P. v. Scott

Filed 9/19/07 P. v. Scott 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Arthur Harrison, Judge. Affirmed.

Ronda G. Norris, 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.

1. Introduction^[1]

A jury convicted defendant of second degree murder and found true the allegation he used a deadly weapon. ( 187, subd. (a); 12022, subd. (b)(1).) Defendant pleaded guilty to two prior-prison-term allegations in exchange for a consecutive one-year term. The court sentenced defendant to a prison term of 15 years to life, plus two consecutive one-year terms.

On appeal, defendant challenges the sufficiency of the evidence for murder. He also makes several claims of error involving evidence related to Elaine Jenkins,^[2]defendants fiance and a proposed percipient witness. Elaine died before she could testify. We deem the evidence sufficient and there was no error. We affirm.

2. Facts

In the course of three encounters within two hours, hostility and aggression increased between the victim, James Toodle, and defendant until the men began battling and defendant stabbed Toodle twice with a kitchen knife causing his death. The trial evidence included a reading of Elaines testimony at the preliminary hearing but not any evidence of her recorded statement to the police. The latter is not part of the record on appeal.

Toodle was Elaines former boyfriend. Defendant was her fiance. Both men had lived in Elaines Loma Linda home.

Earlier in the day, Charles, Elaines 15-year-old son, had invited Toodle to help him work on his pocket bike, a mini-motorcycle. Toodle arrived and parked outside the house in a white Oldsmobile Cutlass, which was registered to Elaine. Toodle called Elaine from his cell phone as he walked up to the house. Elaine told Toodle to leave because defendant was present.

Charles joined Toodle outside and they began the pocket bike repairs, using tools taken from the Oldsmobile. Charles obtained a smooth-edged kitchen knife from the house to use for stripping wires for the fuse box.

At one point, defendant and Elaine spoke to Toodle outside. Toodle and defendant shook hands. Toodle claimed to be Charless father, which Elaine told defendant was not true. Defendant described Elaine as being uncomfortable, nervous, and apprehensive about Toodle. Elaine observed Toodle pour some liquor into a cup.

The pocket bike repair lasted almost two hours. Charles said Toodle drank vodka the whole time. Defendant returned a second time to speak to Toodle because he was concerned about his and Elaines welfare. According to defendant, Toodle glanced at him with a mad dog expression, discouraging him from speaking. Defendant heard Toodle and Charles talking together in tones that did not seem too peaceful.

The third time defendant went outside, he asked Toodle to leave. Toodle yelled at him and refused to depart. Charles overheard Toodle cursing defendant loudly and angrily while Toodle was drinking and the kitchen knife was beneath his chair.

Defendant described Toodle acting physically aggressive toward him. Defendant was afraid and swung at Toodle to stop him from grabbing the knife. Defendant hit Toodle in the head with his fist and they began fighting. Toodle was larger, stronger, and more skilled than defendant. Toodle pinned defendant against a brick flower bed and pummeled him.

Elaine saw the fight in progress. Defendant hit first and Toodle fell backwards. Then Toodle began beating defendant with this fist and banging him in the head. After some minutes, defendant escaped and ran inside the house. Toodle chased him.

According to defendant, he ran away from Toodle because he was afraid. Toodle chased him through the house and out the back door. Defendant testified he was scared and believed his life was in danger. Defendant ran back to the front porch and grabbed the knife. Toodle ran towards him as if to grab defendant or the knife. Defendants intention was not to kill Toodle but to repel him because he thought Toodle was trying to hurt him. Defendant swung the knife and cut Toodles wrist. Toodle continued to threaten defendant so defendant stabbed him again in the chest area. Toodle retreated back to his car. The second stabbing pierced the lung, causing Toodles death.

Both Elaine and Charles next saw the two men outside again after defendant had stabbed Toodle who was bleeding profusely. Charles called 911. Elaine took the knife away from defendant and gave it to Charles who dropped it by the couch inside the house. Elaine drove Toodle to the hospital.

Defendant hosed off the blood on the driveway. He left driving Elaines red Nissan. He arrived shirtless at the house of an acquaintance, Waiyaki, who testified defendant arrived not wearing shoes. The parties later stipulated that the deputy sheriffs collected defendants red tennis shoes as evidence when he surrendered at the sheriffs station the same day. At Waiyakis house, defendant washed off blood and borrowed a shirt.

Waiyaki reported Toodle was badly injured and defendant sought advice from Cornelius Clemmons, whom defendant respected. Defendant told Clemmons he had fought someone and it was bad. Clemmons advised him to surrender and defendant did so before knowing Toodle had died.

Defendant admitted having a prior conviction in 1998 for corporal injury to a spouse or cohabitant ( 273.5) and another prior conviction in 2001 for transportation of controlled substances. (Health & Saf. Code, 11352, subd. (a).)

3. Sufficiency of Evidence

Defendant testified he stabbed Toodle in self-defense. On appeal, he protests the prosecution did not prove beyond a reasonable doubt that defendant did not act in self-defense, whether the self-defense was reasonable or unreasonable, or that the provocation was not legally adequate to justify self-defense.

The standard of review favors the judgment in view of the whole record. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) But, if there is evidence the killing was mitigated or justified and could support a verdict of voluntary manslaughter or not guilty, the prosecutor must prove beyond a reasonable doubt the killing was not mitigated or justified. As explained in People v. Adrian (1982) 135 Cal.App.3d 335, 339-340, concerning former section 1105, now section 189.5: [T]he defendant need not produce evidence sufficient to notify the jury that the self-defense was true, but is instead entitled to an acquittal if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified [by self-defense]. [In] cases interpreting Penal Code section 1105, which in murder cases imposes upon the defendant the burden of proving circumstances of mitigation . . . .[Fn. omitted.] These authorities conclude the burden of section 1105 is the burden of producing evidence [fn. omitted] of mitigation and not the burden of persuasion, which remains with the state.[Fn. omitted.]

In support of his self-defense claim, defendant reasons that, even though he admittedly struck the first blow, Toodle chased him through the house and outside, where Toodle continued to threaten defendant, supplying evidence the killing was mitigated or justified. The People offer an alternative interpretation of the record, that defendant became the aggressor, pursuing Toodle with the knife and stabbing him twice, when the first stabbing would have discouraged Toodle.

Under either a theory of self-defense or imperfect self-defense, a defendant must actually believe in the need to defend himself against imminent peril to life or great bodily injury. (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262; People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) In the present case, the jurys verdict is supported by substantial evidence, based on which the jury could reasonably find defendant did not truly believe he needed to defend himself against imminent mortal peril or great bodily injury. Instead, defendant provoked a fight with Toodle and, when Toodle threatened to overcome him, defendant escalated the conflict by finding the knife and stabbing Toodle twice.

The evidence also supported a jury finding that Toodles conduct was not sufficiently provocative to cause a reasonable person to act in the heat of passion. (People v. Manriquez (2005) 37 Cal.4th 547, 583; People v. Villegas (2001) 92 Cal.App.4th 1217, 1225.) Toodles resistance to defendants attack was predictable conduct and not sufficient provocation to negate malice. (People v. Rich (1988) 45 Cal.3d 1036, 1112.) We disagree with defendants assertion that he had unquestionably stopped fighting, and unquestionably signaled to Toodle that he had stopped fighting. (People v. Quach (2004) 116 Cal.App.4th 294, 300-303.) Although defendant ran into the house, Toodle may have thought defendant intended to get a weapon to continue the fight, something defendant ultimately accomplished when he acquired the knife.

The evidence, as considered by the jury, was sufficient to support defendants conviction and did not reasonably support his claims of self-defense, justification, mitigation, and heat of passion.

4. Elaines Statements

Defendant raises several issues regarding statements made to the police by Elaine, who died of an asthma attack during trial before she could testify as a defense witness.

The first issue concerns Toodles alleged history of violence against Elaine and violence generally. In preliminary proceedings, defense counsel explained to the court that Elaines statements would serve to show defendants state of mind, including information about the atmosphere in the house and incidents of Toodles slapping her, as justifying defendants attack on the victim. (People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1069.) Additionally, Elaine purportedly told defendant about Toodles criminal and violent history.

The court made a preliminary ruling that Elaines testimony in the preliminary hearing could be read to the jury but her recorded statement to the police would be excluded as hearsay. Finally, however, defense counsel never renewed his effort to present such evidence, the court never ruled on the issue, and the recorded statement is not part of the record on appeal.

We agree with the People that the record establishes defense counsel never sufficiently raised the issue of admissibility, precluding any appellate challenge. (People v. Rowland (1992) 4 Cal.4th 238, 259.) We also cannot review any claim of ineffective assistance of counsel because we cannot evaluate Elaines recorded statement, which is not part of the record.

But, even assuming any merit in these two points, we deem any error harmless. Defendant was allowed to testify Elaine was nervous and apprehensive about Toodle and he was afraid of Toodle because of conversations he had with Elaine. There was considerable evidence presented about defendants fearful state of mind and his subjective belief that Toodle presented a threat to himself and Elaine: [T]rial error is usually deemed harmless in California unless there is a reasonabl[e] probab[ility] that it affected the verdict. [Citation.] We have made clear that a probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.] By the same token, a judgment will not be disturbed for lack of evidence if the evidence in support of the judgment is substantial, that is, enough to allow a reasonable jury to have reached the challenged result. [Citation.] (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) There is not even an abstract possibility of a different outcome.

On a slightly different, but related, issue, defendant argues Elaines statement to the police should have been admitted under Evidence Code section 1240 as a spontaneous statement. The trial court ruled Elaines statement did not qualify as a spontaneous statement because it was made hours later. On appeal, defendant reiterates and elaborates upon his previous arguments regarding admissibility for state of mind, an argument we have already rejected. Defendant does not offer any reason or authority why Elaines statements should be considered admissible as spontaneous assertions. We also reject this argument.

Finally, defendant protests the court violated his constitutional right of due process when it declined to tell the jury Elaine was unavailable to testify because she had died. This was not a circumstance in which defendant was denied the right to present a witness to establish his defense. (In re Martin (1987) 44 Cal.3d 1, 29; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) Elaines testimony at the preliminary hearing was allowed.

But Elaines death was not relevant evidence, tending to prove or disprove any disputed fact in the case. (Evid. Code, 210 and 351; People v. Alvarez (1996) 14 Cal.4th 155, 214.) To the extent the jurors may have wondered about her absence, they were instructed not to engage in any speculation about matters outside the evidence. The trial court did not abuse its discretion by excluding the information about Elaines death because it might improperly influence the jury by evoking sympathy. (Alvarez, supra, at pp. 214-215.)

Notwithstanding the absence of abuse of discretion, defendant himself told the jury at the beginning of his testimony that Elaine had died. One of the alternate jurors even read Elaines obituary. No fundamental error was demonstrated.

5. Disposition

Sufficient evidence supports defendants conviction for second degree murder. We find no error and no cumulative error affecting the outcome of the trial. We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/King

J.

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

^[2] For ease of reference, we use the first names of Elaine Jenkins and her son, Charles Jenkins.