P. v. Romero

Filed 2/14/07  P. v. Romero CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

            Appellant was convicted of second degree murder.  On appeal, he contends that the trial court erred in (1)  declining to instruct the jury on voluntary manslaughter; (2)  making references to felony murder in the jury instructions, and (3)  instructing the jury that it could consider appellant's initial false statements to the police as evidence of consciousness of guilt.  We find the first and second asserted errors to have been harmless, and reject appellant's claim of error as to the third.  Accordingly, we affirm.

I.  Facts and Procedural Background

            Appellant confessed to committing the homicide with which he was charged.  His confessions were admitted in evidence at trial, and were generally consistent with the forensic evidence.  Accordingly, our narrative of the events surrounding the crime is drawn largely from appellant's own account.

           In February 2003,[1] appellant was living in an apartment in the Mission District of San Francisco with his grandmother and his uncle.  During the weekend that began on Friday, February 14, appellant's grandmother went away overnight for a family birthday.  Before leaving, she repeated an earlier admonishment she had given appellant to the effect that she did not want him to bring women to the apartment while she was away.

           On Saturday, February 15, appellant and his uncle each left the apartment separately to go out for the evening.  Appellant spent the evening drinking at two local bars, where he consumed a total of about 18 beers.  As he returned to the apartment, he was accosted by a woman who asked if he had any drugs.  When he told her he had none, she responded by offering him her services as a prostitute for $20.  After verifying that no one was home, appellant took the woman into his apartment, where they ingested some cocaine (both in crack and powder form) that she provided, and then had sex.

           After these activities concluded, the woman asked appellant for a cigarette, and he went out to buy some.  When appellant returned, he noticed that the $140 in cash that he had left on a table was missing.  The woman denied taking the money.  Appellant became angry, and choked the woman with his hands, breaking one of her necklaces.

           Appellant then asked the woman to leave the apartment, because he was afraid his uncle would return and find that he had violated his grandmother's rules.  The woman refused to do so, saying that she wanted to spend the night because it was raining.  When she persisted in refusing to leave despite appellant's repeated demands, he picked up a metal baseball bat and hit her in the head twice, knocking her unconscious.  He then half-carried, half-dragged her down the stairs leading from the back of his apartment to the rear yard, dropping her and bumping her head in the process.

           Appellant left the woman, still breathing but unconscious, in a basement level passageway that ran under his apartment building from the rear yard to the street.  When he went back to check on her an hour later, she was dead.  Appellant moved the woman's body farther toward the street end of the passageway, used a hose to wash the blood from the passageway floor, and then returned to his apartment.

           The woman's body remained in the passageway until the early morning hours of Monday, February 17.  At that time, appellant dragged it through the door leading from the passageway to the street in front of his building, and left it on the sidewalk.

           The presence of the body was reported to the police early in the morning on February 17.  During the police officers' investigation of the scene, appellant's uncle gave them permission to come through the apartment to gain access to the rear yard.  One of the investigating officers saw a broken bead from the victim's necklace near the door leading to the rear stairs.  At that point, appellant and his uncle were detained and questioned regarding the homicide, and then released.

           Appellant initially denied any knowledge of the crime.  After going to church the next day, however, he contacted the police, through his cousin, and asked to talk to them.  He made an initial audiotaped statement in his apartment, with his cousin assisting as his interpreter, and then made an additional videotaped statement at the police station, interpreted by a bilingual police officer.  Transcripts of both statements, with translations by a certified court interpreter, were introduced in evidence at appellant's trial.

           The only genuinely disputed factual issue at trial was appellant's state of mind at the time of the killing.  In appellant's confessions, he said he became very angry at the victim after she took his money, denied having taken it, and then refused his repeated requests that she leave his apartment.  Appellant disavowed any intent to kill the victim, explaining that he assaulted her only because he was angry and wanted her to leave.  According to appellant, he hit the victim harder than he intended because he was confused by the alcohol and drugs he had ingested.

           Appellant's mother testified to the severe physical and psychological abuse that appellant suffered at the hands of his stepfather when he was a child.  Appellant also introduced expert testimony that he suffered from mild mental retardation, impaired impulse control, brain damage, depression, and post-traumatic stress disorder.  A prosecution expert disputed these diagnoses, but acknowledged that appellant was an emotional and impulsive person who had a need for immediate gratification and arrived at decisions without much thought.[2]

            Appellant was charged with murder (Pen. Code, §  187[3]), on a premeditation and deliberation theory, with an enhancement for personal use of a deadly weapon.  (§  12022, subd.  (b)(1).)  The jury found him not guilty of first degree murder, but convicted him of second degree murder as a lesser included offense, and found the weapon allegation to be true.  Appellant was sentenced to 15 years to life, plus a consecutive one-year term for the weapon enhancement.  This timely appeal followed.

II.  Discussion

A.  Refusal to Instruct Jury on Voluntary Manslaughter

           In addition to the lesser included offense of second degree murder, appellant's counsel requested that the jury also be instructed on the lesser included offense of voluntary manslaughter.  The trial court refused the request on the ground that it was not supported by sufficient evidence of adequate provocation.  The principal issue that appellant raises on appeal is whether this was error.

           Except for the felony murder doctrine,[4] a homicide that would otherwise be second degree murder is reduced to voluntary manslaughter when it is provoked by a â€