P. v. Luu

Filed 3/20/07 P. v. Luu CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed as Modified.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Trang Dieu Luu of the second degree murder of Shazia Haq and found true various firearm allegations. The trial court sentenced defendant to a term of 40 years to life, with an award of 476 days of custody credit. Defendant contends the trial court erred when it declined to instruct on voluntary manslaughter. We find no error because there was no substantial evidence of a killing committed in the heat of passion. Therefore, other than modifying the judgment to reflect defendants entitlement to one additional day of presentence custody credit, we affirm.

STATEMENT OF FACTS

1. Factual Overview

Defendant and Mazhar Haq (Mazhar) were married in 1994. Sometime thereafter, Mazhar told defendant that his family previously had arranged his marriage to his first cousin Shazia Haq (Shazia) who lived in Pakistan. Mazhar told defendant that he would divorce her, marry Shazia, assist Shazia to obtain her green card, and then divorce Shazia so that he could remarry defendant. Defendant agreed. In April 2002, defendant and Mazhar divorced. Shazia came to the United States and married Mazhar in February 2003.

Defendant, Mazhar and Shazia lived together. Defendant and Mazhar shared one bedroom; Shazia slept in another bedroom. Mazhar had sexual relations with both women, sometimes singularly and sometimes collectively. Mazhar and defendant held themselves out as husband and wife. Shazia was introduced as Mazhars cousin who had come from Pakistan to attend school in California.

After several months of this arrangement, defendant, realizing that Mazhar had true feelings for Shazia, became jealous. Defendant confronted Mazhar about this but he refused to change anything. As time went on, defendant became increasingly discontent but, nonetheless, continued to live with Mazhar and Shazia.

Several days before defendant killed Shazia, defendant demanded that Mazhar choose between the two women. He refused to do so. On November 3, 2004, the two women argued about what defendant described as, little stuff such as cleanliness. While Shazia was in the bathroom, defendant retrieved a gun from her closet and waited for her. When Shazia came out of the bathroom, defendant shot and killed her. Mazhar was not at home.

Mazhar came home later that evening and contacted the police. The police conducted a tape-recorded interview of defendant in which she gave a detailed account of the relevant events. The interview, the contents of which we set forth below, constitutes the crux of the evidence which defendant claims supported her request to instruct on the theory of a heat of passion killing.[1]

2. Defendants Interview

In the interview, defendant admitted that she had shot Shazia. Defendant conceded that Shazia had not physically threatened her. Defendant stated that she had shot Shazia because she was very angry, just [an] emotional rage. Defendant explained the genesis of the killing as follows.

Defendant[2]and Mazhar married in 1994. Defendant is a non-practicing Buddhist and Mazhar is a Muslim. Sometime after they married, Mazhar told defendant that he had previously agreed to an arranged marriage with his first cousin Shazia (a practicing Muslim) so that Shazia could obtain her green card. Mazhar told defendant that once Shazia obtained her green card, he would divorce Shazia and re-marry defendant. Defendant was devastated by this disclosure but accepted it. She loved Mazhar and was afraid he would become angry if she refused to go along with his plan. The two divorced.

After Mazhar married Shazia, defendant and Mazhar still held themselves out as a married couple to their neighbors. Defendant and Mazhar slept in the master bedroom and Shazia slept in another bedroom. Sometimes, Shazia slept with defendant and Mazhar. On other occasions, Mazhar slept with Shazia in Shazias bedroom. Defendant and Mazhar told Shazia not to introduce Mazhar as her husband.

Defendants irritation with Shazia started to build a couple months after Shazia arrived. Shazia told defendant that when she was in Pakistan, Mazhar constantly sent her letters and emails, a claim Mazhar denied. Although defendant had agreed to the Shazia-Mazhar marriage, she became upset because Mazhar frequently had sexual relations with Shazia and was emotionally involved with her. Defendant confronted Mazhar about this. He told defendant that she could leave but, when she tried to leave, he asked her to stay and she acquiesced. Defendant felt she had no choice because Mazhar said that Shazia was his wife and that he would not end his sexual relationship with Shazia. Defendant felt disrespected by Mazhar although she loved him.

Defendant and Shazia often argued. Defendant started most of the quarrels because she was very jealous. Some of the arguments were triggered by defendants theft of Shazias personal belongings. Other arguments arose because defendant believed that Shazia was falsely telling others that defendant and Mazhar treated her like a slave, and that [they] wouldnt allow her to buy things. In addition, defendant would become angry when Shazia spoke to Mazhar in their native language because she could not understand them. Shazia ignored Mazhars requests to speak in English. Defendant wrote notes to Shazia,[3]addressing her as a whore because Shazia participated in three-way sex while portraying herself as very innocent and very religious. At an undesignated point, defendant told Shazia that she would kill her.

[A] month or two before the murder, the two women had a physical fight. After this confrontation, defendant locked Shazia out of their home. Several days before the shooting, they had a verbal argument. Defendants unhappiness had been building up, but it got worse [in the days immediately preceding the shooting] cause [she] had an argument with [Mazhar]. Defendant wanted Mazhar to choose between her and Shazia but Mazhar refused to do so.

On the day of the shooting, defendant and Shazia argued about little stuff such as cleanliness, a reference to the on-going dispute about use of the kitchen. (See fn. 3, ante.) Mazhar was not at home. While Shazia was in the bathroom, defendant retrieved a gun from her bedroom closet[4]and waited outside of the bathroom. When Shazia opened the door and saw defendant, Shazia screamed. Defendant shot her. The bathroom light went off. Shazia continued to scream. A struggle ensued and the gun went off a few more times.[5] Defendant accidentally shot herself in the hand.

After Shazia stopped screaming, defendant left the bathroom, closing its door. Defendant went to her bathroom and tried to stop her hand from bleeding. She put the gun back in the closet. Before Mazhar returned home, defendant collected the spent casings and threw them in a trash can; she also tried to clean the bloodstains from the carpet. She wanted to hide the evidence of the killing from Mazhar because she intended to kill him. At no point did defendant check on Shazia. Defendant went downstairs to wait for Mazhar. Several hours later, he returned.

Defendants original plan had been to kill Shazia, then to shoot Mazhar, and to finish by committing suicide. She just wanted to end it all because of the constant fights and lies. In fact, she had told Mazhar about this plan five months earlier.[6]But defendant could not carry though with her plan to kill either Mazhar or herself. She knew that it was wrong to have killed Shazia. At the time of the shooting, the three had lived together for two years.

3. Defense Evidence

Defendant did not testify at trial (nor did Mazhar).

The defense called three witnesses to testify about defendant and her relationship with Mazhar. Phan Lee had known defendant for more than 12 years and Ngoc Luu and Tam Luu were defendants sisters. Because the testimony from these three touched only peripherally on the issues raised by defendants appellate contention (none had personal knowledge of the murder), we briefly summarize it. They testified that defendant was very much in love with, if not obsessed with, Mazhar; that defendant became very upset upon learning of his prearranged marriage to Shazia; that in the two years before the murder she had become depressed and withdrawn; and that they unsuccessfully sought to convince defendant to leave Mazhar.

In addition, Ngoc Luu was present during a September 2004 argument when defendant told Mazhar that he had to choose between her and Shazia. Mazhar refused, telling defendant: [Y]ou know you have 80 percent of me. Shazia only gets 20 percent. And Tam Luu testified that in September 2004, Mazhar and defendant brought defendants gun to Tam Luus residence for safekeeping but that defendant retrieved it a week later.

Dr. Adrienne Davis, a forensic psychologist, also testified for the defense. She had interviewed and evaluated defendant. Defendant told her that on the day of the murder, she and Shazia had argued about cleaning the dishes and allocation of household chores. Defendant intended to kill Shazia. [S]he felt rage when she shot her but afterwards felt numb. Dr. Davis had no specific diagnosis of defendant, but did opine that, on the day of the shooting, defendant was depressed and felt despair.

4. Defense Request To Instruct On Voluntary Manslaughter

Defense counsel requested a voluntary manslaughter instruction. He explained: The provocation is, and one coming from Shazia is, the provocation of sleeping with who [defendant] considers her husband over a period of time, continual fighting, and then right before theres an argument. Its just a cumulative, cumulative provocation that came to its ultimate head right there when the killing occurred, and I just think thats clear.

The trial court declined to submit the instruction. It explained:

[Defendant] told us that the [bathroom] door opened, Ms. Shazia started to come out, and [defendant] pulled the trigger and shot her. That . . . [Shazia] didnt do anything physical to her. Argument over cleanliness seems to be the only issue.

I have no duty to instruct where theres no substantial evidence to support the instruction. The provocation which [incites] the defendant to homicidal conduct, heat of passion, must be caused by the victim, . . . the victim [must] actually initiate the provocation.

Provocative conduct by the victim that [incites] a homicidal conduct in the heat of passion may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rationally and without due deliberation or reflection, . . .

The record I have before me is insufficient to establish that Shazia initiated the provocation. To demonstrate voluntary manslaughter for heat of passion, adequate provocation of heat of passion must be affirmatively demonstrated, . . .

I just dont have any facts in our case that justifies that type of an instruction. So over defense objection, I will not give it.

Shortly thereafter while discussing other instructions, the trial court added:

[M]y ruling as to the appropriateness of a voluntary manslaughter had [defendant] killed Mazhar would have been entirely different, because I think that he was the active participant, he was the one that was deliberately creating the mental state. And all the testimony that I heard, or a majority of it, related to the defendants relationship with Mazhar.

Shortly before the parties presented argument, defense counsel renewed his request for a voluntary manslaughter instruction. The trial court, after canvassing the evidence, reiterated that the record did not contain any provocation thats substantial enough to give the instruction.

The court submitted the pattern instructions about first and second degree murder. The jury convicted defendant of second degree murder.

DISCUSSION

A. No Instructional Error Occurred

Defendant contends: There was sufficient evidence to require the trial court to instruct the jury to consider voluntary manslaughter. (Boldface omitted.) We disagree.

Voluntary manslaughter is a lesser included offense of murder. (People v. Lee (1999) 20 Cal.4th 47, 59.) As we explained in People v. Johnston (2003) 113 Cal.App.4th 1299, [t]he essence of the sudden quarrel/heat of passion voluntary manslaughter is that the killer is so provoked by acts of the victim that [s]he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person. That circumstance negates malice aforethought, and reduces the crime from second degree murder, which otherwise would be its classification. (Id. at p. 1311, italics added.)

When a defendant is charged with murder, the trial court is required to instruct about voluntary manslaughter if the evidence so warrants. To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, evidence from which a rational trier of fact could find beyond a reasonable doubt that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] (People v. Mendoza (2000) 24 Cal.4th 130, 174.) Stated another way, there must be evidence a reasonable jury could find persuasive. [T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)

The 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.] (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)

To a large extent, defendants brief focuses on the evidence that would support a claim that when she shot Shazia, she was bereft of rational thought and had temporarily lost self-control. (Boldface omitted.) This approach misses the mark because it places undue emphasis on the subjective component of a heat of passion killing. There must be substantial evidence of both the subjective and objective components before the trial court is required to instruct on voluntary manslaughter. (People v. Steele, supra, 27 Cal.4th at p. 1252.) Hence, even if there was evidence that defendants passions were aroused, the trial court was not required to instruct on voluntary manslaughter unless there was also substantial evidence that defendants passion was induced by reasonably adequate provocation. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) As we now explain, there was an insufficient showing of the objective component of a heat of passion killing: reasonably adequate provocation.

In that regard, it is well-settled that the 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.] (People v. Lee, supra, 20 Cal.4th at p. 59, italics added.)

Although defendant argues that the evidence shows [defendant] believed [Shazia] was her provocateur, the record establishes that the majority of the provocative conduct was committed not by the victim (Shazia) but, instead, by Mazhar. Defendant was angry with Mazhar for many reasons. When they had married, he had failed to tell her that he had previously committed to marry Shazia, his first-cousin. Defendant was devastated when, after she and Mazhar had married, Mazhar explained the pre-arranged marriage to her. Defendant agreed to divorce Mazhar because she did not want to anger him. Mazhar told defendant that he would divorce Shazia and remarry defendant once Shazia obtained her green card. However, after Mazhar and Shazia married, Mazhar had an on-going sexual and emotional relationship with Shazia while, at the same time, he and defendant held themselves out to the world as a married couple. This living arrangement, orchestrated and maintained by Mazhar, angered defendant. Defendants complaints to Mazhar were met with callous indifference.[7] He refused to end his sexual relationship with Shazia and told defendant she could leave. Significantly, in the days immediately preceding the shooting, defendants unhappiness increased because Mazhar refused to meet her demand that he choose between her and Shazia. It is therefore apparent that Mazhars words and deeds were the primary cause of defendants anger.

To the extent that Shazias conduct contributed to defendants anger, Shazias conduct did not, as a matter of law, constitute legally adequate provocation. Pertinent to this analysis are the cases in which an estranged spouse or lover (here, defendant) kills a former partners new love interest (here, Shazia). In those situations, the trial court is not required to instruct on voluntary manslaughter because, objectively, there is no legally adequate provocation. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1414 [defendant kills his estranged wife and her new boyfriend; neither victim engaged in provocative conduct so as to warrant heat of passion voluntary manslaughter instructions]; People v. Hyde (1985) 166 Cal.App.3d 463, 473 [defendant kills his ex-girlfriends new boyfriend; evidence insufficient to require heat of passion instructions because it is important . . . to distinguish between jealousy as a motive for the killing and jealousy sufficient to invoke the heat of passion concept]; see also People v. Bufarale (1961) 193 Cal.App.2d 551, 562 [the evidence did not support theory of heat of passion killing when the alleged provocation consisted of the victims rejection of defendants continued attentions and her decision to live with her husband].) By a parity of reasoning, there is no legally adequate provocation in this case. Simply stated, defendant was angry with and jealous of Shazia because Mazhar had married her, had sexual relations with her, was emotionally involved with her, and refused to choose between her and defendant. But defendant had agreed to the Shazia-Mazhar marriage and their tripartite living arrangement. Although defendant chose to resolve the conflict created by this situation by killing Shazia, Shazias conduct could not, as a matter of law, have aroused a homicidal rage in an ordinarily reasonable person.

Given this context, none of the other factors relied upon by defendant vis--vis Shazia, either singularly or collectively, constitutes legally adequate provocation. For one thing, defendant was responsible for much of that conduct. As for her verbal arguments with Shazia, defendant conceded that she started most of those arguments and that other arguments were trigged by her wrongful conduct in stealing Shazias property. The other circumstances, such as defendants belief that Shazia was telling others lies about her treatment, Shazias conversing with Mazhar in their native tongue, and Shazias claim that Mazhar frequently communicated with her before she came to California, were de minimus and certainly not of a nature to cause an ordinary person of average disposition to kill in a heat of passion. Further, there had been only one physical confrontation between the two women and that occurred at least one month before the shooting and concluded with defendant locking Shazia out of their home. And the argument which took place on the day of the shooting was most mundane: it concerned cleanliness and use of the kitchen. (See fn. 3, ante.)

In light of the above analysis, we reject defendants claim that legally adequate provocation was present because her anger and despair developed over a period of months and reached the boiling point at the time she shot [Shazia]. (Boldface omitted.) The cases defendant relies upon are distinguishable because in each one the victim did, in fact, engage in provocative conduct over a period of time. Here, on the other hand, as explained above, the victim (Shazia) did not, over the two-year period, engage in conduct a reasonable person would find provocative. (Compare People v. Berry (1976) 18 Cal.3d 509, 513-515 [over a two-week period, the murder victim alternated between verbally taunting her husband about her extramarital affair and sexually teasing him]; People v. Borchers (1958) 50 Cal.2d 321, 323-326, 329 [the murder victim engaged in long continued provocatory conduct[,] including an extramarital affair, threats to commit suicide, an attempted suicide, and verbally taunting of the defendant]; and People v. Bridgehouse (1956) 47 Cal.2d 406, 413 [the defendants wife engaged in an extramarital affair over a considerable period of time, his wife refused either to consent to a divorce or to end the affair; and defendant saw his wifes lover at his mother-in-laws home].)

In sum, the trial court properly declined to instruct upon voluntary manslaughter. The record does not contain substantial evidence that defendant killed Shazia in response to objectively reasonable provocation.

B. Presentence Custody Credits

The trial court awarded defendant 476 days of presentence custody credits. Defendant contends, and the Attorney General concedes, that she is entitled to one additional day of presentence custody credit. We shall direct the trial court to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting that entitlement.

DISPOSITION

The trial court is directed to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting defendants entitlement to 477 (instead of 476) days of custody credit. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] The tape was played at trial and a transcript of its contents was introduced into evidence.

[2] Defendant was born in Vietnam and subsequently became an American citizen.

[3] Several of the notes were introduced into evidence. The notes related defendants dissatisfaction with Shazias use of the kitchen. One read: Shazia, whore of a bitch, put the dishes on one side of the sink. This side. Leave the other side open for other usage. Another read: Unwashed dishes stay on one side, fucking whore. And still another stated: Shazia, whore, do not put the fucking lid on the container until the container is dried.

[4] Defendant told the police that she had purchased the gun in early 2004 for target practice, not to kill Shazia. Defendants two sisters testified that defendant went to the shooting range as a hobby.

[5] Ballistic evidence established that four shots had been fired.

[6] Defendant could not remember Mazhars response to being told that she intended to kill the three of them.

[7] Tam Luu, one of defendants sisters, testified that Mazhar was an emotional manipulator who made defendant dependent on him.