Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131865. Patrick F. Magers, Judge.
George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Sonya Jones, of second degree murder (Pen. Code, § 187, subd. (a)), during which she discharged a firearm (§ 12022.53, subd. (d)). She was sentenced to prison for 15 years to life, plus 25 years and appeals, claiming the trial court improperly handled a jury inquiry and refused a requested jury instruction. We disagree and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
Defendant lived in a trailer across the street from her cousins, who were having a birthday party on the night of August 12, 2006. During the party, that stretched some length of the street and was attended by hundreds of people, defendant shot the homeless victim in the back, killing her following verbal and physical altercations between the two. More facts will be disclosed as part of the discussion of the issues.
Issues and Discussion
1. The Court’s Handling of Jury Inquiry
Deliberations began at 2:24 p.m. on February 1, 2008. The jury adjourned that day at 4:20 p.m. It reconvened three days later at 10:00 a.m. At 3:04 p.m. the trial court received the following note, “We are deadlocked and need guidance on the degrees of the charges.” Defendant had been charged with murder, and the jury had received instructions on first and second degree murder and voluntary manslaughter. The trial court and both counsel interpreted the note as indicating that the jury was deadlocked between first and second degree murder. Counsel agreed that the jury should be brought into the courtroom and the trial court should engage in an oral exchange with the foreperson to clarify the inquiry.
After the jury was brought into the courtroom, the trial court told the jury that it had received the note, consulted with counsel and it was going to ask the foreperson “specifically what the issue is... and I may be of some assistance. I might not.” The trial court asked the foreperson “what the issue is or what your problem is?” [¶]... [¶] [Y]ou said you are deadlocked. So you are deadlocked on what issue?” The foreperson replied, “Regarding the degree.” The trial court asked, “[Are we t]alking about first versus second degree?” The foreperson responded in the affirmative. The trial court asked, “Do you need further clarification as to the definition of first degree versus second degree, or at this point in time, [is] it[] a factual issue wherein you have ‘X’ amount of jurors saying first and ‘Y’ amount saying second? Is that the issue?” The foreperson replied, “That’s the situation. And,... I think what would help us,... we want another... explanation or go over again... deliberat[ion] and premeditation. [¶]... [¶] And also,... we have had some issues how much weight we can give to the intoxication issue and provocation issue.” The trial court responded that the instructions the jury had already received were “fairly clear” as to how intoxication and provocation could be used, that the jury was given a “general framework in which to operate” and the trial court did not know how it could answer this question. The foreperson explained, “[I]t might be more of an issue where we have been going around and around in the numbers where we are at, first versus second. We are not sure that opinions are going to change, so we just... want your guidance. [¶] Do we keep trying? Or if we just feel that we are not going to get a unanimous agreement on first versus second--.” The trial court interrupted the foreperson, asking, “Is the jury unanimous, all 12 jurors, agree that murder was committed? The foreperson said it was and by the defendant. The trial court clarified that the “factual issue” was whether it was first or second degree murder, to which the foreperson agreed. The trial court then asked for the numerical split, prefacing it with, “[w]ithout telling me what the vote is for, first versus second[.]” The foreperson responded that the jury had made progress, going from a 5 to 5 split, with two “in the middle” to 9 to 3. The trial court had a sidebar with counsel, then told the jury that counsel suggested that the court reread portions of the instructions. The court added, “It may help; it may not. And I can entertain further questions.” The court then reread the instruction on how to decide between first and second degree murder once the jury had determined that the defendant had committed murder. This instruction also addressed premeditation and deliberation. The court also reread the instruction that provocation may reduce a first degree murder to a second degree murder or a murder to manslaughter and that its weight and significance are for the jury to decide. The court then reread the instruction on voluntary intoxication, which provided that such evidence could be considered only in deciding whether defendant acted with the intent to kill or with deliberation and premeditation. The trial court then asked if what it had said helped at all “[o]r not[.]” The foreperson replied, “I think the last statement points something out to me personally.” After the trial court made a few more statements about voluntary intoxication, it said, “... I’ll ask that the jury continue deliberating and,... ultimately, if you’re deadlocked, if the jury cannot come to a decision, then give me another note and we will take it from there.” Before sending the jury back into the deliberation room, the court said, “Again, if you do arrive or... if you think you are at a deadlock, let us know and we will bring you back in.”
To this, the trial court added the following, “So that’s totally a factual issue for you to decide, how much importance you want to, as the judge, put on the provocation in this case as it bears upon whether or not it’s a first- or second-degree murder.”
To this, the trial court added the following, “So this... instruction... tells you that you can consider voluntary intoxication in deciding whether or not the defendant acted with deliberation and premeditation. In other words, you can consider whether or not the voluntary intoxication affected her ability to deliberate. In other words, weigh the consequences, consider what she was doing.”
This would be what is contained in footnote 3, ante.
Those statements were as follows, “Because voluntary intoxication, you can consider whether or not the state of voluntary intoxication, if any, that’s for you to decide if it even existed, the state of voluntary intoxication affected an individual forming the intent to kill somebody. [¶] Or, on the other hand, carefully weighing the consequences of what he or she is doing. And that’s totally within your call. Because you are the judge of the facts. And it is entirely within your discretion to make that call whether it did or didn’t.”
The jury resumed deliberations at 3:34 p.m. and, at 4:00 p.m., sent a second note requesting a read back of the toxicologist’s testimony. At that point, proceedings were adjourned for the day.
Deliberations resumed the following day at 9:15 a.m., when the read back was done. At 10:45 a.m., the jury announced that it had reached a verdict.
The trial court has wide discretion to determine if the jury has had enough time to deliberate and whether there is a reasonable probability of agreement. (People v. Dennis (1998) 17 Cal.4th 468, 540.) The latter must be accomplished, however, without coercion of the jury and whether such coercion has occurred depends on the facts and circumstances of each case. (People v. Sandoval (1992) 4 Cal.4th 155, 195, 196.) We examine the record to determine if what the trial court did tended to impose such pressure on the jurors to reach a verdict that the accuracy and integrity of its verdict is uncertain. (People v. Gainer (1977) 19 Cal.3d 835, 849, 850.) A trial court may non-coercively assist the jury in reaching a verdict, including by inquiring into the numerical division of a deadlocked jury, but may not ask how many jurors favor guilt over acquittal. (People v. Morris (1991) 53 Cal.3d 152, 227 [disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1].) Defendant contends the trial court erred in its handling of the jury’s note. For purposes of our discussion, we will ignore the issue of waiver.
Although defendant, finally in her reply brief, acknowledges the settled law that the trial court’s inquiry into the numerical division of the jury is improper only if the court also asks how the jurors voted on defendant’s guilt or innocence, the cases she cites in support of this position either do not support it or are distinguishable from the facts in this case. People v. Talkington (1935) 8 Cal.App.2d 75 (Talkington) [disapproved on other grounds in People v. Friend (1958) 50 Cal.2d 570, 578 (overruled on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13)] is an example of the former. For any who wish for the “good old days,” attention to the facts in this murder case will change their minds. At 11:10 p.m., the jury reported to the trial court that it was deadlocked. (Talkington, supra, at p. 79.) The trial court inquired as to the numerical division and was told it was 9 to 3. (Ibid.) The trial court asked if the division was over the degree of the crime and was told it was. (Ibid.) The trial court told the jury that at midnight, the court, the court personnel and the attorneys wanted to leave, but they could stay until then. (Ibid.) The trial court added, “Of course, this jury should agree. Of course.” (Ibid.) It added that at midnight, the jury would have to adjourn for the night. (Ibid.) The jury left the courtroom and returned 15 minutes later. (Ibid.) The foreperson said that one of the other jurors did not understand what was meant by the degree of the crime and wanted to know what the court meant by that reference. (Ibid.) The trial court said that it just asked the jury that if it had agreed, had it agreed on the guilt of the defendant. (Ibid.) The foreperson said the jury had not. (Ibid.) The trial court asked if some jurors were voting not guilty. (Ibid.) The foreperson responded that three jurors were voting not guilty and nine guilty. (Ibid.) The trial court then launched into a lengthy commentary about the evidence, including its view that the defense was weak and its agreement with the prosecutor’s argument that defendant was guilty “almost absolutely.” (Id. at p. 80.) It added that it did not see how anyone who heard the evidence could conclude that no crime had been committed. (Ibid.) Another juror said in response to the trial court’s comments that he thought an agreement could be reached. (Ibid.) Instead, the trial court told the jury to retire for the night. (Id. at p. 84.) Defense counsel then complained about the court’s remarks. (Id. at p. 81.) The appellate court began its criticism of what the trial court had done by pointing out that the court could ask for the jury’s numerical division, but not, as it had, about how it voted in reference to the defendant’s guilt or innocence. (Id. at pp. 84, 90.) The appellate court went on to hold that it interpreted the trial court’s first set of remarks as conveying to the jury its expectation that the jurors bring in a verdict of guilty within 2 hours, and if they did not, they were not going to be able to leave for some time and they did not need to talk to the court about leaving if they did not agree. (Id. at p. 88.) The appellate court found the trial court’s second set of remarks (about the weakness of the defense case and its belief that the prosecutor’s argument to the jury was “almost absolute”) was reversible error. (Id. at pp. 90, 99.) There are so many differences between the facts here and those in Talkington that addressing each one would take more print that it is worth. Additionally, contrary to defendant’s assertion here, the Talkington court concluded that it is not coercive if the jury volunteers the fact that they were deadlocked 11 to 1 for conviction. (Id. at p. 86.)
We disagree with defendant that the trial court ran afoul of the rule prohibiting inquiry into how many jurors were for conviction and how many were for acquittal. First, as the trial court and both counsel assumed from the jury’s note, the jury was not vacillating between guilt and innocence but between degrees of murder. As the People correctly point out, at the inception of its oral exchange with the foreperson, the trial court was attempting to ascertain what the problem was so it could be intelligently addressed. At that point, the foreperson volunteered that further information was needed as to deliberation and premeditation and how much weight was to be given to voluntary intoxication and provocation. When the trial court pointed out that the instructions already read had given the jury the general framework it needed to determine these issues and it was unsure how it could be of further assistance in this regard, the foreperson told the court that the jurors kept going around and around about the degree of murder, they were unsure if anyone was going to change his or her mind and they wondered if they should continue trying. The court then asked a question that was more one of clarification than seeking new information, i.e., whether the jury was unanimous that defendant committed murder. We say this question was for clarification only because it was apparent from what the foreperson had said, i.e., that the jurors were deadlocked as to the degree, that they had agreed that defendant was guilty of murder. Therefore, we cannot agree with defendant that there was any coercion inherent in this question. The court then asked the numerical split, adding that it did not want to know how many jurors were for first degree murder and how many were for second degree. Defendant cites no cases holding that such an inquiry is coercive and we cannot agree with her that, under the circumstances here, it was. In answering the court’s question, the foreperson disclosed facts that indicated that the jury had moved on the issue, and perhaps further movement was possible. Of course, the matter of further information about premeditation, deliberation, voluntary intoxication and provocation had still not been addressed by the trial court. At this point, counsel agreed that rereading instructions was appropriate as to the latter, which was accomplished. The court made clear three times during its exchange with the jury that the jurors were free to remain deadlocked and that no particular verdict, not to mention any verdict at all, needed to be rendered. This also supports our conclusion that the trial court’s remarks were not coercive.
This was consistent with the instruction the jury had been given that it could not determine the degree of murder unless it had determined that defendant had committed murder. Thus, we cannot agree with defendant that the court’s remarks took the issue of manslaughter off the table. It was already gone.
Defendant’s reliance on cases discussing jurors reporting misconduct by other jurors (People v. Engelman (2002) 28 Cal.4th 436, 442-443; People v. Cleveland (2001) 25 Cal.4th 466) is misplaced. These are two very different matters.
2. Jury Instruction
During her lengthy post arrest interview, defendant said that after she encountered the victim outside the gate of her home, the victim came up from a crouching position, “she got up, and she did something.... I felt like I had to do something right then. [¶]... [¶] Because I didn’t know. [¶]... [¶] Because... she could have turned... around and hit me with anything. [¶]... [¶] You know. Could have cut me. She keeps a knife or something. I don’t know if she had it. She probably didn’t have it on her.”, Defendant made this statement in connection with the moments before she hit the victim in the head with the gun. Thereafter, defendant pursued the victim down the street and shot her.
Thus, defendant’s characterization of this statement as her being “aware that [the victim] kept a knife” and “[defendant] had known [the victim] to carry a knife” ignores the fact that she did not believe the victim had it at the time.
It was right after making this statement that defendant added, “But even with one of them... things. You know. A pipe or something.” Although defendant wants us to interpret this to mean that she believed at the time she shot the victim that the victim had a “pipe or something[,]” this is unfounded. First, as we have already stated, the comment was made concerning the moments before defendant hit the victim in the head with the gun, not later, when she shot the victim. Moreover, defendant was throwing out hypotheticals, not saying what she actually believed, even at this earlier time when she hit the victim in the head with the gun.
Based on the foregoing, defense counsel at trial requested the jury be given Judicial Council of California Criminal Jury Instruction, CALCRIM No. 571, which states, “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-defense/[or] imperfect defense of another). [¶] If you conclude the defendant acted in complete (self-defense/[or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/[or] defense of another) and (imperfect self-defense/[or] imperfect defense of another) depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] 1. The defendant acted in (imperfect self-defense/[or] someone else/... was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] [If you find that... threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] [If you find that the defendant knew that... had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] [If you find that the defendant received a threat from someone else that (he/she) reasonably associated with..., you may consider that threat in evaluating the defendant’s beliefs.] [¶] [Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.] [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in (imperfect self-defense/[or] imperfect defense of another). If the People have not met this burden, you must find the defendant not guilty of murder.”
The trial court denied the request, finding that defendant had said that after the victim came up from her crouching position on the ground, defendant hit the victim over the head with a gun, and the victim was walking away from defendant while “talking shit” to defendant, and defendant shot her. Defense counsel agreed with this characterization of his client’s statements to the police.
Defendant now contends that the trial court erred in refusing to give this instruction. She does not dispute the trial court’s characterization of her statements, which is entirely accurate. Instead, she makes references to parts of her lengthy interview with police, in particular, a reference to the victim tying up her shirt in preparation for fighting the defendant, and, for the most part, mischaracterizations of the record, contending that they show her fear of the victim. We disagree.
How defendant can contend that this was her theory of the case is beyond us. The opening statement of defense counsel below was not transcribed and defendant presented no evidence whatsoever.
In the interview, defendant said that she had known the victim all her life—their fathers had been best friends and her sister was good friends with the victim, who was homeless and occasionally slept and spent time with another homeless female on the street where defendant lived. Defendant described the victim variously throughout her interview with the police as “really sneaky,” “a dog[,]” “a swift little heifer[,]” “a ding bat[,]” “terrible[,]” “like a Rotweiller, a reptile[,]... a little serpant[,]” “a thief in the night[,]” “a bad seed[,]” and someone who had problems with everyone. (It was pretty clear from the interview, and testimony by a friend of the victim, that the victim had mental issues.) However, defendant never described the victim in terms suggesting that she was afraid of her. Defendant had been angry with the victim for some time because the victim trashed the street, including leaving feces and “female products.” The night of the shooting, after consuming alcohol, defendant came out of the gate to her property and remonstrated the victim for, once again, leaving trash, this time from the party, in front of her mailbox “on the side of the street.” Defendant reported that there were other people nearby, but they moved away “[b]ecause they don’t mess with Miss Sonya.” The victim responded with profanities and an assurance that she would clean up the mess. The two then got into a verbal argument. Defendant told the victim that she was “sick of her shit” and that she was going to “whup [her] ass like [she’s] a child.” Defendant retrieved a portion of a fishing pole from her truck and returned to outside her gate. The victim was across the street, dancing, and, according to defendant, “bothering” other partygoers. Apparently anticipating what defendant was about to do, others at the party told defendant not to bother, but she said that she was tired of the victim. Defendant removed the skirt she was wearing and her shoes so she could move more easily. When defendant next encountered the victim, she beat her in the head with the fishing pole part until it broke., The victim said she was going to beat defendant, and when defendant replied that she was tired of the victim, the victim snapped at defendant’s face, like a dog would, while moving her head, “talking shit” and waiving her arms, and then spit in her face. Defendant and the victim were in the yard of defendant’s cousin’s house. At that point, defendant reported, “... I don’t say nothing, it’s on.” Defendant went into her house and told her nephew that she was tired of people trying to “fuck her over.” She got a gun, which she always kept loaded, asked God to forgive her for what she was about to do, saying, “I’m getting ready to just hurt this girl” and went back outside. The victim was up the street, in a crouching position, with a cup in one hand, and possibly something else in the other. The victim approached defendant, who pointed her gun at the victim. People tried to get defendant to stop but she said, “Shut the fuck up.” Defendant told the victim to shut up, the victim did not and defendant hit her in the head with the gun while there were 100 people nearby. The victim turned and either walked or ran away from defendant, saying, “Fuck you, bitch.” Defendant followed the victim, twice telling her to stop moving and get on the ground while pointing the gun at her. Defendant continued to follow the victim with the gun pointed at the victim. The victim continued to taunt defendant over her shoulder. Defendant then shot the victim in the back while a lot of people were around them and the victim was walking away from defendant and was some distance from her, in the driveway of the home of a neighbor. After the victim fell to the ground, defendant said, “I’m sick of all you mother fuckers fucking with me and I’m tired of you underestimating me” and “you fuck with me and this is what’s going to happen. And I’m not playing no more.” Defendant got in her truck and left, throwing the gun out as she drove. She told someone she encountered later that she felt nothing during the shooting, but she had done something wrong. She said she told the police officer that arrested her that she was scared and she was not going to take any “shit” because she had been beaten with bats and someone killed her sister and she had a fear about people. She added, “If you’re going to do something to me, I just react.” She also said that she did not think the victim had a gun, but she may have. She allowed that she had no knowledge that the victim carried a gun.
Defendant also had a small amount of cocaine in her system.
Apparently, this was true. A homeless man who had known the victim for 10 to 12 years and considered her a friend said she was bugging and getting into arguments with all kinds of people at the party. He also testified that the victim had once bitten him in the chest. His testimony, and defendant’s interview with police, suggested that the victim was bipolar.
Defendant also stated that this occurred after the victim had spit in her face, but then she said she hit the victim with the fishing pole just after she removed her skirt.
Defendant also said she was going to stab the victim with the fishing pole, but then changed her mind.
Defendant said that at two points after she had gotten the fishing pole, the victim rolled up her pants and shirt and seemed to be urging defendant to fight her. She also said that the victim rolled up her shirt while she was dancing before defendant beat her with the fishing pole piece, so perhaps the victim’s rearrangement of her clothes was not a challenge to fight. In any event, this occurred after defendant removed her skirt and shoes, no doubt for the same reason. The representation of appellate counsel for defendant that this occurred just after defendant noticed that the victim had thrown trash near her trash can, therefore, is not supported by the record. Equally unsupported is counsel’s statement that defendant had often seen the victim fight other people using bricks or bottles. In fact, what defendant said was, “... [The victim] and the girl down the street, they always having problems and they bite each other and cut—hit and bricks and bottles or whatever.”
Although defendant focuses on this as supportive of the instruction, she ignores the fact that it preceded her retrieval of her gun, her pointing it at the victim, her hitting the victim with it and finally, her shooting the victim, as the latter walked away from defendant. Given this, defendant could not possibly have felt threatened at the time of the shooting and she stated as much during the interview.
Appellate counsel for defendant incorrectly states that defendant beat the victim with the pole after the victim threatened to beat defendant, snapped in defendant’s face and beat her with the fishing pole piece. However, this was not the order in which these things occurred. Counsel also fails to state that defendant removed her skirt and shoes before anything physical occurred between the two women.
According to defendant’s diagram and photographs of the scene, that house is directly across the street from her trailer.
Defendant variously said that when she came out of her gate with the gun, the victim was down the street then approached her and that she was in the street nearby defendant, while defendant had the gun in her hand pointing out. However, before defendant shot the victim, the latter had walked away from defendant, who continued to insist that she stop moving away from her, therefore defendant’s assertion that she “simply wanted... to chase [the victim] away from her property” is belied by defendant’s statements. The victim was shot in the driveway of a house that was across the street and two residences down from defendant’s trailer.
However, defendant reported that when she shot the victim, the latter clutched her side with one of her hands. After the shooting, the victim still had the cup in her hand, so the other hand must have been empty.
Defendant asserts that the victim “came at her” citing three references in her first interview. At the first one, defendant said that when she came out of her gate, the victim “was coming. She was in the middle of the street.” At the second one, she said that after the victim turned away from her, she hit her in the head with the gun. At the third, she is showing the interviewer on a diagram where she was when she hit the victim in the head, where she was when she shot her and where her driveway and gate were. Neither defendant’s statements at these points nor the diagram she drew shows that the victim came at defendant just before defendant shot her—in fact, defendant’s diagram shows just the opposite.
Defendant said she did not know if she and the victim were facing each other when she hit the victim in the head with the gun. According to the defendant’s diagram, this occurred in the street between the front of where her trailer was and the front of the house where the party was taking place. The victim sustained a wound to the left side of her head, right above the ear.
Appellate counsel characterizes this as defendant’s “pleas to the victim to desist” implying that the victim was somehow threatening defendant at the time. However, what defendant wanted the victim to desist from was moving away from her and/or “talking trash” while she was doing it. Counsel also states that after defendant hit the victim in the head, the victim continued to come at defendant when defendant asked her to stop. He cites in support page 38 of the transcript of the interview. The following colloquy occurred on that page and the next,
Appellate counsel for defendant continually ignores this crucial fact in making his argument.
At one point during the police interview, defendant said, after reporting that the victim was walking away from her, “You know, I’m going to protect myself.”
See footnote 25, ante, page 16.
When asked why she shot the victim, defendant said, “I don’t know. Just sick of her. [¶]... [¶]... I was angry.... [¶]... [¶] [S]he spit in my face.” She went on to say that anyone who spits in someone’s face is going to have violence done to them. When the interviewer said he could understand how defendant got angry and shot the victim, defendant replied, “I’m serious, that is the lowest thing... [¶]... [¶] --you can do outside of putting some... [¶]... [¶] [s]hit [on somebody.]” The interviewer said to defendant, “[I]f [the victim] didn’t bother you then this wouldn’t have happened.” Defendant replied, “It wouldn’t.” The interviewer said, “Someone just pissed you off.” Defendant did not disagree. The interviewer said that he understood about getting angry and wanting to kill people. Again, defendant did not disagree with his characterization of the event. She denied being threatened by the victim. Defendant reported that after her boyfriend recently died, she resolved to not “tak[e] shit from nobody no more.” She described the victim as like “a dog [that] just keeps messing with you and you want to beat the mess out of him or you want to poison him or something.” She said she was going to stab the victim with the fishing pole piece. She said, “I didn’t have any intentions [of] shooting that girl... but, I mean, all kinds of things just start going through my head,... about the way I got treated and... then... I just kind of went back.” She admitted that the shooting was planned. She added, “I’m so tired of being mistreated. I’ve been beat with bats and everything else.... So, this was the last freaking straw.” She acknowledged that she was in “deep caca” because of what she had done.
She reported that she had been mistreated by her boyfriend’s family after his death.
Contrary to defendant’s supposition that the jurors must have rejected this, and other evidence of premeditation from defendant’s own mouth, it is more reasonable to conclude, particularly in light of their request during deliberations, that her level of intoxication and whatever provocation the victim’s acts supplied caused them to have a reasonable doubt that she committed first degree murder.
When asked by the officer who first encountered defendant after the shooting why she shot the victim, defendant said, “... [B]ecause she spit on me.”
Defendant’s statement that she felt she had to do something because the victim could have turned around and hit her with anything or could have cut her with a knife, although she conceded that the victim probably didn’t have one, preceded defendant hitting the victim in the head with the gun. At a stretch, that might constitute an unreasonable belief on the part of defendant in the need to hit the victim in the head with the gun, but not to shoot her, which occurred later and as the victim was walking away from defendant and was some distance from her. The evidence defendant on appeal points to, i.e., that the victim began to tie up her pants and shirt, as though anticipating a fight with defendant, occurred after defendant did the same. Defendant did not state how long before the shooting this occurred. Defendant’s generalized statement that she told the officer who arrested her that she was afraid of people and had been beaten with bats and her sister had been killed and that was why she was not going to take any “shit” had nothing to do with the victim, whose shooting the defendant justified as an act of anger and frustration, not fear. Therefore, there was no evidence supporting the giving of this instruction.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.
Although defendant cites Brasfield v. United States (1926) 272 U.S. 448 for the proposition that a trial court may inquire into the numerical division so long as it does not ask how many are voting to convict and how many to acquit, Brasfield holds that even an inquiry into the numerical division alone is inherently coercive and therefore improper. However, as defendant fails to point out, Brasfield declares a rule of procedure for federalcourts only, with no constitutional basis, and, therefore inapplicable to the states. (See People v. Rodriguez (1986) 42 Cal.3d 730, 774, fn. 14; People v. Breaux (1991) 1 Cal.4th 281, 319, fn. 16.) Also, Burton v. United States (1905) 196 U.S. 283, which defendant additionally cites, held that it was error for the trial court to refuse to give the deadlocked jury instructions which the defense had requested after the trial court asked for the numerical division. (Id. at p. 308.) The Supreme Court cautioned against the practice of trial courts even asking for the numerical division, but the reversal was not based on this. (Id. at pp. 307-308.)
“A [Defendant]:... I’m hittin[g] her in the head and then she kept walking. She’s still talking shit. And I said, [“B]itch, just get the fuck down on the God damn ground. [¶]... [¶]... I said, please don’t go no further. Please don’t move. She said, [“F]uck you, bitch.... [¶]... [¶]
“Q [Interrogator]:... Is she still looking back at you walking away?
“A [Defendant]: Yes.”