Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. GA060107, David S. Milton, Judge.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Corey Ronnie Jones was sentenced to 40 years to life state prison after a jury convicted him of second degree murder (Pen. Code, §§ 187, subd. (a); 189) and personal use of a firearm (§ 12022.53, subds. (b) – (d)). Appellant appeals from the judgment, contending that the trial erred in not instructing on sudden quarrel and heat of passion voluntary manslaughter. We affirm.
All statutory references are to the Penal Code.
Facts
On January 10, 2005, appellant shot and killed Michael Smith outside an apartment building in Pasadena. Appellant had just broken up with Gilda Luckey and was jealous of Smith's friendship with Luckey. Appellant and Smith lived with Ollie Love, an ex-gang member, down the street from Luckey.
On the morning of January 9, 2005, appellant argued with Luckey about loaning her cell phone to Smith. Appellant was angry because Luckey had not let him borrow the cell phone on a prior occasion. Luckey said that Smith was just a friend and the reason she did not lend appellant the phone was because he had lost one of her phones.
Appellant left and returned 15 minutes later. Cussing and hollering, he accused Luckey and Smith of having an affair. Appellant flipped over a coffee table, argued with Luckey's brother, Cedric, and threatened to get a gun and shoot Cedric.
Appellant calmed down and returned to Luckey's apartment at about 7:00 p.m. that evening. They talked about everything that happened that day and agreed to end the relationship. Appellant was "cool" about their decision to breakup and did not accuse Luckey of cheating on him.
An hour later, Smith stopped by and told Luckey that he and appellant had "squashed it" (i.e., had made up) and were once again friends.
Earlier that day, Ollie Love overheard appellant make two phone calls. In the second phone call appellant said, "I need a gun, man. This nigger keep fucking with me you know and I want to shoot him in the head."
Sometime after 2:00 a.m. on January 10, 2005, Jamal Jones, appellant's brother, called Smith about a drug deal. Smith and Phillip Talbert left Love's house and met Jamal and appellant outside. Smith wanted to stop by Luckey's apartment and return her cell phone.
Appellant and Smith walked up the street, 15 feet in front of Talbert and Jamal Jones. When they reached the driveway, appellant raised his right arm, turned, and shot Smith. Smith suffered a shotgun wound to the chest and died.
Appellant fled to Seattle, Washington and lived in the streets. While there, he told Patrick Walton that he had committed a murder in Pasadena and was on the run.
Appellant was arrested on a fugitive warrant and was concerned about his safety. Appellant told Seattle Police Officer Robert Brown that he was afraid to go back to Pasadena because some "homeboys... would be out for him, [and] they believed he killed one of their own."
Appellant was charged with first degree, premeditated murder with a lying in wait special circumstance. (§§ 187, subd. (a); 190.2, subd. (a)(15).) The defense theory was that Talbert and Smith argued about money before the shooting and that Talbert shot Smith. Defense counsel told the jury "this isn't about a jealous boyfriend, and it's not about a phone."
Heat of Passion - Voluntary Manslaughter
The jury was instructed on first degree premeditated murder and second degree murder. Appellant asserts that the trial erred in not sua sponte instructing on sudden quarrel or heat of passion voluntary manslaughter, a lesser included offense of murder. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) A trial court must instruct on lesser included offenses which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could... conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.)
In order to reduce murder to heat of passion voluntary manslaughter, provocation and heat of passion must be affirmatively demonstrated. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The 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.... '[T]his 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 further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Id., at pp. 1252-1253.)
Appellant argues that he and Smith were rivals and that he believed Smith was having an affair with Luckey. The evidence showed that appellant was angry but calmed down and agreed to break up with Luckey. Smith told Luckey that he and appellant had settled their differences and were friends. Talbert spoke to appellant several hours before the shooting. Appellant was calm but told Talbert he was "tired of this bullshit."
Ollie Love testified that appellant and Smith argued about a gambling matter two weeks before the shooting. Appellant had a kitchen knife and Smith had a 40 ounce bottle. Love "never saw them make any physical contact." Two days after the shooting, Love told a police detective that appellant and Smith argued on the afternoon of January 9 and that appellant pulled a knife on Smith.
Staging a drug deal, appellant draped a jacket over a sawed-off shotgun and met with Smith. As they walked up the street, appellant turned and fired over his left shoulder, fatally wounding Smith. It was a surprise attack. Appellant gave a similar account of the shooting to Walton in Seattle, stating that he "slid the gun out of his coat," and turned the shotgun "over his shoulder, originally trying to wound him in the arm or leg not wanting to kill him but ended up killing him instead." There was no evidence that Smith quarreled with, threatened, or attacked appellant before appellant fired the shotgun.
Appellant argues that the jury should have been instructed on heat of passion voluntary manslaughter based on extreme jealousy. (See, e.g., People v. Berry (1976) 18 Cal.3d 509, 514.) "It is important here, however, to distinguish between jealousy as a motive for the killing and jealousy sufficient to invoke the 'heat of passion' concept." (People v. Hyde (1985) 166 Cal.App.3d 463, 473.) Appellant was jealous of Smith's relationship with Luckey, "[b]ut that fact, in and of itself, [was] insufficient to allow a reasonable jury to conclude that [appellant] killed in the 'heat of passion.' In order to warrant the giving of a voluntary manslaughter instruction, the evidence of defendant's jealousy must be such as to suggest he did not either intend to kill or act in conscious disregard of a substantial probability that death would result. Furthermore, defendant's 'passion' must be the result of 'sufficient provocation.' [Citations.] [¶] In the present case, the evidence suggests neither passion in the sense of 'violent, intense, high-wrought or enthusiastic emotion' [citations] or any – let alone sufficient – provocation. [Citation.]" (Ibid.)
Assuming that appellant was provoked on January 9, he had sufficient time to cool off. Luckey testified that appellant and Smith had resolved their differences, that appellant was "cool" about breaking up, and that appellant appeared calm. Six hours later, appellant concealed a shotgun under a jacket, lured Smith outside, and shot him as they walked up the street.
In order to instruct on heat of passion voluntary manslaughter, "the killing must be 'upon a sudden quarrel or heat of passion' (§ 192); that is, 'suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' [Citation.]" (People v. Daniels (1991) 52 Cal.3d 815, 868, emphasis added.)
Appellant planned and carried out a surprise attack, intending to shoot Smith in the arm or leg. "There was no showing that [appellant] exhibited anger, fury, or rage; thus, there was no evidence that [appellant] 'actually, subjectively kill[ed] under the heat of passion.' [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 585.) Even if appellant could satisfy the subjective requirement that he killed in the heat of passion, "the evidence of provocation was insufficient to satisfy the objective requirement, that is, that [appellant's] heat of passion resulted from sufficient provocation caused by the victim. Although the provocative conduct may be verbal,... such provocation 'much be such that an average, sober person would be so inflamed that he or she would lose reason of judgment.' [Citation.] That standard was not met here." (Id., at pp, 585-586.) An instruction on sudden quarrel or heat of passion voluntary manslaughter would have been contrary to the evidence and contrary to the law. (Id., at p. 585.)
Due Process
Appellant asserts that the trial court violated his due process right to a fair trial by not instructing on heat of passion voluntary manslaughter. "But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." (Hopper v. Evans (1982) 456 U.S. 605, 6111 [72 L.Ed.2d 367, 373]; People v. Holloway (2004) 33 Cal.4th 96, 141 [same; federal and state Constitutions not infringed where voluntary manslaughter theory not supported by substantial evidence].)
Citing People v. Rios (2000) 23 Cal.4th 450, appellant argues that the jury should have been instructed that "malice" is intent to kill without provocation and heat of passion. There, our Supreme Court observed: "[W]here the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter. By the same token, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if the evidence of provocation or imperfect self-defense, which would support a finding 'that the offense was less than that charged,' is lacking. [Citation.]" (Id., at p. 463, fn. 10.)
The jury was given CALJIC 8.11 ("Malice Aforethought" –Defined) which states: "'Malice' may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word 'aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."
Assuming that intent to kill without heat of passion is an alternative way of defining malice, appellant waived the issue by not requesting an amplifying instruction. "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.) Unless the prosecution "evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant's obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. [Citations.]" (People v. Rios, supra, 23 Cal.4th at pp. 461-462.)
Appellant told a homeless person (Patrick Walton) that he concealed a shotgun under his jacket and shot Smith without looking at him. Talbot, who witnessed, the shooting, gave a similar account of the shooting. Appellant draped a jacket over the weapon, turned, and fired the weapon over his left shoulder, not looking at Smith. The evidence was overwhelming. The alleged instructional errors were harmless under any standard of review and did not deny appellant a fair trial. (See e.g., People v. Moon (2005) 37 Cal.4th 1, 32; People v. Breverman, supra, 19 Cal.4th at p. 165.) The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.