Opinion
C086125
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHN WAYNE NOONKESTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR94863)
Following a jury trial, defendant John Wayne Noonkester was convicted of two counts of first degree murder with the multiple murder special circumstance (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3)) and one count of assault with a deadly weapon (§ 245, subd. (a)(2)), with enhancements for using a firearm and for personally and intentionally discharging a firearm causing death (§§ 12022.53, subd. (d), 12022.5, subd. (a)). The trial court sentenced defendant to life without parole, with consecutive terms of 50 years to life and 14 years.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erroneously instructed the jury on the relationship between provocation and premeditation. He also contends that allowing a defense witness to be impeached with evidence she had pending charges for illegally accessing the Criminal Law Enforcement Telecommunications System (CLETS) database deprived him of his right to present a defense.
Defendant did not object to the part of the instruction he now attacks on appeal, forfeiting the contention in the absence of error affecting his substantial rights. We conclude any error in giving the instruction did not deprive him of his substantial rights. We further conclude the trial court did not err in admitting the impeaching evidence because it was relevant to show the witness's bias. Accordingly, we affirm.
FACTUAL BACKGROUND
Defendant shot and killed his former wife and father-in-law in front of numerous witnesses. Where appropriate to resolving the questions presented in this case, we summarize the evidence of multiple witnesses who gave similar, but slightly different accounts of the same event.
Events Preceding the Killings
On June 28, 2015, Kimberlee and defendant met to exchange custody of their six-and eight-year-old daughters while Kimberlee's father, Keith, returned a shotgun to defendant. Defendant's mother, Charlene Cundy, was present, as was Kimberlee's new boyfriend, John Zimmerman, who defendant saw for the first time. Defendant was calm at first but became upset as he and Kimberly bickered. Defendant felt "ambushed" and became very angry because Kimberlee had violated a verbal agreement to not bring people around for a time after their divorce, which was not yet final.
Since two of the victims have the same first initial and last name, we refer to them by their respective first names.
On June 27, the previous day, defendant wrote down Zimmerman's license plate and gave it to his girlfriend, Jennifer Chaney, to acquire information about him, as he was around defendant's children. On June 30, Chaney texted defendant that she could not find any information about Zimmerman on the Megan's Law website, but she texted that she would ask law enforcement friends from her work to run a CLETS check. Chaney gave defendant Zimmerman's full name and told him Zimmerman was a "bad guy" with a record of statutory rape and drugs. This caused defendant to have a breakdown.
Later that day, defendant and his mother called Trinity County from mother's work and determined Zimmerman's criminal record included: 51 counts of statutory rape, three counts of sexual penetration, and one count of forcible rape, along with another case involving drugs, felon in possession of a firearm, cultivating marijuana, and driving under the influence. Defendant found a newspaper article showing Zimmerman had been convicted of three counts of unlawful sexual intercourse with girls aged 15 and 16, received a four-year eight-month sentence, and was admonished by the judge for his predatory conduct.
When defendant gave this information to Kimberlee's mother, she replied that they already knew. Defendant then texted the information to Kimberlee and offered to let her stay if she could not stay with her parents; she replied, "I have and will never let the girls be harmed." Defendant asked Kimberlee if she had known about Zimmerman's record. She did not reply to this or other texts regarding Zimmerman and her relationship with him. Defendant thought Kimberlee was not telling the truth and Zimmerman was still coming around.
On July 1, defendant filed a request for an emergency restraining order to keep his daughters away from Zimmerman. He also called various agencies, none of which were very helpful; that caused him to feel alone. He kept his daughters that night to make sure they were safe and protected.
On July 2, Chaney told defendant that the order had been granted. Defendant picked up a copy of the order from the court, believing it had been granted.
Kimberlee told a sheriff's deputy that defendant had not returned their children to her in accordance with the custody agreement. She provided papers showing that defendant had applied for an emergency protective order and that the order was denied pending a hearing the following month.
The deputy called defendant and told him the emergency order was denied pending a hearing. This upset defendant, who became irate and cursed at the deputy and the justice system and accused the deputy of not protecting his children. He also told the deputy he was upset about Kimberlee allowing their children to be around Zimmerman.
The Killings
Later on July 2, defendant texted Kimberlee and told her to meet him at his house. Kimberlee responded that they should meet at a market, a public place for everyone's best interest. Defendant responded, "Tell me he won't come around my kids ever again or call my phone." She replied, "I have an ERO filed against him. My lawyer is on it and we will not be alone." Defendant retorted it was hard to believe when she knew about Zimmerman's criminal history. Kimberlee replied, "I DID NOT."
Defendant met Keith and Kimberlee in front of a market; they started arguing with raised voices. Defendant, holding paperwork, stepped towards Kimberlee, but Keith stepped in between them. Defendant testified he wanted to show proof of Zimmerman's record to Kimberlee but could not because he exchanged words with Keith as soon as he arrived. Defendant sarcastically told Keith he did a good job of protecting Kimberlee and probably introduced her to Zimmerman. Keith got in defendant's face and laughed, claiming they had something for him.
Defendant spat in Keith's face, pushed him, and then turned and walked away. Keith followed defendant, but defendant walked to his truck and drove off. As defendant drove off, Keith laughed by the driver's door and said, "Now I got your kids," making defendant feel as if he were set up again.
Kimberlee went inside the store and called 911. After a loud boom came from the parking lot during the call, Kimberlee put down the phone and headed out the door towards the parking lot.
Defendant had returned to the area. He was out of his truck, calm, expressionless, and carrying a rifle. After the first shots were fired, defendant was seen holding the rifle in an aiming position walking towards the store. Kimberlee opened the door and screamed "Dad" three times. Keith was crawling to the front door of his pickup truck while holding his head.
Defendant fired several more shots; he first shot towards the ground and then raised the rifle and shot at the store. Kimberlee fell in the store's doorway. A customer at the store, Anthony B., had been shot in the back as a ran from the gunfire to the back of the store.
Defendant placed the rifle on the ground, paced a few times, and picked up the rifle again. Later, defendant no longer had the rifle and was yelling on the phone. Defendant then got on his knees, and a man approached and sat next to him to calm him; defendant's body shook for minutes. He told the man about his family situation, how he was so upset his ex-wife was dating a pedophile, and that he would protect his daughters from potential danger. He was upset with the county child support and the police and sheriff's departments. He said that his truck held a folder of documents pertaining to his attempt to contact agencies to try to get his children away from a potentially dangerous situation.
Response and Investigation
Law enforcement arrived and arrested defendant. Both Keith and Kimberlee were pronounced dead at the scene. During the ride to jail, defendant kept remarking about Zimmerman's criminal convictions, and he appeared to be extremely upset with Kimberlee.
An examination of defendant's cell phone revealed numerous text messages to Chaney and a recorded conversation with Cundy (his mother) in which defendant expressed frustration with Kimberlee and Zimmerman and suggested that he wanted to kill Kimberlee and was capable of doing so.
Defendant requests we obtain and view the videotape of the shootings admitted at trial. He does not claim the video was erroneously admitted, but asserts the video was so graphic and disturbing it prevented the jury from objectively assessing his mental state. We decline the request. The evidence was properly admitted, and we presume the jury used it appropriately absent evidence to the contrary, which defendant does not provide.
An officer who searched defendant's house after the killings opined that the furniture in the house had been set up for an ambush by giving a person in the living room the advantage to shoot and kill a person entering the house.
DISCUSSION
I
Jury Instructions
Defendant contends the trial court erred in giving a special instruction on heat of passion that misled the jury regarding how provocation could negate premeditation and reduce murder from first to second degree.
A. Instructions on Provocation
The trial court instructed the jury with the standard CALCRIM instructions on homicide, first degree murder under a premeditation theory, second degree murder, and voluntary manslaughter. Regarding voluntary manslaughter, the trial court instructed the jury pursuant to CALCRIM No. 570 in pertinent part:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if:
"One the defendant was provoked;
"Two, as a result of the provocation, the defendant acted rashly under the influence of intense emotion that obscured his reasoning or judgment;
"And, three, the provocation would have caused a person of average disposition to act rashly and without deliberation, that is from passion rather than judgment
The court also instructed the jury on provocation reducing first degree murder to second degree murder pursuant to CALCRIM No. 522 as follows:
"Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."
Defendant's appeal centers on a non-pattern instruction offered by the prosecution in regard to provocation for the heat of passion: "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim, or be conduct that reasonably believed by the defendant to have been engaged in by the victim."
Defense counsel did not object to the first clause in the instruction. Defense counsel initially objected to the second clause because it was "conflicting and confusing and not a specific statement of the law." But after argument, defense counsel responded, "I don't see that it is prejudicial in any event, and so I will submit it." The proposed instruction was given without any other objection.
B. Harmless Error Standard
"Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Defendant never raised the contentions at trial he raises here, and, after hearing from the prosecutor and the trial court, submitted the instruction, effectively withdrawing what objection he had to it. Accordingly, his contention on appeal is forfeited unless the instruction affects his substantial rights under the Watson standard. We conclude that it does not.
Although we next explain that after applying the necessary standard of review given the lack of objection we find no reversible error in giving the instruction, this case demonstrates the peril in taking instructions from the language of appellate opinions. There is an inherent danger in crafting jury instructions therefrom. (People v. Wagner (2009) 170 Cal.App.4th 499, 508, disapproved on other grounds in People v. Zambia (2011) 51 Cal.4th 965, 981.) "[J]udicial opinions are not written as jury instructions and may be notoriously unreliable as such . . . ." (Delos v. Farmers Group, Inc. (1979) 93 Cal.App.3d 642, 656; see also Francis v. City & County of San Francisco (1955) 44 Cal.2d 335, 341 ["it is dangerous to frame an instruction upon isolated extracts from the opinions of the court"].) Brooks addressed whether the evidence of provocation supported a duty to instruct on voluntary manslaughter. It did not address provocation that negated deliberation and premeditation, nor did it address or attempt to fashion a jury instruction addressing either form of provocation. Unsurprisingly, it is an insufficient foundation for the instruction proposed by the prosecutor and accepted by the trial court.
C. Analysis
Defendant argues the instruction was erroneous because, while it was intended to apply only to the provocation required to reduce murder to manslaughter, it did not distinguish between the provocation required to reduce murder to manslaughter and the provocation that the jury could consider when determining whether to find defendant guilty of second degree murder rather than first degree murder. As such, defendant contends the instruction misled the jury to believe that, for provocation to reduce first degree murder to second degree murder, the victim must have been the source of defendant's provocation. He claims the misleading instruction deprived him of his defense to the murder charge as to Kimberlee--that he killed her in a blind rage following Keith's provocation--because Kimberlee did not provoke him on the date of the killing.
The instruction correctly stated that the provocation necessary to reduce murder to manslaughter must be caused by the victim, which was defendant's defense to the charge of murder as to Keith. At trial, defendant argued that Keith provoked defendant to act rashly from passion rather than sound judgment, which, if believed, would have reduced his crime to voluntary manslaughter. "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.]" (People v. Lee (1999) 20 Cal.4th 47, 59.)
But defendant's defense to the murder charge as to Kimberlee relied on a different form of provocation. Defendant asserts that Kimberlee did not provoke him on the date of the killing, and therefore he argued at trial that Keith's provocation caused him to kill Kimberlee in a blind rage. In other words, defendant argued to the jury that it should consider Keith's provocation when determining whether he premeditated Kimberlee's murder.
"[T]he ' "existence of provocation which is not 'adequate' to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation" ' -- an inquiry relevant to determining whether the offense is premeditated murder in the first degree, or unpremeditated murder in the second degree. [Citations.]" (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) "The test of whether provocation or heat of passion can negate malice so as to mitigate murder to voluntary manslaughter is objective. [Citations.] . . . The test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder, on the other hand, is subjective. [Citations.]" (People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
Defendant contends that the instruction erroneously informed the jury that the provocation required to reduce first degree murder to second degree murder requires that the victim provoke the defendant. Although provocation must come from the victim to satisfy the objective component of provocation in voluntary manslaughter, it does not necessarily follow that this applies as well in the context of provocation that negates premeditation and deliberation, as the provocation which reduces premeditated murder to second degree murder has no objective component. Because the instruction does not distinguish between provocation for voluntary manslaughter and provocation that negates deliberation and premeditation, it raises the question of whether both forms of provocation must come from or be attributed to the victim.
However, even assuming the instruction was incorrect regarding the subjective provocation that negates deliberation and premeditation, there was no miscarriage of justice here.
To the extent there was provocation in this case, it came overwhelmingly from what defendant perceived as his ex-wife Kimberlee dating a sexual predator who posed a threat to their daughters. While Kimberlee did not bring Zimmerman to the fatal meeting, her relationship with him and defendant's inability to keep the children from Kimberlee was the primary source of his anger and the essential provocation in this case. Indeed, the manslaughter instruction states that provocation may occur over a long or short period of time. (See CALCRIM No. 570 ["Sufficient provocation may occur over a short or long period of time"].) Therefore, defendant could have argued that Kimberlee provoked him to kill, which, if believed, would have reduced that killing to manslaughter.
Defendant's contention that Keith provoked him to kill centers on comparatively minor acts: Keith interceding and preventing him from giving the papers to Kimberlee, Keith laughing at him and saying they had something for him, and Keith telling him, "Now I got your kids." Nothing in the challenged instruction or any other instruction prevented the jury from considering whether Keith's provocation reduced murder from first to second degree as to his killing. The jury rejected the defense to this count of first degree murder, and there is no reason to believe they would not have done the same as to Kimberlee's murder had the court not given the instruction or limited it to provocation as it related to voluntary manslaughter.
Neither this nor any other instruction prevented the jury from considering Kimberlee's alleged conduct in determining whether either killing was provoked. The jury rejected this source of provocation as reducing the killings to second degree murder or voluntary manslaughter. The considerable evidence of premeditation and deliberation, shooting both victims multiple times with a rifle, defendant's prior statements that he wanted to kill or harm Kimberlee, and his attempt to have Kimberlee meet him at a home he had set up for an ambush, likewise refutes any claim that there would have been a different result for defendant had the instruction not been given or limited to voluntary manslaughter. Because there was no miscarriage of justice as defined in Watson, defendant's contention fails.
II
Impeachment Evidence
Defendant contends the trial court abused its discretion and deprived him of his right to present a defense by allowing Chaney to be impeached by evidence of pending charges against her for unlawfully accessing the CLETS database. (§ 502, subd. (c)(2).)
A. Procedural Background
Defendant filed a pretrial motion to exclude evidence that Chaney, "an essential witness for the defense," had been charged with violating section 502, subdivision (c)(2). The motion argued that the pending charges were not proper grounds for attacking Chaney's credibility, specific instances of conduct were excludable under Evidence Code section 787, and the evidence should also be excluded under Evidence Code section 352. Attached to the motion was a declaration from current defense counsel that Chaney had been advised by her attorney to invoke her Fifth Amendment privilege if asked any questions regarding the pending charges. The prosecution's reply asserted the evidence was relevant, as the charge against Chaney was related to the homicides in some degree and was admissible as evidence of bias.
The trial court ruled the prosecutor could not refer to the specific charge, and the prosecutor agreed to limit his inquiry to asking her if she knowingly broke the law by improperly accessing CLETS. The court agreed the evidence was relevant to show bias. The court denied the defense's Evidence Code section 352 motion, finding that the prejudice to the defense did not outweigh the probative value of the impeachment evidence. The court granted Chaney use immunity to address her intention to invoke her Fifth Amendment privilege.
The defense did not call Chaney as a witness.
B. Forfeiture
The Attorney General asserts defendant's claim is forfeited because the defense never called Chaney as a witness, she was granted use immunity, and there is no evidence she refused to testify. While a defendant claiming he or she was improperly impeached with prior convictions must testify at trial in order to preserve the claim for appellate review (People v. Sims (1993) 5 Cal.4th 405, 454), our Supreme Court has discussed whether that rule applies to a defense witness not called to testify: " 'Because the question whether defendant has preserved his right to raise this issue on appeal is close and difficult, we assume he has preserved his right, and proceed to the merits. We have done the same in similar situations in the past.' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 273.) We do the same here.
C. Analysis
Defendant asserts the trial court abused its discretion in allowing the impeachment evidence, thereby depriving him of a critical defense witness and violating his right to present a defense. According to defendant, a violation of section 502 does not manifest moral turpitude, either inherently or under some circumstances, and the trial court "wrongly concluded that all violations of section 502 are turpitudinous."
"With the exception of prior felony convictions under [Evidence Code] section 788, section 787 prohibits the admission of evidence of specific instances of a witness's conduct to attack his credibility when its only relevance is to establish a trait of his character. [Citation.]" (Piscitelli v. Salesian Society (2008) 166 Cal.App.4th 1, 8, fn. omitted.) "[I]f past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion. . . ." (People v. Wheeler (1992) 4 Cal.4th 284, 295) That misdemeanor must involve moral turpitude. (Id. at pp. 288, 295.) But "[e]ven if evidence of a witness's specific conduct violates section 787, if that evidence is relevant to prove a witness's bias or improper motive, it is admissible. [Citation.].)" (Piscitelli, at p. 8.)
Here, we need not determine whether conduct underlying a section 502 charge is admissible as an act of moral turpitude because we agree with the trial court that the evidence was relevant to show Chaney's bias by demonstrating that she would act unlawfully on defendant's behalf.
Defendant argues that the conduct underlying the section 502 charge was cumulative as proof of Chaney's bias, as there was already evidence she was his girlfriend and concerned about his anger towards Kimberlee. But while defendant is correct that other evidence, including her status as his girlfriend and the nature of their texts between each other, was evidence of her predisposition towards defendant, evidence that she unlawfully accessed the CLETS database showed that Chaney was willing to actually commit criminal conduct, albeit misdemeanor conduct, on defendant's behalf. That is a form of bias different than insinuations through her romantic connection to defendant. Because the evidence is relevant to prove Chaney's bias, it is admissible.
We next conclude that the trial court did not err by denying defendant's motion to exclude the evidence under Evidence Code 352. Evidence is not rendered inadmissible by Evidence Code section 352 "unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights." (People v. Holford (2012) 203 Cal.App.4th 155, 167.) The court's exercise of discretion under section 352 will not be reversed on appeal absent clear abuse. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.) To justify appellate intrusion, the court must have exercised its discretion "in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Our analysis of the prejudice from this evidence begins with an understanding that, contrary to the arguments of defendant at trial or in this appeal, it would not prevent Chaney from testifying. A witness may not properly refuse to testify based on the privilege against self-incrimination if he or she has been conferred immunity that is "coextensive with the scope of the privilege." (Kastigar v. U.S. (1972) 406 U.S. 441, 449; cf. People v. Seijas (2005) 36 Cal.4th 291, 305 ["[u]se of incriminating statements must be forbidden, as by a grant of immunity, and not merely unlikely, before the court may force a witness to make them"].) "[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege." (Kastigar, at p. 453; see People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 [use immunity sufficient to overcome a Fifth Amendment claim of privilege, transactional immunity not required].) The grant of use immunity allowed the defense to compel Chaney to testify. While defense counsel may have declined to call Chaney for tactical reasons related to the impeaching evidence, the trial court's ruling did not prevent her from being called as a witness for the defense.
The appropriate standard for determining prejudice here is the standard applied to all Evidence Code section 352 rulings. " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' [Citation.]" (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)
The prior conduct at issue here was not committed by defendant but by his girlfriend, and it was far less likely to evoke emotional bias than the charged crimes of gunning down his estranged wife and her father on a public street and wounding a bystander in the process. We also agree with the trial court's determination that questioning Chaney about the prior conduct would not take undue time, particularly in the context of this lengthy trial. We conclude it was not an abuse of discretion to admit the evidence and the trial court's ruling did not deprive defendant of his right to present a defense.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Robie, J.