Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 04WF2440, William R. Froeberg, Judge.
Boyce & Schaefer, Laura Schaefer, 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, Melissa A. Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Paul Edward Maines appeals from judgment after a jury convicted him of second degree murder. He contends the trial court erred in refusing his request for a “heat of passion” voluntary manslaughter jury instruction. We conclude the evidence was insufficient to warrant a heat of passion instruction and affirm the judgment.
I
Facts
Maines is a little over six feet tall and weighs 200 pounds. The victim, Amy Khylity, was approximately five feet tall and weighed between 90 and 97 pounds. Maines and Amy were dating, but on August 22, 2004, they got into a horrible fight during which Amy sustained a fatal blow to her head.
Maines’s neighbors at his Garden Grove condominium complex heard the couple fighting at approximately 10:00 p.m., on August 22. Of the three neighbors who testified about hearing the argument, only Sara Dang could make out some of the words spoken. She remembered being awakened by shouting, and heard Maines yell out, “‘You whore[,] you’re using me[.]’” Another neighbor, Adam Mathos, heard a motorcycle leave about 10 minutes after the argument. Desiree Ybarra, who lived across from Maines, did not hear anything on the night of August 22, but testified she heard arguing in the apartment before, and once heard a female crying.
At 1:11 a.m., on August 23, Maines called 911. Maines told the dispatcher a girl had been beaten up, she was coherent, she was sleeping, and he did not know if the attacker was nearby. A few minutes later, a Garden Grove police dispatcher called Maines cell phone back. Maines said his name was Scott, his injured friend had called him for help, and indicated he was on his way to the victim’s location from Huntington Beach.
A Garden Grove Police Officer entered Maines condominium at 1:20 a.m., through the front door that had been left ajar. He found Amy lying on the bed in the master bedroom. Her eyes were swollen shut, she was nonresponsive, and she had very shallow breathing. The officer saw dried blood caked near her nose and mouth, blood stains on the bed, and a bloody Ziploc bag containing melting ice cubes near Amy’s head. There was no blood visible on Amy’s clothing, but on the bed was a brown dress with wet spots and blood on the tag. Amy was transported to the hospital, but died from brain swelling caused by blunt-force trauma to her head. Forensic specialist, Erica George, observed a checker board pattern on Amy’s face, and blood trickling out her right eye.
During a search of the condominium, officers found a bloody pair of Amy’s shorts, shoes, and bra. Blood on the shorts and shoes were consistent with Amy’s DNA profile. The officers found a spot of blood in the second bedroom and another spot on the carpet near the master bedroom’s doorway. They discovered a bottle of stain remover next to the bathroom sink and a blood stain on the door jam of this bathroom. The garage contained Amy’s car and Maines’s motorcycle. An officer testified the motorcycle felt slightly warm as if someone had driven it within a couple of hours.
The officers pieced together a timeline of the events occurring on the night of the incident based on Maines’s cell phone records. Before his fight with Amy, Maines twice called (at 7:50 and 8:32 p.m.) a waitress, who works at the Players Lounge bar. They spoke for only a few minutes. The waitress, Khalana Nguyen, testified Maines was one of her customers, and they had previously exchanged telephone numbers so he could determine when she was working.
After the neighbors reported hearing the couple arguing, Maines made several phone calls between the hours of 11 p.m., and 1:05 a.m. Specifically, Maines spoke to his drinking buddy, Eric Ramirez, his former girlfriend, Lucie Tangavelou, and her friend, Kim Nguyen, about Amy.
The first calls were made to Maines’s friend Eric Ramirez. The phone records indicate Maines called Ramirez at 11:09 p.m., 11:10 p.m., 12:10 a.m., 12:18 a.m., and 1:05 a.m., and all these calls, except the last one, were made at a location consistent with Maines’s residence in Garden Grove. The first two calls were lengthy, lasting 30 minutes. The other conversations lasted only a few minutes each. The early morning call at 1:05 a.m., was for one and one-half minutes and was made in Westminister.
Ramirez testified he knew Maines because they were drinking buddies. Ramirez had been drinking heavily that night, but recalled Maines called him several times while he was playing a pool game at a bar. He remembered Maines told him Amy was hurt and had a busted lip. Ramirez described Maines as being “frantic” and kept asking him for advice about how to care for Amy. Ramirez believed Maines was surprised he had hit Amy. He was under the impression Amy was unconscious, and he advised Maines to apply ice and to try to stop the bleeding. He offered to drive Amy to the hospital and told Maines to call 911.
After speaking with Ramirez several times, Maines called Nguyen two times. At 12:45 a.m., she called him back and they spoke for 10 minutes. Nguyen testified Maines told her something bad had happened to Amy. She told Maines to “call for help” from 911 or the paramedics. Approximately 10 minutes later (at 1:04 a.m.), Tangavelou called Maines on his cell phone and the call lasted less than a minute. The next call Maines made was to 911 at 1:11 a.m.
Maines then had a 34-minute phone conversation with Tangavelou, starting at 1:23 a.m. He also spoke again with Ramirez, who offered to let Maines spend the night. Ramirez testified Maines indicated he was going to contact an attorney because he thought he would be arrested for assault, and he wanted to turn himself in. He also told Ramirez he was suicidal.
At trial, the parties stipulated Tangavelou would testify she had known Maines for 16 years, and was his live-in girlfriend for five years. Their relationship had ended five years ago, and in her opinion, Maines was not a violent person.
The forensic pathologist, David Katsuyama, who performed Amy’s autopsy, testified Amy died of subdural hemorrhaging and brain swelling caused by blunt-force trauma inflicted upon her head. He opined there were at a minimum three or four blows to Amy’s face, but there may have been more. In addition to the many cuts and areas of swelling, Katsuyama noticed ridge like lines on Amy’s face and a torn left eyelid, which are injuries consistent with being struck down onto, or pulled down on, a carpet one or more times.
During a conference on instructions, the parties discussed with the court whether the jury should be given the “heat of passion” instruction. After a break, the court informed the parties the instruction would not be given due to the lack of evidence of provocation. It agreed with the prosecution’s argument: “[How do] we have circumstances for this jury to judge heat of passion since no one has testified about what was being argued about or what was said. How are they to think what would a reasonable person do in his shoes? We don’t know. What was she saying? What was the argument about? Where was she standing? . . . All we know is that they argued[.]” The jury convicted Maines of second degree murder, and he was sentenced to 15 years to life in prison.
II
Discussion
Failure to Instruct Argument
Maines contends the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter based on heat of passion. Maines argues, “This is a classic situation of a boyfriend who became jealous after discovering his girlfriend’s infidelities.” He points to the neighbors’ testimony as suggesting they had a “stormy relationship.” Maines argues his statement, “‘You whore. You’re just using me’” strongly suggests he was “in a highly over-wrought emotional state caused by what [he] perceived were [Amy’s] infidelities.” He adds the medical examiners opinion there may have been between three and six blows to Amy’s head “suggest[s he] acted in an explosive rage, supporting an inference that [he] acted in a heat of passion, without time for reflection.”
Applicable Legal Principles
“The Penal Code defines manslaughter as ‘the unlawful killing of a human being without malice.’ (§ 192.) The offense is voluntary manslaughter when the killing is ‘upon a sudden quarrel or heat of passion.’ (Id., subd. (a).) [M]anslaughter has been considered a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. [Citations.] An unlawful killing with malice is murder. (§ 187.) Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation (§ 192, subd. (a)), or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. [Citation.] Only these circumstances negate malice when a defendant intends to kill. [Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 58-59 (Lee).)
All further statutory references are to the Penal Code, unless otherwise indicated.
“Although section 192, subdivision (a), refers to ‘sudden quarrel or heat of passion,’ the factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] ‘Heat of passion arises when “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.”’ [Citation.]” (Lee, supra, 20 Cal.4th at p. 59.)
“‘[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.’ [Citation.] Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] ‘“Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” [Citation.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
Legal Analysis
There was no direct evidence Amy did or said anything that would cause an average person to react with deadly passion. Citing circumstantial evidence, Maines asks us to infer sufficient provocation. But, we conclude the only inference that can be made from the sum total of his evidence was that Maines was angry and reacted violently. There is no telling evidence from which to infer Maines reacted to any provocation, or the nature of the alleged provocation.
Moreover, “It is not enough that provocation alone be demonstrated. There must also be evidence that the defendant’s reason was in fact obscured by passion at the time of the act.” (People v. Sedeno (1974) 10 Cal.3d 703, 719.) “‘“[T]he assailant must act under the smart of that sudden quarrel or heat of passion.”’” (People v. Dixon (1995) 32 Cal.App.4th 1547, 1552, disapproved on another point in People v. Blakeley (2000) 23 Cal.4th 82, 90-91.) Maines presented no evidence that at the time of his violent outburst his reason was obscured or disturbed as a result of the alleged provocation. The witness who heard Maines shout “whore” could not say exactly when during the argument the statement was made. She remembered being woken up by the shouting, and she traveled to the window to see where the noise was coming from. She did not see or hear what, if anything, provoked the verbal attack. She did not see the physical attack. There is no evidence suggesting the statement was immediately preceding or contemporaneous to Maines’s violent physical outburst. Nor was there evidence to suggest the provocation was so extreme that it would have a long lasting impact and cause a reasonable person to act irrationally for an extended period of time. In fact, there was evidence Maines engaged in very ordinary and lucid activity. The witness said she saw Maines turn on a fan by the window soon after she heard him yell “whore.”
It is pure speculation to suggest Maines was provoked by Amy’s purported infidelity. As noted by the Attorney General, the derogatory term “whore” is no longer exclusively used in the context of infidelity or promiscuity. Maines could have been under the impression Amy was using him to have a place to stay, pay her bills, or for any other unscrupulous reason. As noted previously, Maines had the burden of proving the provocation was sufficient to “cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (Lee, supra, 20 Cal.4th at p. 59.) He failed to do so. Evidence of being “used,” without any other hint of infidelity, could make an ordinary person in Maines’s shoes feel angry or depressed, but it would be insufficient provocation “to arouse feelings of homicidal rage or passion[.]” (People v. Pride (1992) 3 Cal.4th 195, 250 [being subjected to a written criticism of his work deemed insufficient provocation]; People v. Hyde (1985) 166 Cal.App.3d 463, 472-473 [defendant learning a former girlfriend was dating someone new was insufficient provocation].)
For all the reasons stated above, we conclude Maines failed meet his burden of presenting evidence indicating there was sufficient provocation to warrant the instruction. The instruction was properly refused.
III
Disposition
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.