450, 455), and we reject defendant’s
contention.
3.
THE OMISSION OF AN
INSTRUCTION CONCERNING A THIRD PARTY’S SUPPRESSION OF EVIDENCE AS EVIDENCE OF
CONSCIOUSNESS OF GUILT DOES NOT REQUIRE REVERSAL OF THE MURDER CONVICTIONS
Defendant
contends that both murder convictions must be reversed because the court failed
to instruct on the principles of law governing a third party’s concealment or
destruction of evidence.
The issue arose as follows. The prosecutor introduced evidence that a
couple of days after the homicides, defendant’s mother removed some items from
defendant’s apartment. The manager of
the apartment complex, Shawn Sinclair, testified that he saw her remove a box
containing bullets and some additional bullets from a table in the
apartment. Sinclair testified that the
bullets in the box looked like .45-caliber bullets. The casings retrieved from Harris’s bedroom
were from .45-caliber bullets. The
prosecutor also introduced evidence that when police executed a search warrant
on defendant’s mother’s residence on November 4, 2007, defendant’s white SUV
was parked by the residence. There was
plastic covering the interior of the vehicle, and defendant’s mother told the
investigator that she had had the vehicle shampooed and vacuumed a few days
earlier. In his closing argument, the
prosecutor argued that defendant’s flight after the homicides and his mother’s
actions were “[a]ll the actions of a guilty man.”
The court instructed the jury, using
CALCRIM No. 371, as follows: “If the
defendant tried to hide evidence, that conduct may show that he was aware of
his guilt. If you conclude that the
defendant made such an attempt, it is up to you to decide its meaning and
importance. However, evidence of such an
attempt cannot prove guilt by itself.”
Defendant contends the court should also have instructed that efforts of
a person other than defendant to conceal or destroy evidence could also show
consciousness of guilt, but only if defendant was either present and knew about
those actions or authorized the other person’s actions.
instruction, but contends that even if there is normally no
suppression of evidence, the court was required in this instance to do so
because, having given the portion of CALCRIM No. 371 which applies to a
defendant’s own efforts to suppress evidence, the court was obligated to
complete the instruction with respect to his mother’s efforts to suppress
evidence. He contends that the
instruction as given implies that he instigated his mother’s actions.
We view the issue differently than
does defendant. Evidence of concealment
or destruction of evidence is admissible only to support an inference that the
defendant harbored a consciousness of his or her guilt. (People
v. Hannon (1977) 19 Cal.3d 588, 597-598, disapproved on another point in
750, 761-763.) In order to justify a
consciousness of guilt instruction based on the efforts of a person other than
the defendant to suppress evidence, there must be evidence not only that the
person did so, but also that the defendant knew of and authorized or sanctioned
the other person’s acts. (
Similarly, to justify a consciousness of guilt instruction based on the
defendant’s efforts to suppress evidence, there must be evidence that the
defendant did so. (Ibid.)
In this case, there was no evidence
that defendant himself attempted to suppress evidence, and there was no
evidence that defendant knew of and authorized his mother’s efforts to sanitize
his SUV. Because there is no evidentiary
basis for an instruction on suppression of evidence, either by defendant
himself or by another person on his behalf, it was error to give CALCRIM No.
371 at all. The error would not have
been cured by giving the additional instruction that defendant now contends
should have been given.
In any event, neither omitting the
third-party suppression of evidence instruction nor giving the instruction as
it pertained to defendant’s own (nonexistent) efforts to suppress evidence
requires reversal. Defendant argues that
the instruction deprived him of his constitutional
right to have the jury determine every material issue presented by the
evidence and resolve disputed factual issues, and therefore must be reviewed
for harmless error under Chapman v.
California, supra, 386 U.S.
18. Under that test, an instructional
error requires reversal unless the reviewing court can say beyond a reasonable
doubt that the error did not contribute to the verdict. (People
v. Flood (1998) 18 Cal.4th 470, 504.)
We disagree that this is the applicable standard. Although it is error to give an instruction
which, while correctly stating a principle of law, has no application to the
facts of the case, the error does not, in general, violate the federal Constitution. (People
v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) In any event, the error was harmless under
either a Chapman standard or a
Here, the evidence that defendant
shot and killed two people was overwhelming and was not contested by the
defense. Rather, he contended that he
acted in self-defense or imperfect self-defense. Consciousness of guilt is at most marginally
relevant to whether a killer acted with or without deliberation and
premeditation, or whether he or she acted in self-defense. We are convinced beyond a reasonable doubt
that the instructional error defendant asserts did not contribute to the guilty
verdicts. Any error in the consciousness
of guilt instruction was also not prejudicial under California’s
there is no reasonable probability that the outcome would have been more
favorable to defendant in the absence of the error. (People
v. Flood, supra, 18 Cal.4th at p.
490.)
4.
DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL
Under both the Sixth Amendment to
the United States Constitution and article I, section 15, of the California
Constitution, a criminal defendant has the right to the effective assistance of
counsel. (Strickland v. Washington
(1984) 466 U.S. 668, 684-685 (Strickland)
[discussing federal constitutional rights]; People v. Pope (1979) 23 Cal.3d 412, 422 [discussing
both state and federal constitutional rights].)
If trial counsel’s representation falls below prevailing professional
standards of competence and there is a reasonable probability that the outcome
of the trial would have been more favorable to the defendant in the absence of
the deficiency in counsel’s performance, the conviction must be reversed. (People v. Ledesma (1987) 43 Cal.3d
171, 215-218; Strickland,
demonstrating both that counsel’s performance fell below prevailing standards
and that prejudice resulted. (
Defendant makes two separate claims
of ineffective assistance of counsel.
Defendant first asserts that his
trial attorney’s failure to “ensure that the trial court properly instructed
the jury on self-defense and voluntary manslaughter as well as the principles
of law governing a third party’s concealment or destruction of evidence”
deprived him of his constitutional right to the effective assistance of trial
counsel.
Ineffective assistance of counsel
claims are generally not cognizable on appeal if counsel might have had a
rational tactical reason for his or her acts or omissions which is not apparent
from the record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, defendant asserts that trial counsel
simply could not have had a rational tactical basis for his asserted
failures. Even if we accept that assertion,
defendant’s claim fails because he has not demonstrated prejudice from any of
these asserted failings. We found that
the self-defense instruction was neither incorrect nor incomplete or
misleading. Consequently, no
clarification was required, and counsel’s failure to seek clarification was
neither deficient performance nor prejudicial.
We found that while the evidence supported an instruction on
heat-of-passion voluntary manslaughter, the omission was not prejudicial. Accordingly, counsel’s failure to seek the
instruction or argue the theory was also not prejudicial. In the absence of prejudice, a claim of
ineffective assistance of trial counsel fails.
(Strickland,
CALCRIM No. 371 was harmless, and counsel’s failure in that respect was also
not prejudicial.
Under a separate heading, defendant
contends that his attorney rendered ineffective assistance because he failed to
object to “unduly prejudicial evidence that [defendant] was a gang member and
that he had committed another felony crime.”
As to the first contention, the
evidence of defendant’s gang membership consisted solely of Williams’s
testimony that she thought defendant
was “a Blood ex-gangbanger,” and that as a Blood, he would find it insulting to
be addressed as “cuz.” Williams
expressly stated that she did not know
whether defendant was or had been a Blood.
Ineffective assistance of counsel claims based on failure to object to
evidence are rarely cognizable on appeal because there are many instances in
which it is a rational choice of trial tactics not to object even if the
objection might be successful. (
1202-1203.) Here, defendant’s attorney
could have made the rational decision not to object in order to avoid
highlighting the issue, especially since Williams conceded that she did not
know whether defendant was a gang member.
Because the record is silent as to counsel’s reason for not objecting,
the issue must be raised, if at all, via a petition for a writ of habeas
corpus. (People v. Mendoza Tello,
supra, 15 Cal.4th at p. 266.)
Defendant’s second contention is
based on Investigator Patterson’s testimony that on November 1, 2007, defendant
and his girlfriend “both had outstanding felony arrest warrants, not involving
this case, that they were arrested for.”
Again, defense counsel could have rationally decided not to object in
order to avoid highlighting the implication.
Moreover, the jury had already been informed that defendant was a drug
dealer who routinely sold drugs to both Harris and Robinson, and at the end of
trial, they were informed that as of the date of the homicides, defendant had
one prior unspecified felony conviction.
The additional information that there was an outstanding felony warrant
for his arrest—not a prior felony conviction, as defendant’s argument
implies—was not of such great significance that there is a reasonable
probability that he would not have been convicted of first degree murder if the
evidence had not been admitted.
5.
DEFENDANT WAS NOT
PREJUDICED BY CUMULATIVE ERROR
Defendant
contends that even if the multiple errors he asserts were not individually
reversible, their cumulative effect “irreparably prejudiced” his right to a
fair trial. We found no error with
respect to the instructions on self-defense and imperfect self-defense, no
ineffective assistance of counsel, and no prejudicial error with respect to the
omission of an instruction on heat-of-passion voluntary manslaughter or as to
the consciousness of guilt instruction.
Defendant has failed to persuade us that the two nonprejudicial errors
had any cumulative effect. (Cf.
844-848 [“constant and outrageous” prosecutorial misconduct, which permeated
the entire trial, combined with other errors, caused cumulative prejudice
sufficient to deny defendant a fair trial].)
6.
THE SENTENCE MUST BE MODIFIED
Defendant was charged with the
special circumstance of multiple murders.
The jury found that allegation true.
The court imposed a sentence of life without the possibility of parole
(LWOP) for the special circumstance, and imposed a separate, consecutive term
of 25 years to life for each of the two murder convictions. Arguing that the multiple murder enhancement
was “attached” to count 2, defendant contends that the 25 years to life
sentence on count 2 amounted to double punishment and that only the LWOP term
should have been imposed on count 2. He
contends that this is an unauthorized sentence, and asked us to correct
it. The Attorney General agrees. We agree that the sentence is unauthorized,
but for different reasons.
Section 190.2, subdivision (a)(3)
provides for a term of LWOP in a case in which the defendant has been convicted
of first degree murder and has also been convicted in the same proceeding of
more than one offense of murder in the first or second degree. No matter how many murder charges are tried
together, only a single multiple murder special circumstance may be
alleged. (People v. Anderson (1987) 43 Cal.3d 1104, 1150, superseded by
statute on another point as recognized in People
v. Letner and Toben (2010) 50 Cal.4th 99, 163, fn. 20.) However, the special circumstance applies to
defendant was convicted, and the LWOP sentence must be applied to each
count. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1563-1564 [Fourth
Dist., Div. Two].) There is no statutory
authority to impose an LWOP term for the special circumstance itself, as the
trial court did in this case.
Accordingly, this sentence was unauthorized and must be corrected. (People
v. Scott (1994) 9 Cal.4th 331, 354.)
DISPOSITION
The terms of 25 years to life
imposed on counts 1 and 2 are stricken, as is the term of life without the possibility
of parole imposed for the special circumstance.
The superior court is ordered to impose instead a term of life without
the possibility of parole on count 1 and a term of life without the possibility
of parole on count 2. The sentence is
otherwise affirmed. The superior court
shall amend both the abstract of judgment and the sentencing minutes
accordingly, and shall, within 30 days after the finality of this opinion,
forward a copy of the amended abstract of judgment and amended sentencing minutes
to the Department of Corrections and Rehabilitation and to the parties.
The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] During the trial, Raquel Robinson was at times
referred to as Raquel Reliford. We will
refer to her as “Robinson.”
