P. v. Laine

Filed 8/7/07 P. v. Laine CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Frank

F. Fasel, Judge. Affirmed as modified.

Brett Harding Duxbury, 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, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of first degree murder for fatally shooting his former girlfriend Kim OHara. On appeal, he faults the trial court for failing to preinstruct the jury on certain legal concepts and refusing his proposed instruction on heat of passion. He also contends the court erred in allowing evidence that OHara was afraid of him and that he had a propensity for domestic violence. We reject these contentions and, other than correcting a clerical error in the abstract of judgment, affirm the judgment in its entirety.

* * *

OHara and appellant dated for several years, but in late 2002 their relationship deteriorated to the point where she obtained a restraining order against him. About a year later, in February 2004, OHara met Lawrence Michaelson. During the course of their relationship, she told him her former boyfriend appellant had been following her since she broke up with him. She appeared frightened and said she was afraid of appellant.

On February 12, 2004, OHara and Michaelson were having lunch at a mini-mart in Anaheim when appellant came in and joined them. The three conversed briefly, and then appellant gruffly told OHara, Lets go. When she asked where, he said the usual place. OHara asked, Wheres that? and said she had things to do. But she left with appellant.

Outside in the parking lot, they began arguing and OHara started walking away from appellant. He followed her, pulled a gun and shot her several times in the back. She was still alive at that point, but appellant got into his truck, drove up to her and finished her off with three more shots.

The defense presented evidence appellant suffers from a brain disorder that impairs his ability to control his impulses. It also presented evidence OHara was unfaithful in her relationships and once falsely accused her former husband of domestic violence. According to defense witnesses, OHara not appellant was the aggressor in their relationship, and she actively pursued appellant, even after the restraining order was issued.

Testifying in his own behalf, appellant claimed OHara had led him to believe she wanted to reconcile at the time he met her at the gas station. However, seeing her with Michaelson, he began to have his doubts. Outside in the parking lot, he became angry when OHara insinuated her relationship with Michaelson was sexual. Appellant called her a whore, and she slapped his face. Feeling manipulated, he then pulled a gun and shot her in a clouded fit of rage and confusion.

I

Appellant contends the court erred by failing to preinstruct the jury on the presumption of innocence and the prosecutions burden of proof. Although the court instructed the jury on these principles at the close of evidence, appellant argues the courts failure to do so at the start of the trial violated his due process rights.

In so arguing, appellant relies on Penal Code section 1122, subdivision (a). However, that section merely requires the court to preinstruct the jurors as to what they can and cannot do during the trial; it does not require preinstruction on any legal principles.^[1]

The presumption of innocence and burden of proof in a criminal trial are set forth in Penal Code section 1096. In charging the jury, it is sufficient if the trial court reads that section without elaboration. (Pen. Code,  1096a.) There is no statutory requirement it be done before the trial begins. (See generally Pen. Code,  1093 [judge may charge jury after evidence is concluded and the parties have argued the case].)

As for what the constitution requires, [t]here can be little question that instruction on the presumption of innocence and the reasonable doubt standard of proof after the presentation of evidence places the concepts at center stage for consideration during deliberations. . . . If any phrase should be ringing in the jurors ears as they leave the courtroom to begin deliberations, it is proof beyond a reasonable doubt. [Citation.] (People v. Crawford (1997) 58 Cal.App.4th 815, 825.) Instructions given after the evidence has been received and before deliberations commence is one way of protecting an accuseds constitutional right to be judged solely on the basis of proof adduced at trial. (Id. at p. 826.)

By instructing the jury on the presumption of innocence and burden of proof at the close of evidence, the trial court put these concepts front and center for the jury as they embarked on deliberations. The jurors also had a copy of the courts instructions with them during deliberations, to remind them of these concepts. Under these circumstances, the court was not required to preinstruct the jury on them. No due process violation has been shown.

II

Appellant also claims the court erred in admitting OHaras statements to Michaelson that she had broken up with appellant, he had been looking for her and she was afraid of him. He contends the statements should have been excluded because OHaras state of mind was not at issue, but we disagree.

Statements pertaining to a declarants then existing state of mind or emotional feelings are admissible when his or her state of mind or feelings are an issue in the action or the statements are offered to prove or explain acts or conduct of the declarant. (Evid. Code,  1250, subd. (a)(1), (2).) As appellant concedes, a victims expression of fear is admissible under this section if it disputes the accuseds version of events. (See People v. Ruiz (1988) 44 Cal.3d 589, 608.)

OHaras statements were relevant to two disputed areas of the trial, the first being the nature of her relationship with appellant. The defense evidence portrayed OHara as an aggressive, manipulative person who was bent on reconciling with appellant, whereas the prosecution postulated appellant was pursuing OHara. Obviously, OHaras statements that appellant had been following her after she broke off their relationship and that she was afraid of him were relevant in terms of helping the jury assess the character of their relationship and who was pursuing whom.

Beyond that, OHaras mental state was relevant as to what happened before the shooting. In his testimony, appellant made it sound like OHara followed him out into the parking lot and acted so provocatively and aggressively that she virtually invited a violent response from him. Given this testimony, it was surely relevant that OHara told Michaelson that appellant had been following her and that she was afraid of him. Because this evidence put appellants version of events in a whole different light, it was admissible under Evidence Code section 1250.

Appellant also contends the admission of OHaras statements violated his federal confrontation rights because he did not have the opportunity to cross-examine her at trial. But, of course, thats because he killed her. By taking OHaras life, appellant lost the right to object on confrontation grounds to the admission of her statements. (People v. Giles (2007) 40 Cal.4th 833, 837.)

III

Next, appellant cites as error the courts failure to give his requested instruction on heat of passion. The instruction reads:

A defendant may act in the heat of passion at the time of killing as a result of a series of events which occur over a considerable period of time.

Where the provocation extends for a long period of time, take such period of time into account in deciding whether there was a sufficient cooling period for the passion to subside.

The burden is on the prosecution to establish beyond a reasonable doubt that the defendant did not act in the heat of passion.

The trial court refused to give the instruction on the grounds it was argumentative and redundant, and we agree with the court in this regard. For instance, per CALJIC No. 8.50, the court expressly instructed the jury on the burden of proof as set forth in the third paragraph of the requested instruction, thus making that paragraph redundant.

The court also instructed the jury that legally adequate provocation may occur over a considerable period of time (CALJIC No. 8.42), which is precisely what the first paragraph of appellants requested instruction was intended to convey. A trial court is not required to give instructions that are superfluous or repetitive of others. (People v. Lewis (2001) 25 Cal.4th 610, 653.)

As for the second paragraph of appellants requested instruction, it suffers from a different problem. Although it did not contain the words shall or must, it was worded in such a way that if the jury believed appellant was provoked over an extended period of time, it would have been required to consider that period in determining the effect of a cooling-off period. But regardless of how long or short the period of provocation, the jury should consider all the facts to determine whether sufficient time ha[d] elapsed between the provocation and the [killing] for passion to subside and reason to return. (People v. Wharton (1991) 53 Cal.3d 522, 571, italics added.) By effectively telling the jury that it must consider a long period of provocation in determining the effect of a cooling-off period, [appellants] proposed instruction improperly singled out one factor, favorable to [appellant], and improperly elevated it over other facts that the jury should also consider. (Ibid.) Therefore, it was properly refused. (Ibid.)

IV

Lastly, appellant contends the court violated his right to due process and equal protection by allowing the prosecution to use evidence of his prior domestic violence toward OHara to prove his propensity to murder her. (See CALJIC No. 2.50.02.) Again, we disagree.

The introduction of propensity evidence in domestic violence cases is sanctioned under Evidence Code section 1109, which states evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. (Evid. Code, 1109, subd. (a)(1).) Courts have consistently upheld Evidence Code section 1109 against claims it is unconstitutional. (See, e.g., People v. Cabrera (2007) 152 Cal.App.4th 695 [statute satisfies due process]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1313 [statute satisfies equal protection]; cf. People v. Falsetta (1999) 21 Cal.4th 903, 917 [Evidence Code section 1108, which allows evidence of prior sex offenses to be used as propensity evidence in sex crime cases, comports with due process].) For the reasons explained in these cases, we reject appellants constitutional challenges to Evidence Code section 1109 and uphold the use of propensity evidence at his trial.

DISPOSITION

The abstract of judgment, which currently states appellant was sentenced to a term of 1 year to life for counts 50, is ordered modified to reflect the fact that

appellant was sentenced to 50 years to life on count 1. In all other respects, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

IKOLA, J.

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^[1] Penal Code section 1122, subdivision (a) provides: After the jury has been sworn and before the peoples opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury.