From Casetext: Smarter Legal Research

People v. Brittain

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
B163269 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B163269.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERT W. BRITTAIN, Defendant and Appellant.

California Appellate Project and Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant and appellant Robert W. Brittain appeals from a judgment following a jury trial in which he was convicted of voluntary manslaughter. Defendant contends the trial court abused its discretion by admitting Evidence Code section 1101, subdivision (b) evidence, expert testimony on his mental state, and improper rebuttal evidence. Defendant also contends the trial court erred when it failed to instruct the jury as to reasonable doubt in deciding between voluntary and involuntary manslaughter and as to the lesser included offense of involuntary manslaughter during the commission of a non-inherently dangerous felony. We affirm.

PROCEDURAL BACKGROUND

Defendant was charged by information with murder in violation of Penal Code section 187, subdivision (a). It was further alleged defendant had used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b)(1). It was also alleged defendant had suffered a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The defenses were self-defense and accident. The jury was instructed as to first degree premeditated murder, second degree murder, voluntary manslaughter (heat of passion and unreasonable belief in self-defense), and involuntary manslaughter (unreasonable belief in self-defense and misdemeanor/manslaughter). The jury convicted defendant of voluntary manslaughter in violation of Penal Code section 192, subdivision (a) and found the use of a knife allegation to be true. Defendant admitted the prior prison term allegation. The trial court sentenced defendant to 13 years in state prison.

FACTS

Larry Bumgarner, Kenneth Bowen, and Daniel Foster were tenants of a rental house in Lancaster owned by defendant. The rental house was in the process of renovation and lumber had been delivered to the property. Defendant lived with his wife, Leah Brittain, and his 13-year-old stepdaughter, Laura Rogers, also in Lancaster.

On February 20, 2002, defendant went by bus to the Veterans Administration Hospital in Los Angeles for medical treatment. When he returned, defendants wife told him that the tenant Foster had called and wanted defendant to come to the rental house. Foster had reported that the tenant Bumgarner was burning the lumber and destroying the rental house. Defendant went to the rental house, wearing a hunting knife in a sheath on his belt. The knife was designed for killing and had a nine-inch curved blade with a needle-like tip.

When defendant arrived at the rental house, Bumgarner was in front of the house. Defendant approached Bumgarner, and the two men argued. Defendant stabbed Bumgarner in the abdomen with the hunting knife, driving the knife six inches into Bumgarners body, and then withdrawing the knife. Defendant left and returned to his home. When defendant arrived home, he told his stepdaughter that he had stabbed Bumgarner all the way through his body. Defendant washed the knife and locked it in a storage shed away from his residence.

Bumgarner died from the knife wound.

DISCUSSION

Evidence Code Section 1101, Subdivision (b) Evidence

Defendant contends the trial court abused its discretion when it admitted evidence he had stabbed another man on a prior occasion. Defendant argues the two incidents were not sufficiently similar, the prior incident was too remote, the prior incident was not relevant to defendants intent with regard to the Bumgarner stabbing, the fact that defendant had not been punished for the prior incident made it unduly prejudicial, and the incident was based on multiple hearsay (inconsistent statement of the stepdaughter and admission of defendant). We are not persuaded by the contention.

Prior to trial, defendants stepdaughter had been interviewed by a detective. The interview had been tape recorded. The stepdaughter told the detective that defendant had related to her the following previous incident in which he had stabbed a man. Thirteen years earlier, defendant had stabbed a man who had stolen some of defendants property. Defendant had had difficulty in withdrawing his knife from the man and had laughed as he related the story to his stepdaughter. Ultimately, defendant had been unable to withdraw his knife and had fled without it. The stepdaughter did not know if any criminal charges had been prosecuted against defendant as a result of this stabbing incident.

The stepdaughter was called as a witness at trial by the prosecution. Her testimony was willfully evasive. The trial court permitted the prosecution to admit the taped interview as a prior inconsistent statement of the stepdaughter. Defendant objected to admission of the tape-recorded interview on the ground of Evidence Code section 1101, subdivision (b). The trial court concluded intent was the major issue in the case, in light of the defense of accident. The trial court also concluded that the probative value of the evidence outweighed the prejudicial value, particularly in light of the fact that the incident had been related by defendant to his stepdaughter. Before the jury heard the tape-recorded interview, the trial court gave the jury an instruction limiting the evidence to the issue of intent.[]

Evidence Code section 1101 provides in pertinent part: "(a) Except as provided in this section . . ., evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence or reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."

"Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." (People v. Kipp (1998) 18 Cal.4th 349, 369.) In comparison with the degree of similarity required to establish relevance on the issue of identity or common design or plan, "[t]he least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be `sufficiently similar [to the charged offenses] to support the inference that the defendant "`probably harbor[ed] the same intent in each instance. [Citations.]"" (Id. at p. 371.) "[T]he more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous." (People v. Steele (2002) 27 Cal.4th 1230, 1244 [evidence that the defendant had intentionally stabbed another victim was relevant and admissible to prove the defendants stabbing of this victim was also not accidental].) Additionally, "[t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial courts resolution of these issues is reviewed for abuse of discretion. [Citation.] A [trial] court abuses its discretion when its ruling `falls outside the bounds of reason. [Citation.]" (People v. Kipp, supra, 18 Cal.4th at p. 371.)

In this case, intent was a major issue because defendant admitted stabbing Bumgarner, but asserted the stabbing had been accidental, taking place while he had been defending himself. The prior stabbing incident was sufficiently similar to the stabbing of Bumgarner to warrant admissibility on the issue of intent. Both knife stabbings took place after a man had interfered with the property rights of defendant. In both incidents, defendant had attempted to withdraw the knife before he fled, although he had not been successful in the first incident. The similarities between the two stabbings support the inference that defendant had not stabbed Bumgarner by accident, but had intentionally stabbed Bumgarner as a direct result of Bumgarners interference with his property rights. The fact that the evidence of the prior incident came directly from defendant, through his stepdaughter, makes the evidence particularly trustworthy. It is true that the prior incident had occurred 13 years previously and defendant apparently had escaped punishment for the stabbing. However, these two facts are not sufficiently prejudicial to require exclusion of the highly probative evidence. We conclude the trial court did not abuse its discretion in admitting the evidence of the prior stabbing incident.

Expert Testimony

Defendant contends the trial court abused its discretion when it admitted the opinion testimony of a combat weapons expert on his mental state. He argues that the expert was permitted to testify that defendant had intentionally and deliberately stabbed Bumgarner and, therefore, expressed an opinion as to defendants guilt of first degree murder. He also argues the opinion as to mental state was beyond the scope of the experts expertise. We disagree.

Deputy Sheriff Richard Bustillo was a combat weapons expert. He had received extensive training in the use of knives. In addition, he had taught the defensive and offensive use of knives to various local, national, and international law enforcement, military, and paramilitary organizations. Deputy Bustillo testified that defendants hunting knife was designed for slashing and stabbing. The prosecutor asked Deputy Bustillo if he had an opinion as to the nature of defendants knife attack on Bumgarner in light of the nature of the knife, the depth of the wound, and the angle of the wound. Defense counsel objected on the grounds of foundation and speculation. The trial court overruled the objection. Deputy Bustillo testified that in his opinion, the attack with the knife had been deliberate and intentional. His opinion was based in part on the absence of any evidence of a struggle and the ease with which the knife had been removed, indicating that the knife had been punched into the body. In his opinion, the wound could not have been inflicted by the victim falling on the blade.

Detective Paul Delhauer of the Los Angeles Sheriffs Department had the same opinion. In Detective Delhauers opinion, defendant pulled the victim towards him, thrust the knife into the victims abdomen, and quickly withdrew it. Neither defendant nor Bumgarner had any defensive wounds. The thrust and the withdrawal of the knife had been affirmative and controlled, not accidental or defensive, motions. Bumgarners wound could not have been caused by the fall of the victim or by accident. Defense counsel did not object to this testimony.

An expert witness is "one who has special knowledge, skill, experience, training or education sufficient to qualify as an expert on the subject to which his or her testimony relates." (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)

An expert witnesss opinion is admissible if it is "sufficiently beyond common experience" that it would aid the jury. (Evid. Code § 801, subd. (a).) The jury does not need to be "`"wholly ignorant of the subject matter of the opinion in order to justify its admission."" (People v. Farnam (2002) 28 Cal.4th 107, 162-163.) A witness may not express an opinion as to the defendants guilt or innocence. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) An appellate court reviews a claim that an experts opinion was erroneously admitted for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.) An improperly admitted expert opinion does not result in a reversal if it is not reasonably probable the jury would have arrived at a different result had the opinion not been admitted. (People v. McFarland (2000) 78 Cal.App.4th 489, 496.)

Deputy Bustillo did not opine on the guilt or innocence of defendant. Deputy Bustillo did not opine that defendant was guilty of first degree deliberate and premeditated murder. Nor did the jury find defendant guilty of any degree of murder. Deputy Bustillo opined that the attack with the knife was intentional and not accidental. It was the result of a deliberate motion. This opinion was based on the smoothness, angle, and depth of the wound, indicating the curved knife had been thrust with some force in a manner to easily enter the body. This opinion was not within the common knowledge of the jurors and would have aided them in their deliberations. The opinion was also within the scope of Deputy Bustillos expertise as a combat weapons expert and law enforcement officer. Deputy Bustillo was an expert in the defensive and offensive use of knives, and his opinion was based on the nature of the knife and the manner in which the knife had been thrust into Bumgarners abdomen. We conclude the trial court did not abuse its discretion in admitting the expert opinion. We further conclude any error was harmless in light of the unobjected to testimony of Detective Delhauer to the same effect.

Rebuttal Evidence

Defendant contends the trial court abused its discretion when it permitted the prosecution to present rebuttal evidence that signs were posted at the Veterans Administration Hospital prohibiting the carrying of long-bladed knives. Defendant argues there had been no defense evidence to rebut. We conclude there was no abuse of discretion.

In his opening statement, defense counsel told the jury the evidence would show that defendant had been wearing the hunting knife the entire day and had used it at the hospital to cut some roses for his wife. Defense counsel also indicated he intended to call defendants physician as a defense witness. Defendants wife testified that defendant had gone to the hospital that morning and had brought her home roses that he had cut on the hospital grounds. Defense witness Foster testified he had been to the hospital on many occasions. The prosecution questioned Foster about the rules of the hospital regarding knives. Foster testified he was not aware of any policy prohibiting knives. The defense did not call the treating physician. On rebuttal, the prosecutor called the investigating officer, who testified that signs were posted at the hospital, stating "Possession of knives which exceed a blade length of three inches . . . is a violation [punishable by a fine of $300]." The defense objected on the ground of improper rebuttal evidence. The prosecutor told the court he had intended to elicit the testimony from defendants physician, but the defense had not called the physician. The trial court admitted the evidence as proper rebuttal evidence in light of Fosters testimony concerning his lack of knowledge of any regulation. Alternatively, the trial court permitted the prosecution to reopen its case-in-chief in light of the opening statement and the wifes testimony about the roses.

Penal Code section 1093, subdivision (d) provides that, after the prosecution has offered its evidence in support of the charge and defendant has offered his evidence in defense, "[t]he parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case." We review rulings on the admission of rebuttal evidence and motions to reopen, for abuse of discretion. (People v. Carrera (1989) 49 Cal.3d 291, 323; People v. Ayala (2000) 23 Cal.4th 225, 282.)

The prosecution attempted to establish that defendant had not been wearing the long-bladed hunting knife when he went to the hospital, but had donned it just before he went to the rental house to confront Bumgarner. The prosecution attempted to establish this fact by evidence that knives, such as defendants hunting knife, were prohibited at the hospital. The prosecutor sought to elicit this testimony from Foster, who had been a frequent visitor at the hospital. Foster testified he was unaware of any such regulation. Fosters testimony might lead to an inference that no prohibition existed at the hospital. The testimony as to the presence of signs was proper rebuttal evidence. Alternatively, the prosecutor could have presented the evidence in its case in chief, because it tended to establish intent to kill if the presence of the knife had been purposeful and not merely fortuitous. We conclude the trial court did not abuse its discretion.

Reasonable Doubt Between Voluntary and Involuntary Manslaughter

Defendant contends the trial court erred in failing to instruct the jury sua sponte that any doubt concerning whether defendant was guilty of voluntary or involuntary manslaughter must be resolved in favor of finding defendant guilty of involuntary manslaughter. We disagree.

The reasonable doubt instruction defendant contends the trial court should have given is not a CALJIC instruction. Defendant cites no case law or statutory authority requiring the instruction when the jury has been instructed concerning voluntary and involuntary manslaughter. (Compare People v. Dewberry (1959) 51 Cal.2d 548, 555 [when "the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense"]; Pen. Code, § 1097 [when "it appears that the defendant has committed a public offense, . . . and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only"].)

Voluntary manslaughter and involuntary manslaughter are two kinds of manslaughter. (CALJIC No. 8.37; People v. Orr (1994) 22 Cal.App.4th 780, 784-785.) They are not two degrees of a crime. Further, involuntary manslaughter is not a lesser included offense of voluntary manslaughter, because voluntary manslaughter can be committed without necessarily committing involuntary manslaughter. (People v. Orr, supra, 22 Cal.App.4th at pp. 783-785.) This is so because the "definition of unlawful as an element of involuntary manslaughter differs significantly from that of voluntary manslaughter and requires the trier of fact to make substantially different findings." (Id. at p. 784.) Accordingly, it would have been incorrect to instruct the jury that, if the jury had a reasonable doubt concerning whether the offense was voluntary manslaughter or involuntary manslaughter, the jury should return a verdict of involuntary manslaughter. The trial court did not err in not giving the instruction.

Lesser Included Offense

Defendant contends the trial court erred in failing to instruct the jury sua sponte concerning the lesser included offense of involuntary manslaughter based on a homicide occurring during the commission of a non-inherently dangerous felony, namely assault with a deadly weapon. We disagree with the contention.

"It is settled that, even in the absence of a request, the trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jurys understanding of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)

"[A] killing that occurs in the commission of a felony can be involuntary manslaughter, but only when the felony is not inherently dangerous. [Citations.] That rule does not apply here since assault with a deadly weapon is inherently dangerous due to the nature of the weapon or the degree of force." (People v. Rhodes (1989) 215 Cal.App.3d 470, 476.) A "`deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury." (CALJIC No. 9.02.)

Since assault with a deadly weapon is an inherently dangerous felony, it would have been improper to give the instruction defendant contends should have been given. The trial court did not err in not giving it. In any event, the jury was instructed on the theory of misdemeanor-involuntary manslaughter, based on the misdemeanor exhibition of a knife. (Pen. Code, § 417.) Thus, any failure to instruct on felony-involuntary manslaughter, based on the felony assault with a knife (Pen. Code, § 245), was undoubtedly harmless.

Cumulative Error

Defendant contends that the cumulative effect of the evidentiary and instructional error requires reversal. Since we have concluded there was no error, there was similarly no cumulative effect of error.

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P. J. and ARMSTRONG, J. --------------- Notes: "Evidence will be introduced for the purpose of showing that the defendant committed a crime or act other than that for which he is now on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show[:] [¶] An intent which is a necessary element of the crime charged. [¶] For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider this evidence for any other purpose. [¶] Does everybody understand what I just said? [¶] . . . [¶] . . . [B]asically[,] you can only consider this evidence for one particular issue, and that is on the issue of intent."


Summaries of

People v. Brittain

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
B163269 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Brittain

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT W. BRITTAIN, Defendant and…

Court:Court of Appeals of California, Second District, Division Five.

Date published: Nov 6, 2003

Citations

B163269 (Cal. Ct. App. Nov. 6, 2003)