P. v. Russell

Filed 7/27/06 P. v. Russell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Michael Cody Russell appeals a judgment after his conviction of second degree murder (Pen. Code, §§ 189, 187, subd. (a)) with findings that he personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). We conclude 1) substantial evidence supports the judgment; 2) rejecting an instruction on involuntary manslaughter was not reversible error; 3) the court properly responded to the jury's questions; and 4) the court did not err by excluding evidence about an unrelated robbery. We affirm.

FACTS

Russell and Kelly Doria each rented separate rooms in Michael Thomas' house. Dustin Bristow, a neighbor, heard moaning coming from that residence. He heard someone say "[s]hut the fuck up," and a noise "sound[ing] like an aluminum can being thrown up against the wall." Bristow went outside and saw Russell standing over Doria, who was on the ground "squirming" and "in pain." Russell later told Thomas he "beat up" Doria with a baseball bat. Doria died at the hospital.

Police Officer Steve Trickle went to the house. Russell told him, "I don't know what happened. I was asleep." Police Officer Nathan Martin entered Russell's room and saw a blood-stained baseball bat. Martin asked Russell about the blood. Russell said it was "oil."

Russell later told Trickle that he had lied. He said he had an argument with Doria in the hallway. Doria pulled out a knife. Russell grabbed a baseball bat. With one swing, he knocked the knife away and hit Doria's face. Doria "came at him with a closed fist and charged." Russell struck him on the head. Doria fell backwards, went into the living room, fell off a couch and hit his head on a coffee table. Russell kicked Doria in the ribs and dragged him out of the house.

Dr. Ronald O'Halloran, Chief Medical Examiner, testified Doria died from blunt force head injuries. His wounds were consistent with being struck on the head at least three times with a baseball bat. The force of these blows caused loss of consciousness and brain damage. Doria also had back wounds which were consistent with being hit three times with a baseball bat.

Police Detective Robert Coughlin testified that the police found no knife and no blood evidence in the hallway. There was blood splatter evidence in the living room.

Margaret Schaeffer, a forensic scientist, testified the blood splatter evidence showed that Russell struck Doria at least three times. Two of those blows to the head occurred while Doria was near the floor, as if he had been "on his hands and knees." Russell's statements to the police were not consistent with the blood evidence.

Russell testified that he saw Doria "coming" at him with the knife. He grabbed a baseball bat, swung it and hit Doria "across the face area." The knife fell out of Doria's hand. As Doria fell to the floor, he struck him twice with the baseball bat. In a prior incident, Doria had threatened him with a knife. Russell admitted he had lied to the police.

Russell's Offer of Proof About a Prior Robbery

Russell requested the court to admit evidence about a prior home invasion robbery to show why he feared Doria. He offered to prove that he would testify that 1) a day before this incident, he saw two strangers rob Thomas; 2) Doria's conduct during the robbery was "suspicious" because he went to his room and placed his bicycle inside; 3) Russell believed "the removal of the bike signified that . . . Doria knew before hand that a robbery would take place" and 4) Russell "overheard a phone conversation between . . . Doria and an unknown caller" that same day and heard "the words 'Wayne' and 'it[']s on again tonight.'"

The prosecutor sought exclusion of this evidence. He claimed there was no showing that Doria had been involved in the robbery or that Russell's beliefs were reasonable. The court excluded the evidence.

Jury Instructions

The court said it would give instructions on murder and voluntary manslaughter. Russell requested an involuntary manslaughter instruction. The court denied the request.

DISCUSSION

I. Substantial Evidence

Russell contends the evidence was insufficient to support his conviction for second degree murder. We disagree. We view the evidence in the light most favorable to the judgment and draw all reasonable inferences to support it. (People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "'Murder of the second degree is . . . the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation. . . .'" (People v. Swain (1996) 12 Cal.4th 593, 601.) It is also the unlawful killing of a human being when "' . . . [t]he killing resulted from an intentional act, . . . [t]he natural consequences of the act are dangerous to human life, and . . . [t]he act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. . . .'" (Ibid.)

The jury could reasonably find that Russell acted with malice aforethought. Dr. O'Halloran's testimony showed that Russell struck Doria's head at least three times with the baseball bat. The blows caused brain damage and death. From Schaeffer's and Dr. O'Halloran's testimony, the jury could infer that two of those blows occurred while Doria was laying on the floor, helpless and unconscious. Russell was not defending himself. Coughlin's testimony showed Doria did not have a knife and that Russell lied about where the event took place. After Doria moaned in pain, Russell callously said, "[s]hut the fuck up" and struck him. He told Thomas he "beat up" Doria with a baseball bat. The evidence is sufficient. (People v. Swain, supra, 12 Cal.4th at p. 601.)

II. Instructing on Involuntary Manslaughter

Russell contends the trial court committed reversible error by rejecting his request for an instruction on involuntary manslaughter. We disagree.

The court must instruct "on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present . . . but not when there is no evidence that the offense was less than that charged. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[W]hen a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter." (People v. Blakeley (2000) 23 Cal.4th 82, 88-89.)

Russell claims he killed Doria with the unreasonable belief that he was acting in self-defense, which constitutes involuntary manslaughter. He testified about Doria's knife. But he also admitted that after Doria had dropped it and had fallen to the floor, he struck him on the head with the baseball bat two times. This admission negates self-defense and shows a conscious disregard for Doria's life. The court reasonably found it was not required to instruct on involuntary manslaughter. (People v. Blakeley, supra, 23 Cal.4th at pp. 88-89.)

But even if the court erred, it is not reasonably probable that the result would change had it given the instruction. (People v. Breverman, supra, 19 Cal.4th at p. 178.) Russell's self- defense claim relied on his testimony. But the medical evidence refuted his claims and he impeached his credibility by admitting he lied to the police. The jury rejected self-defense and voluntary manslaughter. Its second degree murder verdict was a finding that he acted with malice. (People v. Blakeley, supra, 23 Cal.4th at p. 87.) "Manslaughter is 'the unlawful killing of a human being without malice.' [Citation.]" (Ibid.; see also People v. Dennis (1998) 17 Cal.4th 468, 510 ["any error in giving a manslaughter instruction was harmless given the jury's verdict of murder"].) There was overwhelming evidence that he beat a helpless victim to death.

III. Answering the Jury's Questions

Russell contends the trial court did not adequately respond to the jury's questions about excessive force and malice aforethought instructions. We disagree.

During deliberations, the jury sent the court a note stating, "Is there a law directly related to the use of a weapon in response to an attack w/ fists- maybe it's in our directions, but we cannot find it. . . . Just the law would suffice. – We just found the instruction, is there a law?" The court responded, "We are [r]eplacing 1 page with the other and the jury instructions are themselves the law. Please refer to page 36 [and] the corrected page 37."

Russell contends this response was inadequate. We disagree. "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) It has discretion to decide if "further explanation is desirable, or whether it should merely reiterate the instructions already given." (Ibid.)

Here jurors wanted to know if there was a law about the use of force which was not in the instructions. The court properly advised them to rely on the instructions and it referred them to the applicable instruction, CALJIC No. 5.31 [assault with fists when use of deadly weapon not justified]. It states, in relevant part: "An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon him." Russell does not challenge CALJIC No. 5.31. It is a correct statement of the law. (People v. Jones (1961) 191 Cal.App.2d 478, 480, 482.) Russell has not shown that the court's response misled or confused jurors.

The jury sent a second note stating, "We have some confusions regarding malice aforethought, specifically with the aforethought portion. Does that word require the malice to have been present prior to the entire incident, or could malice aforethought begin for example between strike 1 and strike 2. If clarity on this issue is possible, please provide it." The court responded, "Please re-review page 45 – that defines Malice Aforethought[.] [W]hether or not malice aforethought exist[s] between any of the strikes is a factual determination for you to decide."

Russell contends this response was insufficient. But he has not shown that it was incorrect. The court answered the jurors' question by referring them to CALJIC No. 8.11 [malice aforethought]. It states, in relevant part: "The word 'aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act." (Ibid., italics added.) The court also properly advised jurors that whether malice aforethought existed between the strikes was an issue of fact. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1249.) Russell does not claim that CALJIC No. 8.11 is incorrect. Nor has he shown that the court's response misled or confused jurors.

IV. Excluding Defense Evidence

Russell contends the court erred by excluding evidence of the robbery the night before. He claims his offer of proof showed that he reasonably feared Doria because he "had participated" in the robbery of Thomas the previous day. We disagree.

"'. . . [W]here self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.]" (People v. Wright (1985) 39 Cal.3d 576, 587.) "[E]vidence of third party threats is admissible to support a claim of self-defense if there is also evidence from which the jury may find that the defendant reasonably associated the victim with those threats." (People v. Minifie (1996) 13 Cal.4th 1055, 1060, italics added.)

But here Russell did not show that Doria was involved in the robbery or that there was reasonable relationship between the robbery and the next day's events. His offer of proof was based on speculation. Moreover, excluding this evidence was harmless. Russell testified Doria had previously threatened him with a knife and had pulled one before he used the baseball bat. Given the strength of the prosecution's case, there was no reasonable likelihood that the robbery evidence would change the result.

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

______________________________

Richard C. Gilman, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

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