Opinion
E072070
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE ALEXANDER BARNES, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17002501) OPINION APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of second degree murder. (Pen. Code, § 187, subd. (a).) The jury found true the allegations that defendant (1) used a firearm during the killing (§ 12022.53, subd. (b)); (2) discharged a firearm during the killing (§ 12022.53, subd. (c)); and (3) discharged a firearm causing death during the killing (§ 12022.53, subd. (d)). The trial court sentenced defendant to prison for an indeterminate term of 40 years to life.
All further statutory references are to the Penal Code unless indicated.
Defendant raises three issues on appeal. First, defendant contends the prosecution failed to disprove that defendant killed the victim in a heat-of-passion. Second, defendant asserts the finding that he intentionally discharged a firearm is not supported by substantial evidence. Third, defendant contends his constitutional right of due process was violated by the lack of substantial evidence supporting his conviction. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant lived in a home in San Bernardino with his relatives. The people residing in the home included (1) defendant; (2) defendant's mother (Mother); (3) defendant's friend, who is like an aunt to him (Aunt); (4) the mother of defendant's nieces (the victim); and (5) the victim's daughter/defendant's niece, Kianna Flenor. Aunt smokes "over $2,000 worth of crack every day." The victim abused methamphetamine. Defendant often yelled inside the house. Defendant and the victim had a sibling-like relationship and often argued with one another.
On June 26, 2017, defendant discovered he was missing $2,000. Defendant needed the money to pay rent and other bills. Defendant accused Aunt of stealing his money. Aunt calmed defendant and he went to bed.
On the morning of June 27, defendant woke up and was angry about the missing $2,000. Defendant was "yelling at everyone." Defendant yelled, "Where is my money?" Defendant held a gun in his hand and "threatened to shoot somebody in the face if he didn't get his money back." Aunt, Mother, and the victim helped defendant to look for the money. Everyone tried to calm defendant. When Aunt said she was going to leave, she and defendant fought and he struck her on her head with the gun. Aunt "balled up into the corner . . . crying, saying 'I didn't take it.' "
Defendant became "more and more angry." At approximately noon, defendant said to the victim, " 'I know you took my money.' " The victim said, " 'No, I didn't.' " The victim and defendant "were in each other's face." The victim said, " 'I didn't take it. Get the fuck out of my face.' " Defendant "grab[bed the victim], basically, by her collar and move[d] her" into a backroom of the house. Defendant "put his left arm around her neck," held the gun to the victim's head, and shot her. Defendant looked surprised.
Defendant did not render aid to the victim. Defendant left the house and drove to Los Angeles. Defendant took the firearm with him. The victim suffered a gunshot wound behind her left ear, on the back of her head. There were "muzzle abrasions" around the bullet entry wound, which indicated the muzzle of the gun was against the victim's skin when the gun was fired.
After leaving the house, defendant called Aunt. During the phone call the following exchange took place:
"[Aunt]: [Defendant], why did you do that [defendant]? Why, [defendant]? [Defendant], you shot that girl, why [defendant]? It wasn't even worth it.
"[Defendant]: I lost my fuckin mind, you was about to get yo ass shot too.
"[Aunt]: I know, you hit me in my head with the gun for no reason."
As the phone call continued, Mother joined in the call. The following exchange took place.
"[Defendant]: . . . All my money, all my money come up gone . . .
"[Mother]: Okay, son!! Okay, so it was worth [the victim] dying? You still trippin' on that!! [Y]ou better have some remorse and get on your God damn knees and pray! Fuck that money!
"[Defendant]: (unintelligible) . . . mom? I am!
"[Mother]: (unintelligible) . . . lives, and you was talking about killing everybody so what, you was gone kill me too? Come on[] son, are you serious?
"[Defendant]: I'm just saying, how my money come up gone out the house . . .
"[Mother]: Yeah, son . . . you just killed this girl."
At the end of the conversation, the following exchange occurred:
"[Defendant]: My whole like [sic] in a struggle and I'm like, the way [the victim] was in that room was like I don't give a fuck. And that's what happened. The way she came out that room . . . cause I'm watching all movements and everybody's shit.
"[Mother]: She was looking too, she was looking . . .
"[Defendant]: I'm watching shit . . .
"[Mother]: This is ridiculous . . .
"[Defendant]: I know mom, ain't—I mean, I'm not—mom, I—there's nothing I can do to bring, you know, to bring it back or bring [the victim] back, but all the shit added up though, I mean, and I was serious like from fucking Lynnwood I still been holding a grudge for [the victim]."
DISCUSSION
A. SUBSTANTIAL EVIDENCE
1. STANDARD OF REVIEW
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
2. MURDER
Defendant contends the People failed to rebut the evidence reflecting that he killed the victim while in a heat of passion.
When a defendant provides evidence of heat-of-passion, then "the People must prove beyond [a] reasonable doubt that these circumstances were lacking in order to establish the murder element of malice." (People v. Rios (2000) 23 Cal.4th 450, 462, italics omitted.) "The mens rea element required for murder is a state of mind constituting either express or implied malice. A person who kills without malice does not commit murder. Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ' "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' " (People v. Beltran (2013) 56 Cal.4th 935, 942.)
Thus, "[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As [our Supreme Court] explained long ago in interpreting the same language of section 192, 'this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless the jury further believe[s] that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' " (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
We begin with the subjective element. The subjective element requires proof that defendant killed " 'while under "the actual influence of a strong passion" induced by [adequate] provocation.' [Citation.] As a result, '[i]f sufficient time has elapsed for one's passions to "cool off" and for judgment to be restored,' malice is not negated." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139.)
The People provided evidence that defendant learned his money was missing on the night of January 26. Aunt "said she was able to calm [defendant] down. [Defendant] went to sleep and she did as well." Defendant shot the victim at approximately noon on January 27. Given the evidence that Aunt calmed defendant and defendant fell asleep between (1) learning his money was missing; and (2) shooting the victim, one could reasonably conclude that defendant was not subjectively acting under the influence of a strong passion at the time he killed the victim. A trier of fact could reasonably rely upon the evidence that Aunt calmed defendant and that defendant then fell asleep as evidence that defendant was not subjectively overwrought by the loss of his money at the time defendant shot the victim.
We also examine whether defendant's reason was obscured or disturbed by passion. (People v. Beltran, supra, 56 Cal.4th at p. 942.) When defendant spoke to Mother on the telephone, after the shooting, he said, "[T]he way sis was in that room was like I don't give a fuck. And that's what happened. The way she came out that room . . . cause I'm watching all movements and everybody's shit." Mother replied, "She was looking too, she was looking." Defendant said, "I'm watching shit." Defendant told Mother, "[B]ut all the shit added up though." Defendant's statements indicate he was observing the victim's movements, added the clues together, decided the victim stole his money, and then decided to harm her. Thus, there is evidence reflecting defendant reasoned his way through his decision to harm the victim. As a result, there is evidence indicating defendant's reasoning was not obscured by passion at the time of the shooting.
In sum, because there is evidence that (1) after defendant learned his money was missing, Aunt calmed defendant and he fell asleep; and (2) defendant observed the victim, reasoned that she stole his money, and decided to harm her, we conclude there is substantial evidence contradicting a subjective heat of passion finding.
We now turn to the objective element. When defendant spoke to Aunt on the telephone, after the shooting, Aunt said to defendant, (1) "[Defendant], you shot that girl, why [defendant]? It wasn't even worth it"; and (2) "you hit me in my head with the gun for no reason." When defendant spoke to Mother on the telephone, after the shooting, defendant said, "All my money, all my money come up gone." Mother replied, "Okay, so was it worth [the victim] dying? You still trippin' on that!! [Y]ou better have some remorse and get on your God damn knees, and pray! Fuck that money!"
Aunt thought defendant acted out "for no reason" and Mother pointedly said, "Fuck that money!" The evidence reflects that people close to defendant believed the loss of money was not an important or meaningful event. Thus, one could reasonably conclude from the record that an ordinary and reasonable person of average disposition would not have acted rashly and without deliberation and reflection upon learning of the loss of $2,000. Accordingly, we conclude there is substantial evidence contradicting an objective heat of passion finding. In sum, the People provided substantial evidence to contradict a heat of passion finding.
Defendant contends there is not substantial evidence to contradict a heat of passion finding because, during the telephone conversation with Aunt, defendant said, "I lost my fuckin mind" when responding to Aunt's question about why defendant shot the victim. When applying the substantial evidence standard, we must look at the evidence in the light most favorable to the prosecution. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) Defendant is looking at the evidence in the light most favorable to defendant. Because defendant is not looking at the evidence in the light most favorable to the prosecution, we find his contention to be unpersuasive.
3. FIREARM ENHANCEMENT
Defendant contends substantial evidence does not support the finding that he intentionally fired the gun.
"'[I]ntent . . . is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise.' " (People v. Jaska (2011) 194 Cal.App.4th 971, 984.) " 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
"[A]ny person who, in the commission of a felony . . . , personally and intentionally discharges a firearm and proximately causes great bodily injury . . . , or death, to any person other than an accomplice, shall be punished." (§ 12022.53, subd. (d).) The intent required for the firearm enhancement is a general intent, which means only the intent to fire the gun. (People v. Lucero (2016) 246 Cal.App.4th 750, 759-760.)
Defendant held the gun by the handle, in the manner one would hold a gun if one planned to shoot it. Defendant "threatened to shoot somebody in the face if he didn't get his money back." The victim said to defendant, " 'I didn't take it. Get the fuck out of my face.' " Defendant grab[bed the victim], basically, by her collar and move[d] her" into a backroom of the house. Defendant "put his left arm around her neck," held the gun to the victim's head, and shot her. The victim suffered a gunshot wound behind her left ear, on the back of her head. There were abrasions around the bullet entry wound, which indicated the muzzle of the gun was against the victim's skin when the gun was fired.
Defendant's statements and actions prior to the shooting indicate an intent to fire the gun because (1) defendant threatened to shoot the gun; (2) he held the gun in the manner one would to shoot it; (3) defendant held the victim in place; and (4) defendant pointed the gun against the victim's head. Defendant's statements and actions indicate that he planned to fire the gun.
After the shooting, defendant did not render aid to the victim. Defendant left the house and drove to Los Angeles. Defendant took the firearm with him. Defendant's actions after the shooting do not indicate that he was surprised or horrified by a terrible accident. Rather, defendant's failure to render aid indicates he wanted to shoot the victim and wanted her to be injured.
When asked by Aunt why defendant shot the victim, defendant replied, "[Y]ou was about to get yo ass shot, too." Defendant's statement that Aunt had been in danger of being shot indicates that defendant intentionally fired the gun at the victim because defendant consciously decided not to shoot the gun at Aunt. Further, defendant's failure to tell Aunt that the shooting was a terrible accident indicates that defendant intentionally shot the victim. In sum, there is substantial circumstantial evidence from which a reasonable trier of fact could conclude that defendant intentionally fired the gun.
B. DUE PROCESS
Defendant contends his federal constitutional right of due process was violated by the lack of substantial evidence supporting his conviction. In re Winship (1970) 397 U.S. 358 "presupposes as an essential [part] of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." (Jackson v. Virginia (1979) 443 U.S. 307, 316.) We have concluded ante that substantial evidence supports the conviction and enhancement. Accordingly, we conclude defendant's right of due process was not violated.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.