Filed 10/17/17 P. v. Ferrer CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

A jury convicted Juan Joseph Ferrer of voluntary manslaughter with personal use of a knife. (Pen. Code, §§ 192, subd. (a), 12022, subd. (b)(1).)[1] He is serving a 12-year prison sentence. Defendant contends the court abused its discretion in withdrawing its approval of a negotiated plea under which defendant would have received a four-year term for involuntary manslaughter. Defendant also contends the court erred in responding to a request for further definition of the phrase “conscious disregard for human life” in homicide instructions by directing the jury to “use the common, everyday definition of those words,” and that defense counsel was ineffective in approving the court’s response. Further, defendant contends the court abused its discretion in sentencing him to the aggravated term for voluntary manslaughter. We shall affirm the judgment and sentence.

Statement of Facts

Defendant admitted killing Douglas Anderson-Jordet on November 25, 2013, after Anderson-Jordet accosted him and his friends on the street. The details of their hostile encounter and defendant’s state of mind were the issues in dispute at trial. The prosecution claimed the killing was second degree murder, with defendant intentionally thrusting a knife in the victim’s chest. Defendant claimed the killing was accidental and testified that he was brandishing a knife in defense when the victim charged at him and defendant pushed the victim off with the knife still in his hand.

The events preceding the killing are largely uncontroverted. Defendant, his girlfriend Sophie Rocheleau and friend Nicholas Stoiber had been drinking for several hours. According to defendant, they “were buzzing pretty good” when the Arcata bar in which they were drinking closed, and they started to walk home. Anderson-Jordet had been drinking in the same bar. A later toxicology report showed his blood alcohol level to be .23 percent.

Security surveillance cameras show defendant and his two companions walking in the area with Anderson-Jordet coming up behind them at 1:10 a.m. Defendant and his friends were dressed in a “punk rock” or “punk goth” fashion. Defendant was wearing black cutoff shorts and a vest with metal studs over a hooded sweatshirt with musical band patches; his hair was bleached platinum on the sides and he wore a dangling earring, black fingernail polish and eye makeup. Defendant is five feet six inches tall and, at the time, weighed about 320 pounds. He was 35 years old. Anderson-Jordet, age 50, was 5 feet 11 inches tall and weighed approximately 220 pounds.

Anderson-Jordet shouted insults at the threesome from across the street, then crossed the street toward them. A neighbor testified she heard a man yell “Fuck you and your fat girlfriend” and continued yelling profanities in an angry rant for several minutes. Defendant testified that, among the profanities, Anderson-Jordet shouted “What do we got here, a couple fucking faggots and their fat bitch girlfriend?” Defendant’s girlfriend also testified that Anderson-Jordet called the men “faggots.” The neighbor testified she did not remember the word “faggots” used “in particular” but “would not have been surprised given the tone.”[2]

There is conflicting testimony as to what transpired next. Defendant testified that Anderson-Jordet continued yelling as he overtook them on the sidewalk and walked past the threesome. Defendant said to him, “Hey, fuck you too.” Anderson-Jordet turned around and said “What? Fuck me?” He walked back toward the threesome yelling “I’ll fucking kill you. I’ll fuck that bitch up.” Defendant testified that Anderson-Jordet was about 20 feet in front of him at this point, and defendant was “scared.” Defendant pulled a folding knife from his pocket, extended the blade, and held the knife in front of him. Defendant said “Get the fuck away from me you goddamn lunatic.” Anderson-Jordet approached within a foot of defendant, punched him on the side of the head, and then rammed him “like he was trying to run [him] into the ground.” Defendant pushed Anderson-Jordet away with both hands, one hand still holding the knife. Anderson-Jordet fell to the ground but immediately returned to his feet and continued his “tirade.” Defendant and his friends walked away. He did not see Rocheleau or Stoiber make any contact with Anderson-Jordet. About a block from the encounter, the threesome stopped walking and Stoiber said “What the fuck was that all about?” Defendant said “I don’t know, man, but I think I might have stabbed him.” Defendant said “He bum rushed me. I had the knife out.” Rocheleau and Stoiber said “No, I don’t think so. I think you’re fine.” Defendant was “in shock” and threw the knife away.

Defendant’s girlfriend, Rocheleau, provided a different account of the stabbing, one that did not include Anderson-Jordet threatening to kill anyone or physically attacking defendant.[3] She testified that defendant responded to Anderson-Jordet’s verbal abuse by saying “Hey, fuck you,” at which point Anderson-Jordet stopped walking away from the threesome, turned around, and walked toward them “in a hostile manner.” Defendant and Anderson-Jordet came face-to-face and defendant thrust his arm out toward him. Rocheleau thought defendant punched Anderson-Jordet in the chest. Anderson-Jordet fell to the ground but quickly stood up. Rocheleau pushed past him and he stumbled to the ground. While on the ground, Anderson-Jordet kicked at Rocheleau’s legs and she kicked him in the legs. Anderson-Jordet started to stand up and Stoiber punched him in the face. The threesome then walked away, with Anderson-Jordet on his feet yelling after them. The friends stopped to talk and defendant said “I think I stabbed him.” Rocheleau and Stoiber said “What?” They did not think it “plausible” because Anderson-Jordet did not appear injured. Defendant said “something along the lines of ‘I need to get rid of this’ ” and tossed his knife away.

A man found Anderson-Jordet lying in the street and telephoned the police. A police officer arrived just before 1:30 a.m. The bystander informed the officer that Anderson-Jordet had just stopped breathing. The officer was unable to resuscitate Anderson-Jordet.

An autopsy revealed that Anderson-Jordet died from a single knife wound to the chest. The wound was three and a half inches deep and punctured his heart. In addition to the chest wound, Anderson-Jordet had a cut to his left index finger near the palm of his hand that was about a half inch long. The pathologist opined that the wound was a “defense injury” sustained when Anderson-Jordet tried to block the knife. Anderson-Jordet also had lacerations on the inner side of his upper lip that may have been caused by a punch, a fall, or resuscitation attempts. Anderson-Jordet had no bruising or other injuries to his knuckles, which are sometimes seen if the decedent had punched someone.

On the day of the stabbing, Stoiber published a post on social media saying “It was a violent punk night” and Rocheleau responded by “liking” the post. Two days after the stabbing, Stoiber texted defendant about a newspaper article. Later that day, defendant texted Stoiber: “Long as the weapon don’t come up, I think we are cool. Only my sister, aside from you and Soph and my family, are gangster, period. No snitching. Times Standard says he was in his fifties. I don’t think it’s our guy. Dude was in his thirties at the oldest. I remember seeing him at the bar. For sure I have not spoken to anyone as I am still kind of tripping. . . . Guy was a 50-year-old professional chef . . . . Don’t sound like that guy.” The next day, defendant texted Stoiber “You think we’re clear?” and Stoiber replied “Clear enough. Not witnesses besides us.” Defendant said “Thanks brother.”

The police identified defendant, Rocheleau and Stoiber from surveillance camera recordings. On December 3, 2013, eight days after the stabbing, the police brought in Rocheleau for questioning, followed by Stoiber. Defendant was arrested that evening and interviewed by the police. Defendant repeatedly denied any involvement in Anderson-Jordet’s death, saying “I don’t know what you guys are even talking about,” “I didn’t stab nobody,” and “I didn’t do nothin.” The next day, defendant asked to speak to a detective. The detective had not yet been summoned when defendant made a spontaneous statement to an officer. The officer made notes of defendant’s remarks. According to the officer, defendant stated that “he was walking with his girlfriend [when] a guy came up behind the two of them and called her a fat bitch. ‘He said we were faggots. I turned around and told him to fuck off. The guy stomped past us and turned around and came at me. I was scared. I’m not a fighter, I’m a vegetarian, not a murderer. My job is taking care of my grandmother. I have no idea why he did that. I wasn’t trying to kill him. I just stuck him to get past him.” The officer testified that defendant made the statement with a thrusting motion of his hand. At trial, defendant admitted most of this statement but denied ever saying “I just stuck him to get past him.” When interviewed by the detective, defendant gave an account of the stabbing similar to his testimony at trial, but with some differences. Notably, defendant did not say anything to the detective about Anderson-Jordet threatening to kill him or defendant warning Anderson-Jordet to stay away from him as he held the knife.

Discussion

1. The trial court did not abuse its discretion in withdrawing its approval of a negotiated plea.

Defendant was charged with the murder of Anderson-Jordet in a complaint filed on December 6, 2013. On February 13, 2014, the prosecutor entered into a conditional plea agreement under which defendant would plead no contest to involuntary manslaughter with an agreed term of four years. In accepting the plea, the court advised defendant that the plea was conditional and “would not be binding on the court at the time of sentencing.” The court withdrew its approval at the scheduled sentencing hearing on April 3, 2014. Defendant contends the court abused its discretion.

A trial court’s approval of a negotiated disposition is “not binding.” (§ 1192.5.) The court “may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in light of further considerations of the matter.” (§ 1192.5.) A trial court “has broad discretion to withdraw its prior approval of a negotiated plea.” (People v. Johnson (1974) 10 Cal.3d 868, 873.) “Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society.” (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338.)

Here, the court stated it was withdrawing its approval of the plea bargain after learning more about the case and concluding that “it would undermine substantially the public’s trust and confidence in the judicial system” to allow the plea to stand. When it initially accepted the plea by defendant, the factual basis for the charges was briefly stated to be a fight with Anderson-Jordet during which defendant pulled out a knife and killed him with a stab to the heart. By the time of the scheduled sentencing hearing, the court had reviewed voluminous materials, including the probation officer’s report and multiple addenda, defendant’s sentencing brief, letters from the family and friends of both defendant and the victim, and a statement from the victim’s family. In reading the documents provided, the court found that “there are two sides to this story” and that resolution of the conflicting stories requires a jury’s assessment of “character” and witness credibility. The court also noted that it initially accepted the plea believing the victim’s family was “comfortable with the resolution” and later learned the family objected.

Defendant maintains that the court placed too much reliance on the objection of the victim’s family. But the court expressly stated that the family’s objection “is not the reason why I’m making the decision to set the pleas aside. What had been reinforced by reading all the documents presented by everyone, including the defendants, themselves, is that there are two sides to this story.”

Defendant also argues that the court abused its discretion in refusing the prosecutor’s request to submit exhibits in response to the statement filed by the victim’s family. The proffered exhibits are not in the record but are described as police reports and the autopsy report, which were offered in response to alleged “mischaracterizations” by the victim’s family concerning injuries the victim sustained. The court acted well within its discretion in rejecting the exhibits. The exhibits were “a three-inch stack of documents” submitted at the start of the hearing. The information was largely cumulative, as the probation’s officer’s report summarized the police reports and autopsy report. The evidence was also of limited relevance. The court concluded that significant disputed issues of fact existed as to the commission of the killing and defendant’s mental state that warranted a jury’s determination of the degree of homicide. As the trial court indicated, forensic evidence of the victim’s injuries would not establish there were “no controverted facts that would lead to any other outcome” than an involuntary manslaughter finding as set out in the plea bargain. The court did not abuse its discretion in refusing to review the exhibits.

Finally, defendant argues that the attorney representing the victim’s family was politically motivated to challenge the plea bargain. At the time, the family’s attorney and the deputy district attorney who negotiated the plea were both seeking the elected position of Humboldt County District Attorney, and the plea bargain became a campaign issue. Whatever the motivations of the family’s attorney, the decision to withdraw approval of the plea rested with the trial court. As indicated above, the court approached the decision with care and based its decision on proper considerations unrelated to campaign issues. There was no abuse of discretion.

2. The trial court did not err in its response to a jury question during deliberations nor was defense counsel ineffective in approving the court’s response.

During deliberations, the jury asked for further definition of the phrase “conscious disregard for human life” used in the standard homicide instructions. The court, with defense counsel’s approval, directed the jury to “use the common, everyday definition of those words.” Defendant contends the court’s response was inadequate and defense counsel ineffective in approving the response.

The jury was given instructions on excusable homicide (accident), justifiable homicide (self-defense or defense of another), second degree murder, voluntary manslaughter (sudden quarrel or imperfect self-defense), and involuntary manslaughter. (CALCRIM Nos. 505, 510, 520, 570, 571, 580.) The phrase “conscious disregard for human life” appears in the instructions on murder and involuntary manslaughter. (CALCRIM Nos. 520, 580.) The jury was told that murder requires proof of malice, which may be express or implied, and that an element of implied malice is “conscious disregard for human life.” (CALCRIM No. 520.) The instruction on involuntary manslaughter provides, in relevant part: “When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for life, 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.” (CALCRIM No. 580.) The court also used CALCRIM No. 200 to clarify the meaning of phrases used in the jury instructions. The relevant part of CALCRIM No. 200 reads, “Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.”

On the third day of deliberations, the jury submitted a written request to the court: “Please define further the term ‘conscious disregard for human life’ to include (example, thought, emotion or action) or refer to which page this may be already defined.” The court discussed the request with the prosecutor and defense counsel and the “agreed upon response” was “The term ‘conscious disregard for human life’ does not have a specific legal meaning. You may use the common, everyday definition of those words to determine what that term or phrase means.” After further consultation with counsel, the court added “a reference to the jury to see instruction 200 which discusses using common, everyday definitions for words that are not otherwise specifically defined.” The jury reached a verdict two hours later. The jury found defendant not guilty of murder but guilty of the lesser-included offense of voluntary manslaughter.

“Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, ‘ “the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 984, fn. omitted.) A trial court “should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “[C]omments diverging from the standard are often risky.” (Ibid.) We review for an abuse of discretion any error under section 1138. (People v. Waidla (2000) 22 Cal.4th 690, 746-747.)

The trial court acted well within its discretion in directing the jury to “use the common, everyday definition” of the words contained in the phrase “conscious disregard of human life.” The words have no specialized legal meaning. Our Supreme Court has noted that the phrase “conscious disregard” is readily understood in common speech to mean “a subjective awareness or appreciation of the risk created” (People v. Dellinger (1989) 49 Cal.3d 1212, 1218) and that juries may be instructed with “the straightforward language of the ‘conscious disregard for human life’ definition of implied malice” (id. at p. 1221).

Defendant contends the jury “should have been told—in no uncertain terms—that the term ‘conscious disregard for human life’ meant that [defendant] was subjectively aware that what he was in the process of doing put Mr. Anderson-Jordet’s life at serious risk.” The instructions, as given, sufficiently informed the jury of this standard. In common usage, consciousness denotes subjective awareness. Moreover, the instructions explained: “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.” (CALCRIM No. 580, italics added.) The trial court did not abuse its discretion in its response to the jury’s question and, given the propriety of the response, defense counsel was not ineffective in approving it.

3. The trial court did not abuse its discretion in imposing the upper term for voluntary manslaughter.

Defendant contends the trial court abused its discretion in sentencing him to the upper term for voluntary manslaughter. A defendant convicted of voluntary manslaughter may be sentenced to state prison for three, six, or 11 years. (§ 193, subd. (a).) “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms,” the trial court has broad discretion to tailor the sentence to the particular case by choosing the lower, middle or upper term. (§ 1170, subd. (b).) A trial court “is presumed to have acted to achieve legitimate sentencing objectives,” and its sentencing decision “must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational.” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.)

The probation officer’s report recommended the upper term, listing multiple factors in aggravation and only two in mitigation. Among other things, the report noted defendant’s callousness and lack of remorse, evidenced by his telephone calls from jail during and after trial. When trial was in progress, defendant spoke from jail saying “I’m not sorry for what I did. I’m only sorry for my family. I don’t give a fuck about anything else, man.” On the day the verdict was announced, defendant laughed about the killing: “I didn’t murder him, but I did fucking kill him ha, ha, ha, you know what I mean. Like, I beat a murder, I beat a murder trial in fucking Humboldt County, a murder trial, and I fucking, and I actually fucking killed the motherfucker. You know what I mean, Like, fucking, I got love.” Two days later, in a telephone call to his girlfriend, defendant said “they’re going to come talk to me, again, and I have to show remorse, and I don’t really know how to do that. You know what I mean, it’s been a year and a half, you know, I’m kind of over it, ha, ha, ha.”

The trial court found “the aggravating factors outweigh those in mitigation.” In mitigation, the court found that Anderson-Jordet instigated the confrontation (Cal. Rules of Court, rule 4.423(a)(2)) and defendant had no significant criminal record (id., rule 4.423(b)(1)). In aggravation, the court found the crime involved great violence and “other acts disclosing a high degree of cruelty, viciousness or callousness” (id., rule 4.421(a)(1); the victim was particularly vulnerable because he was intoxicated and alone in a confrontation with three individuals (id., rule 4.421(a)(3); and defendant engaged in violent conduct that indicates a serious danger to society (id., rule 4.421(b)(1)).

Defendant disputes the court’s assessment but sufficient evidence supports its findings. Acts disclosing a high degree of callousness include the fact that defendant fled the scene rather than aid the victim; denied all involvement in his initial statement to the police; and laughed about the killing following conviction. The victim was vulnerable. He was intoxicated and alone, whereas defendant was accompanied by two friends who joined in the assault. The court also reasonably found defendant’s violent conduct indicates a serious danger to society. Defendant overreacted to Anderson-Jordet’s hostile confrontation by pulling a knife and stabbing him in the chest. The trial court did not abuse its discretion in imposing the upper term for voluntary manslaughter.

Disposition

The judgment is affirmed.

Pollak, Acting P.J.

We concur:

Siggins, J.

Jenkins, J.