Opinion
C083630
07-06-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY TAYLOR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F01407) The Attorney General concedes that defendant Robert Anthony Taylor's second degree murder trial was flawed. The trial court erroneously instructed the jury on implied malice and the prosecutor exacerbated the error by reiterating the faulty theory in closing argument. We reject the Attorney General's argument that the instructional error is harmless beyond a reasonable doubt, but we agree there is substantial evidence to support the jury verdict thereby giving the prosecution the opportunity to retry defendant for murder in the second degree. The judgment is reversed. Both sides agree defendant is entitled to an additional 19 days of custody credits.
FACTS
Because defendant challenges the sufficiency of the evidence to support the murder conviction, we will recite the facts in the light most favorable to the prosecution. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) We synthesize those facts, however, from the whole record taking into account all of the evidence including those facts that support defendant's account of what happened on the night of February 9, 2014, at the transition house he managed. (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).)
The residents of the house where Eric Pogue was killed, including defendant, were troubled and struggling. Defendant, who had four prior convictions involving moral turpitude, continued to drink heavily and carried a baseball bat he considered his "sidekick" and "equalizer." The other residents used methamphetamines openly, suffered from mental illness, or were drug and alcohol addicts. While there were some so-called rules of the house, they were not posted and were enforced unevenly. At trial, there was testimony the curfew was 11:00 p.m.; but there was also testimony the curfew was midnight.
The night Pogue died it was cold and raining. Pogue was a little man at 5 feet 3 inches and weighed only 133 pounds. Defendant and his girlfriend, Rebecca Rainville, were drinking together for a long time and watching television around midnight. Defendant is 5 feet 10 inches and at the time weighed 174 pounds. Rainville testified she heard Pogue and his girlfriend, Stephanie, pounding on the back door asking to be let in. She looked outside the window, confirmed it was Pogue and his girlfriend, and asked defendant to let them inside. When he refused, she left. She was sure defendant knew that it was Pogue and Stephanie who were knocking on the door. The following day, defendant told Rainville Pogue broke a window and then hit him in the knee with a bottle. In response, defendant hit him in the head with a baseball bat.
Danny Smith lived next door. He testified that the police were called to the house frequently. His neighbors were loud and disorderly. They openly used drugs. As a result, he complained to defendant regularly. On the night of the incident, he was again awakened by someone screaming. The person screaming was demanding to be let in and he heard someone yelling at the person screaming to get out of there. Smith walked to the side yard and saw Pogue. Once back inside his house, he heard glass breaking.
John Kinsey, a resident of the house on the night of the incident, corroborated Smith's testimony. He too heard Pogue and his girlfriend knocking at the door asking to be let in and he also heard the window break. He heard defendant say something about the window and then he heard Pogue "hollering like he was in a lot of pain." Defendant told him Pogue came at him with a bottle and he "poked" him with a bat. Kinsey told officers defendant had picked on Pogue in the past, argued with him, threatened him, and hit him.
Although defendant gave several very different accounts of what happened, he eventually admitted striking Pogue with a bat and, when he realized Pogue was injured, he called 911. After making the first emergency call, he saw a pool of blood and called 911 a second time in an effort to get help faster. A responding police officer found Pogue on the grass in the backyard trying to get up and get away. Although he observed a two-inch laceration above Pogue's right eye and a quarter-size contusion beneath it, he did not see a lot of blood and did not believe the injuries were serious. Nevertheless, Pogue was transported to the hospital where he died six days later. The cause of death was blunt force trauma to the head consistent with a single strike from a baseball bat.
Defendant changed his story every time he told it. On the night Pogue was taken to the hospital, he told an officer he hit Pogue "in the head two times with a bat." In an interview five days later, he initially denied striking Pogue. He stated, "But I didn't hit him 'cause if I'd have hit that guy with a bat I'd hurt him, really bad." He specifically denied hitting him in the head with a bat, explaining, "If I'd hit him in the head[,] he'd have died," and explaining he "swung [his] bat" once, hitting Pogue "somewhere in the body." He told the investigating police officer that someone woke him around 1:00 a.m. pounding on the doors and windows. Then he heard glass break. Grabbing his bat for "protection," he went outside, saw Pogue and his girlfriend, and told them they could not come inside after the 11:00 p.m. curfew. He believed Pogue broke the window and "robbed somebody."
At the police station later that day, he gave another account. He said the pounding woke him and then his neighbor called his phone. He explained to his neighbor there was an 11:00 p.m. curfew and he would not open the door for Pogue, who had a habit of leaving after curfew. After hearing the glass break he grabbed his bat, and went outside. He saw a shadowy figure and heard the figure say, "Well Robert, we gonna get you." Defendant responded, "I don't know who you are, but you come up over here and you're gonna get hurt." When the figure approached him, he started swinging. He thought he might have struck the person once in the back. He did not know who he had hit until Pogue said, "It's Eric."
But once he was arrested, he tweaked his story again. This time he acknowledged that he knew it was Pogue in the backyard. He ran outside with another resident, David, after he heard the window break. He told this officer Pogue said, "Well, Robert, we gonna get you," and that is when he swung his bat. He admitted he was mad that Pogue was making noise after curfew and that he had not seen Pogue with a glass bottle. He also admitted to hitting Pogue a couple of times with minimal force, like a "bunt." He insisted he did not want to kill Pogue and denied hitting him in the head. He agreed with the officer's synopsis that he was angry and he wanted to hurt Pogue or teach him a lesson.
At trial, he returned to some of his earlier versions. Contrary to his girlfriend's account that they were awake watching television when Pogue and his girlfriend arrived and begged to gain entry, defendant testified he was asleep when he heard pounding on the door. He insisted he did not know it was Pogue when he went into the backyard to investigate the broken window. He saw a shadow in the dark, but he could not tell who it was because the person was wearing a hoodie and dark clothing and there were no lights on in the backyard. The person was holding something shiny that looked like glass or stainless steel. He did not recognize the voice but he heard someone say, "Robert, I'm going to fuck you up, do everybody in the house." He feared for his safety. He admitted swinging his bat and perhaps striking the unknown intruder a couple of times but he thought he had hit him in the torso. At a police officer's prompting, he wrote Pogue's family a letter of apology.
His primary defense was self-defense but, on appeal, he also urges us to find sufficient provocation to negate implied malice. As the manager of the board and care facility, defendant claimed he was responsible for enforcing the curfew and maintaining the health and safety of the residents. Pogue presented an ongoing challenge to him, although Pogue had only lived at the house for a few weeks. Although defendant described Pogue as nice and good natured, he continued to violate curfew and kitchen rules.
DISCUSSION
I
Sufficiency of the Evidence of Implied Malice
Defendant was convicted of the second degree murder of Pogue based on the prosecution's theory of implied malice. Second degree murder requires malice aforethought, but the malice can be implied. (Pen. Code, §§ 187, subd. (a); 188.) There is both a physical and mental component to implied malice. (People v. Guillen (2014) 227 Cal.App.4th 934, 984.) " ' "The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' [Citation.]" [Citation.]' " (People v. Bryant (2013) 56 Cal.4th 959, 965.) In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another. (Cravens, supra, 53 Cal.4th at p. 507.)
Defendant maintains there was insufficient evidence to support either the physical or mental components of implied malice. The essential flaw in defendant's challenge to the sufficiency of the evidence is his exclusive reliance on the version of the facts he recounted at trial. We would have to reject all the reasonable inferences the jurors may have drawn from the totality of the circumstances, including defendant's lack of credibility, to conclude there is no substantial evidence of implied malice. We will not violate the fundamental canons limiting the scope of appellate review to embrace his lopsided and self-serving account of his actions and motivations. Rather, we must defer to the finder of fact's assessment of credibility, draw all reasonable inferences in favor of the jury findings, and take the whole record into consideration. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Following these well-entrenched standards governing appellate review, we conclude there is ample evidence defendant was well aware that swinging his bat at Pogue endangered his life.
Defendant and the Attorney General both highlight the facts in Cravens, supra, 53 Cal.4th 500, wherein the defendant was convicted of second degree murder resulting from a solitary blow with an empty fist to the victim's head. The Attorney General urges us to consider the factual similarities. Cravens physically overpowered his victim, who under the circumstances presented, was drunk, exhausted, and vulnerable. (Id. at p. 506.) Cravens secured his advantage by standing up on the curb while his victim remained at the street level. (Id. at p. 505.) The punch itself was extremely hard and was inflicted with enough force to knock the victim unconscious before he even hit the pavement. (Id. at pp. 508-509.) "[I]t was an extremely powerful blow to the head calculated to catch the impaired victim off guard, without any opportunity for the victim to protect his head, and thereby deliver the victim directly and rapidly at his most vulnerable to a most unforgiving surface." (Id. at p. 511.) Considering the totality of the circumstances, the Cravens court found that the jury could reasonably find that the defendant's act of violence was predictably dangerous to human life. (Ibid.)
The court also found sufficient evidence to support the jury's finding of the mental component of implied malice. The egregious circumstances of the attack allowed the jury to infer the defendant's subjective awareness that his conduct endangered the victim's life. (Cravens, supra, 53 Cal.4th at p. 511.) The Attorney General contends the evidence of both components presented to defendant's jury was even more compelling than the evidence in Cravens. Most relevant was the fact he struck Pogue with a baseball bat, rather than his bare fist. And defendant acknowledged that someone could die from being struck with a bat. Thus, the physical act endangered human life and defendant's own admissions reflected a subjective awareness of the risk of death.
Defendant points to a variety of circumstances he insists distinguishes his case from Cravens and diminishes his culpability. He argues that he was awakened in the middle of the night by someone he perceived to be an intruder. He was frightened when the intruder broke a window and tried to access the home he was charged with protecting. Given that the residents were often under the influence of drugs and alcohol, he instinctively picked up his bat to protect himself and those living at the transition house. He characterized Pogue as a good-natured guy and claims he never intended to kill him. Indeed, he called for emergency assistance, not once, but twice in his attempt to get medical treatment for Pogue. In essence, his appellate argument is nothing more than a reiteration of his closing argument, an argument the jury rejected. It is the jury's prerogative, not ours, to assess the credibility of the witnesses and to make the necessary findings of fact. Here there was an abundance of other credible testimony at odds with defendant's testimony at trial as to what happened to support the jury's finding of implied malice.
First, of course, defendant's credibility was seriously jeopardized by the many different accounts he gave during the investigation and eventually at trial. At times, he acknowledged that he knew it was Pogue who requested entry into the house. But at other times, and most significantly, at trial, he insisted he did not know the identity of the shadowy figure in his backyard. But that account was directly at odds with the testimony of his girlfriend, neighbor, and another resident, all of whom testified that defendant knew it was Pogue and Stephanie who wanted to come in out of the cold and rain. In fact, defendant agreed with the police officer's assessment that he struck Pogue with a bat because he was angry and he wanted to teach him a lesson.
Second, there was evidence of a rocky relationship between defendant and Pogue. Kinsey told officers that defendant had picked on Pogue. He had seen the two of them arguing, although he had not seen defendant ever strike him or swing the bat at him.
Third, as mentioned above, defendant himself admitted that striking someone with a bat was life endangering. The jury reasonably inferred, therefore, he subjectively and consciously was aware of the danger to life his conduct posed.
Fourth, as in Cravens, defendant was much larger than his diminutive victim and he positioned himself on the porch above the victim. He swung his bat when Pogue was at his most vulnerable—standing in the wet, cold night below defendant who was armed with a bat. In sum, there is substantial evidence to support the jury's finding that defendant subjectively and consciously was aware that striking Pogue with his bat endangered his life.
As a fallback position, defendant contends any implied malice was negated by sufficient provocation, and thus, there was insufficient evidence to prove he did not act in the heat of passion. "[A] killer who acts in a sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill." (People v. Lasko (2000) 23 Cal.4th 101, 109.) An unlawful killing is voluntary manslaughter " 'if the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an " 'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from his passion rather than judgment.' " ' " (Id. at p. 108.) The trial court properly instructed the jury on the lesser included offense of voluntary manslaughter.
Defendant's challenge to the sufficiency of the evidence of provocation suffers the same defect as his challenge to the sufficiency of the evidence of implied malice. It is premised again on only one of the many stories defendant told. He argues Pogue broke into the house in the middle of the night while he was sleeping and, when he went out to investigate, Pogue threatened him and came at him with a bottle. Once again, the jury was free to reject defendant's trial testimony because Rainville testified he was wide awake when Pogue knocked on the door and asked to be let in and that defendant knew it was Pogue and Stephanie who sought access. The jury also was free to reject the notion that Pogue came at him with a bottle since defendant himself told the police he had not seen Pogue with any weapon. We cannot conclude that the evidence negated implied malice as a matter of law or that the prosecution failed to prove the absence of provocation beyond a reasonable doubt. Rather, the jury simply rejected defendant's argument that he struck Pogue in the heat of passion and there is ample evidence to support that finding.
II
Instructional Error on Implied Malice
The dispositive question in this case is not the sufficiency of the evidence, but whether the judgment must be reversed because the trial court provided the jury an erroneous instruction on the meaning of conscious disregard for human life. The Attorney General concedes the error, but insists the error is harmless beyond a reasonable doubt. We disagree.
It is true the trial court properly instructed the jury on second degree murder when delivering its package of standardized instructions. (CALCRIM No. 520.) But during deliberations, the jury asked for clarification on the meaning of implied malice. Specifically, the jury requested a definition of "conscious disregard" and asked for further clarification on the meaning of "probable" and "dangerous to human life." The court explained, "The term 'conscious disregard for human life' means ignoring a known risk that a person could suffer death or great bodily injury." The court's description is a blatant misstatement of the law.
In People v. Knoller (2007) 41 Cal.4th 139, the California Supreme Court held: "[A] conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant's conscious disregard of the risk of serious bodily injury [or great bodily injury] suffices to sustain such a conviction, the Court of Appeal erred." (Id. at p. 156.) The court concluded, "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (Id. at p. 143.) Or, in other words, "[k]nowledge of the risk of serious bodily injury is not enough" for implied malice murder. (People v. Vance (2010) 188 Cal.App.4th 1182, 1203.)
During closing argument, the prosecutor exacerbated the error. Although at times he correctly referred to the requisite knowledge of the danger of death, at other times he referred to the lesser burden of proving a mere awareness of potentially injuring the victim. For example, the prosecutor argued, "[Defendant] does say, because if I hit that guy with a bat, I'd hurt him really bad. What that is, is [defendant] acknowledging what we all implicitly understand, which is, if you hurt somebody with a bat, you can hurt them really bad, okay."
The jury struggled to understand the meaning of implied malice. As noted, it requested clarification of implied malice, and specifically, of "conscious disregard." Within 30 minutes of receiving the erroneous description of implied malice, the jury announced that it was deadlocked. The court urged the jury to keep deliberating. Within 15 minutes of being instructed to keep deliberating, the jurors asked the court to reread defendant's testimony and "[t]he times of the different tapes we need to listen to." The jury concluded three days of deliberations the following day.
The Attorney General acknowledges the clear error and the due process implications of failing to correctly instruct on each element of the offense. Nevertheless, the Attorney General minimizes the damage the error might have caused, arguing the evidence of guilt of second degree murder simply was overwhelming. In the Attorney General's view, the fact defendant struck Pogue with a bat demonstrates a callous and conscious awareness that Pogue could die as a result. Thus, the reference to great bodily injury, rather than death, was an unfortunate, but insignificant, deviation from a more precise definition. Not so.
Most significantly, the meaning of implied malice was the central issue in the entire case. Defendant admitted hitting Pogue with the bat so the physical act was not in dispute. As a result, the jurors' sole task was to determine the level of defendant's culpability depending on their assessment of what defendant knew, what he intended, the level of risk he perceived, and whether he meant to endanger Pogue's life or injure him. The fact the court misled the jurors on the most critical element of the case certainly adds to the prejudicial nature of the instructional error.
The record is not at all as clear as the Attorney General makes it appear. No doubt, hitting a person with a bat is inherently dangerous. But here defendant insisted he did not intend to hit the person in the head and certainly did not intend to kill him. The jury heard testimony that it was dark in the backyard and Pogue was in dark clothing. Defendant said that he used the bat rather gently, like a "bunt" and believed he struck him in the torso, not the head. Even if the jury believed that defendant knew it was Pogue, was angry at him for breaking the window and coming in after curfew, and had picked on him in the past, it still could have believed that he hit him with the bat intending only to hurt him and teach him a lesson as he told the police and that he was not consciously aware that he was endangering his life. The inference that defendant was conscious of the risk of injury rather than death is strengthened by the defendant's behavior after he realized defendant was hurt. He called for emergency help right away, and when it did not arrive promptly, he called again. He wrote a letter of apology to Pogue's family expressing his remorse.
Life at the transition house was not idyllic. The jury could have reasonably empathized with defendant and accepted his explanation that he was charged with providing a safe and orderly environment to people who were unaccustomed to living by the rules. The jurors, like defendant, may have believed that carrying a bat was a reasonable precaution in the presence of people who were under the influence of drugs and alcohol or psychotic, and grabbing the bat was a reasonable response when an angry tenant, who abused methamphetamine and had broken a window to gain access to the house, was screaming and yelling and threatening violence. The fact the jury rejected his claim of self-defense does not mean it would have found implied malice. Having been instructed that defendant need only appreciate that striking Pogue could cause him great bodily injury, not death, the jurors may have found him guilty of implied malice murder based only on a completely erroneous description of the law, thereby impermissibly lowering the prosecution's burden of proof and violating defendant's right to due process.
We must reverse a judgment compromised by a faulty instruction of this dimension unless the People show the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 ; People v. Flood (1998) 18 Cal.4th 470, 494.) As demonstrated, the precise issue of whether defendant was aware of the risk of injuring or killing the victim was hotly contested, and there was evidence to support a jury finding either way. The jury struggled over the meaning of implied malice generally, and consciously aware in particular, thereby evidencing the significance of a proper instruction on the determinative question in the case. The jurors deliberated for three days after nearly deadlocking and further demonstrating it was not obvious to them, as it is to the Attorney General, that the use of the bat alone meant that defendant was aware he might kill the victim. Under the totality of circumstances, we cannot say the erroneous instruction was harmless beyond a reasonable doubt. To the contrary, it was that very instruction that may have led to defendant's conviction for second degree murder. We therefore must reverse the judgment.
We need not, therefore, address defendant's other alleged instructional error. Because there is sufficient evidence to support implied malice if the jury is properly instructed on the theory, the prosecution may elect to retry defendant. The instructional error of which he complains is unlikely to be repeated.
III
Custody Credits
The Attorney General agrees that defendant is entitled to an additional 19 days of custody credits because defendant was sentenced on December 5, 2016, rather than November 18, 2016. We direct the trial court to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
DISPOSITION
The judgment is reversed. The trial court is directed to prepare a corrected abstract of judgment reflecting an additional 19 days of custody credits and to forward a certified copy to the Department of Corrections and Rehabilitation.
RAYE, P. J. We concur: DUARTE, J. RENNER, J.