Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 72-003456
NICHOLSON, J.
Defendant stabbed Robert Ash to death. Tried by jury, convicted of second degree murder, and sentenced to 16 years to life in state prison, defendant appeals. He contends that the trial court abused its discretion by (1) excusing the jury for one week during deliberations and (2) denying his motion for new trial or, in the alternative, to reduce the verdict to voluntary manslaughter.
We affirm. As to the jury separation issue, we conclude defendant forfeited consideration of the issue on appeal. In any event, we find the trial court did not abuse its discretion in excusing the jury for one week. As to the new trial and verdict modification issue, we conclude that, viewing the evidence under the proper standard, the trial court did not abuse its discretion.
FACTS
After an incident on the road between Truckee and Tahoe City during which defendant felt that Robert Ash cut him off, defendant searched for and found Ash in Tahoe City at Syd’s Bagelry. Several people who were sitting at picnic tables outside Syd’s Bagelry witnessed the incident between Ash and defendant, which resulted in Ash’s death.
A. Prosecution Case
Richard Rutherford and his wife, Jeanine, both of whom have law enforcement experience, were sitting outside at a picnic table eating bagels and drinking coffee when Richard saw two people, defendant and his wife Susie Brooks, running generally towards him. After Richard looked away, he heard an argument and looked over to see defendant and Susie Brooks confronting Ash. Richard saw defendant’s right hand clenched into a fist and heard Ash say, “I cut you off, just because I cut you off.”
The argument continued, and Richard looked back to Jeanine and said, “Watch this. We’ll see who throws the first punch.” Richard then saw defendant strike Ash in the face and knock him backwards. Defendant continued to move in Ash’s direction, striking him again. Ash struck defendant, but defendant continued forward. Ash made a roundhouse-type kick at defendant, which made contact but did not have an effect on defendant. At the same time that Ash was kicking, defendant struck Ash in the torso with his fist. Although neither Richard nor the other witnesses saw it, defendant had a knife in that hand and, with that blow, stabbed Ash.
Ash fell into the street, and Susie Brooks said to defendant, “Let’s get out of here.” They ran away. Richard ran after them and found them in a vehicle. He told defendant to come with him because defendant had hurt Ash. Susie Brooks yelled, “You don’t know what he did to us. He cut us off back there.” Defendant complied and returned to where he stabbed Ash. As Richard was closing defendant’s vehicle door, he saw a knife and sheath inside the vehicle. He took them and gave them to responding law enforcement.
On cross-examination and through the testimony of officers who took statements of witnesses, defendant attempted to impeach the witnesses who saw the incident and testified that defendant was the aggressor and delivered the stabbing blow that killed Ash. The discrepancies had to do, mostly, with whether Ash took a defensive posture or was combative and struck defendant.
Ash died from blood loss resulting from the stab wound to his torso.
Defense Case
Defendant and his wife were traveling from Truckee to Tahoe City when Ash, driving a black Aston Martin, tried to pass them. Ash suddenly merged back into defendant’s lane to avoid oncoming traffic. Defendant honked and made an obscene gesture. Ash smirked and drove on.
Defendant and his wife searched for Ash at Squaw Valley and did not find him, so they went on to Tahoe City, where they spotted the Aston Martin. They got out of their vehicle, and defendant took his fishing knife. When they saw Ash, Susie Brooks ran towards him. Defendant tried to stop her but failed, so he followed.
The three argued, and defendant said, “You could have killed somebody, you asshole.” Ash moved toward defendant like he wanted to fight. Defendant spit in Ash’s face, and Ash punched defendant hard in the side of the head. Defendant was dazed and stumbled into Susie. He panicked and pulled out his knife. Ash said, “Oh, you’ve got a knife. Come on. Come on.” Ash swung at defendant, and defendant stuck the knife out as Ash was about to kick, stabbing him.
Defendant introduced the testimony of an expert neurologist concerning the effects of a blow to the head. She testified that a blow to the head can impair reason and the ability to reflect.
Defendant also introduced the testimony of an expert in law enforcement training and tactics. He testified that defendant’s use of the knife, under the facts as recounted by defendant, was a reasonable use of force under the circumstances. Defendant’s reaction was instinctive and understandable.
DISCUSSION
I
Jury Separation
Defendant contends the trial court erred prejudicially by excusing the jury for one week during deliberations. The contention, however, is without merit because (1) defendant did not make a timely objection to the separation, thereby forfeiting the claim, and (2), in any event, the separation was not an abuse of discretion.
A. Background
On the first day of jury voir dire, the trial court explained the trial schedule to the jurors. The court anticipated the trial would take three to four weeks, including the jury’s deliberation. To accommodate the judge’s other assignments, the trial would be adjourned every other week. The court stated that the jurors’ presence would not be required on the off weeks. The court showed the jury the schedule on boards prepared by the clerk and asked the jury if anyone had a hardship based on that schedule. Defendant did not object to the schedule. During defense counsel’s questioning of prospective jurors, he acknowledged the trial schedule and questioned the prospective jurors about it. The trial court followed the one week on, one week off schedule during the trial.
After the prosecution and defense rested, the trial court instructed the jury on Thursday, April 6, 2006. The jury deliberated for the rest of the day and on Friday, April 7. Counsel stipulated that the jury could recess without reassembling in court. At 4:30 p.m. on April 7, the court excused the jury to reconvene for deliberations 10 days later on Monday, April 17.
At 4:45 p.m. on Friday, April 7, defense counsel arrived at the courthouse and objected to the jury separation. Counsel filed a declaration stating, “On April 5, 2006, at a conference on jury instructions it was agreed by court and counsel that jury deliberations would begin on April 6, continue on April 7 and resume on April 10.” The trial court advised counsel to place the objection on the record on Monday, April 10. However, defense counsel did not obtain a ruling on the objection.
The jury reconvened, as scheduled, on April 17, and returned a verdict two days later.
After he filed his opening brief on appeal, defendant attempted to obtain a settled statement in the trial court concerning his assertion that court and counsel decided, before jury deliberations began, that the jury would not be off for one week but instead would deliberate continuously, returning on Monday, April 10. The court met informally with defendant’s trial counsel and the prosecutor to determine how to go forward in settling the record. Defense counsel showed a proposed settled statement to the court and the prosecutor. This document stated that, toward the end of the trial but before the jury began deliberating, the court and the parties agreed not to have the jury take a week off during deliberations. The court and the prosecutor both disagreed with defense counsel’s recitation of what happened. Although there had been a discussion concerning the matter, there had never been an agreement or decision to have the jury deliberate continuously. The court recalled that it had told the jurors at the outset that they would not be in session that week, which was Easter week, and that discussions concerning hardships for Easter week would not be necessary. The court stated: “There was no formal agreement that we wouldn’t continue it for a week. When we started the trial, we had the schedule on the board. The jurors were concerned about the week of Easter vacation; indicated to them ‘Don’t worry about Easter vacation. Easter vacation is a week we don’t have court.’ That was my overriding concern.” At the end of the discussion concerning settling the record, the court set a date with the parties for a hearing to settle the record. However, defense counsel abandoned the effort and no settled statement was obtained.
B. Forfeiture
Defendant forfeited the opportunity to raise the jury separation issue on appeal because he (1) acquiesced in the scheduling of the trial, (2) failed to make a timely objection, and (3) did not obtain a ruling on his objection. Defendant’s further contention that the issue was preserved because court and counsel agreed, before the jury started deliberating, that the deliberations would be continuous is without merit because the record does not support the assertion that an agreement was reached.
1. Acquiescence, Failure to Object, and Failure to Obtain Ruling
Failure to make a timely objection to a jury’s separation during deliberations is a forfeiture of the issue for purposes of appeal. (People v. Harris (1977) 73 Cal.App.3d 76, 83.) Defendant’s objection after the deliberating jury had separated was so untimely as to be tantamount to no objection at all.
The appropriate time to object to the trial schedule would have been at the beginning of jury voir dire when defendant had knowledge of the intended schedule and the jury had not yet been questioned concerning the effects of the schedule on hardships. Instead, the jury was selected based on the schedule explained at the beginning of voir dire, and defendant waited to make his objection until after the jury had been excused during deliberations on Friday, April 7, to return on Monday, April 17.
By accepting the trial schedule until after the court, the prosecution, and the jurors had relied on it, defendant failed to make a timely objection to the jury’s separation for one week. The issue is therefore forfeited.
The objection was also abandoned, again resulting in forfeiture of the issue on appeal, because defendant did not obtain a ruling on the issue. (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 180 [no effective objection when party fails to obtain ruling from court].)
2. Record Concerning Alleged Agreement
Defendant claims that, because court and counsel agreed, before jury deliberations began, that the jury would deliberate continuously (that is, on all court days), the issue was not forfeited. This claim fails because the record does support it.
Defendant claims that it is an “undisputed fact” that the court and counsel agreed to continuous deliberations because defense counsel filed a declaration to that effect in support of the objection and the People did not file a declaration disputing counsel’s declaration. Although defense counsel filed his declaration concerning what happened in an unreported conference, defendant provides no authority that a party may unilaterally establish matters of procedure on the record by filing a declaration that is undisputed. The filing of the declaration did not shift the burden to the prosecution to deny the accuracy of the declaration. It was simply defense counsel’s averments. The parties did not stipulate to the accuracy of the declaration and the court neither approved it nor agreed with its substance.
“The records of the Courts are necessarily subject to the control of the Judges, so far as may be essential to the proper administration of justice.” (Houston v. Williams (1859) 13 Cal. 24, 27-28.) The proper way to put on the record what happened at the conference would have been a recitation by counsel and agreement by the court or some similar procedure that preserves the trial court’s authority over its records. (See, e.g., People v. Santamaria (1991) 229 Cal.App.3d 269, 275-276 (Santamaria) [court and counsel put unreported conference on record].)
An additional way to put the substance of an unreported conference on the record is by agreed or settled statement. (Cal. Rules of Court, rules 8.344, 8.346.) Defendant attempted to do that here, but was unable to obtain agreement from the court and the prosecutor concerning what occurred at the unreported conference.
Defendant cites two cases, People v. Harris (1994) 9 Cal.4th 407 and People v. Hamilton (1985) 168 Cal.App.3d 1058, for the proposition that defense counsel’s declaration became the “undisputed facts” upon which we must decide this appeal because the declaration was uncontradicted. Neither case supports the proposition because each related to facts established by uncontradicted evidence and did not involve a matter of procedure. In Harris, Justice Kennard, in a concurring and dissenting opinion, stated that misdirection of the jury concerning an element of the offense may be harmless if that element was established by undisputed facts. (9 Cal.4th at pp. 458-459 (conc. and dis. opn. of Kennard, J.).) In Hamilton, the Court of Appeal addressed the issue of standing to bring a motion to suppress evidence based on the undisputed facts presented in the trial court, even though the issue of standing had not been litigated below. (168 Cal.App.3d at pp. 1063-1064.) These cases do not address defendant’s assertion that a gap in the record concerning a procedural matter can be filled by a party, unilaterally, by filing a declaration. We conclude that, because there are proper ways, noted above, to fill such gaps, defendant’s attempt to create a record concerning the purported unreported conference fails.
Because defendant has failed to provide a record supporting his assertion that court and counsel agreed to have the jury deliberate continuously, his assertion that he did not forfeit the issue by acquiescing in the trial schedule, failing to make a timely objection, and failing to obtain a ruling on his objection is without merit.
C. Abuse of Discretion Analysis
Even assuming defendant properly objected to the jury separation, the trial court did not abuse its discretion in excusing the jury for one week. A trial court has discretion to allow a jury to separate after the commencement of deliberations. And the trial court abuses its discretion only if the separation exceeds the bounds of reason under the circumstances. (Santamaria, supra, 229 Cal.App.3d at pp. 276-277.) The one week on, one week off trial schedule, resulting in a jury separation of just five court days, was used to accommodate the court’s other duties and there is no indication of prejudice to defendant. (People v. Johnson (1993) 19 Cal.App.4th 778, 791 [separation of nine court days during holiday period not an abuse of discretion].)
Defendant relies, mainly, on Santamaria for the proposition that the jury separation here was a prejudicial abuse of discretion because it exposed the jurors to outside influences and risked impairment of the jurors’ recollections of the evidence. We disagree because the trial court had good cause and the separation was relatively short.
Santamaria involved an 11-day separation (including two weekends and two holidays) during deliberations to accommodate the judge’s vacation schedule. (Santamaria, supra, 229 Cal.App.3d at pp. 274-275, 276, fn. 3.) The court noted that “[a] long adjournment of deliberations risks prejudice to the defendant both from the possibility that jurors might discuss the case with outsiders at this critical point in the proceedings, and from the possibility that their recollections of the evidence, the arguments, and the court's instructions may become dulled or confused. [Citations.] Obviously, the longer the separation, the greater the risk. A long adjournment of deliberations also disrupts the very process and pattern of the jury's orderly examination of the evidence.” (Id. at pp. 277-278.) The Santamaria court concluded that the separation was not for good cause and, citing the risk of prejudice, reversed. (Id. at pp. 278-279, 283.)
Assuming that Santamaria is correctly decided, it is distinguishable. As noted in Santamaria, accommodation of the court’s business constitutes good cause to permit jury separation during deliberations. (229 Cal.App.3d at p. 277 [citing cases in which continuances to accommodate court business were supported by good cause].) The separation here was based on court-related purposes and not the personal convenience of the trial judge. It was just five court days, considerably shorter than other jury separations that did not result in reversal. (See, e.g., People v. Johnson, supra, 19 Cal.App.4th at p. 792 [17-day separation, including nine court days, not an abuse of discretion].)
Accordingly, the trial court did not abuse its discretion in excusing the jury for one week during deliberations.
II
New Trial Motion
Defendant contends that the trial court abused its discretion by denying defendant’s motion for new trial or, in the alternative, to reduce the crime to voluntary manslaughter. He bases this contention on an argument that the evidence did not support a second degree murder conviction because there was insufficient evidence of malice and, even if defendant acted with malice, the evidence established that he acted (1) in imperfect self-defense, (2) in the heat of passion, and (3) in response to provocation. We conclude that the evidence supported the finding of malice and that the court was not bound to conclude that defendant acted in imperfect self-defense, in the heat of passion, or in response to provocation.
“Penal Code section 1181, subdivision 6, in relevant part provides: ‘When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . [¶] . . . [¶] [w]hen the verdict or finding is contrary to law or evidence . . . .’ [¶] In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court ‘should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524.)
A. Second Degree Murder
To prevail on an argument that the trial court abused its discretion by denying a motion for new trial, it is not enough to point out that there was evidence that conflicted with the verdict. Yet that is what defendant does. After summarizing the evidence, defendant argues:
“As outlined above, [defendant’s] testimony, and the initial statements of Mr. and Mrs. Rutherford, Erica, Terry, and Lowell Lash, and Ms. O’Connell to law enforcement officers on the very day of the incident, had Ash making the first aggressive acts and/or throwing the first punch, or the witnesses not seeing the first part of the incident and/or the first punch, and had Ash making a right leg roundhouse kick to [defendant] as [defendant] hit Ash (the stabbing blow where no knife was seen by any witness). The witness’ direct testimony differed dramatically from their first statements given the day of the incident, and from testimony on cross-examination, as outlined in exhaustive detail above -- where they tried to portray [defendant] as the initial aggressor and subsequent aggressor in the incident. The direct evidence of [defendant’s] state of mind at the time he stabbed Ash is found in his statements to the police immediately after the incident and his trial testimony. These statements show a man who was terrified for his own and his wife’s safety, and who had been hit and was hurt, disoriented and panicked. [Defendant] was a person who was reacting and not thinking. His only concern was to deal with an immediate serious threat of harm to both himself and his wife. [Defendant] did not have the malice necessary for a second degree murder conviction.”
Defendant goes on to discuss the expert testimony about his state of mind, which testimony was given accepting as true defendant’s version of the events, including that he had been hit and stunned by a blow from Ash. And he concludes that “[t]here was no evidence [his] statements were contrived,” failing to recognize how self-serving they were.
From this, it can be seen that defendant would have us (1) disregard the witnesses’ testimony against him because there were some contradictions in the evidence, (2) credit his own testimony and statements concerning the incident and his state of mind, and (3) credit expert testimony concerning his state of mind as being both based on fact and credible as expert testimony.
In ruling on defendant’s motion for new trial, the trial court considered and rejected defendant’s arguments. It concluded that most of the testimony damaging to defendant was credible, despite contradictions. It stated: “The Court is mindful that the witnesses made statements to investigators and/or memorialized their observations, some immediately following the event. Some not, but all close in time to the event commented on in their testimony at trial. And that some of those statements were, if not -- well, there were some inconsistent and some were not as complete [as] their trial testimony.” The court concluded: “In finding the defendant guilty of second-degree murder, the jury either did not believe the defendant’s testimony or believed it, but did not find that it was sufficient to establish that he acted in the heat of passion or in imperfect self-defense. In either case the Court cannot find that in its duty to find facts the jury did not act intelligently and justly.”
Our review of the record reveals sufficient evidence to sustain the second degree murder conviction. As defendant approached Ash with a knife, he spit in Ash’s face and initiated the physical altercation. Although there was evidence that Ash attempted to defend himself, defendant was the aggressor and did not appear to be dazed by any blow from Ash, including the kick just before defendant stabbed Ash. Under these circumstances, the jury and trial court could properly find that defendant acted with express malice -- an intent to kill Ash by stabbing him -- or implied malice -- wanton disregard for life. (See People v. Rogers (2006) 39 Cal.4th 826, 869 [discussing implied malice].)
B. Reduction to Voluntary Manslaughter
The evidence also did not require the jury or the trial court to find that defendant acted in (1) imperfect self-defense, (2) heat of passion, or (3) response to provocation.
1. Imperfect Self-Defense
Imperfect self-defense is “[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury,” and it negates malice. (People v. Flannel (1979) 25 Cal.3d 668, 674, italics omitted.) Considering the evidence that defendant was the initial aggressor and accosted Ash while holding a knife, the jury and trial court were not bound to find imperfect self-defense. And the trial court did not err by denying the motion for new trial or to modify the verdict to voluntary manslaughter.
2. Heat of Passion
“The test of whether provocation or heat of passion can negate malice so as to mitigate murder to voluntary manslaughter is objective. [Citations.] ‘[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless . . . the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable [person].’ [Citation.] (People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
On this record, the jury was not bound to conclude that defendant’s attack on Ash was in a heat of passion. Defendant had plenty of time to cool down after Ash cut him off, and defendant approached Ash under conditions that would not arouse the passions of the ordinarily reasonable person to the extent that he would kill. The heat of passion argument therefore does not show abuse of discretion in denying the motion for new trial or to modify the verdict to voluntary manslaughter.
3. Provocation
The analysis concerning heat of passion also applies to whether provocation negated malice.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., BUTZ, J.