P. v. Jordan

Filed 9/18/07 P. v. Jordan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Affirmed.

Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Earl Emerson Jordan of murder under Penal Code section 187, subdivision (a) (count 1)^[1]; burglary under section 459 (count 2); robbery under section 211 (count 3); grand theft of a firearm under section 487, subdivision (d)(2) (count 4); and unlawful driving or taking a vehicle under Vehicle Code section 10851, subdivision (a) (count 5). The jury also made true findings that the murder charged in count 1 occurred during the course of a first degree residential burglary or robbery under section 190.2, subdivision (a)(17) and that defendant personally used a deadly and dangerous weapon during the course of all his offenses under section 12022, subdivision (b)(1). The jury acquitted defendant of the charge of assault with a deadly weapon under section 245, subdivision (a)(1) (count 6).^[2] The trial court sentenced defendant to state prison for the determinate sentence of four years, followed by a consecutive indeterminate sentence of life without the possibility of parole.

On appeal, defendant contends that the trial court erred in refusing defendants request for jury instructions on self-defense and lesser included offenses of second degree murder and manslaughter. For the reasons set forth below, we shall affirm the judgment.

I

STATEMENT OF FACTS

On March 18, 2003, the 56-year-old victim lived by himself in a house on Central Avenue in Highland, California.

The victim had suffered health problems for over 20 years as a result of a car accident, which shattered several of his vertebrae. The vertebrae had to be fused together with two large metal rods. The accident also broke his right wrist, which resulted in a loss of range of motion in his right arm. Moreover, as a result of the accident, one of the victims legs was an inch shorter than the other.

Some years after the accident, the victim tore the rotator cuff in his right shoulder. Although corrective surgery was performed, the damage was never fully repaired. As a result, the victim lost more range of motion in his right arm; he could not lift his right hand and arm. In order to feed himself, the victim would use his left hand to help lift his right.

Despite the victims disabilities, he was still able to drive. He owned a white Chevrolet van with a personalized license plate, which read St. Elmo.

In March 2003, the victim had sold his home, and it was in escrow. He was in the process of fixing up the house for the buyer.

On March 18, 2003, the victim visited a pharmacy to pick up some of his prescription medications. There was nothing unusual about his behavior. He joked with the pharmacy technician, picked up his medications, and left.

On the same day, between 11:00 a.m. and 1:00 p.m., Henry Iqueiros, who lived some four houses north of the victims house, looked outside his home and saw a man walking down the street. The man [l]ooked like a bum. He was a slender White guy, about six feet tall, 30 to 35 years old, with medium length brown hair. Iqueiros observed the man looking at all the houses and staring into cars. The mans manner suggested that he was thinking about burglarizing one of the houses or breaking into some of the cars. The man was walking south on Central Avenue toward the victims home.

Between 1:30 p.m. and 1:45 p.m., Lydia Meyers was sitting in the garage of her home on Central Avenue; she was reading a book. She looked up and saw the victims van driving down the street. She recognized the van because she had seen it many times parked on the street six houses south of hers. This time, however, she did not recognize the driver. The person who normally drove the van was the victim; he was about 5 feet 10 inches tall and weighed 280 pounds. The person who drove the van on March 18 was small in stature, almost like a child. He was Hispanic or Asian with black, swept-back hair and big eyes. He stopped in front of Meyers and smiled.

Later that day, about 4:00 p.m., Tommie Neal, the victims neighbor from across the street, was outside. Neal was watering his grass when a man in a white Ford drove up. The man stopped the car and got out. The man was Caucasian, shorter than Neal, with tattoos on his arms and shoulders. Based on the way the man looked, Neal was suspicious the man was going to hustle him and ask him for something. Instead, the man said that he was a painter and had been across the street talking to the victim about paint. Neal responded that the victim was doing his own work and did not need a painter. The man said, Youre not hearing me. That guy is dead. Neal thought that the man was conning him so he said, Cool. Call 911. The man said that he had a criminal record and could not make the phone call. He then left.

Neal decided to check out the victims house. He walked across the street with a neighbor boy. Neal approached the house and went up to the open door. He looked in and saw the victim lying on the floor less than a yard from the door. It did not look like he was moving, and there was a lot of blood around him. Neal told his young friend not to go inside the house and suggested they go back out to the curb. On the way, Neal called 911 on his cellular telephone. He then waited for the police in front of the victims house. While Neal waited, he did not see anyone leave the victims house.

San Bernardino Sheriffs deputies arrived on the scene about 4:00 p.m. Through the partially opened door, the deputies saw the victims body. Near the body, the deputies saw a sickle-type knife. The deputies entered the house to clear it and to ensure that no one else was inside. In searching the house, the deputies observed bloody footprints on the tile. The deputies did not go any further because they did not want to disturb any evidence.

The deputies secured the house as a crime scene and contacted homicide detectives. The homicide team arrived at the house around 4:30 p.m. They observed that the door jamb to the front door was splintered and pushed aside. They entered the residence and saw the victim on his back in the entryway in a large puddle of blood. They could not ascertain his wounds because of the large amount of blood around his face and neck. Next to the victims body was a large, curved-bladed knife â€‘‑ a sickle. Close by were two or three footprints made in blood; the prints had a herringbone pattern which appeared to have been made by a tennis shoe. Blood-smear evidence in the area did not indicate that there had been a struggle.

The victims pants pockets were turned out, and his shirt was kind of up. The victims glasses were broken, and a portion of them was above the victims head in the hallway. There was an empty bottle of Cobra beer next to the body. A number of pill bottles from Palm Drug were at the victims feet; it looked like the bottles had spilled out from a paper bag. In the kitchen area, the victims wallet was on a counter, along with credit cards. Some other cards were thrown on the floor. The kitchen cupboards were opened.

The two back bedrooms were in complete disarray, with boxes and contents just thrown around. At the rear of the house, the French doors were slightly open. In the kitchen, there was a table that was against the wall. There, the detectives discovered a black duffel bag and a black jacket. Inside the duffel bag were various magazines addressed to a Gail Montgomery. Defendants left thumb print was on two magazine photographs. The magazines had been thrown out the morning of either March 18 or 19, in trash dumpsters located behind Inland Empire Screen Prints, a business in Highland. The dumpsters were occasionally searched by people looking for cans, bottles, or food.

The victim suffered numerous blunt force injuries, one around the left eye, and some abrasions on his arms and legs. He also suffered three stab wounds. One wound was in the left ear and passed into the muscle of the neck without striking any major blood vessel. Another was on the right side of the head. It passed the base of the skull and nicked the brain stem just about the spinal cord. It injured one of the deep arteries that supplied blood to the base of the brain. Another wound was in the victims right back. It was eight inches deep and passed through the muscles of the back, into the abdomen, and through the liver and diaphragm. Either one of the latter two wounds could have been fatal. All of the wounds could have been inflicted with the sickle-bladed knife found by the victims body. Other than an abrasion on the back of one of the victims wrists, the victim had no defensive injuries to suggest that he fought off his attacker.

Between 2:00 and 3:00 p.m. on March 18, defendant entered an appliance store owned by Ammar Darwish. Darwish knew defendant and had had problems with him in the past. Defendant had come into the businesss yard at night and tried to steal things. On this afternoon, defendant entered the business and asked Darwish, Do you know how to blow up a house? Darwish told defendant to leave. Defendant would not leave, and a heated discussion ensued. Defendant finally left the business and went outside. Defendant then started to scratch the side of the Darwishs car with a knife and waited for Darwish to come out. Darwish chased after defendant; defendant went across the street to a liquor store. Darwish called to his brother to call 911. Darwish then followed defendant across the street, and defendant hit him with a knife. Darwish was injured in the neck and started to bleed. Defendant ran away, and Darwish chased him for a few blocks until defendant jumped over a fence. At this point, Darwish gave up the chase because he did not want to trespass on private property. He eventually contacted sheriffs deputies but decided he did not wish to press charges. Instead, he asked the police officer to tell defendant to stay away from Darwishs store.

San Bernardino Sheriffs Deputy James Valencia responded to Darwishs store. After taking a report, Deputy Valencia searched the surrounding area for defendant. He found defendant walking several blocks west on Baseline. The deputy told defendant that he had to conduct an investigation to find out what had happened. Defendant kept walking. Deputy Valencia had to pull his patrol unit around defendant to block his path so defendant would stop. The deputy escorted defendant to the back of the patrol unit, patted him down for weapons, and then handcuffed him and sat him down in the backseat. When Darwish decided not to press charges, the deputies released defendant. When defendant stepped out of the patrol car, Deputy Valencia noticed that defendants shoes had a brownish-reddish color on them. They appeared to be dirty. The deputy said that it looked like blood was on defendants shoes. Defendant stated that he was a [d]umpster diver, and he had gotten paint on his shoes while [d]umpster-diving on Highland Avenue. Defendant said his shoes were covered in red paint.

Eventually, sheriffs deputies and detectives focused their attention on defendant. Detective Perez contacted defendant on March 21. Defendant took her to two locations where he had recently stayed. At one of the locations, Detective Perez directed a forensic technician to seize tennis shoes from defendants tent. An analysis of the blood stains on the shoes revealed that the victim was the major donor. The analysis also showed that more than one person contributed to the blood sample on the shoes. The odds of the blood on the tennis shoes belonging to someone other than the victim were one in six billion.

Comparison of the sole pattern of the tennis shoes seized from defendants tent revealed a pattern similar to the bloody shoe prints on the tile in the victims home. There was no conclusive match, but the class characteristics were similar.

Detective Perez interviewed defendant about the victims murder. After being read his constitutional rights and waiving them, defendant initially denied any involvement. Eventually, defendant changed his story and admitted going to the victims house because he thought it was vacant. He was looking for money and broke into the house. Defendant stated that while he was looking in different rooms in the rear of the house, he heard the victim come in. Defendant claimed that when the victim saw him in the house, the victim asked what defendant was doing there, said he was going to kill defendant, and came at defendant with a knife. Defendant stated that they scuffled. Then the victim fell on a knife, which stuck in his back. Defendant said he told the victim, Im going to go call for help or Ill . . . call you an ambulance. Let me get out of here, and then left.

Defendant claimed that he only knew about the one injury to the victims back. However, defendant eventually admitted that the victim may have been injured in his neck during the struggle. Defendant said that after he and the victim fell on the floor, he pulled out the victims wallet and change in his pockets and left. Defendant stated that he took the victims van but later abandoned it because he did not know how to drive a manual transmission.

II

ANALYSIS

A. The Trial Court Properly Refused Defendants Request for Jury

Instructions on Second Degree Murder and Voluntary Manslaughter

Defendant contends that the trial court erred in failing to instruct the jury on second degree murder and voluntary manslaughter. Defendant argues that these instructions were proper because he relied on theories of voluntary intoxication, heat of passion, and imperfect self-defense. We disagree with defendant.

1. Procedural background

During an off-the-record discussion about jury instructions, the prosecutor informed the trial court that the People would not seek instructions relating to malice aforethought, premeditation, and deliberation for the murder charge; the only theory the prosecutor was relying on was felony murder. This position was confirmed in an on-the-record discussion about jury instructions.

The defense responded by requesting that both sides be ordered not to argue the other murder theory in the case. The court replied, Well, if were not giving instructions and theyre not relying on it, then there should not be any argument as to premeditation and deliberation. I agree.

Notwithstanding, the defense requested a series of instructions relating to the doctrine of reducing a homicide from murder to manslaughter on the grounds of imperfect self-defense, killing in the heat of passion, or killing by accident in the heat of passion. The court outlined defendants proposed instructions:

In specific, those instructions are instructions 571,^[[3]] imperfect self-defense; 570, heat of passion; 510, excusable homicide, accident; and instruction 522, provocation, effective provocation, on the degree of homicide; 511, excusable homicide, accident in the heat of passion; 3404, accident. Those instructions would then perhaps involve giving the general self-defense instructions, 505, and related instructions involving self-defense.

If those were given, the People would then be offering a series of instructions based upon Penal Code Section[s] 197 and 198.5, that there â€‘‑ which would be instruction 3476, the right o the homeowner to defend real or personal property; 3475, right to eject a trespasser from real property; 3477, presumption that resident was reasonably afraid of death or great bodily injury; and 3471, right of self-defense not available to an initial wrongdoer.

In addition, the trial court pointed out that there would be additional pinpoint instructions based on People v. Hardin (2000) 85 Cal.App.4th 625: Self-defense may not be invoked by a person who through his own wrongful conduct created circumstances under which his victim may legally attack or pursue him. And Self-defense may not be invoked by a burglar who, through his own wrongful conduct, created circumstances under which the burglary victim may legally attack or pursue him.

In response, the defense argued that, since there was evidence that when the victim discovered defendant in the house and went at defendant with a knife, saying, Im going to kill you, defendant may have become so angered that he responded with deadly force. The defense argued that this evidence justified instructions on lesser included offenses such as second degree murder and voluntary manslaughter.

The prosecutor objected to any lesser included offense instructions because felony murder was the only theory of first degree murder to be presented to the jury. In support, the prosecutor cited People v. Hardin, supra, 85 Cal.App.4th 625.

The trial court ruled that the combined effect of sections 197 and 198.5, the Hardin case, and the series of instructions â€‘‑ CALCRIM Nos. 3475 through 3477 â€‘‑ determined that defendant could not avail himself of the doctrines of perfect and imperfect self-defense. The court concluded as follows:

I think its clear. Its clear to me that the circumstances here where there is not an allegation of murder with malice aforethought or premeditation but only felony murder, that the home owner has a right to use deadly force, the intruder does not have right to resist that deadly force. Thats the reasoning of the Courts decision.

2. Legal background

A trial court has a duty to instruct sua sponte on lesser included offenses if reasonable jurors could conclude, based on substantial evidence, that the lesser offense but not the greater offense was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.)

An unlawful killing in the commission of a burglary is first degree murder, not manslaughter or second degree murder, even if the killer acts in unreasonable self-defense or without intent to kill. ( 189; see People v. Seaton (2001) 26 Cal.4th 598, 665.) The purpose of the felony-murder rule is to deter even accidental killings in the commission of designated felonies by holding the felon strictly liable for murder. (People v. Loustaunau (1986) 181 Cal.App.3d 163, 170.) The perpetrator cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony-murder rule. (Ibid.)

In contrast, [s]econd degree murder with implied malice [is] committed when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citations.] (People v. Earp (1999) 20 Cal.4th 826, 885.) Voluntary manslaughter, based on imperfect self-defense, is committed when the defendant kills in the actual but unreasonable belief in the need to defend oneself or another against imminent peril or great bodily injury. (People v. Flannel (1979) 25 Cal.3d 668, 674-680.)

3. Analysis

On appeal, defendant argues that there is a limited right to self-defense in the felony-murder context. Hence, the trial court erred in failing to instruct the jury on lesser offenses of second degree murder and manslaughter based on self-defense. We disagree.

Here, the People prosecuted defendant for murder based solely on the felony‑murder rule, not based on express or implied malice. Accordingly, the trial court instructed the jury on murder based on felony murder and did not instruct on express or implied malice. The instruction indicated residential burglary was the predicate felony.

As provided above, malice aforethought is irrelevant to felony murder; hence, so too are self-defense and imperfect self-defense, since those two doctrines are relevant only to the issue of the existence or nonexistence of malice. The People prosecuted defendant for murder based on a felony-murder theory; therefore, the trial court did not err in refusing to instruct on self-defense (People v. Loustaunau, supra, 181 Cal.App.3d at p. 170) or imperfect self-defense (People v. Tabios (1998) 67 Cal.App.4th 1, 6-9; Loustaunau, at p. 170.)

Moreover, neither the doctrine of self-defense nor the doctrine of imperfect self-defense may . . . be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified. [Citations.] (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Here, based on the evidence, defendant â€‘‑ through his own wrongful conduct of burglarizing the victim â€‘‑ created a circumstance that justified the victims alleged attack upon defendant; therefore, neither of those doctrines was available to defendant.

Even if the trial court erred, the instructional error was harmless. (People v. Lasko (2000) 23 Cal.4th 101, 111.) When a trial court violates state law by failing to instruct on a lesser included offense in a noncapital case, a conviction of the charged offense may be reversed only if, after examination of the entire cause, including the evidence (Cal. Const., art. VI,  13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [citation]. (Ibid.) Here, it is not reasonably probable that defendant would have been convicted of second degree murder or manslaughter had the lesser included offense instructions been given.

In count 1, the jury was instructed as follows:

The defendant is charged in Count One with murder, under a theory of felony murder.

To prove that the defendant is guilty of first degree murder under this theory, the People must prove that:

1. The defendant committed Residential Burglary;

2. The defendant intended to commit Residential Burglary;

AND

3. While committing Residential Burglary the defendant did an act that caused the death of another person.

A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. (Italics omitted.)

In view of this instruction, in finding defendant guilty of burglary (count 2), a burglary felony-murder conviction was inescapable. As discussed, an unlawful killing in the commission of a burglary is first degree murder, not manslaughter or second degree murder. ( 189; People v. Seaton, supra, 26 Cal.4th at p. 665.) The trial courts failure to give lesser included offense instructions, if error, was therefore harmless.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

MILLER

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

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

^[2] The information also alleged that defendant suffered a prior strike conviction for burglary under section 459, a serious felony within the meaning of sections 1170.12 and 667. Defense counsel, however, requested that adjudication of the prior conviction be deferred pending appeal, depending on the jurys verdict. Defense counsel reasoned that, if the jury found defendant guilty of murder with a true finding of the special circumstances, the prior doesnt mean anything any more. The prosecution agreed, and the trial court accepted the defense proposal.

^[3] All jury instruction numbers referred to by the court are to the Judicial Council of California Criminal Jury Instructions (CALCRIM).