P. v. Mahoney

Filed 8/16/07 P. v. Mahoney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J. Michael Welch, Judge. Affirmed.

James M. Crawford, 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, Scott C. Taylor, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Gene Mahoney was charged with one count of first degree murder, with associated firearm enhancements. (Pen. Code,  187, subd. (a), 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a).)^[1] He was acquitted of that charge, and of the lesser included offense of second degree murder. He was convicted of the lesser included offense of voluntary manslaughter, a violation of section 192, subdivision (a). The firearm allegations were found to be true. Defendant was sentenced to 10 years in prison.

Defendant appeals, contending the prosecutor committed prejudicial misconduct by misstating the law concerning the lesser included offense of involuntary manslaughter during his closing argument.

I. FACTS

On August 7, 2004, defendant shot and killed his brother-in-law, Thomas Harris. The sole issue at trial was defendants mental state at the time of the shooting.

Rhonda Harris was defendants wife at the time of the shooting, and the sister of the victim. She testified that she and her brother ran some errands and then went to her mobile home for dinner. Defendant was home at the time.

Ms. Harris testified that defendant and her brother had an argument about a month earlier, but her brother had come to the mobile home after that without incident. On the evening of the shooting, they were all sitting at a table talking for several hours and drinking wine. Defendant and Mr. Harris were not acting strangely, and were behaving in their normal manner.

Around 9:00 p.m., Ms. Harris went to the bathroom. As she did so, she heard her brother say: You aint never gonna hit my sister. When she returned from the bathroom about a minute later, she saw a weird look on her brothers face. She turned around and saw defendant with a shotgun in his hand. Without saying anything, defendant shot Mr. Harris, killing him.

Ms. Harris called 911 and left the mobile home. Officers arrived and arrested defendant.

Officer John Munoz testified that, immediately after the shooting, Ms. Harris told him that the group was drinking and that, at one point, her brother said that the devil was better than God, and exhibited a tattoo on his arm which he claimed was a sign of the devil.^[2] The officer also noted that defendant had a laceration on the bridge of his nose.

At this point, the prosecution rested. The defense then called Officer Lane Thompson, an officer who had contact with defendant after defendant was arrested. Defendant told the officer: [Mr. Harris] just hit her; I guess I lost it and I shot him. According to the officer, defendant also said: I cant believe I just shot my brother-in-law. If I killed him, I just want to get my lethal injection and go home. Defendant also told the officer that he had been arguing with the victim, and they had had a tumultuous relationship for about five years. Defendant also told the officer that the victim had punched him in the nose after defendant asked the victim to leave. Defendant claimed that he had picked up the shotgun in an attempt to scare the victim into leaving. Defendant then claimed he blacked out and didnt recall actually pulling the trigger. Defendant also claimed he was shocked that there was a live round in the chamber.^[3]

Defendant relied primarily on the expert testimony of Dr. David Glassmire, a forensic psychologist. He examined defendant to form an opinion as to defendants mental state at the time of the shooting. He was told that defendant had an episode of withdrawal from the drug Xanax while in the Orange County jail in 1998.^[4] According to jail records, defendant was confused, disoriented, and paranoid at the time. Defendant told Dr. Glassmire that he was withdrawing from Xanax at the time of the current offense.

Dr. Glassmire also reviewed defendants records from the West Valley Detention Center infirmary two days after the killing of Mr. Harris. These medical records showed a diagnosis of Xanax withdrawal and hallucinations. The staff observed that defendant was very confused and disoriented. Defendant had visual hallucinations and exhibited bizarre behavior. He was put on suicide watch.

Dr. Glassmire specifically tested defendant for evidence of malingering, but found none. Defendant told Dr. Glassmire about the shooting: His description to me was that he was punched in the nose and that he saw sort of a ‑‑ I think ‑‑ a bright light or doesnt really remember what happened at that point. And that the next thing he remembered was that he was standing there with a gun in his hand and his wife was saying you just shot my brother.

Dr. Glassmire considered a hypothetical question dealing with alcohol intoxication and Xanax withdrawal and concluded: [S]omebody whos either intoxicated or withdrawing from Xanax, they are going to have . . . less ability to think about and plan out their actions, to think about the potential consequences of their actions before engaging in those actions. They are more likely to act in a more impulsive manner or in a reactive manner because they dont consider as to any ‑‑ the way most people normally would when not intoxicated or withdrawing from Xanax the possible consequences of their actions. So there is a greater possibility of acting impulsively, yes. However, the doctor also testified that defendant was back to his maximum Xanax prescription nine days before the shooting.

As noted above, the jury found defendant not guilty of first or second degree murder, but did find him guilty of voluntary manslaughter.

II. DISCUSSION

A. The Statutes

Section 187, subdivision (a), defines murder as the unlawful killing of a human being with malice aforethought. First and second degree murder are defined in section 189, while manslaughter is defined in section 192. Section 192 states that manslaughter is the unlawful killing of a human being without malice. Voluntary manslaughter occurs upon a sudden quarrel or heat of passion. Involuntary manslaughter is an unlawful killing 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 circumspection. ( 192.)

B. The Jury Instructions

The jury was properly instructed on the elements of murder and manslaughter, and defendant does not contend otherwise.

Manslaughter was defined by giving Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM Nos. 570 and 580. CALCRIM 570 is titled Voluntary Manslaughter: Heat of Passion‑‑Lesser Included Offense. That instruction begins: A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The instruction goes on to define provocation and, from a jury question, it appears that at least one juror was concerned with this issue. To find voluntary manslaughter, the jury had to find that defendant acted with the intent to kill. (CALCRIM No. 3428.)

CALCRIM No. 580 defines involuntary manslaughter. It begins: When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

Our focus is on the following portion of the instruction: The defendant committed involuntary manslaughter if: [] 1. The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence); [] AND [] 2. The defendants acts unlawfully caused the death of another person. (CALCRIM No. 580.)

However, as given, the paragraph stated: The Defendant committed involuntary manslaughter if the Defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed and the defendants acts unlawfully caused the death of another person.

The phrase committed a lawful act, but acted with criminal negligence was omitted. Trial defense counsel subsequently explained the omission by saying that the phrase was stricken because of the theory of the case is that he did in fact commit a crime that posed a high risk of death or great bodily injury. The issue here arose because the prosecutor argued that there was no involuntary manslaughter because defendants conduct was unlawful.

In other words, the crime is involuntary manslaughter [w]hen a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life . . . . (CALCRIM No. 580.)

The jury was also instructed: You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions. (CALCRIM No. 200.)

In addition, the jury was told: Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. (CALCRIM No. 222.)

C. Closing Arguments

In his closing argument, the prosecutor first used charts to explain the differences between first and second degree murder and manslaughter.^[5] He properly explained that voluntary manslaughter requires an intent to kill, and involuntary manslaughter does not. He argued: So involuntary manslaughter. You dont even have the intent to kill. It just happens for some reason. You are doing something carelessly or for some other reason somebody is killed as a result of your intentional act need not necessarily have been a horrible act that [you] are doing, but it was an intentional act that you did that caused the death of somebody else. Thats involuntary manslaughter. There is no evil intent there at all. In the remainder of his argument, the prosecutor attacked the testimony of the defendants forensic psychologist.

In her closing argument, trial defense counsel argued that defendant was only guilty of involuntary manslaughter because he did not intend to kill Mr. Harris. She relied on defendants blood alcohol level, .20 percent, and her experts testimony concerning the alleged Xanax withdrawal symptoms. With regard to the instruction at issue, trial defense counsel concluded her argument by saying: His actions were poorly thought out and impulsive and stupid and he overreacted. And because . . . he committed a crime that posed a high risk of death and he unlawfully caused the death of another, but that is involuntary manslaughter. In other words, trial defense counsel argued CALCRIM No. 580 as given.

The prosecutor responded by arguing that this was not a case of involuntary manslaughter: Well, for you to find him guilty of involuntary manslaughter, to be involuntary manslaughter the killing must have taken place during the commission of an act ordinarily lawful which involves a high degree of risk, death, or great bod[ily] harm without due caution and circumspection. Sometimes we call it negligent manslaughter. Youll notice the italicized words here for it to be involuntary manslaughter, his conduct on that day must have been ordinarily lawful. There is nothing lawful about getting punched in the nose and taking a shotgun to somebody. It cannot be involuntary manslaughter if that is [the] situation. [] She didnt explain that to you. But that is the law and youll have the instructions. Thats why this is not an involuntary manslaughter case. He has to engage in lawful conduct and that somehow caused the death.

Trial defense counsel did not immediately object, but subsequently approached the bench in an unreported conference. After the jury left, trial defense counsel raised the CALCRIM No. 580 issue, and argued that the prosecutors argument was a misstatement of the law based on the prosecutions theory of the case.

The trial court responded by citing the preceding paragraph of CALCRIM No. 580 which states, in relevant part: 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. (CALCRIM No. 580.) The trial court ruled: [T]hats a clear definition of what [involuntary manslaughter] is and I think thats an explanation for what [the prosecutor] had mentioned to the jurors. It therefore overruled the objection.

D. Prosecutor Misconduct

Defendant now contends that the prosecutor misstated the law during his final closing argument and thereby committed prejudicial misconduct.

Misstatement of the law during closing argument is misconduct. (People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.) [I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 829-830, 832.)

The People concede that the prosecutor here misstated the law: To the extent the prosecutors comments could be interpreted to suggest that the offense of involuntary manslaughter requires the killing to have occurred during the commission of a lawful act, he incorrectly stated the law.

The issue here is whether the misconduct was prejudicial. Defendant contends that there was prejudice under Chapman and/or Watson standards. (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.) He contends that the theory of the defense was that he was guilty of involuntary manslaughter because he committed a crime that posed a high risk of death and he unlawfully caused the death of another. He argues that the defense theory was undercut by the prosecutions improper reply argument that the conduct must have been lawful to have been involuntary manslaughter. Accordingly, he finds the misconduct prejudicial because the prosecutors argument misled the jury to conclude that there was no viable theory to convict him of involuntary manslaughter.

We disagree with defendants prejudice analysis. As noted above, the difference between voluntary and involuntary manslaughter is intent to kill, and the determinative issue on the manslaughter was whether or not defendant had the intent to kill when he fired the shotgun. The prosecution emphasized that defendant went to the bedroom, got the shotgun, returned, pointed it at the victim, and fired. The defense emphasized that he thought the gun was unloaded, that he was drunk, and that he was delusional because of his alleged withdrawal from Xanax. Although the prosecutor improperly argued that there was no involuntary manslaughter because there was no lawful conduct, no one argued that defendants conduct was lawful.

But the determinative factor in the prejudice analysis is that the jury was properly instructed on voluntary and involuntary manslaughter. It was also instructed that the instructions prevailed over the attorneys statement of the law: If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions. (CALCRIM No. 200.) Of course, it is presumed that the jury followed the instructions, and the prosecutors misconduct was not so egregious or pervasive as to constitute a breakdown of the adversarial process.

Defendant argues that: Had the jury adopted [his] theory of the case, it is reasonably probable [he] would have been convicted of involuntary rather than voluntary manslaughter. We disagree because, by finding defendant guilty of voluntary manslaughter, the jury necessarily found that defendant had the intent to kill when he fired the shotgun. Since that determination was made, the prosecutors misstatement of the law did not substantially affect the outcome. The error was harmless beyond a reasonable doubt under Chapman and it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error under Watson. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.).

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

J.

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

^[2]Ms. Harris testified that she did not remember telling the officer that, and she may have confused the conversation with a conversation at the time of their earlier argument.

^[3]The parties stipulated that defendants blood alcohol content at the time of the shooting was .20 percent.

^[4]Dr. Glassmire testified that Xanax is an anti-anxiety medication which is prescribed for panic disorder. Defendant had been diagnosed with panic disorder.

^[5]The charts used by the prosecutor are not in our record.