P. v. Lowe

Filed 5/4/06 P. v. Lowe CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Adam Adrian Lowe appeals a judgment following conviction of second degree murder, with findings of personal use of a deadly weapon and service of a prior prison term. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1), & 667.5, subd. (b).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

During the evening of May 25, 2003, Lowe stabbed his longtime friend and neighbor, Gregorio Jimenez, in the heart. Jimenez's death followed an afternoon of drinking at a family gathering, and a misunderstanding regarding a missing cell phone. Lowe, recently released from prison for a narcotics conviction, informed an Oxnard police officer that he stabbed his friend because of his "prison mentality."

Earlier that day, Jimenez, his girlfriend Maria Orona, and Orona's son, Manuel Gonzalez, invited Lowe to a barbecue at the Jimenez home. Jimenez and Lowe consumed alcohol that afternoon, and each appeared to be under its influence. Later, Gonzalez misplaced his cell phone and asked Jimenez and Lowe if they were concealing it. Lowe became upset and protested that he did not steal. Their voices became loud and others described the men as "screaming" and "yelling." Angered by the accusations, Lowe returned home and slammed the door.

Shortly thereafter, Gonzalez found his cell phone near the trash container. He asked Jimenez to inform Lowe of its recovery. Orona urged Jimenez not to visit Lowe because Lowe was so angry when he left the gathering.

Jimenez ignored Orona's advice and walked to Lowe's home. Within minutes, Jimenez staggered home, collapsed, and died from a five-to-six-inch stab wound to the heart. Knife in hand, Lowe followed Jimenez. He shouted that others did not know his "mentality . . . how crazy [he] can get." Lowe also stated that Jimenez "deserved it." Gonzalez took the knife from Lowe, who calmly apologized for stabbing Jimenez.

Jimenez had no defensive or other injuries at the time of his death. His belt contained a sheathed pocketknife that was unopened.

When police officers arrived at the Jimenez residence, Lowe was walking nearby. He admitted to police officers that he stabbed Jimenez. In a later interview, Lowe stated that he returned home "to get a knife" to "stab [Jimenez]" because "he had got me up-tight." He explained that he followed Jimenez after he stabbed him "[t]o see what he had to say." Lowe also stated that Jimenez called him a "puto" ("motherfucker") during the cell phone argument and he was "a little bit" fearful. Police officers recorded Lowe's statements and the prosecutor played the recording at trial.

Forensic tests determined that Lowe had a .19 blood alcohol content at the time of arrest, and had ingested marijuana. Jimenez had a .13 blood alcohol content at the time of his death, and had ingested cocaine. Expert testimony at trial established that a person with a .13 or .19 blood alcohol content level would suffer impaired judgment, lowered inhibitions, and an exaggerated emotional state. Ingestion of cocaine could result in lowered social inhibitions, anxiety, or aggression, among other symptoms.

At trial, Lowe's girlfriend Rosemary testified that after Lowe returned home, Jimenez approached their residence. Jimenez "rush[ed]" along the walkway, waved his arms, and yelled in the Spanish language. Lowe went to the door and yelled in response. Each appeared angry. Lowe then left and walked behind Jimenez. Rosemary did not see a knife nor did she see Lowe stab Jimenez.

Following the stabbing, Lowe returned home. He cried and seemed in shock. Lowe stated that "[t]hey accused me." Rosemary did not hear Lowe declare that Jimenez "deserved" the stabbing.

Defense expert Doctor Terry Kupers testified at trial that Jimenez's stabbing was "much like a prison experience" for Lowe. He stated that accusing a person of stealing or referring to him as "puto" would almost certainly result in violence in prison. Kupers opined that Jimenez created a dangerous situation by walking to Lowe's home after referring to him earlier as "puto."

The jury convicted Lowe of second degree murder and found that he personally used a deadly weapon. (§§ 187, subd. (a) & 12022, subd. (b)(1).) Lowe admitted that he served a prior prison term pursuant to section 667.5, subdivision (b). The trial court sentenced him to a prison term of 17 years to life.

Lowe appeals and contends that: 1) the trial court erred by responding to a jury inquiry and reinstructing regarding implied malice, and 2) the trial court's instructions regarding voluntary intoxication are incorrect and denied him due process of law.

DISCUSSION

I.

Lowe argues that the trial court denied him due process of law and impaired his right to counsel by its response to a jury inquiry regarding second degree murder. Specifically, he contends that the trial court improperly referred the jury to CALJIC No. 8.11, defining implied malice. Lowe asserts that the prosecutor did not argue implied-malice murder, the evidence does not support that theory, and the trial court did not instruct with CALJIC No. 8.31, regarding implied-malice murder. He relies upon Sheppard v. Rees (9th Cir. 1989) 909 F. 2d 1234, holding that a defendant must receive sufficient notice of the prosecution's theory of murder to prepare a defense. (Id., at p. 1237 [defendant may not be convicted upon a (felony-murder) theory "that was neither subject to adversarial testing, nor defined in advance of the proceeding"].) Lowe argues that the error is prejudicial per se. (Id. at p. 1238.) Alternatively, he contends the error is prejudicial under any standard of review.

During deliberations, the jury inquired of the trial court: "What elevates manslaughter to murder 2?; "Dictionary definition of malice & intent?"; and "Is intent to kill required for murder 2? If yes, what is the definition of intent to kill?" Following an unreported discussion with counsel, the trial court responded to the first two questions in part by referring the jury to the CALJIC No. 8.11 definition of malice. To the third inquiry, the trial court answered: "No. 2nd degree murder requires either express malice which is an intent to kill or implied malice which requires a conscious disregard for life. These terms are defined in your instructions . . . ."

For several reasons, we reject Lowe's contentions.

First, Lowe has not presented an appellate record reflecting that he either objected to the implied malice instructions or to the trial court's response to the jury's inquiries. (People v. Toro (1989) 47 Cal.3d 966, 975-976, disapproved on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) "The general rule . . . is that a claim of unfair surprise at trial may not be raised for the first time after verdict: '. . . where a situation arises which might constitute legal surprise, counsel cannot speculate on a favorable verdict. He must act at the earliest possible moment . . . .'" (Ibid.) When a trial court decides to respond to a jury inquiry, counsel's silence waives any objection to the response. (People v. Roldan (2005) 35 Cal.4th 646, 729.)

Second, it has long been the rule that a general charge of murder encompasses first and second degree murder, voluntary and involuntary manslaughter, and felony murder. (People v. Lucas (1997) 55 Cal.App.4th 721, 737.) This pleading practice affords the notice required by due process of law. (Ibid.) The evidence presented at the preliminary examination sufficiently informs a defendant of the prosecution's theory of the manner and degree of killing. (People v. Thomas (1987) 43 Cal.3d 818, 829, fn. 5.)

Third, the trial court's response to the jury's inquiries properly directed the jury to the instruction already given concerning express and implied malice. Prior to deliberations, the trial court instructed with CALJIC No. 8.11 ("'Malice Aforethought' - Defined"), defining express malice and implied malice. During his opening statement and during summation, the prosecutor stated the definition of implied malice, but asserted that the evidence strongly proved first degree murder ("I'm not spending a lot of time talking about second degree murder.") Although the trial court did not instruct with CALJIC No. 8.31 concerning implied-malice murder, CALJIC No. 8.11 and the instructions concerning murder and reasonable doubt, adequately and correctly instructed regarding that theory of murder. Moreover, there is sufficient evidence that the jury could have determined that Lowe assaulted Jimenez with a deadly weapon in such a manner as to endanger life and resulting in death. (People v. Pacheco (1981) 116 Cal.App.3d 617, 625 ["An assault with a deadly weapon made in a manner to endanger life and resulting in death is sufficient to sustain a conviction of (implied-malice) second degree murder"].)

Sheppard v. Rees, supra, 909 F.2d 1234, does not assist Lowe. There, following the close of evidence and settling of jury instructions, the prosecutor requested instructions regarding felony-murder. Over defense objection, the trial court instructed concerning this new theory of culpability. The reviewing court concluded that the trial court prejudicially erred because defendant did not receive adequate notice of the charges against him. (Id., at pp. 1237-1238.) In contrast, the trial court instructed here concerning implied malice and the prosecutor briefly discussed implied malice during opening statement and summation. Moreover, defense counsel here neither objected to the implied malice instruction nor to the trial court's response to the jury inquiries. In any event, Sheppard is not binding. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3; People v. Lucas, supra, 55 Cal.App.4th 721, 738 [California and Ninth Circuit decisions "have uniformly viewed Sheppard narrowly and limited it to its facts"].)

Fourth, it is not reasonably probable that Lowe would have obtained a more favorable result absent the trial court's responses to the jury inquiries. (People v. Ainsworth (1988) 45 Cal.3d 984, 1020 [standard of review].) Lowe presented defenses of provocation and imperfect self-defense. The evidence did not establish, however, that he acted under circumstances that would provoke a reasonable person, or that he honestly but unreasonably believed that he needed to defend himself. Any error is harmless.

II.

Lowe argues that the trial court's instructions regarding voluntary intoxication denied him due process of law because the instructions did not relate intoxication to the specific crimes of second degree murder and manslaughter based upon imperfect self-defense. He points out that the trial court instructed with CALJIC No. 4.20, modifying it to instruct that "[i]n the crimes of second degree murder and voluntary manslaughter . . . the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve him of responsibility for the crime." Lowe points out that section 22 allows evidence of voluntary intoxication bearing upon whether defendant "actually . . . premeditated, deliberated, or harbored express malice aforethought."

Lowe has forfeited his right to appeal this asserted error because he has not provided an appellate record reflecting that he objected to the trial court's voluntary intoxication instructions. (People v. Carrea (2006) 137 Cal.App.4th 418, 426-427.) We may review the instructions in the absence of an objection, however, if "the substantial rights of the defendant were affected thereby." (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.) A defendant's "substantial right" is determined by the miscarriage of justice test. (People v. Carrea, supra, 137 Cal.App.4th 418, 426-427.)

Lowe has not established a miscarriage of justice. (Cal. Const. art. VI, § 13; People v. Flood (1998) 18 Cal.4th 470, 487 [miscarriage of justice test requires examination of entire cause, including evidence presented at trial].) The trial court instructed properly concerning the elements of murder and its lesser included offenses. The overwhelming evidence established second degree murder under either an express or implied malice theory. Lowe stabbed his friend in the heart, creating a wound of five-to-six inches and a one-half inch hole. He informed police officers that he stabbed Jimenez because he was "uptight." Jimenez had no ready weapon and there was insufficient evidence that he provoked Lowe or that Lowe believed that he needed to defend himself from Jimenez. Indeed, Lowe left the barbecue and went home to obtain a knife to stab Jimenez. (People v. Najera (2006) – Cal.App.4th --, -- [provocative conduct by victim must be sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Herbert Curtis, III, Judge

Superior Court County of Ventura

______________________________

Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.