P. v. Shank

Filed 6/22/07 P. v. Shank CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant Aaron Benjamin Shank strangled his girlfriend to death, left her body in the back seat of her car along the Sacramento River, and called 911. A jury convicted him of first degree murder. (Pen. Code,  187.)^[1] The jury also found true allegations defendant personally used a deadly or dangerous weapon -- a plastic bag -- in the commission of the crime ( 12022, subd. (b)(1)) and was released from custody on bail at the time of the offense ( 12022.1, subd. (b)). In the sanity phase of the proceedings, the jury found defendant sane when he committed the murder. The court sentenced defendant to prison for 26 years to life with the possibility of parole: 25 years to life for first degree murder and one year for the deadly weapon use enhancement. The court stayed the sentence for the on-bail enhancement.

Defendant raises three issues on appeal. First, he argues that he is entitled to reversal because the court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter based on the defense of diminished actuality. Second, defendant contends the court erroneously instructed the jury in the sanity phase that he could be placed in an outpatient program if found insane at the time of the killing. Third, defendant maintains there is insufficient evidence to support the weapon use enhancement. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, Cristy Bacal, was a licensed vocational nurse who lived in Roseville with her brother, sister, and mother, Belen Atenta. Bacal had a long-distance romantic relationship with defendant who lived in Oklahoma. She and defendant visited each other once or twice a year, wrote letters and talked by telephone.

Defendants close high school friend Daniel DeOme testified at trial. DeOme grew up with Bacal in the Philippines while living there with his missionary parents. DeOme returned to Oklahoma for high school and Bacal eventually joined her family in Roseville. DeOme encouraged defendant to correspond with Bacal, and the couple met in person for the first time at DeOmes marriage to Bacals best friend in October 2000. DeOme had regular telephone conversations with both defendant and Bacal.

Beginning in November 2002, DeOme noticed deterioration in defendants mental health. At first, defendant complained about his physical condition. He then engaged in strange behavior and became increasingly depressed. Defendant began talking about suicide. In March 2003, defendant stole a gun from DeOmes house and fired shots in defendants back yard. After that, DeOme no longer trusted defendant.

Defendants family noticed that defendant fell into a deep depression after returning from a January 2003 visit with Bacal in California. Defendant took leave from work, stopped eating, neglected his personal hygiene and slept a lot. He complained to family members about nightmares and voices telling him to hurt himself. Defendants mother and brother discovered that defendant ran Internet searches on how to commit suicide. Defendant spent three or four days in a mental hospital in February 2003. Doctors prescribed Zoloft for the depression. In April 2003, defendant told friends and family he had taken between 40 and 100 ibuprofen then disappeared for several hours. He was evaluated by a psychiatric team, but not hospitalized.

Defendants relationship with Bacal also began to deteriorate. In April 2003, Bacal made a week-long trip to Oklahoma out of concern for defendants mental state. She also planned to break off the relationship. Bacal stayed with DeOmes family. During the visit, defendant purchased a gun at a pawnshop and took it to DeOmes house where he was meeting Bacal. A search ensued after Bacal alerted DeOme about the gun. Defendant eventually told his father where the gun and magazine could be found. DeOme retrieved a magazine containing three bullets from under a dresser. The next day, defendant told DeOme that he wanted to kill Bacal and then kill himself. When DeOme conveyed what defendant had said, Bacal did not believe that defendant would kill her because he loved her.

Defendant left for California shortly after Bacal flew home. DeOme received several phone calls from Bacal and defendants mother asking if DeOme knew where defendant could be found. DeOme called defendant on his cell phone. In the course of several conversations, defendant finally admitted he was in Sacramento. DeOme called Bacal and told her to be careful because defendant was out there for a reason.

At first, Bacal reported to DeOme that defendant was in better spirits and had started to apply for jobs in the area. However, on May 8, 2003, while Bacal and defendant were at home alone, defendant suddenly attempted to strangle her with his hands. He eventually let go. Bacal did not call the police immediately because she was afraid of how defendant would react. When Bacals mother Belen Atenta arrived home, she noticed that Bacals eyes were very red. Bacal said she had an allergic reaction but did not feel like going to a doctor. Later that night, Bacal slipped a note to Atenta which read, Mom, please call 911. Aaron is crazy and needs some psychiatric help. He tried to strangle me this afternoon. Thats why my face is like this. He really needs help. I guess it has to take something like this. Ill keep a watch on him. He threatened to kill him[self] earlier too. Atenta called 911, the police arrested defendant, and paramedics took Bacal to the hospital.

Officer Ken Nakamura interviewed Bacal at the scene and in the hospital. Bacal told him that she believed defendant suffered from depression and came to Roseville to be with her and possibly to get help for his mental problems. Bacal wanted defendant to obtain psychiatric help. She became upset and stopped talking to Officer Nakamura when he told her that defendant had been arrested.

Nakamura also questioned defendant. Defendant told Nakamura that he suffered from depression and knew that he screwed up by choking Bacal. He did not tell Nakamura that he was suicidal, and Nakamura saw no indication that defendant wanted to commit suicide. When booked into Placer County Jail, defendant told Deputy Natalie James that he had been suicidal over the past six months but did not want treatment.

Defendant bailed out of jail on May 10, 2003. Bail bondsman Adam Garcia invited defendant to stay at his house after his release. Bacal called defendant while he was staying with Garcia, and Garcia told him not to talk to her because he might be violating a restraining order. Defendant showed Garcia and his brother a picture of Bacal. He became upset, apparently jealous, when Garcia commented politely that Bacal was pretty. Defendant saw Garcias brother wrestling with his dog and asked whether you could hurt someone with a choke hold. The brother replied that you could hurt someone with a sleeper hold and demonstrated the technique.

Garcia and his brother left defendant alone at the house when they went to Modesto for Mothers Day. On Mothers Day, Garcias neighbors gave defendant a ride to a shopping center approximately two miles from Bacals home. When Garcia returned from Modesto a day or so later, defendant was gone. Shortly thereafter, Garcias brother telephoned him to say defendant had been arrested for killing his girlfriend.

When Atenta arrived home from work on May 13, 2003, she found defendants shoes in the hallway, and Bacals purse on the table. Defendant, Bacal and Bacals car were missing. Voicemail messages indicated that Bacal had failed to pick up her siblings after school. There was also a voicemail message from defendants mother saying that defendant had left messages for his family and friends saying goodbye. Atenta found a note in defendants handwriting which read: We are going out for grocery and we will be back. Defendant had signed Bacals name at the bottom. She found a second note in defendants handwriting addressed to DeOme in which defendant stated, Danny, I am so sorry for what I have done. Atenta also noticed that a comforter was missing from Bacals bedroom. Atenta called the police to report that Bacal was missing.

Late on the afternoon of May 13, 2003, defendant telephoned 911 from West Sacramento. He told the dispatcher that he had seen a dead body in the back seat of a red Toyota parked in a wooded area near the water tower on the West Sacramento side of the river. Defendant said he would wait for police near the car. Officer Carl Crouch saw defendant standing on the levee. His clothes were wet and muddy. Defendant told Crouch in a monotone voice, I killed her. He repeated, I just snapped, and I killed her.

Police found Bacals car down an embankment in thick bush. Bacals body lay on the back floorboard partially covered by a comforter. She was pronounced dead at the scene.

West Sacramento Police Detective Thomas Maggiano interviewed defendant at the Roseville Police Department on the evening of May 13, 2003. The prosecution played a tape recording of the interview at trial. Defendant described his mental problems which included several months of nightmares about someone killing him and telling him to kill someone else. He told Maggiano that he snapped that day. Defendant described how he started squeezing Bacals neck, stopped for a few minutes, then chased Bacal around the room. She ran toward the front door and told defendant to call the bail bondsman. Defendant thought Bacal was going to call the police, freaked out, and choked her for about 30 minutes on the floor of the family room. He did not know if she was breathing because he heard gargling and saw mucous. Defendant put a plastic grocery bag over Bacals head. After removing the plastic bag, he put a knife blade to her neck. There was no reaction. Defendant used another knife to poke below Bacals breast. Again, she did not react.

Defendant placed Bacals body in the back seat of her car, started the engine, and attempted to kill himself with carbon monoxide. He described trying to suck on the tailpipe of the car while it was running, but the tailpipe was too hot. After about an hour or so, defendant decided to drive to San Francisco to commit suicide. He got off the freeway in West Sacramento to ask directions and decided to hide the car and kill himself in the Sacramento River. The water in the river turned out to be too cold for him to jump in.

Defendant told Maggiano that he had wanted to kill Bacal and commit suicide for a couple of months. He investigated various techniques on the Internet. During Bacals visit to Oklahoma in April, defendant had decided to strangle Bacal rather than shoot her.

The pathologist testified at trial that cuts found on Bacals neck and abdomen could have been made before or after her death. He found a hemorrhage under the scalp which could have been caused by a blow to the head. The pathologist also stated that lip laceratons were consistent with forcefully placing a bag over Bacals head. He determined that the cause of death was asphyxia by manual strangulation, which could have taken minutes or longer if Bacal resisted and the killer released and reapplied pressure. The pathologist was unaware of any correlation between strangulation and the appearance of mucous coming out of the mouth and nose.

DISCUSSION

I.

Instructions on Involuntary Manslaughter

Defendant argues the court erred in refusing to give a lesser included offense instruction on involuntary manslaughter based on his defense of diminished actuality.^[2] Defendant maintains he was entitled to the instruction because the record contains substantial evidence that [defendant] before, during, and after the homicide suffered from a serious and substantial mental illness and was in the throes of a psychotic episode which actually or in fact prevented him from forming the requisite criminal intent. (See People v. Saille (1991) 54 Cal.3d 1103, 1116-1117 (Saille); and People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450 (Mejia-Lenares).) Defendant contends that if believed, this evidence could support a finding that [he] did not harbor malice.

We conclude that the court properly rejected the requested instruction on involuntary manslaughter based on overwhelming evidence that defendant intended to kill Bacal. However, even if we were to conclude that defendant presented sufficient evidence of diminished actuality, and the court erred in failing to instruct on involuntary manslaughter, the error was harmless. (People v. Sedeno (1974) 10 Cal.3d 703, 720 (Sedeno), disapproved in part on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Flannel (1979) 25 Cal.3d 668, 684.)

Involuntary manslaughter results where the killing occurred in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circum-spection. ( 192, subd. (b); People v. Dixon(1995) 32 Cal.App.4th 1547, 1551, fn. 2.) [R]egardless of the manner an act of involuntary manslaughter is committed, the killing must be unintentional. (Ibid.; italics added & omitted.) Involuntary manslaughter is a lesser included offense of murder. (People v. Heard (2003) 31 Cal.4th 946, 981.)

The court has a duty to instruct on lesser included offenses whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. This rule applies regardless of whether defendant requested the instruction. (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis), citing People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Although the court need not instruct on theories not supported, or only weakly supported by the evidence (People v. Reeves (2001) 91 Cal.App.4th 14, 51), the duty to instruct extends to all lesser included offenses that are supported by substantial evidence. (Lewis, supra, at p. 154; Breverman, supra, at pp. 148-149.) In this context, [s]ubstantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (Lewis, supra, at p. 645.)

The failure to instruct on a lesser included offense is subject to our independent review. (People v. Manriquez (2005) 37 Cal.4th 547, 587.) We acknowledge on one hand that [a] defendant has a constitutional right to have the jury determine every material issue presented by the evidence . . . ; an erroneous failure to instruct on a lesser included offense constitutes a denial of that right; and . . . such error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense. [Citations.] (People v. DeJesus (1995) 38 Cal.App.4th 1, 18.) On the other hand, an error in failing to instruct on a lesser included offense will be deemed harmless where the record reflects the jury must necessarily have determined the factual question posed by the omitted instruction in the context of another, properly given instruction. (Ibid.; see Sedeno, supra, 10 Cal.3d at p. 721 [error harmless where the jury convicted defendant of first degree murder rather than second degree murder].)

Defendant relies on Saille, supra, 54 Cal.3d 1103 and Mejia-Lenares, supra, 135 Cal.App.4th at p. 1450 in arguing he was entitled to the involuntary manslaughter instruction based on diminished actuality. One of the issues in Saille was whether, in light of the abolition of the diminished capacity defense, California law still permitted reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or mental disorder. (Saille, supra, 54 Cal.3d at p. 1107.) The court explained: In amending section 188 in 1981, the Legislature equated express malice with an intent unlawfully to kill. Since two distinct concepts no longer exist, there has been some narrowing of the mental element included in the statutory definition of express malice. A defendant, however, is still free to show that because of his mental illness or voluntary intoxication, he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought). (Id. at pp. 1116-1117, italics omitted.) The court continued in dictum: In a murder case, if this evidence is believed, the only supportable verdict would be involuntary manslaughter or an acquittal. If such a showing gives rise to a reasonable doubt, the killing (assuming there is no implied malice) can be no greater than involuntary manslaughter. (Id. at p. 1117.) Mejia-Lenares states that diminished actuality remains a viable concept. (135 Cal.App.4th at p. 1450.) While the Legislature, in eliminating the diminished capacity defense, precluded jury consideration of mental disease, defect, or disorder as evidence of a defendants capacity to form a requisite criminal intent, . . . it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent. [Citations.] (Ibid.; italics omitted.)

To support his claim of error in rejecting the requested instruction, defendant cites evidence of his severe depression, disorientation, auditory hallucinations and suicide attempts, and argues he may have snapped and/or acted at the behest of command hallucinations at the time of the homicide. Defendants summary of facts ignores evidence that shows that in spite of the fact that defendants mental illness manifested itself in various ways in the weeks before he strangled Bacal, the killing remained intentional. Defendant had planned to kill Bacal for two months and investigated different methods on the Internet. He decided to strangle rather than shoot Bacal after her visit to Oklahoma in April 2003. Defendant discussed the effects of the sleeper hold with the bail bondsmans brother a couple of days before the killing. Defendant telephoned his family in Oklahoma to say goodbye hours before he killed Bacal. He gave Detective Maggiano at least three reasons for his actions, each of which showed an intent to kill. Defendant acknowledged he was mad at Bacal after being arrested, was afraid she was going to call the police, and believed he and Bacal would be together in heaven if he killed her and himself. This evidence shows that defendant actually formed the required criminal intent.

Even if we were to conclude there was sufficient evidence to justify defendants instruction on involuntary manslaughter, the error in failing to give the instruction was harmless. The court instructed the jury on first and second degree murder. There were no instructions on felony murder. Had the jury found that the prosecution failed to prove premeditation and deliberation beyond a reasonable doubt, it would have returned a verdict of second degree murder. Had the jury found that the prosecution failed to prove beyond a reasonable doubt that defendant acted with malice aforethought, it had the option of acquitting defendant of murder. Instead, the jury found defendant guilty of first degree, premeditated murder. There was no prejudice. (Sedeno, supra, 10 Cal.3d at p. 721.)

II.

Instructions on Sanity

Defendant argues he is entitled to reversal because the court erred in denying his request to delete a portion of Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3450, the instruction which informs the jury about the determination and effect of a verdict of insanity.^[3]Defendant asserts that the instruction contained prejudicially irrelevant principles and misled jurors by suggesting that a verdict of not guilty by reason of insanity could result in release and outpatient treatment and that an additional sanity trial would be required to continue [defendants] incarceration.

We acknowledge that the court has a duty to refrain from giving irrelevant instructions that might confuse the jury. (People v. Saddler (1979) 24 Cal.3d 671, 681.) In this case, we conclude that the instruction was not confusing when read in its entirety.

The parties agree that the instruction at issue, CALCRIM No. 3450, and its predecessor CALJIC No. 4.01, were designed to protect the defendant by alleviat[ing] any juror fear that an insanity finding [would] result in the release of the accused into the community. (People v. Kelly (1992) 1 Cal.4th 495, 538 (Kelly).) People v. Kipp (1986) 187 Cal.App.3d 748 (Kipp), cited by defendant in support of his argument that the reference to outpatient treatment was prejudicial, disapproved a special jury instruction which stated that a later finding of restored sanity would result in the defendants release. Kipp does not apply to the circumstances of this case.

Consistent with the intent to protect defendants, the third paragraph of CALCRIM No. 3450 reads in its entirety: If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law. Until that time he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not, generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for his crime. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide whether the defendant was legally sane or insane at the time of the crime. You must not speculate as to whether he is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way. (Italics added.)

At trial, defendant asked the court to strike the italicized portion of the instruction because it was [in]applicable to the facts of this case where the defendant has been convicted of first degree murder, which carries a life term. As such, one cannot be in-custody in an outpatient program, nor does the issue of being held longer than the maximum period of confinement apply since the maximum term in this case is a life term. Therefore, the modification would appropriately and correctly state the effect of a verdict of not guilty by reason of insanity in this case. Defendant reads too much into the reference to an outpatient program.

The challenged portion of the instruction follows the unequivocal statement: If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law. The reference to an outpatient treatment program is qualified by the words, if appropriate. The foregoing language protects the defendant and is consistent with the intent to alleviate any juror fear that an insanity finding would result in the release of the accused into the community. (Kelly, supra, 1 Cal.4th at p. 538, citing People v. Moore (1985) 166 Cal.App.3d 540, and CALJIC No. 4.01.) Neither party attempted in closing argument to divert the jurys attention from the central focus of the proceeding and CALCRIM No. 3450 whether defendant was sane at the time he killed Bacal.

The third paragraph of CALCRIM No. 3450 ends with the admonition: You must not let any consideration about where the defendant may be confined, or for how long, affect your decision [regarding sanity] in any way. Absent evidence to the contrary, we presume the jurors followed the courts instructions. (People v. Davenport (1995) 11 Cal.4th 1171, 1210.)

The court did not err in denying defendants request to delete part of CALCRIM No. 3450.

III.

Sufficiency of the Evidence to Support the Personal

Weapons Use Enhancement

The amended information alleged defendant personally used a deadly or dangerous weapon, specifically, a plastic bag, when he killed Bacal. Defendant contends there is insufficient evidence to support the jury finding that he used the plastic bag in the commission of the homicide. ( 12022, subd. (b).) He maintains the evidence shows that Bacal was dead before the plastic bag was placed over her head. We reject defendants contentions.

When a criminal defendant challenges the sufficiency of the evidence on appeal, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573].) In answering this question, we presume in support of the judgment the existence of every fact, including every reasonable inference, that the trier of fact could reasonably have deduced from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) The same standard applies whether the evidence is direct or circumstantial. (People v. Towler (1982) 31 Cal.3d 105, 118.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

Section 12022, subdivision (b) sets forth the personal use enhancement at issue here: Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. For purposes of weapons enhancements, the presence of the weapon ‛cannot be the result of accident or coincidence. (People v. Bland (1995) 10 Cal.4th 991, 1002, italics omitted.) In this context, use requires the use of the deadly weapon during the commission of the crime and a facilitative nexus between the use of the weapon and the commission of the crime. (Ibid.) The crime of murder is complete when the victim has died and there is no facilitative nexus if defendant used the weapon after the victim was already dead. The question here is whether defendant placed the plastic bag over Bacals head before or after she died.

We conclude there is circumstantial evidence from which a rational jury could have inferred that defendant placed the plastic bag over Bacals head before she died as part of his effort to asphyxiate her. The pathologist testified that Bacals death could have taken minutes or longer if she resisted and the killer released and reapplied pressure to her neck. He was unaware of any correlation between strangulation and the appearance of mucous. Defendant told Detective Maggiano that he squeezed Bacals neck for about 30 minutes. She stopped struggling after the first five minutes. Defendant stated he used the plastic bag to prevent Bacal from breathing while she was still making gargling noises and excreting mucous. The evidence that lacerations on the victims lips were consistent with forcefully putting the bag over her head implies she was still alive and struggling.

Although a different fact finder might have drawn different inferences from the evidence, there is sufficient evidence to support this jurys finding that defendant used the plastic bag in the commission of the murder. Nothing more is required under the well-established principles of appellate review.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND, P.J.

BLEASE , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]The requested instruction read:

When a person commits an unlawful killing but does not intend to kill due to his mental illness, then the crime is involuntary manslaughter.

The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

The defendant committed involuntary manslaughter if:

1. There is reasonable doubt as to whether the defendant could form the necessary intent to unlawfully kill with malice aforethought due to mental illness; AND

2. The defendants acts unlawfully caused the death of another person.

^[3]Although defendant argues for reversal of the judgment, we assume he seeks reversal of the jury verdict in the sanity phase of the trial.