Opinion
C081678
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DRAKE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F02773)
A jury found defendant Matthew Drake guilty of the first degree murder of his friend Fallon Boroja by using a deadly and dangerous weapon (a metal lockbox). Defendant initially told police that at the time of the murder, he had been abducted by kidnappers. Later in the interview, however, he admitted killing Boroja as follows: after she threw the lockbox at him, he swatted it back at her causing her to bleed, and then he hit her with it four times in the head to end her suffering.
Defendant appeals from his conviction, raising instructional issues relating to intoxication, mental illness, and involuntary manslaughter. We find no merit in defendant's contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of her murder on April 22, 2014, Boroja lived in a Sacramento house with housemates, including Jharen Frye and John Whalen. Defendant had previously been a housemate. On the night of her murder, Boroja arrived home accompanied by defendant and a current housemate who had just moved in; Frye noticed that all of them were drunk. Defendant and Boroja remained in the living room alone, hugging. Later that evening, Frye went to the living room, but no one was there. Whalen, who was in his own room, heard banging on the walls. Fifteen to 30 minutes later, he went into Boroja's room to ask for a cigarette. The door was slightly open. He found Boroja face down in a pool of blood with a towel over the back of her head. He called 911.
Police arrived at 8:20 p.m., a few minutes after the dispatch call. Boroja was dead with a big metal lockbox next to her. Boroja had four fractures to her head and neck area, five fractures to her ribs, and cuts and abrasions up and down her body. She died of blunt force injuries of the neck and head.
Defendant was suspected of killing Boroja. The next morning at 7:45, police found him on a street pushing a bicycle. He accurately identified himself and did not slur his words. Police took him downtown to the police station for an interview. At the beginning of his first interview, he said he had been jumped by two men and kidnapped. Later in the interview, however, he admitted he had been in Boroja's room with her where she asked him if he wanted to have sex. He said, " 'All right,' " but then "she started . . . gettin' all mad," "treating [him] like crap" and told him, " 'I'm gonna fuckin' kill you.' " That is when she threw the metal lockbox at him. Defendant "swatted it out [of] her hand," which caused the lockbox to land on her head and make her bleed. Boroja was "knocked out." But she was still alive, and defendant "heard a lot of gargling." He could tell "she was suffering," so he hit her over the head four times with the metal lockbox "because [he] didn't want to see her suffer." Defendant is bipolar and schizophrenic and suffers from depression and seizures.
Two days later, police interviewed defendant again. He said Boroja gave him a Xanax pill on the way to her house. They tried to have sex, but he could not achieve an erection because of the pill. Boroja "started shouting and she was all upset" and threw the lockbox at him. He swatted it, it hit her, and she fell down. She was bleeding and "out of it," and he knew "they would have to put her on life support," so he "hit her over the head with the [lockbox] . . . four times . . . because [he] didn't want to see her suffer."
Sometime after his arrest, defendant had in his bloodstream 6.8 nanograms per milliliter of Xanax and 44 nanograms per milliliter of Delta-9-THC, which is the primary active component in marijuana. That amount of Xanax was below the bottom end of the therapeutic range. There was no testimony on the effect of the Delta-9-THC.
DISCUSSION
I
The Court Correctly Did Not Instruct On The Relationship Between
Intoxication And Unreasonable Self-Defense
Or Intoxication And Sudden Quarrel/Heat Of Passion
Regarding intoxication, the court instructed pursuant to CALCRIM No. 625 as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation.
"A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that [e]ffect. You may not consider evidence of voluntary intoxication for any other purpose."
Defendant first contends this instruction was wrong because it failed to inform the jury that it could consider intoxication also in "evaluating his belief in his need to defend himself or his subjective response to provocation." According to defendant, the instruction prevented the jury from considering whether intoxication caused him to misperceive the circumstances when he killed Boroja, so he mistakenly believed he needed to defend himself. He then contends, "[s]imilarly, the instruction prevented the jury from considering [his] intoxication in determining whether he acted under the subjective prong of manslaughter based [on] sudden quarrel/heat of passion."
The problem with defendant's contentions is there was no evidence that defendant killed Boroja based on a perceived need to defend himself or because of a heat of passion. To be sure, there was evidence in the form of defendant's version of events that Boroja first asked defendant if he wanted to have sex with her, he said, " 'All right,' " but then "she started . . . gettin' all mad," "treating [him] like crap" and told defendant, " 'I'm gonna fuckin' kill you.' " That is when she threw the metal lockbox at him. Defendant responded by "swatting it out [of] her hand," which caused the lockbox to land on her head and make her bleed. At this point, Boroja was "knocked out." But she was still alive, as defendant "heard a lot of gargling." He could tell "she was suffering," so he hit her over the head four times with the metal lockbox "because [he] didn't want to see her suffer." Because there was no evidence defendant killed Boroja on a perceived need to defend himself or in the heat of passion (as opposed to killing her because he did not want to see her suffer), the trial court had no duty to instruct the jury that it could consider intoxication in determining whether defendant killed Boroja in unreasonable self-defense or heat of passion. (See People v. Michaels (2002) 28 Cal.4th 486, 529 [for unreasonable self-defense to apply, the defendant must " 'actually, but unreasonably, believe[] he was in imminent danger of death or great bodily injury' "]; People v. Breverman (1998) 19 Cal.4th 142, 163 [an intentional, unlawful homicide is upon a sudden quarrel or heat of passion if the killer's reason was actually obscured as the result of a strong passion aroused by provocation rather than from judgment].)
II
The Trial Court Correctly Did Not Instruct That The Jury Could
Consider Intoxication In Evaluating Defendant's Kidnapping Alibi, As There Was
No Evidence Defendant Was Intoxicated When He Gave That Alibi
Pursuant to CALCRIM No. 362, the trial court instructed the jury on false statements and consciousness of guilt as follows:
"If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing that the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime, and you may consider it in determining his guilt.
"If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
On appeal, defendant contends this instruction did not go far enough because it should have told the jury it could consider intoxication also in evaluating his alibi that he had been kidnapped at the time of Boroja's death. Defendant made these false statements at the beginning of his first interview, before he admitted killing Boroja.
The problem with defendant's contention is there was no substantial evidence defendant was intoxicated when he gave the police his alibi. To be sure, there was evidence defendant was intoxicated on the evening of the murder when Frye first saw him, which was sometime before 8:20 p.m. (which was when police dispatch was called). But there was no evidence defendant was intoxicated the following morning when police interviewed him. Police, who found him on the street, testified he did not slur his words.
Defendant points out that sometime after his arrest, a toxicology analysis revealed in his bloodstream 6.8 nanograms per milliliter of Xanax and 44 nanograms per milliliter of Delta-9-THC. That amount of Xanax was below the bottom end of the therapeutic range. There was no testimony on the effect of the Delta-9-THC. None of this provided evidence that defendant was intoxicated during the interview. Indeed, it would have been speculation to so conclude, and speculation is not a basis on which to give instructions. (People v. Young (2005) 34 Cal.4th 1149, 1200.)
III
Defendant Forfeited His Initial Request To Instruct On Mental
Impairment By Failing To Ask The Court For A Final Ruling
And Failing To Present Expert Testimony
Defendant contends the trial court erred in failing to instruct the jury on defendant's mental impairment as it related to his intent or mental state for the charged crime. This contention is forfeited.
Defense counsel initially asked the court to instruct pursuant to CALCRIM No. 3428, entitled, "Mental Impairment: Defense to Specific Intent or Mental State." The court stated the "issue" in giving it was "whether or not the evidentiary record is currently sufficient to justify [it] because we have not had any expert testimony" on whether defendant suffered from mental impartment. Defense counsel then stated he did not want the court to "fully and finally rule" on whether to give the instruction "until he had some additional time to conduct his due diligence on whether or not he was going to ask for it or potentially present that evidence." Defense counsel never asked for the instruction or presented that expert testimony. "Because he never raised the issue again or sought a definitive ruling, his claim on appeal is procedurally barred." (People v. Bolin (1998) 18 Cal.4th 297, 312.)
CALCRIM No. 3428 reads as follows:
"You have heard evidence that the defendant may have suffered from a mental (disease[,]/ [or] defect[,]/ [or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state . . . . If the People have not met this burden, you must find the defendant not guilty . . . ."
Our court has held that to be entitled to this jury instruction, there must be "[e]xpert medical testimony . . . to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience." (People v. Moore (2002) 96 Cal.App.4th 1105, 1117 [applying this analysis to CALJIC No. 3.32, which was the precursor to CALCRIM No. 3428].) --------
IV
The Trial Court Correctly
Did Not Instruct On Involuntary Manslaughter
Defendant contends the court erred in failing to instruct on involuntary manslaughter. We disagree because there was no evidence to support such an instruction. Only an unintentional killing can qualify as involuntary manslaughter. (People v. Hendricks (1988) 44 Cal.3d 635, 643.) Here, defendant admitted he intentionally killed Boroja because he did not want to see her suffer.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.