P. v. Matlock

Filed 9/7/07 P. v. Matlock CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.

A jury convicted David Charles Matlock (Matlock) of second degree murder (Penal Code,^[1] 187) and found true that he personally used and discharged a firearm to cause death. ( 12022.53, subd. (d); 12022.5, subd. (a)(1).) The trial court sentenced Matlock to 40 years to life as follows: 15 years to life on the murder conviction and 25 years to life on the section 12022.53, subd. (d) enhancement; it imposed and stayed a 4-year sentence on the 12022.5, subd. (a)(1) enhancement pursuant to section 654.

Matlock contends the trial court erroneously: (1) instructed the jury regarding imperfect self defense; (2) excluded impeachment evidence indicating a witness had used narcotics one week before the trial; and (3) stayed the 12022.5, subd. (a)(1) enhancement instead of striking it. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution case

Matlock and Eulalia Oliver (Oliver) started dating in 1996, and had a son born in 1997. Oliver testified she and Matlock subsequently had a "rocky" relationship, and separated in 1999. Oliver began dating Ontario McElroy in 2001. In November, 2003, Oliver obtained a temporary restraining order against Matlock, who had hit her because he disapproved of her driving their son in one of McElroy's vehicles.

Oliver testified that on February 22, 2004, between 1:00 and 2:00 p.m., Edna Still (Matlock's mother) telephoned her and said Matlock was on his way to Oliver's apartment to pick up the child. Shortly afterwards, Still telephoned Oliver again and asked whether McElroy was with her. Oliver confirmed that he was, and Still asked her to hide McElroy. Oliver responded that Matlock would recognize McElroy's car parked outside the apartment. Still told Oliver she would call Matlock and try to have Daniel Matlock (David's brother) pick up the child. Oliver agreed that was a better idea.

Matlock arrived at Oliver's residence approximately twenty minutes after that last phone call. Sharon Oliver Oliver's mother testified she thought she heard Daniel Matlock's voice at the door. Sharon Oliver opened the door but did not see Daniel. Instead, Matlock and another man referred to as "Uncle Dirty" entered the apartment. Sharon Oliver was surprised to see Matlock, who had never been to that apartment. She told them they could not come in.

Matlock saw McElroy in the apartment and said something like, "How could [McElroy] be around [Matlock's] son and [Oliver] . . . after getting into a shootout with [Matlock]."^[2] Ontario responded with a statement to this effect: "Well, what do you want to do about it? What do you want to do now, because I am angry here."

Sharon pushed Matlock outside; but he heard a comment McElroy made and went back inside. Oliver was standing in front of McElroy to prevent any fight. Matlock moved Sharon aside, took out his semiautomatic Glock firearm, and fired shots in the direction of Oliver and McElroy. McElroy shoved Oliver out of the way. McElroy was hit by the nine bullets Matlock fired at him, including several from behind as McElroy moved away. Both Oliver and Sharon testified McElroy did not have anything in his hand during the incident.

Oliver called 911, and Deputy Sheriff Brandon Gavin responded to the scene two or three minutes later. The police found McElroy still breathing. The paramedics arrived, administered CPR to McElroy and took him by ambulance to the hospital, where he was pronounced dead approximately one hour later.

Deputy Sheriff David Martinez, a detective in the homicide unit, investigated the crime approximately two hours after it occurred. At trial, he described the layout of the apartment: the doorway opens into a living room; a dining room is in the center area, and a hallway leading to two bedrooms. He noticed a trail of blood on the floor of the house leading from the entryway through the hallway to one of the bedrooms; there also were bloodstains on the wall outside and inside the bedroom. He found a total of nine shell casings from a 10-millimeter semiautomatic weapon: one in the living room, three in the dining room, and six in the hallway. Based on the overall evidence, he concluded the shooter moved from one room to another. The police did not find a gun on McElroy's person or in the apartment.

Dr. Christina Stanley performed an autopsy on McElroy and testified, "He had a total of eight gunshots pass through his body. I also had an X-ray, before I started, that told me there was a bullet inside of him." Several of the bullets entered Matlock's left buttock and his back, including one that entered his buttock and lacerated his rectum; another entered the left side of his back and exited the right front side of his upper right thigh. Dr. Stanley concluded McElroy died of multiple gunshot wounds, one of which perforated the right ventricle of his heart, and would cause "a very rapidly fatal injury."

Defense Case

Matlock testified McElroy had threatened him several times in the past. On November, 2003, McElroy went to Matlock's home and banged on the door. McElroy was wearing a glove and carried a gun in his pants. McElroy was angry and called Matlock a coward and threatened to kill him. That evening, Matlock and McElroy saw each other at a swap meet. Matlock drove away, but McElroy followed him and fired numerous shots that struck Matlock's vehicle. Matlock never reported these incidents to the police. Afterwards, Matlock out of fear for his life purchased and started carrying a Glock.

Matlock testified he told Oliver he did not want his son around McElroy because McElroy was a gang member whose cars had been shot at.

Matlock testified that during the incident at Oliver's apartment, he fired the shots at McElroy after McElroy reached inside his pants for a gun; Matlock feared for his life and started shooting. Matlock testified, "When I was shooting, I was just squeezing. I was not concentrating on hitting. I was pointed in that direction, just squeezing the trigger." Matlock saw McElroy go down the hallway inside the apartment, and at that point Matlock realized "the gun had stopped," and "the gun wouldn't shoot anymore." Matlock threw away the gun he used in the incident and left California the night of the shooting.

Over one year later, Matlock was arrested in Tennessee. The arresting authorities found in Matlock's vehicle a Tennessee driver's license with Matlock's picture but under a different name; a Glock pistol, a Norinco Mac-90 gun, and ammunition for the firearms.

DISCUSSION

I.

Matlock contends the court prejudicially erred by not excluding the following sentence from the standard CALJIC No. 5.17 instruction: "However, [self-defense] is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force, attack or pursuit." We disagree.

Matlock did not request that this portion of the instruction be stricken. Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Kimble (1988) 44 Cal.3d 480, 503.) At any rate, it has been held that "[t]his instruction [is] legally correct." (People v. Hardin (2000) 85Cal.App.4th 625, 634.)

" 'The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' " (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Here, based on the specific language challenged, the instructions as a whole, and the jury's findings, we conclude there was no error. (People v. Cain (1995) 10 Cal.4th 1, 36.) The jury was fully and correctly instructed on first and second degree murder, as well as the lesser offenses of voluntary and involuntary manslaughter. They were also instructed regarding Matlock's primary defenses of self-defense and imperfect self-defense and on heat of passion and cooling off. The jury was instructed that a plea of self-defense may not be contrived (CALJIC No. 5.55), and that the right of self-defense ends when the danger "ceases to appear to exist" (CALJIC No. 5.52); and after the adversary is disabled (CALJIC No. 5.53.)

CALJIC No. 5.12 defined justifiable homicide in self-defense as follows: "The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [] 1. That there is imminent danger that the other person will either kill him or cause him great bodily injury; and [] 2. That it is necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to himself. [] A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one's self from death or great bodily harm."

CALJIC No. 5.51 explained: "Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person's right of self-defense is the same whether the danger is real or merely apparent."

CALJIC No. 5.17, defined the so-called defense of unreasonable self-defense that reduces murder to manslaughter: "A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter. [] As used in this instruction, an 'imminent' peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force, attack or pursuit. [] This principle applies equally to a person who kills in purported self-defense or purported defense of another person." (Emphasis added.)

CALJIC No. 5.50.1 stated: "Evidence has been presented that on prior occasions the alleged victim threatened or assaulted. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed his life or physical safety was endangered at the time of the commission of the alleged crime. [] In addition, a person whose life or safety has been previously threatened, or assaulted by another is justified in acting more quickly and taking harsher measures for self protection from an assault by that person, than would a person who had not received threats from or previously been assaulted by the same person."

Even if we assumed there was instructional error, there was no prejudice. The jury rejected Matlock's claims of self-defense because there was overwhelming evidence of Matlock's guilt: he testified he fired at the defendant several times. Oliver and Sharon testified McElroy did not have a gun during the incident, and the police did not find a gun at the crime scene. The autopsy and forensic evidence demonstrated Matlock was shot several times from behind, thus contradicting Matlock's self-defense claim.

II.

At trial, Matlock sought to impeach the credibility of Sharon Oliver with testimony by Daniel Matlock that he saw her one week before trial and she was under the influence of drugs at the time. The trial court ruled that such testimony was inadmissible because: "It is not relevant to anything, other than to potentially impeaching her testimony relating to her current use or non-use of drugs. There was nothing to indicate she was on drugs during her testimony in this case. And the fact that Daniel thinks she was using drugs a week ago is, under [Evidence Code, section] 352, not relevant enough to allow the testimony and cross-examination that will surely come up on that issue."

We reject Matlock's contention the trial court's evidentiary ruling violated his right to confrontation under the Sixth Amendment of the federal Constitution. "The applicable law is settled. " '[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." ' [Citations.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] [Citation] the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Chatman (2006) 38 Cal.4th 344, 372.)

Here, the trial court's decision to exclude the proffered impeachment testimony was not an abuse of discretion denying the jury a significantly different impression of Sharon Oliver. The jury knew from her testimony during cross-examination that in the past she had used drugs with Daniel Matlock. Defense counsel challenged her credibility by questioning her claim that the stress resulting from her witnessing McElroy's death caused the minor heart attack she suffered a couple months before trial. Defense counsel suggested to her that her drug use caused her heart problems. She denied it.

III.

Matlock contends that because the trial court imposed a 25-year-to-life sentence for the section 12022.53, subd. (d) enhancement, it was required to strike section 12022.5, subd. (a)(1) enhancement. We agree.

Section 12022.53, subdivision (f) states, "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section the court shall impose upon that person the enhancement that provides the longest term of imprisonment." When "an enhancement under section 12022.53 applies, the trial court must strike the firearm use finding under section 12022.5."^[3] (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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

^[2] Oliver testified McElroy had told her of a shootout he and Matlock were involved in. She saw the bullet holes in McElroy's vehicle.

^[3] On March 14, 2007, the California Supreme Court granted review of People v. Gonzalez (S149898) __ Cal.App.4th __ [2007 Cal. D.A.R. 3495] to decide whether when separate firearm enhancements under section 12022.5 and subdivisions (b), (c), and/or (d) of section 12022.53 are found true and the longest enhancement is imposed, the lesser enhancements should be stricken, stayed or simply not imposed.