Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA061852, Tomson T. Ong, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant James Doherty appeals from the judgment entered following the jury verdict finding him guilty of first degree murder. (Pen. Code, § 187, subd. (a).) He contends the trial court erred by: (1) failing to appropriately answer a jury question during deliberations; (2) instructing the jury on the theory of torture murder; and (3) instructing the jury with CALJIC No. 2.62. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Evidence
During the late evening hours of June 17, 2004, Long Beach Police Officer Jessica Delosh was dispatched to the address of 6127 Linden Avenue, apartment C. When she arrived at the location, she noted what appeared to be dried blood on the front door frame and the area near the door. She followed a trail of blood from outside the apartment into an alley that led to the back of the complex. From the pattern of the blood drops Delosh observed, she believed that the blood had been left by an object or a body that had been dragged.
Upon gaining access to the apartment, Delosh saw more drops of dried blood. No one was in the apartment; however, the lights and television were on. She found a knife in the kitchen next to another area of dried blood. She also discovered blood smears in the living room.
Jaime Stone is the daughter of Rebecca Davenport, defendant’s girlfriend. In June 2004, Stone was living at the Linden Avenue apartment with defendant and her mother. Stone also knew the murder victim, Kaj Hansen, whom she described as an elderly gentleman. He was approximately five feet four or five inches tall, thin, and wore glasses.
In the early morning hours of June 16, Stone returned to the apartment. Defendant and her mother were sitting on the couch in the living room. Defendant was upset, explaining that Hansen was going to change the locks to the apartment. Hansen had served an eviction notice approximately six weeks prior. Defendant said that he was going to kill Hansen. Stone testified that a week earlier defendant also stated he was going to kill Hansen. Defendant was upset that Hansen had apparently reneged on an agreement to allow defendant and his girlfriend more time to move out of the apartment.
The next day, on the 17th, Stone left the apartment and went to a bar. At about 6:30 p.m., she called defendant and said she wanted to come back to the apartment. Defendant told her not to return and said he needed some time. Stone received a phone call at the bar from a neighbor which caused her to return home. When she arrived, she was met by Officer Delosh. Stone saw “[q]uite a bit” of blood outside of apartment C.
Rebecca Davenport said she had suffered a series of small strokes which caused her memory to fail. She also wore hearing aids, although she did not have them when she testified. She told the jury she had lived with defendant for 12 or 13 years, and in 2004, they lived together in Long Beach. Their landlord was Kaj Hansen. During the month of June, Hansen was in the process of evicting them.
On June 17, she and defendant were in the apartment when Hansen entered, uninvited, using a key. Davenport knew that Hansen was planning to change the locks to the apartment. When Hansen came inside, he bumped into her and knocked her either into or over a chair in the living room. He was carrying a long screwdriver. Defendant, who had been asleep on the couch, woke up. Hansen was walking toward the kitchen. She saw defendant following Hansen into the kitchen. She did not hear either man say anything and did not see an argument between them. Davenport left the apartment to get cigarettes. She estimated that she was gone “just a few minutes.”
When she returned, the front door to the apartment was open. She saw Hansen lying face down on the kitchen floor. She saw defendant jump and stomp Hansen in the back with both feet. Defendant, who was wearing shoes, kicked him in the head. Davenport did not see a knife or any blood on the kitchen floor. Defendant told Davenport that whenever Hansen got up he would apologize for “coming in the house that way.” When defendant told her to get out of the kitchen, she left and went to the park with a friend.
Sometime later, defendant appeared at the park with food and soda. She did not see any blood on his clothing. Defendant did not say anything about Hansen and his demeanor “seemed fine.” She could not recall telling a detective that defendant came to the park and told her that he had a run-in with Hansen and was going to Irvine.
At some point defendant told her that he killed Hansen in the apartment, wrapped his body in a rug, and used Hansen’s van to dispose of the body in Irvine. Davenport testified this conversation took place approximately 30 or 40 days after defendant was arrested. Davenport denied ever hearing defendant say that he was going to kill Hansen. She testified that her daughter, Jaime Stone, lied often.
Detective Brian McMahon testified that Deborah Guilhousen, a friend of defendant and Davenport, told him that she heard defendant threaten Hansen. He told the victim, “I’ll off you. You can be off’d like anyone else.” Guilhousen denied hearing defendant threaten Hansen and telling Detective McMahon that she had.
Doctor Joseph Halka performed the autopsy on Kaj Hansen. Hansen was 79 years old at the time of his death. He was five feet seven and one-half inches tall, weighed 135 pounds, and was described by Halka as “a frail, slight individual.” Hansen suffered the following injuries: 1) bruising about the face; 2) a fracture of the nasal bridge; 3) defensive wounds to his hands; 4) four fractured ribs; 5) bleeding and abrasions to the ear lobe, consistent with being kicked in the head; 6) two skull fractures; 7) eight stab wounds, four to the neck and others on the right side of the rib cage; and 8) various contusions and abrasions. Doctor Halka opined that all injuries, with the exception of the stab wounds to the ribs, were inflicted while Hansen was alive. He testified that a blow to the head similar to that received by the victim would not result in immediate death. The doctor attributed the cause of death to cerebral hemorrhage due to the skull fractures. He believed the victim was alive between 20 to 60 minutes after suffering his initial injuries.
Police found a knife and a broken tip from a second knife in defendant’s apartment. Doctor Halka testified the knife tip that was discovered was consistent with some of the wounds Hansen had suffered.
Doris Hansen was the victim’s wife. At about 4:00 p.m. on June 17, her husband left their house, telling her that he was going to change the locks on defendant’s apartment. He had agreed to give defendant and his girlfriend a few days to move their belongings out of the apartment, but they had extended their stay beyond that time.
Detective Todd Johnson arrested defendant on the afternoon of June 18. Defendant’s pants had what appeared to be bloodstains on them and he was wearing boots. In defendant’s pants pocket, Johnson found a knife that Doctor Halka opined caused some of the victim’s wounds and the keys to the victim’s van. After being placed under arrest, defendant said that Hansen had come to his place and disrespected his family and defendant did what he had to do. Defendant did not claim to have become angry because Hansen had knocked Davenport to the ground.
Hansen’s body was found by two citizens in Irvine on June 18th.
Defendant testified on his own behalf. He said he weighed about 190 pounds in June of 2004. He denied saying in Jaime Stone’s presence that he was going to kill the victim and telling Deborah Guilhousen that he was going to off the victim.
Defendant’s version of the events of June 17 was as follows. Hansen broke the door to the apartment, walked in, and struck Davenport in the back with the handle of a 14-inch screwdriver, causing her to fall to the floor. Defendant followed Hansen into the kitchen. Hansen said something he could not hear because all defendant could hear “was a roaring in [his] ears.” Hansen advanced toward him with the raised screwdriver and defendant struck him in the chest or neck with his forearm. Defendant grabbed a two-foot long bar that was an attachment to his jackhammer and struck the victim twice in the back of the head. Defendant grabbed a steak knife from the counter and stabbed Hansen five or six times in the back and once in the head. Hansen fell to the floor as he was being stabbed. Defendant said he might have stabbed the victim as he lay on the floor. He turned Hansen on his back and stomped on his chest with the heel of his boot. Hansen flipped to his stomach and defendant stomped on his head, again with the heel of his boot. Defendant told Davenport to leave the apartment, and she complied.
Defendant turned his attention to the victim, who did not appear to be breathing. Defendant checked the victim’s neck and wrist and could not detect a pulse. In an attempt to delay the process of having to explain how he had killed Hansen, defendant rolled his body in a rug and dragged it to the victim’s van. He went back to the apartment and cleaned it the best he could. He drove to the park to see Davenport, and told her that Hansen was alright. Defendant drove to Irvine where he disposed of the victim’s body.
Doctor David Posey, a forensic pathologist called by the defense, reviewed color photographs of the crime scene and of the victim at the autopsy, the autopsy report, investigators’ reports, and photographs of the scene where the victim was found in Irvine. He opined that the cause of death was due to severe blunt force injury to the head and brain, and that clinical death, when the brain ceased functioning, occurred within one to three minutes of the receipt of the blow to the head. He disagreed with Doctor Halka’s opinion that the victim’s brain injury did not result in immediate death.
II. Jury Deliberations
The jury submitted three questions to the court. The first asked for the difference between the definition of malice in CALJIC No. 8.11 versus the definition of manslaughter in CALJIC No. 8.4. The court responded: “Malice as defined in Instruction 8.11 is a part of the element of malice aforethought for the charge of murder in Instruction 8.10. [¶] Voluntarily manslaughter as defined in Instruction 8.11 requires no malice aforethought. [¶] Please read all instructions between Instructions 8.00 to 8.75, inclusive, to get the differences between the crime of murder and voluntary manslaughter.”
The next jury question asked for the difference between “the 3 points of 8.11 [and/or] 8.4.” The court replied: “Please clarify. There is no Instruction 8.4.” The jury retired for the evening recess.
The next afternoon, the jury sent out another inquiry. It asked: “Legally if the fatal blow happens during the heat of passion would that reduce murder to manslaughter[?]” The parties met in open court to discuss the appropriate answer. The prosecution proposed advising the jury that its job was to decide whether the killing was voluntary manslaughter or murder of the first or second degree. Defense counsel requested that the court simply answer “yes.” He argued that a killing that occurred during the heat of passion was necessarily manslaughter. The prosecutor objected, contending that the jury had also been presented with the theory of murder by torture. Thus, the jury could not merely focus on one blow; it was necessary to consider defendant’s entire course of action to determine whether he intended to inflict extreme and prolonged pain.
After considering the arguments, the court stated it was troubled by the jury’s use of the words “fatal blow.” It noted that if the jury had asked if a killing which occurred during the heat of passion constituted manslaughter, it would have agreed that “yes” would have been the appropriate answer. The court concluded that the jury was asking for a legal conclusion that it could not provide. It decided to tell the jury that “This is not a legal issue for the judge to decide.” Defense counsel replied, “That’s fine with me, Judge.” Counsel stated further, “That’s fair. Goes back to them. Let them decide.”
The jury continued its deliberations. The next morning, the jury requested readback concerning deadbolts which had been found in the apartment. The following day, the jury found defendant guilty of first degree murder.
DISCUSSION
I. The Trial Court’s Response to the Jury Question
Defendant contends the jury question concerning whether a fatal blow struck in the heat of passion reduced a murder to manslaughter triggered the trial court’s duty pursuant to Penal Code section 1138 to clarify the issue on which the jury was seeking guidance. He argues the trial court’s refusal to answer the question constitutes reversible error. We disagree.
We reject the Attorney General’s argument that defense counsel’s subsequent acquiescence to the court’s answer to the question constitutes a forfeiture of his claim of error. Counsel specifically asked the court to answer the jury question directly by answering “yes.” After his request was rejected, counsel agreed to the language chosen by the court. Under these circumstances, we decline to find that defendant is barred from pursuing this contention on appeal. (People v. Hill (1992) 3 Cal.App.4th 16, 24, overruled on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
“When the jury asks to be informed on any point of law arising out of the case, the trial court has a duty to help the jurors understand the legal principles that it is being asked to apply. [Citations.] The satisfaction of this obligation does not always require the trial court to elaborate on standard jury instructions already given. When the instructions were full and complete, the trial court has the discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 589.) We examine whether the court abused its discretion in answering the jury question as it did. (Ibid.)
We begin by noting that defendant does not claim the jury was not fully and correctly instructed on the elements of murder and manslaughter or the concept of heat of passion. With regard to the latter, the jury was instructed with CALJIC No. 8.42, which provides as follows:
“To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion.
“The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short, or over a considerable, period of time.
“The question to be answered is whether or not, 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 passion rather than from judgment.
“If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed the provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter.”
Defendant characterizes the trial court’s action as a refusal to answer the jury’s question, and argues the “obvious and correct answer would have been a simple yes.” He contends “the jury apparently determined that when the fatal blow was struck, appellant had been sufficiently provoked and was in the throes of intense emotion.” Defendant assumes too much.
The question did not suggest to the court that the jury had reached any conclusions as to the facts. As the court noted, the jury prefaced its question with the word legally, suggesting it was asking for clarification of the law. Nor, contrary to defendant’s contention, did the question signal that the jury failed to understand the principle of heat of passion. As we are entitled to assume that jurors are intelligent persons who are capable of understanding the jury instructions (People v. Yoder (1979) 100 Cal.App.3d 333, 338), the jury’s last question more likely shows that it had not reread CALJIC No. 8.42 as the court had asked, for the answer to its question was set forth clearly in the text of that instruction.
Of more import, we conclude that simply answering the jury question “yes” would not have been accurate. As CALJIC No. 8.42 specifically states, a person who acts under the heat of passion does not necessarily act without malice. The heat of passion must be such as “naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances.” Thus, while defendant’s passions may have been aroused at the time the fatal blow was struck, the offense would not be reduced from murder to manslaughter unless the circumstances in which defendant was placed “would have aroused the passion of the ordinarily reasonable person faced with the same situation.” Moreover, the passion must have been such that the ordinarily reasonable person would have been driven to act rashly and without deliberation and reflection.
As we have discussed, the jury had all of the instructions at its disposal to determine whether defendant committed murder or manslaughter. In fact, the court directed the jury to those precise instructions in answering a prior question. The jury did not profess to be confused over the definition of any of the terms in the instructions, which may have required a more direct answer. (People v. Solis (2001) 90 Cal.App.4th 1002, 1015.) We conclude the trial court did not abuse its discretion by declining to provide the one word answer “yes” to the jury’s inquiry.
While we agree the court should have provided the jury with a proper response, such as directing its attention to CALJIC No. 8.42, the court’s failure to do so was not prejudicial. Defendant concedes that a court’s failure to comply with Penal Code section 1138 is ordinary error which is subject to the test enunciated under People v. Watson (1956) 46 Cal.2d 818, 836. That is, reversal is warranted only if defendant would have obtained a more favorable outcome had the error not occurred. We decline defendant’s invitation to apply the more stringent beyond a reasonable doubt standard under Chapman v. California (1967) 386 U.S. 18.
Defendant’s claim of prejudice hinges on his argument that there is “more than a reasonable chance that had the trial court responded affirmatively to the jury’s question the outcome would have been different.” However, we have concluded that the court did not err in declining to do so. As the complete answer to the jury’s question was contained in the instructions the court had already provided, and there is no evidence that the jury was confused by any of the concepts or language in them, defendant cannot meet the standard of reversible error.
II. The Torture Murder Instruction
At the prosecution’s request, the court instructed the jury with CALJIC No. 8.24. The instruction advised the jury that defendant could be found guilty of murder in the first degree if it believed he committed murder by means of torture. Defendant contends this was error because there was no substantial evidence to support a finding of murder by means of torture and he was denied notice that the prosecution was relying on this theory. We find neither claim persuasive.
The trial court’s duty to instruct on general principles of law “arises only when there is substantial evidence to support giving such an instruction.” (People v. Crew (2003) 31 Cal.4th 822, 835.) In determining whether there is substantial evidence, we examine whether a reasonable trier of fact could have found beyond a reasonable doubt that defendant committed murder by means of torture. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
“Murder by torture requires a killing committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. It need not be proven that the victim actually suffered pain. However, there must be a causal relationship between the torturous act and death.” (People v. Chatman (2006) 38 Cal.4th 344, 389-390.) Although a jury may consider the circumstances of the crime, the nature of the killing, and the condition of the body to conclude that a killer intended to inflict extreme pain, undue weight must not be given to the severity of the wounds, which may be as consistent with a killing in the heat of passion as with an intent to inflict pain. (Id. at p. 390.)
Defendant argues that the prosecution “relied solely on the state of the victim’s body to show [his] intent to commit murder by torture.” Citing People v. Anderson (1965) 63 Cal.2d 351 and People v. Walkey (1986) 177 Cal.App.3d 268, he claims the nature of the injuries and the pain the victim may have felt are insufficient to establish murder by means of torture. However, defendant ignores the other evidence in the record that supports the prosecution’s theory.
Viewing the evidence in a light most favorable to the prosecution, the evidence established that the victim had evicted defendant and his girlfriend. Defendant was aware that the victim was going to change the locks to the apartment. He had expressed on three separate occasions that he wanted to kill the victim. The prosecution’s expert testified that the attack on the victim lasted no less than 20 minutes before his death and could have consumed up to one hour. The nature of the wounds suggested that many were inflicted while the victim was on the floor and incapable of resisting. Eight stab wounds were inflicted, and none were immediately fatal. Defendant utilized at least three weapons, a blunt instrument and two knives, and one of the knives was broken during the attack. Defendant also stomped and kicked the victim in the chest and head while wearing boots. The victim suffered a nasal fracture and four fractured ribs. He had numerous contusions and abrasions, including defensive wounds showing that he attempted to ward off defendant prior to succumbing to his wounds. Evidence of defendant’s anger at the victim, the nature of the victim’s wounds, and the duration of the assault support a finding that the attack was carried out for the purpose of exacting revenge. The instruction was appropriate.
Defendant also complains that the prosecution failed to give adequate notice that it was relying on the theory of murder by torture to establish that he was guilty of first degree murder. Having failed to object at trial on these grounds, defendant has forfeited his claim. (People v. Cole, supra, 33 Cal.4th at p. 1207.)
In any event, defendant’s contention is unavailing. Our Supreme Court has “long held that under this state’s statutory scheme, an accusatory pleading charging a defendant with murder need not specify the theory of murder on which the prosecution intends to rely.” (People v. Diaz (1992) 3 Cal.4th 495, 557.) More importantly, the record reflects defendant was prepared to defend against the prosecution’s attempt to prove murder by torture. His expert, Doctor Posey, refuted the prosecution’s theory that the victim suffered through a prolonged attack. The doctor opined that Hansen died almost immediately after being struck in the head by a blunt object, and disputed that the stab wounds were inflicted a substantial period prior to Hansen’s death. Thus, it is not surprising that defendant has yet to explain how he was prejudiced by the alleged lack of notice. We conclude that he received constitutionally adequate notice of the prosecution’s murder by torture theory.
III. CALJIC No. 2.62
Defendant asserts that he was denied his right to due process by the court’s decision to instruct the jury with CALJIC No. 2.62. He contends the instruction lessened the prosecution’s burden of proof, mandating reversal of his conviction. We disagree.
The jury was instructed as follows:
In the appropriate case, the instruction may be given. The question is whether the evidence supports the inference that defendant failed to explain or deny the evidence against him. (People v. Saddler (1979) 24 Cal.3d 671, 679-681.) We must ascertain whether there were “facts or evidence in the prosecution’s case within [defendant’s] knowledge which he did not explain or deny.” (Id. at p. 682.) Such evidence must have been within the scope of cross-examination, and the mere fact that his testimony contradicts that of other witnesses is not sufficient to support the use of the instruction. (Ibid.)
We conclude that the circumstances in this case justified the instruction. Defendant testified that the attack was the result of an explosion of violence. He claimed to have inflicted all of the stab wounds on the victim during the initial stages of the assault. He failed to explain the opinion of the prosecution’s expert that the victim suffered some of the wounds while he was alive and others after he had expired. This meant the victim was stabbed at least 20 minutes after the initial onslaught. Although defendant said he struck the victim immediately after walking into the kitchen when the victim came toward him with the raised screwdriver, he could not tell the jury why his girlfriend failed to see the beginning of the attack from the adjacent living room. She testified that she saw the victim and defendant walk into the kitchen. She stood up from the floor and left the apartment to get cigarettes. At that point, she had heard neither man speak, nor had she observed any argument. To bolster his heat of passion defense, defendant asserted the entire attack took place in the kitchen. He denied that the victim attempted to escape from the apartment, yet he did not explain how part of the victim’s eyeglasses ended up in a planter outside the front door. This evidence suggested defendant struck the victim outside the apartment and brought him back inside, dispelling the notion that the victim was the aggressor. Finally, the potential weapons found at the scene included one knife, a broken knife tip, and one small three-inch screwdriver, which defendant claimed was his. He provided no reason why the 14-inch screwdriver he claimed the victim used to attack him was not found in the apartment. As one who gave the jury his version of the attack from beginning to end, defendant’s inability to account for the failure of the physical evidence to match his description of the events and to explain other evidence inconsistent with his story justified the instruction in question. The trial court did not err.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.
“In this case defendant has testified to certain matters.
“If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
“The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
“If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”