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People v. Donaldson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2012
E051750 (Cal. Ct. App. Jan. 4, 2012)

Opinion

E051750 Super.Ct.No. FSB1001913

01-04-2012

THE PEOPLE, Plaintiff and Respondent, v. ERIC DEMETRIUS DONALDSON, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

On New Year's Day in 2009, defendant, Eric Demetrious Donaldson, was in a motel room in San Bernardino with his girlfriend, Sylvanna Lewis, and another friend. The following day, Lewis's dead body was found lying face up in a remote area nearby with a gunshot wound to her chest. Lewis's blood was found in the motel room and in defendant's car. Defendant fled to Las Vegas and was apprehended several weeks later. Defendant admitted shooting Lewis, but claimed it was an accident.

Defendant was convicted of premeditated, deliberate, and willful first degree murder and possession of a firearm by a felon. In addition, numerous personal gun use allegations were found true. Defendant now claims on appeal as follows:

1. The trial court erred when it failed to sua sponte instruct the jury on voluntary manslaughter based on the theory of sudden quarrel or heat of passion.

2. He should have received 243 additional days of actual days of custody credit.

The People concede that defendant is entitled to additional custody credits and we will order that the minute order from sentencing and the abstract of judgment be so modified. We otherwise affirm the judgment.

I

PROCEDURAL BACKGROUND

A San Bernardino County Superior Court jury found defendant guilty of premeditated, deliberate, and willful first degree murder (Pen. Code, § 187, subd. (a))and possession of a firearm by a felon (§ 12021, subd. (a)(1)). In addition, the jury found true the special allegations that defendant personally used a firearm, intentionally discharged a firearm, and personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (b), (c), (d)), and that he personally used a firearm (§ 12022.5, subd. (a)). In a bifurcated proceeding, for which defendant waived a jury trial, the trial court found for both counts that defendant had suffered four prior serious and violent felony convictions within the meaning of sections 667, subdivisions (a)(1) and (b) through (i), and 1170.12, subdivisions (a) through (d).

All further statutory references are to the Penal Code unless otherwise indicated.

Defendant was sentenced to the three strikes sentence of 75 years to life for the first degree murder, plus 25 years to life for the gun use causing death, for a total of 100 years to life. In addition, he was sentenced to five years on one of the prior serious felony convictions under section 667, subdivision (a)(1), for a total sentence of 100 years to life plus five years. He received custody credit for 353 actual days in custody.

II


FACTUAL BACKGROUND

Defendant stipulated that he committed a prior felony for purposes of the felon in possession of a firearm charge.
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A. Timeline of Sylvanna Lewis's Murder

On January 1, 2009, New Year's Day, defendant got together with his girlfriend, 27-year-old Sylvanna Lewis, and his two friends, Avron Wyatt and another person named "Billy." Defendant and Lewis picked up Wyatt from his home in the early afternoon. Defendant was driving a gray Ford Fusion. Lewis came to Wyatt's front door and was limping. She told Wyatt that she had cut her foot. Wyatt did not see any blood on her shoes.

Sometime during the day, defendant said to Wyatt that "he was going to take someone out" that night. Wyatt thought this was strange, because he interpreted his comments to be that he was taking another girl on a date although he was dating Lewis, and he told defendant this. Defendant told him he did not get it and said, "I'm going to take somebody out. I'm going to kill somebody." Defendant told Wyatt that he was going to do it at 8:00 p.m. that night.

Wyatt asked that he be dropped off at his house because he did not want to be a part of it. Lewis was uncharacteristically quiet throughout the day. Wyatt declined defendant's offer to go to a motel and drink with them. Defendant dropped Wyatt off at his home at 7:30 p.m. Wyatt tried to get Lewis to stay with him, but she told him she wanted to stay with defendant. He gave Lewis a bandage for her foot, although it was not bleeding.

Defendant rented a room at a motel on Ostrem Way in San Bernardino on December 31, 2008, and stayed until January 2, 2009. He paid cash. Defendant called Wyatt twice on January 2, 2009. During his first telephone call, he told Wyatt he was concerned because he could not find Lewis.

On January 2, 2009, Lewis was found dead by San Bernardino County Sheriff's Detectives Scott Cannon and Ryan Ford, lying face up in the dirt off of Mallory Street in the Muscoy area of San Bernardino County. Lewis had been shot in the chest. She was rigid and cold. However, the blood on her shirt was still wet.

The second time defendant called Wyatt, after Wyatt had learned that Lewis was dead, defendant told Wyatt he was "hurt" that his unborn children were gone.

About 10:00 p.m. on January 2, 2009, San Bernardino County Sheriff's Sergeant Casey Jiles telephoned defendant. Defendant claimed he was in Flagstaff, Arizona at the time of the call. He told Sergeant Jiles that he had last seen Lewis alive sometime between December 31, 2008 and January 1, 2009. He claimed that he, Lewis, and two men named "Bill" and "Ron" had received haircuts at a friend's house on January 1. After their haircuts, defendant claimed he was forced to drop Lewis off near Date and Del Rosa streets because she wanted to buy a "sherm stick," which was a cigarette dipped in PCP. Defendant claimed that Lewis kicked the steering wheel to get him to drop her off. He also found out she had been smoking "crack." Defendant indicated that Lewis could be very stubborn and violent.

Despite claiming to be in Arizona on the evening of January 2, 2009, defendant checked into a hotel room in Las Vegas, Nevada. Defendant stayed until the morning of January 5, 2009. Defendant's car was found at the hotel by Las Vegas law enforcement officials. After it was seized, it was towed to the San Bernardino County Sheriff's Department crime laboratory. The car was taken without defendant's knowledge and he discovered it missing at 11:30 a.m. on January 3, 2009.

On January 5, 2009, a friend dropped defendant off at his girlfriend's (who he was dating in addition to Lewis) house in Yucca Valley, California. He did not have a car and no personal belongings. Defendant would not tell his girlfriend what happened to his car. Defendant was arrested at that location on the evening of January 12, 2009.

B. Physical Evidence

An autopsy of Lewis's body revealed dirt on her skin and a fresh cut on her toe. The cut on the toe was superficial and would not have bled very much. She died from a single gunshot wound to her chest. Due to the severity of the injury from the gunshot wound, she would have died in minutes. Based on the wound, the shooter would have been aiming the gun directly at the victim, from at least three feet, when the gun was shot; the gun would not have been at an angle. Lewis had alcohol, cocaine, and marijuana in her system. It was determined that Lewis was not pregnant. A buccal swab was taken from Lewis to compare to the evidence in the case.

Upholstery cleaner was found in the backseat of defendant's car. In addition, a guest parking permit for the motel in San Bernardino was found. Blood was found on the exterior driver's side of defendant's car and inside on the stereo speaker in the car door. In addition, there was a bloodstain on a floorboard in the back of the car.

Marks found near Lewis's body were consistent with being dragged to the location. There were droplets of blood near the drag marks. Based on the drag marks, it was consistent with Lewis already being dead when she was brought to the area.

Tire marks were also found near Lewis's body. The tire marks that were found at the location of Lewis's body matched the tires on defendant's Ford Fusion.

On January 12, 2009, Detectives Cannon and Ford searched the room at the motel where defendant had been staying. Bloodstains were found on the carpet and on a chair. There was a large, reddish discoloration on the mattress.

DNA evidence was presented. The blood samples taken from the motel were consistent with belonging to Lewis. Tests on the sample taken from the mattress were inconsistent. Blood samples taken from the Ford Fusion matched Lewis. Defendant was a possible contributor to semen found in Lewis's vagina.

The location where Lewis's body was found was two miles from the motel. Lewis had told her mother, Mae Stewart, in December 2008, that she was pregnant with twins. Defendant called Stewart on the day Lewis's body was found.

C. Defendant's Statement

Defendant was interviewed several times by Sergeant Jiles and Detective Ford, between January 12 and 14. The jury was shown the final videotaped interview of defendant that occurred on January 14, 2009. During this interview, defendant confessed that he shot Lewis, but claimed it was an accident.

Defendant told the detectives that he and a friend named Bill were playing with a sawed-off shotgun in the motel room sometime between 9:00 and 11:00 p.m. on January 1. Defendant set it down on the table, but then picked it up again. When he was checking the chamber to see if there was a bullet inside the gun, it accidently discharged. The bullet hit Lewis. Defendant was shocked and started crying. Defendant did not how the bullet got in the chamber. Defendant showed the detectives a photograph on his cellular telephone of the gun in the room with bullets lined up next to it.

Bill grabbed the rifle and left the room; defendant did not know what happened to the gun. Defendant put Lewis on the bed. Lewis just looked at defendant and made one sound. Defendant or Bill flipped the mattress after this and defendant said there was an old bloodstain on the bed. Defendant did not call 911 because he was scared.

Defendant carried Lewis to his car and Bill (who had apparently returned but no longer had the rifle) drove him to a dark place in order for him to dump Lewis's body. Defendant had dropped Lewis on the floor in the motel room when he tried to carry her. Defendant dragged Lewis from the car and laid her on the ground. Bill drove defendant back to the motel.

Defendant's personal belongings were already packed in the car as he planned to check out that day. Defendant drove around that day and went to his job to pick up his paycheck. He eventually drove to Las Vegas with Bill. He got a room and did some gambling. When he went to his car the next day it was missing. He went to the bus station.

Defendant initially stated in the interview that his relationship with Lewis was perfect. Defendant indicated later in the interview that he and Lewis had argued that night over her wanting a sherm stick and because she had been drinking. They also argued because he found a crack pipe in the car. Defendant was concerned because she had told him that she was pregnant (even though he was not sure the babies were his because she had also had sex with his brother).

Defendant claimed that Lewis had physically abused him in the past by hitting and scratching him. He indicated that she had physically abused him on the night before she died. Defendant insisted that drugs and alcohol changed Lewis's attitude and she was crazy when under the influence.

Although defendant had threatened her that if she continued to use drugs that he would take the babies away from her, they had agreed to raise the children together. Defendant felt "[s]tupid" that Lewis was not actually pregnant. Defendant told Lewis's mother that Lewis was "hard headed" and that he felt like choking her when she did not listen. Defendant denied that he shot Lewis because she was using drugs, drinking, or because she was abusive with him.

Defendant purchased the upholstery cleaner because he wanted to clean his car and several other cars. Defendant denied that earlier in the day he had told Wyatt that he was going to shoot Lewis.

III


INSTRUCTION ON VOLUNTARY MANSLAUGHTER

Defendant now contends on appeal, despite his objection below, that the trial court should have instructed the jury with a voluntary manslaughter instruction on the theory of heat of passion or sudden quarrel for the first degree murder charge.

A. Additional Factual Background

The discussion of the jury instructions was conducted off the record. However, the trial court explained the pertinent objections on the record. The trial court noted that the People had requested that a voluntary manslaughter instruction be given and that defendant objected to giving the instruction. The trial court felt that "[i]n reviewing the elements of that offense and viewing the evidence that's before the jury, the Court has determined that voluntary manslaughter was not a lesser in this case based upon the evidence."

The People argued that based on defendant's statement to Sergeant Jiles when he called defendant, and in his statement on January 14, defendant stated that he dropped off Lewis because she wanted to get drugs. Defendant did not like the fact that she used drugs and tried to stop her because he thought she was pregnant. Further, defendant stated on that day that he was going to shoot someone. The People stated: "It shows that the defendant had anger. He had anger toward the victim and he was upset with her for the fact she was [with] somebody else, that she exited the vehicle, and she was using drugs. This is also corroborated by the autopsy report that the victim did have cocaine in her system." Defendant submitted.

The trial court concluded: "All right. Looking at the—as I said, the element of the crime, I don't think there's sufficient evidence of the heat of passion element that is required. I realize the time is not the total consideration, but the total review of the circumstance and the evidence indicates there was insufficient evidence for the voluntary manslaughter."

B. Analysis

"'The Penal Code defines manslaughter as "the unlawful killing of a human being without malice." [Citation.]'" (People v. Manriquez (2005) 37 Cal.4th 547, 583.) A defendant may lack malice and be guilty of voluntary manslaughter when the defendant acts in the heat of passion or upon a sudden quarrel. (§ 192, subd. (a)); People v. Blakeley (2000) 23 Cal.4th 82, 87-88.)

"[I]n a murder trial, the court, on its own motion, must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.] Hence, where the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter. By the same token, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding 'that the offense was less than that charged,' is lacking. [Citations.]" (People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.)

For heat of passion to operate as a defense, "'"[t]he 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."' [Citation.]" (People v. Butler (2009) 46 Cal.4th 847, 868-869.) Additionally, "'[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, "this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' [Citations.]" (People v. Manriquez, supra, 37 Cal.4th at p. 584.)

The People argue that defendant's claim is barred as he invited the error by objecting to the People's request that the voluntary manslaughter instruction be given.

"As our Supreme Court explained in People v. Cooper [(1991)] 53 Cal.3d [771,] 831, to establish invited error, 'the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel.' (Italics added.)" (People v. Lara (1994) 30 Cal.App.4th 658, 673-674.)

Here, the People requested the voluntary manslaughter instruction. Defendant immediately objected to the instruction. It is clear from the record that this was a conscious and deliberate choice made by defendant. The defense theory was that the shooting was an accident and voluntary manslaughter contradicted this theory. Defendant was making a clear, tactical choice by objecting to the instruction. Hence, even if were to conclude there was error, which we decline to do as set forth post, defendant would not be entitled to relief because he invited the error here by objecting to the instruction.

Nonetheless, as stated, the trial court did not err by refusing to instruct the jury on voluntary manslaughter. Defendant claims on appeal that the jury could have concluded that at the time of the shooting defendant was upset with Lewis because of her drinking and drug use and her being pregnant. The jury could have also concluded that Lewis left defendant for some time to obtain drugs. Further, the jury could have surmised that while Lewis was gone, she had sex with another man in order to obtain drugs. Defendant concludes: "Given the evidence that Lewis had been verbally and physically abusive when she was usuing drugs, and that she acted crazy when she was drunk, the jury could have concluded that once the couple were back together in [their r]oom, [defendant] simply became incensed about her behavior and shot her."

Defendant's theory supporting the voluntary manslaughter instruction is wildly speculative. Further, such evidence was contradicted by defendant himself. During the interview with defendant, Detective Cannon hypothesized that defendant became enraged at Lewis because she was disrespectful, sleeping around, and taking drugs while she was pregnant. Detective Cannon stated that he believed defendant aimed the gun at Lewis in order to scare her and it went off. Defendant denied that the shooting happened that way. He maintained it was an accident.

There was no evidence from which the jury could conclude that defendant killed Lewis in a heat of passion or sudden quarrel. There was no evidence presented as to the circumstances surrounding the shooting except for defendant's own testimony that the shooting was an accident. There was no evidence presented that at the time of the shooting defendant became so incensed with Lewis and that he was so provoked by her behavior that he shot her. "[P]rovocation 'must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.' [Citation.]" (People v. Manriquez, supra, 37 Cal.4th at pp. 585-586.) Nothing in the record supports the instruction.

Moreover, defendant has failed to show a reasonable probability that he would have achieved a more favorable result had the instruction been given, so the error in failing to give the instruction was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

There was strong evidence of first degree murder in this case. Defendant told Stewart, Lewis's mother, earlier in the day that Lewis was getting out of control and that he wanted to choke her (although he insisted he was only joking). He also told Wyatt that he was going to shoot someone that day and kill him or her. Wyatt took the threat seriously and had defendant drop him off at his house prior to the time that defendant said he was going to commit the shooting. Moreover, defendant armed himself with the rifle. He also had packed his belongings in his car and planned to leave on January 2.

Based on the autopsy, defendant had the gun pointed directly at Lewis when he shot her. Defendant watched Lewis die and did nothing to help her. He callously dumped her body in a deserted area.

Immediately following the shooting, defendant called his friend trying to create an alibi for himself by claiming that he did not know where Lewis was and that he dropped her off at a street corner. Defendant then fled to Las Vegas and lied to police that he was in Arizona. Defendant gambled in Las Vegas and bought cleaning materials; this clearly was not a man who was traumatized by accidentally shooting his girlfriend.

Based on the foregoing, defendant's actions, both prior to and after the shooting, supported that defendant had committed the shooting with premeditation and deliberation. The jury necessarily rejected that this was an accident and there simply was no evidence of provocation. As such, even had the jury been given the option of convicting defendant of the lesser offense of voluntary manslaughter, it is not reasonably probable that they would have found him guilty of the lesser crime. A man who arms himself with a rifle, shoots his girlfriend (who he believes is carrying his babies) in the chest and callously dumps her body in a remote and dark area, and then goes gambling in Las Vegas, is necessarily guilty of first degree murder without other evidence explaining the details of the crime.

IV


ACTUAL CUSTODY CREDITS

Defendant contends he is entitled to additional actual custody credits. According to the sentencing memorandum submitted by the People, defendant had 353 days of actual custody credit. The probation report also listed the actual custody credits as 353 days, despite confirming that he was arrested on January 12, 2009.

The record establishes that defendant was arrested on January 12, 2009, and was not released from custody. Defendant was sentenced on August 30, 2010. Defendant was entitled to full custody credits from January 12, 2009, until the date of sentencing on August 30 2010. (§ 2900.5, subd. (a).)

Based on the dates of custody, and the agreement of the parties, defendant was entitled to 596 days of actual custody credits. We will order that the abstract of judgment and minute order from sentencing be modified.

V


DISPOSITION

We order the clerk of the San Bernardino Superior Court to modify the minute order from sentencing on August 30, 2010, to award defendant 596 days of actual custody credits. In addition, the abstract of judgment shall be modified to reflect the correct custody credits and a copy of the corrected abstract shall be delivered to the California Department of Corrections and Rehabilitation. We otherwise affirm the judgment in its entirety.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

MILLE

J.


Summaries of

People v. Donaldson

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2012
E051750 (Cal. Ct. App. Jan. 4, 2012)
Case details for

People v. Donaldson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC DEMETRIUS DONALDSON…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 4, 2012

Citations

E051750 (Cal. Ct. App. Jan. 4, 2012)

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