Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. VA097054, Robert J. Higa, Judge.
Lawrence R. Young & Associates, Lawrence R. Young for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
William Boyd Miller appeals a judgment following conviction of second degree murder, and elder or dependent-adult abuse resulting in death, with victim age-related sentencing findings. (Pen. Code, §§ 187, subd. (a), 189, 368, subd. (b)(1).) We affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Miller lived with his father, William Miller ("Miller Sr."), in the family's Whittier residence. Miller Sr. was 64 years old and in frail health. He breathed with the assistance of a portable oxygen tank and used a walker to move about the home. A neighbor described him as "in pretty bad shape."
Miller and his friend Hugo Galaviz frequently spent time together in the garage of the residence, listening to music and consuming beer. In the late morning of August 31, 2006, Galaviz and Miller played the guitar, drank beer, and listened to the radio in the garage. Miller walked into the residence to use the bathroom. Galaviz then heard "a little bit of arguing."
After a few minutes, Galaviz walked into the home. When he looked to the room where Miller Sr. usually sat, he saw him lying on the floor in a pool of blood. Galaviz attempted to aid him, and called for Miller to summon paramedics. Galaviz assumed that Miller Sr. had fallen, but Miller stated, "[H]e didn't fall down. I punched him out." Initially Miller refused to call for assistance, and insisted that Galaviz leave.
Miller then telephoned for emergency assistance and stated that he wanted Galaviz removed from the home. Miller informed the police emergency dispatcher that he "got into a fight with [his father]," he hit his father with his fists, and that they had "a boxing match." At trial, the prosecutor played a tape recording of the emergency dispatch call.
When police officers arrived, they found Miller Sr. unresponsive and bleeding from a head wound. There were no weapons nearby. Miller had slight swelling and redness on his knuckles. He did not appear to be intoxicated.
Miller Sr. died from his injuries which included a jaw fracture, fractured ribs, broken sternum, broken clavicle, and bruising. Medical Examiner David Whiteman performed an autopsy and opined that Miller Sr. died from blunt-force trauma to the head and chest. He stated that the injuries were not consistent with an accidental fall. Some of the injuries could have been caused by kicking blows. Toxicology tests disclosed that Miller Sr. had not consumed alcohol or illegal substances.
Police officers later searched the residence pursuant to a search warrant. They did not find firearms or weapons near the area where Miller Sr. usually sat. Officers found a firearm under the mattress in Miller's bedroom and a sword in his closet.
When police officers arrested Miller, his shoes appeared to be bloodstained. The prosecutor presented evidence of photographs of the stained shoes.
Miller Sr.'s former wife, Darla Sue Kennedy, testified that he abused his sons with excessive punishment when they were teenagers. She stated that Miller Sr. was an alcoholic who drank whiskey daily.
The jury convicted Miller of second degree murder (count 1) and elder or dependent-adult abuse resulting in death (count 2). It also found that Miller Sr. was less than 70 years old, pursuant to the age-related sentencing factors of section 368, subdivision (b)(3)(A). The trial court sentenced Miller to 15 years to life for count 1. It imposed but stayed an eight-year sentence for count 2, consisting of a three-year midterm and a five-year enhancement. (§ 654.) The court also imposed various fines and fees and awarded Miller 722 days of presentence custody credits.
Miller appeals and contends that: 1) insufficient evidence supports the judgment; 2) the trial court did not consider mitigating sentencing factors; 3) the trial court erred by not reducing the charge to manslaughter; and 4) the trial court erred by shifting the burden of proof regarding intent.
DISCUSSION
I.
Miller contends that insufficient evidence supports the judgment of second degree murder, pointing out that there are no eyewitnesses to the crime and asserts that the prosecution did not establish that the stains on his shoes are blood deposits.
In determining the sufficiency of evidence to support a judgment, we view the evidence and draw all reasonable inferences therefrom to determine whether reasonable and credible evidence supports the decision of the trier of fact. (People v. Boyer (2006) 38 Cal.4th 412, 480.) We do not reweigh the evidence nor do we reassess the credibility of witnesses. (Ibid.) "'"An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise."'" (People v. Hovarter (2008) 44 Cal.4th 983, 1015.)
Second degree murder may be established by evidence of implied malice. Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to human life, which act is deliberately performed by another with conscious disregard for life and with knowledge that the conduct endangers human life. (People v. Knoller (2007) 41 Cal.4th 139, 143.) "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another--no more, and no less." (Ibid.)
Sufficient evidence exists here of implied malice. Miller admitted to the emergency dispatcher and to Galaviz that he punched his father with his fists and had engaged in "a boxing match." Miller's shoes had stains that appeared to be bloodstains; the jury received photographs of the stained shoes. Miller Sr. was dependent upon an oxygen tank, used a walker for balance and mobility, and was in frail health. Toxicology tests on the decedent found no evidence of blood alcohol or illegal drugs, and police officers found no weapons in the room where Miller Sr. died. The medical examiner opined that Miller Sr. died of blunt-force trauma to the head and chest, and that his injuries were not consistent with a fall. Sufficient evidence supports the finding that the death of Miller Sr. was a reasonable and probable consequence of the beating inflicted by his son. (People v. Teixeira (1955) 136 Cal.App.2d 136, 150 ["Normally, hitting a person with the hands or feet does not constitute murder in any degree.... But if death or great bodily harm is a reasonable or probable consequence of the beating the offense may be murder"].)
II.
Miller argues that the trial court did not consider the mitigating factors that he had consumed alcohol the day of the murder and that his father had emotionally and physically abused him.
At sentencing, the trial court stated that it had read and considered the probation report, written sentencing arguments submitted by the parties, and Miller's character reference letters. The court then heard oral argument regarding sentencing. Miller's attorney argued in part that Miller cared for his father while "constantly being abused by him." He stated that Miller did "his duty in the face of nothing but abuse every single day from the father."
We presume the trial court considered the factors that Miller asserted as mitigating circumstances. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [presumption that trial court acts to achieve legitimate sentencing objectives].) Moreover, the court's decision to impose a midterm sentence for count 2 is not irrational or unreasonable. (Id. at pp. 977-978 [reviewing court does not substitute its judgment for that of trial court].) Miller beat his father a frail elderly man attached to an oxygen tank to death and did not assist him as he lay dying. Miller has not established that the court abused its discretion. (Id. at p. 977 [burden on appellant to establish that sentence is unreasonable or arbitrary].)
III.
Miller asserts that the trial court erred by not reducing the second degree murder finding to manslaughter. He argues that the prosecutor failed to present evidence to establish the requisite intent. (§ 1181, subd. 6 [trial court may modify a verdict where it is contrary to the evidence].)
The trial court did not err because there is sufficient evidence of implied malice and second degree murder. (Ante, part I.) Moreover, there is no evidence of manslaughter--that Miller reacted to "sufficiently provocative [conduct by the victim] that... would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Manriquez (2005) 37 Cal.4th 547, 583-584.)
IV.
Miller contends that the trial court erred by shifting the burden of proof regarding intent to kill. He reasons that the trial court permitted an unconstitutional presumption that he intended to kill his father, requiring him to prove that the crime occurred in heat of passion. Miller relies upon Tot v. United States (1943) 319 U.S. 463, 467-468, holding that due process requires that a statutory presumption have a rational connection between a fact proved and the ultimate fact presumed.
Miller's argument is mistaken because the prosecution proceeded upon a theory of implied malice, not express intent to kill. Thus, during summation the prosecutor argued: "Implied malice--and this is what I'm talking about. This is our theory. It's always been our theory. The killing resulted from an intentional act. That means the person who did the act meant to do it. The natural consequences of the act are dangerous to human life. And the act was deliberately performed with the knowledge of the danger to and with conscious disregard for human life. That's implied malice. That is the instruction that the court read you. That is the law." The trial court properly instructed regarding implied malice, second degree murder resulting from an unlawful act dangerous to human life, voluntary manslaughter, the distinction between murder and manslaughter, and proof beyond a reasonable doubt. (CALJIC Nos. 8.11, 8.31, 8.40, 8.50, 8.72, 2.90.)
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.